Vol. 24 No. 10 (October 2014) pp. 507-509
THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE by Cecilia Medina. Translated by Peter Krupa. Cambridge, UK: Intersentia. 2014. Softcover $98.00. ISBN 9781780681016.
Reviewed by Sheryl Symons, Department of Political Science, Binghamton University (SUNY), email@example.com.
Cecilia Medina presents a detailed account of the development, subsequent application, and interpretation of human rights law in THE AMERICAN CONVENTION ON HUMAN RIGHTS: CRUCIAL RIGHTS AND THEIR THEORY AND PRACTICE. Medina's book is a description and an analysis of the Inter-American Court's early interpretation of law set forth in the American Convention. The statute creating the Court entered into force in January 1980, and as of the writing of this book, the Court was still in its early stages of developing a body of jurisprudence. Medina notes that, although she could have updated the book, she purposely wanted to portray in an "uncluttered manner" the operations of the Court during a time when cases arose out of circumstances that were the result of a tumultuous period of autocratic regimes. Her focus on this period also avoids the nuances that develop as case law advances and legal actors become more sophisticated operators in the system. These design choices facilitate her parsimonious presentation and explanation of complex human rights theory.
While keeping a tight focus on the Inter-American system, Medina highlights the reciprocal nature of international law, in that international legal actors borrow and build from one another's juridical deliberations and decisions. Throughout every chapter, Medina notes laws and legal precedent in international and regional human rights bodies that have influenced decision-making in the Inter-American Court. This not only demonstrates her broad knowledge base of the human rights legal regime and the necessary inter-dependence of actors within the international system, but aids her audience in understanding how and where the American system fits in the international regime. Another strength is Medina's use of primary sources, which is notable, and indicates the time and effort invested in this research. For example, Medina uses travaux preparatoires, or working group reports and records, as evidentiary sources of her interpretation of rights.
Medina is careful to note that the concept of reciprocity, as applied to international sources of law, also characterizes the relationship between international and domestic law. She credits domestic law as a source of general legal principles and interpretive guidelines for international law. Medina also notes that we must consider State conditions when attempting to understand the application of the Convention by the Court. On this point, Medina delivers countless examples that serve to clarify our understanding of the cultural, historical, political and economical viewpoints of States and how those considerations shape the Inter-American States human rights system.
The first chapter provides a general legal framework, defining key concepts of the Convention, such as State obligations to respect, ensure, guarantee, cooperate or take measures, and state responsibility, [*508] suspensions, and restrictions. The next six chapters are an in-depth treatment of American Convention Articles grouped with regard to particular rights. These include the right to life, the right to humane treatment, the right to personal liberty, the right to due process, rights related to administration of justice, and the right to judicial protection.
Chapter Two focuses on the Right to Life (Article 4). Here, Medina underscores the complexity of protecting the right to life as the "debate on how and to what degree this right is guaranteed is strongly affected by philosophical and religious positions and beliefs that are at times difficult to reconcile" (p. 39). The concept of a person's right to life is further complicated by issues such as when that right becomes an obligation to preserve life by another party, the death penalty, and, of course, the issue of when life is considered to begin. This chapter also provides a detailed analysis of enforced disappearances—a right that appears again in later chapters. The right against enforced disappearance is only just becoming legalized in the United Nations system (the Convention against Enforced Disappearance entered into force in 2010 and as of this writing, there are only 43 States Parties). Medina's early analysis of this right, in relation to the rights of the American Convention, is quite interesting; mainly because her interpretation predates the offering of the international convention and is well developed for its time.
In the third chapter, Medina discusses the Right to Humane Treatment (Article 5), elsewhere known as the right against torture. She points out that the American Convention is in contrast to the European and UN Conventions against torture, which do not elaborate the right of all people to have their physical, mental and moral integrity respected. The American Convention also establishes prohibitions on certain types of conduct and identifies private parties as well as public officials as perpetrators. The American Convention does not require that acts of torture be carried out for a specific purpose; rather, the Convention uses more expansive wording – "any other purpose." Medina's discussion of lack of intent in this chapter is insightful and offers one possible resolution to making a finding for or against violation of this right when it involves self-defense, confinement, or medical treatment.
The Right to Personal Liberty (Article 7) is covered in Chapter Four. Medina first notes the different connotations and interpretations of the terms liberty and security. For purposes of Article 7, personal liberty is generally construed as confinement, while personal security implies humane treatment. Medina then moves to a consideration of the general requirements for all deprivations of liberty—legality and absence of arbitrariness. A good portion of the chapter is devoted to deprivation of liberty in criminal proceedings (e.g., writ of habeas corpus, arrest, detention facilities).
The last three chapters can be characterized as rights related to the administration of justice. The fifth chapter examines the Right to Due Process (Article 8). Medina notes that in the American Convention, due process applies not only to judicial proceedings but also to actions before procedural bodies. This broadens the impact of due process protection to essentially include a defense against virtually any act of the state that can affect an individual's rights. Chapter Six is a discussion of two Articles, Freedom from Ex Post Facto Laws (Article 9) and Right to Compensation for Miscarriage of Justice (Article 10) as well as the principle of legality. Finally, Chapter Seven examines the Right to Judicial [*509] Protection (Article 25). Individuals are entitled to have their rights protected efficiently by domestic authorities via a judicial remedy. This is known as the right to an amparo remedy. This chapter sets forth the State obligations under the American Convention to provide its citizens with effective and efficient judicial remedies when their rights have been violated.
An oddity of the book is that it abruptly ends after the discussion of the right to judicial protection. Although the book is not an attempt to answer a research question or make a particular point, a conclusion would aid the reader in tying the concepts together and getting an overall sense of where difficulties for the Court lie. It is understandable that Medina may have purposely left the subject open since she states that she intends to elaborate on the book's coverage of American Convention articles at some future time (as stated in the Preface). However, it would have been interesting to include, from the author's point of view, a comparative analysis of the Court's approach to the various rights.
Medina's description of the rich historical context within which the American Convention originated, her interpretive study of selected human rights, and explication of the Inter-American Court’s evolution makes a significant contribution to both the legal and social science disciplines. Contrary to social scientists' static treatment of the subject, Medina's method and discourse emphasize the dynamic nature of international human rights law that is progressive and reactive to changing contexts. I suspect that Medina's work will, at a minimum, give social scientists pause when considering empirical approaches to treaty ratification or court decision-making.
The book advances understanding for human rights scholars specializing in international law or human rights theory, as well as legal scholars or comparativists focusing on states of the Americas. The book is of limited use for generalized studies or undergraduate curricula given the dense and complex approach to the subject matter. Medina's treatment of the subject is quite technical and, given her field of expertise, aimed at an audience assumed to be already familiar with legal theory and terminology. This is unfortunate because the book could have a wider impact if it were written in a less technical manner. For example, the subject matter could be adapted in a way more accessible to undergraduate curricula, for which there is a serious lack of good human rights theory texts. As the book is written, it can be used for lecture preparation but is likely to only appear on upper-level special topics syllabi. Medina's book is appropriate, however, for graduate-level courses on human rights theory or international law.
©Copyright 2014 by the author, Sheryl Symons.