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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



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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