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The Ethnic Conflict Research Digest

1998, Vol. 1 No. 2 .


Enforcing International Human Rights in Domestic Courts
Benedetto Conforti & Francesco Francioni eds

(The Hague: Kluwer Law International, 1997)
466pp, ISBN 90-411-0393-7 hb.



The book is divided into parts: Part I is headed "National Courts and International Human Rights" and contains general essays by the editors on "National Courts and International Law"(Conforti) and "The Jurisprudence of International Human Rights Enforcement: Reflections on the Italian Experience"(Francioni). The bulk of the volume is in Part II entitled "Comparative Modles of National Enforcement". This long section (pp. 37-352) includes essays on the enforcement of human rights by the courts in the UK (Higgins), Italy (Scovazzi), Germany (Simma, Khan, Z÷ckler and Geiger), France (Decaux), Chile (Vicu˝a and Bauza), Argentian (Vinuesa), Austria (Morawa and Schreuer), the United States (Henkin), Israel (Benevisti), Japan (Iwasawa), Canada (Bayefsky) and China (James Zhaoji Li). The longest essay is on japan and runs to seventy pages. Part III is entitled "Controversial Issues" and deals with US courts in Asylum cases (Churgin); obstacles to domestic enforcement of human rights (De Sena); State immunity and human rights (Bianchi); and aliens and excessive civil jurisdiction (Focarelli). The volume concludes with a list of cases from various jurisdictions. There is no index. Perhaps it is not facetious to remark that the language of the book is English, while the essay by Decaux is generously laced with French. "Ethnic" issues are not specifically considered; the norms are buried in the general matrix of law and practice, though there is much on laws which impact on aliens.
The "national experience" contributions are rich in detail. They deal with issues familiar to anyone who has tried to make international law appear relevant in a domestic context. The standard approach is to examine the reception of international law within the domestic order, distinguishing between treaties and customary law, and "monistic" and "dualistic" approaches. Discussions follow about the customary law status of human rights, the hierarchical "level" of international human rights in the local law, approaches to applying the lex posterior principle (later local laws clashing with international obligations), the uses of the lex specialis principle, and questions of justiciability. There is some heartening news on the doctrinal front. Systems try to accommodate human rights and employ many devices to promote compatibility. But judges tend almost universally to defer to local interpretations, and enthusiasm may outstrip comprehension. Higgins contrasts the ECHR awareness of UK judges with their lack of it on the ICCPR. The contributions remind us that we should not take human rights as known, and suggests the importance of continuing rights education (even for judges). They also make it clear that the domestic incorporation of human rights is the beginning of a story, not the end.


Patrick Thornberry, Keele University



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