California Western School of Law

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Bustamante, Eduardo A.

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The Mexican Maquiladora Industry: Legal Framework of the 1990s

Weinstein, Janet

La Fleur, Jolie

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From Griggs to Wards Cove: The Blurring of Disparate Impact and Disparate Treatment Under Title VII of the 1964 Civil Rights Act

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The Emerging European Economic Space: A Proposed Legal Framework for Expanding EEC-EFTA Relations Beyond the Free Trade Agreements

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BOOK REVIEW
HUMAN RIGHTS AND HUMANITARIAN NORMS AS
CUSTOMARY LAW. by Theodor Meron. Oxford:
Oxford University Press, 1989. Pp. 263.
Reviewed by Dr. Ranee K.L. Panjabi*
In this well-researched, carefully documented book, Meron has
shared with us some very interesting conclusions and observations
concerning the status of international human rights and humanita-
rian norms as they form part and parcel of international law. The
increasing emphasis on human rights in the recent past makes this
a timely book, for Meron attempts to give international lawyers
some important signposts to indicate the precise status of certain
rights and to point to possible directions for future research. The
book is therefore of considerable significance in evaluating and
clarifying the position of human rights, and in linking human rights
issues to related legal fields such as state responsibility. As Meron
states: "[b]y coupling human rights and humanitarian norms with
the corpus of law governing state responsibility, the latter is mobil-
ized to serve the former and to advance its effectiveness."' Advanc-
ing the effectiveness and implementation of human rights globally
appears to be the mainspring of much recent literature in this field
of international law. In Human Rights and Foreign Policy: Princi-
ples and Practice, Dilys Hill and other writers have examined the
interconnections between human rights and foreign policy, in order
to assess the impact of the latter on human rights considerations
that arise from situations like the present refugee crisis. United Na-
tions estimates place the number of refugees at 13 million,2 an
* Associate Professor of History, Memorial University, Canada; L.L.B. (Honors), Uni-
versity of London, England.
I. T. MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY LAW 1
(1989).
2. HUMAN RIGHTS AND FOREIGN POLICY: PRINCIPLES AND PRACTICES 140 (D. Hill ed.
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
alarming statistic when one considers the extent of human rights
violations implicit in all those individual stories of political repres-
sion and economic deprivation. It is evident that human rights con-
cerns will be the major focus of the 1990s for scholars, for interna-
tional lawyers and hopefully for governmental policy-makers.
Meron's detailed analysis forms a vital contribution to the bur-
geoning literature in this field. His inquiry into the relationship of
human rights and humanitarian norms with customary law will un-
doubtedly be a very significant factor in what is now a global inter-
est in expanding the parameters of this field of law.
Not least among Meron's concerns is to increase our awareness
of the extent to which a number of human rights "have already
crystallized into customary law. . ." In an earlier article, "The
Geneva Conventions as Customary Law" 4 Meron suggested: "[ijf
states fail to observe the provisions of the Geneva Conventions in
conflicts in which they are involved or resort to numerous reserva-
tions . . . the claims of the Conventions to customary law status
will naturally be weakened."5
In the book being reviewed, Meron has utilized and expanded on
his earlier article. He discusses the importance of a norm's custom-
ary character with reference to the Nicaragua case and the prob-
lem of reservations to human rights instruments with some very
useful summary material concerning provisions on reservations in a
number of significant Conventions. He analyzes the Protocols of
1977 and believes "that the Protocols have often been violated and
ignored.""
Meron concludes this initial analysis of humanitarian instru-
ments as customary law on a hopeful note by suggesting that "vio-
lations of a norm do not necessarily signify the demise of the norm,
particularly if the norm itself is well established and recognized." '7
It is obviously in the interest of all proponents of human rights to
ground their claims in legal rather than exclusively moral terminol-
ogy. As the parameters of human rights must expand legally in or-
der to gain acceptance and credibility in the decision-making cen-
ters of governments, it is imperative that human rights be perceived
as being legally justifiable, legally acceptable and legally enforcea-
1989).
3. T. MERON, supra note 1, at 246.
4. 81 AM. J. INT'L L. 348 (1987).
5. Id. at 370.
6. T. MERON, supra note 1, at 77.
7. Id.
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BOOK REVIEW
ble. This is not to suggest that public perceptions and world public
opinion have no role to play in the process of gaining credibility for
human rights. The role of public participation is complementary to
that of scholars and international lawyers in pushing forward the
frontiers of human rights laws into new territory. While popular
participation generates awareness, legal scholarship gives the pro-
cess solid, reasonable and logical argument to sustain actual claims
in a court or before a Commission. It is evident from Meron's care-
ful analysis that further research by several scholars will be needed
to develop a consensus on the status of human rights and humanita-
rian norms. Meron has pointed out the direction. Hopefully, other
scholars will follow his lead. Meron indicates that:
Such consensus might also represent a step in a process that be-
gins with the crystallization of a contractual norm into a principle
of customary law and culminates in its elevation to jus cogens
status. The development of the hierarchic concept of jus cogens
reflects the quest of the international community for a normative
order in which higher rights are invoked as particularly compel-
ling moral and legal barriers to derogations from and violations of
human rights.8
While Meron's instant concern is with the Geneva Conventions, his
conclusions are inherently applicable to all human rights.
The acceptance of certain rights as customary law has ironically
been hampered by the proliferation of rights in recent years. Not
only are there now three apparent generations of rights (civil and
political-first generation; economic, social and cultural-second
generation; and solidarity rights-third generation), but there is
perceived to be an intergenerational conflict between these various
human rights. This issue has recently been explored by James
Crawford and a number of scholars of international law in The
Rights of Peoples.9 The clash between individual and group rights
is only one aspect of this unfortunate development which has bedev-
iled the entire issue of human rights and made it somewhat easier
for some governments to excuse their non-performance and lack of
interest in this regard. All the more reason why Meron's scholar-
ship assumes enormous practical significance in its attempt to es-
tablish the status and acceptability of human rights as part of cus-
tomary international law. Such efforts could rescue certain
fundamental rights from the controversial arena and elevate them
8. Id. at 8-9.
9. THE RIGHTS OF PEOPLES (J. Crawford ed. 1988).
1990]
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
to an immutable status, thereby ensuring that governments find it
more difficult to detract from or simply to ignore the existence of
such rights.
In an earlier contribution to The American Journal of Interna-
tional Law"° Meron stated:
In recent years there has been a proliferation of human rights
instruments, not all of them necessary and carefully thought out.
It would nevertheless appear that the international community
needs a short, simple, and modest instrument to state an irreduci-
ble and nonderogable core of human rights that must be applied
at a minimum in situations of internal strife and violence (even of
low intensity) that are akin to armed conflicts, even though the
government concerned contests the armed character of the
conflict.11
Meron went on to suggest that a new instrument governing human
rights should not allow derogation or limitations and should include
"rights additional to those few mentioned in the nonderogable pro-
visions of the Political Covenant."' 2 This suggestion is in line with
his belief in the book being reviewed that "[t]he credibility of inter-
national rights . . . requires that attempts to extend their univer-
sality utilize irreproachable legal methods."' 3
Traditional methods of formulating customary law do ensure
that the principles accepted will have strong legal foundations.
Meron is somewhat hesitant about more adventurous methods such
as the emphasis on consensus or near consensus advocated by Cas-
sese' 4 and by Sohn.' However, Meron's objections are not very
convincing. He feels, for example that "the immediately binding
character of a norm should not be asserted on the basis of consen-
sus without considering the authority of the representative to com-
mit his or her state."'" Meron is less averse to the reliance on ac-
quiescence as a method of building international law. As he states,
acquiescence is "an effective means for expanding the universality
of international human rights."' 7 He further proposes reliance on
10. Meron, On the Inadequate Reach of Humanitarian and Human Rights Law and
the Need for a New Instrument, 77 AM. J. INT'L L. 589 (1983).
11. Id. at 604.
12. Id. at 605.
13. T. MERON, supra note 1, at 81.
14. Id. at 85.
15. Id. at 86.
16. Id. at 87.
17. Id. at 89.
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codificatory treaties,18 on normative multilateral treaties "9 and em-
phasizes that: "[t]he repetition of certain norms in many human
rights instruments is in itself an important articulation of state
practice and may serve as evidence of customary international
law.""0
Further evidence of sources is incorporated by Meron from The
Restatement of the Foreign Relations Law of the United States
which cites the following instruments as significant in establishing
customary human rights law: The U.N. Charter, the Universal
Declaration of Human Rights, international agreements, regional
agreements, general support for U.N. resolutions, state action espe-
cially in the realm of national law and by incorporation of human
rights provisions into national constitutions, diplomatic practice and
the decisions of the International Court of Justice as well as the
recommendations of the International Law Commission. 2' The de-
gree of evidence required to establish the status of a right would
depend on the extent to which the right is perceived as being "cru-
cial to the protection of human dignity and of universally accepted
values of humanity. '22
It is interesting to note that while Meron is very cautious about
the methodology for obtaining the status of a right, he is less so
when declaring which rights now stand as customary norms. Ac-
cepting the list included in the Restatement which catalogues fun-
damental rights (against genocide, slavery, slave trade, murder, dis-
appearance, torture, or other cruel, inhuman or degrading
treatment or punishment, prolonged arbitrary detention, systematic
racial discrimination, a consistent pattern of gross violations of in-
ternationally recognized human rights), 3 Meron goes on to suggest
that: "the right of self-determination, which the ICJ has recognized
as customary, could safely have been added." '24 The governments of
a number of countries might not be too pleased to view self-deter-
mination elevated to the point where it might appear to threaten
the territorial integrity of their states and encourage secessionist
tendencies among their religious and ethnic minorities. The inevita-
ble conflict between claims of self-determination and a state's right
18. Id. at 90.
19. Id.
20. Id. at 92.
21. Id. at 92-93.
22. Id. at 94.
23. Id. at 94-95.
24. Id. at 96.
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
to disallow secession would indicate that Meron's commitment to
the former right might be somewhat premature. Though most
states have paid lip service to the idea of self-determination (partic-
ularly in the context of decolonization of European overseas em-
pires), at the present time the concept of self-determination is
fraught with controversy.
Less controversial is Meron's inclusion of due process guarantees
such as the right to presumption of innocence, to legal defense and
to trial by an independent tribunal established by law.26 Meron also
concedes that some economic rights "may have matured into gen-
eral international law as general principles of law recognized by
civilized nations."26 One can only agree with Meron that "the list
as now constituted should be regarded as essentially open-ended.
Human rights are undergoing a stage of continuing evolution,"27
and "[m]any other rights will be added in the course of time."2 8
With a brief and somewhat selective survey of legal cases, Meron
suggests that the establishment of a customary norm in human
rights should entail a lighter burden of proof than that required in
other areas of international law;29 that human rights issues should
be raised in national courts to "contribute to the acquisition of ad-
ditional expertise in human rights law by judges, lawyers, and by
the public at large, and to the expansion of the role of international
human rights in the protection of the individual."30 This emphasis
on national implementation is more than a reflection of the crucial
role the nation state plays in bringing human rights to fruition. In
an earlier book, Human Rights Law-Making in the United Na-
tions, Meron expressed his belief that "[t]he United Nations
human rights system is . ..characterized by weak and sporadic
implementation." 31 One can hardly argue with this assessment, par-
ticularly in view of the political considerations which unfortunately
affect U.N. action and often hinder it. All the more reason for na-
tional courts to utilize international human rights instruments in
the consideration of judicial decision-making.
In the book now being reviewed, Meron also attempts to solidify
international acceptance of the subject of human rights by linking
25. Id.
26. Id. at 97-98.
27. Id. at 99.
28. Id.
29. Id. at 131.
30. Id. at 134-35.
31. T. MERON, HUMAN RIGHTS LAW-MAKING IN THE UNITED NATIONS 2 (1986).
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BOOK REVIEW
it to the international law concepts of state responsibility. This is of
particular significance because, inevitably, actions to fight human
rights violations may originate in national courts. Remedies for vic-
tims are also often granted by states. Indeed, some human rights
treaties specify national implementation. Governments may them-
selves be at fault for violating human rights. The existence of an
independent judiciary, well-informed about international human
rights law becomes vital in such situations.
There is also the likelihood of one state complaining about the
human rights violations of another or of individuals or organiza-
tions making formal complaints. Meron believes that:
The institutional mechanisms for presenting complaints which are
already in place have been underutilized, both because many
states have thus far not accepted the compulsory jurisdiction of
human rights organs to consider such complaints and because
most states are reluctant to risk antagonizing other states by
bringing formal complaints of human rights violations by other
states to international judicial, quasi-judicial, and supervisory
organs.3 1
However, when submissions to the U.N. General Assembly and
the U.N. Commission on Human Rights are concerned, there has
been less reluctance to complain and according to Meron, such ac-
tion is "no longer considered interference in the domestic jurisdic-
tion of states. 3
3
Meron analyzes the principle of obligations erga omnes in detail
and concludes that "all states have a legitimate interest in, and the
right to protest against, significant violations of customary human
rights regardless of the nationality of the victims. '3 4 He explains
further that "[t]he general principle establishing international ac-
countability and the right to censure can thus be regarded as set-
tled law." 36 He proposes that the European model be followed in
considering international human rights violations. The European
Commission of Human Rights has emphasized the concept of ob-
jective obligations by declaring that formal complaints about viola-
tions of the European Convention are made by state parties to vin-
dicate the " 'public order of Europe.' ",36
An approach of this type might provide states with a non-politi-
32. T. MERON, supra note 1, at 152,
33. Id. at 153.
34. Id. at 194-95.
35. Id. at 195.
36. Id. at 203-05.
1990]
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Panjabi: BOOK REVIEW: Human Rights and Humanitarian Norms as Customary Law
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CALIFORNIA WESTERN INTERNATIONAL LAW JOURNAL
cal rationale for lodging a complaint. Governments might then view
submissions of complaints about human rights violations by other
states as less of a threat to their own traditional goals of foreign
policy and diplomacy. This might also encourage a more serious
commitment to the pursuit of the idealistic aims of human rights in
foreign policy. When governments become convinced that idealism
and self-interest are not necessarily incompatible, human rights
concerns will be pursued with vigor.
Meron urges states to take up complaints either diplomatically or
by utilizing international judicial and quasi-judicial bodies."7 He
comments:
What has largely been missing is the willingness of states to rec-
ognize that compliance with the norms serves their own interests
as well as the common good and to be ready, therefore, to pay the
political price consequent on raising such claims. 8
The ultimate aim of this book appears to be to urge international
lawyers to generate public opinions and persuade governments to
act positively in favor of human rights. As Meron states: "[it is
only when rights are not only rhetorically asserted but are pressed
seriously as legal entitlements, that human rights and humanitarian
norms will become truly effective protections of human dignity."39
37. Id. at 247.
38. Id.
39. Id. at 247-48.
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BOOK REVIEW: Human Rights and Humanitarian Norms as Customary Law. By Theodor Meron. Oxford: Oxford University Press, 1989.

School of Law Library, California Western

BOOKS RECEIVED
THE AGE OF RIGHTS. By Louis Henkin. New York, New York:
Columbia University Press, 1990. Pp. 220. $30.00.
CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED
STATES CONSTITUTION ABROAD. Louis Henkin and Albert Ro-
senthal, eds. New York, New York: Columbia University
Press, 1990. Pp. 462. $55.00.
DEVELOPMENTS IN THE LAW OF TREATIES 1945-1986. By Shabtai
Rosenne. New York, New York: Columbia University Press,
1989. Pp. 535. $75.00.
HUMAN RIGHTS IN AFRICA: A COMPARATIVE STUDY OF THE AFRI-
CAN HUMAN AND PEOPLE'S RIGHTS CHARTER AND THE NEW
TANZANIAN BILL OF RIGHTS. By Chris M. Peter. Westport,
Connecticut: Greenwood Press, 1990. Pp. 153. $39.95.
REFUGEE LAW AND POLICY: INTERNATIONAL AND U.S. RESPONSES.
Ved P. Nanda, ed. Westport, Connecticut: Greenwood Press,
1989. Pp. 238. $45.00.
1
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