Comparative Cherry-Picking in a Military Justice Context: The Misplaced Quest to Give Universally Expansive Meaning to International Human Rights

52 Pages Posted: 19 Feb 2014 Last revised: 1 May 2015

Date Written: February 18, 2014

Abstract

This article identifies, describes, and provides two military justice examples of a phenomenon that is labeled as "comparative cherry-picking," whereby scholars and jurists rely upon extra-jurisdictional law in their efforts to promote more expansive human rights protections. The article then discusses some of the seemingly overlooked pitfalls of the comparative cherry-picking phenomenon, including treaty denunciation, "cheap talk", human rights backsliding, and desuetude – all of which could result in counter-productive advocacy strategies on the part of human rights activists, when increases to international human rights standards lead, in turn, to decreases in levels of state protection of human rights. Thus, in addition to demonstrating the flaws with the comparative cherry-picking phenomenon as a matter of positive international law, this article also ultimately demonstrates how the phenomenon can be damaging to the cause of those who care about human rights protections.

Keywords: military justice, summary trials, comparative, cherry-picking, court-martial, desuetude, backsliding, withdrawal

Suggested Citation

Madden, Mike, Comparative Cherry-Picking in a Military Justice Context: The Misplaced Quest to Give Universally Expansive Meaning to International Human Rights (February 18, 2014). George Washington International Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2397734

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