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1973 Army Law. 1 (1973)

handle is hein.journals/armylaw1973 and id is 1 raw text is: VnIIIMI 2MINIMRIPR 1-IANUARY 1973 THE AKIVlY PUBLISHED BY: THE JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILLE, VA. 22901 HUMAN RIGHTS, HUMAN RELATIONS AND OVERSEAS COMMAND By: Cpt Jordan J. Paust, Instructor, International and Comparative Law Division, TJAGSA I. The Law and Relevant SJA Problems. A body of law of great significance to the mili- tary lawyer overseas is the international law of human rights. Human rights law is not only im- portant for those concerned with race or human relations, but is of particular relevance and utility for the military lawyer concerned with foreign trials of U.S. servicemen or civilians, treatment of U.S. nationals by foreign governments and foreign citizens, rights and privileges of U.S. nationals in the overseas social context, and general problems of armed conflict, violence and social tension. Article VI, Section 2 of the United States Consti- tution has made international law a part of the supreme law of the land. Further, the United States is bound by the United Nations Charter (preamble, articles 1(3), 55(c) and 56)' to take action in order to assure the universal respect for, and ob- servance of, international human rights. This national obligation coupled with the Constitutional declaration of supremqy -.makes it incumbent upon the Staff Advocate to become familiar with the general content 'of human rights law and the pro- cedures for implementation-especially in the over- seas command Distribution of The Army Lawyer is one to each active duty Army judge advocate and De- partment of the Army civilian attorney. If your office is not receiving sufficient copies of The Army Lawyer to make this distribution, please write the Editor, The Army Lawyer and an ad- justment in the distribution to your installation will be made. Documented principles of human rights law in- clude the 1948 Universal Declaration of Human Rights2 and, in the European context, the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and its five Protocols.3 The 1948 Universal Declaration is not directly binding as treaty law, but has been widely accepted as an authoritative instrument containing much of the general content of the human rights which fall within the mantle of protection and state obligation articulated in the United Nations Char- ter.4 The wide acceptance of the document demon- strates a shared expectation and general content of juridical utility. Also, it has been accepted as an authoritative interpretation of the U.N. Charter and as a document which partially evinces certain general principles of law recognized by civilized nations and certain general content of a customary international character.' The 1950 European Con- vention on Human Rights is treaty law binding upon all signators. Although the U.S. is not a party to the European Convention, that treaty is directly relevant to the SJA operating in Europe for three reasons. First, in the context of the European legal process, the European Convention takes on significant utility as a guide to the regional inter- pretation of the U.N. Charter. Second, the Euro- pean Convention's human rights protections apply to U.S. servicemen and civilians since article 1 states: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. Article 14 adds: The enjoyment of the rights and freedoms set forth in this Convention shall be se- cured without discrimination on any ground such as

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