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Christian Tomuschat

Human Rights: Between

Realism and Idealism

JRG FEDTKE

Human Rights: Between Realism andIdealism by Christian Tomuschat1attempts to combine principledlegal reasoning with a sharp

assessment of the relevant practicein the area of human rightsprotection. This aim, set out in thePreface to the second edition of thebook, is a tall order; it promises toprovide not only a jurisprudentialapproach to the topic but alsoempirical evidence concerning therespect that human rights currentlyreceive beyond the safety of a purely

intellectual discourse. And that isnot all. The tension between realismand idealism, highlighted by the titleand quite possibly an importantincentive for many readers to pluckthis volume from the crowdedshelves of legal bookstores oruniversity libraries, is accompaniedby a second, equally challengingdimension. Human rights are todayincreasingly a joint venture as wellas a source of conflict betweendomestic legal systems and theinternational legal order. Tomuschatpromises to separate fact from

Jrg Fedtke is Professor of ComparativeLaw, University College London.

12nd Edn. Oxford Univ. Press 2008.

fiction both within legally organisedsocieties and on the international

level.

The result of this ambitiousexercise receives a mixed response.

Tomuschats scholarly potential andextensive international experience he was, inter alia, a member of theInternational Commission of Juristsand has for many years served bothon the Human Rights Committee

and the International LawCommission of the United Nations

is reflected in the ease with whichhe presents the jurisprudential andinternational components of hisnarrative. The history of humanrights, the development of differentgenerations of protection (includingrelated aspects such as democracy,good governance, human security,and globalisation), the role ofNGOs, the status of humanitarianlaw, and both the criminalprosecution of human rights

violators and the financialindemnification of their victims, aretreated with admirable linguisticprecision and a considerable degreeof detail despite the limited size of

the volume. The chapters on thecurrent system of internationalhuman rights protection areparticularly impressive, and shouldprovide a valuable resource for bothpractitioners and academics with aninterest in the field. This includesthe sections about the work ofpolitical bodies within organisationssuch as the United Nations or the

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200 TOMUSCHAT BOOK REVIEW [Vol 1]

European Union, the contributionof expert bodies to the development

of an international human rightsculture, and the role of tribunalssuch as the International CriminalCourt or the International Court of

Justice, all of which receiveextensive coverage.

The downside of this strongemphasis on the internationaldimension of human rights

protection is a rather limitedtreatment of their implementationon the national level. The amount ofdomestic material, both in terms ofreferences to black letter law andempirical evidence, is hardlysufficient to meet Tomuschats self-imposed standard of a sharpassessment of the relevant legal andsocial practice of human rightsprotection on the ground.

A second related limitation of the book becomesapparent in Tomuschats approachto the universality of human rights.Following an analysis of the legalframework as currently found ininternational agreements and

domestic law, a discussion of thevalues underlying human rights indifferent societies, and an(admittedly generalised) assessmentof empirical practice, the reader isdirected to a statement by Michael

Walzer, an American politicalscientist and social philosopher,

who believes that human rights aretoday universally accepted as a

minimal () moral code which atleast includes the prohibition of

murder, slavery, torture, andgenocide (p. 95). Tomuschatexpands this catalogue by addingthat in no country of the world dopublic authorities claim to beallowed to deal with the life, thefreedom, and the physical integrityof citizens according to theirarbitrary pleasure and identifies theInternational Covenant on Civil and

Political Rights as fairly undisputedcommon ground between the mainreligious and political systemsexamined in the book withexception of the fact that they areformulated as individual rights. Thismay strike some readers as a ratheroptimistic assessment of our post-9/11 world, in which even countriesbelonging to so-called Westerncivilization have developed verydifferent approaches to the corerights of terror suspects and if ona somewhat different level ordinary citizens. Once put to thetest in a set of very specificcircumstances, most rights(including data protection,personality rights, free speech, the

right to engage in political activity,human dignity, and even theconcept of democracy) areinterpreted very differently incountries as closely related politically, culturally, andeconomically as the United States,the United Kingdom, France, orGermany. Some of the moreobvious differences, for example the

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[2008] UCL HUMAN RIGHTS REVIEW 201

approach to the death penalty,abortion, and the targeted killings of

suspect individuals by securityforces, are briefly touched upon inthe text, but a more profoundanalysis by a human rights expert of

Tomuschats calibre would havebeen desirable.

An overall assessment ofHuman Rights is thus difficult. Thebook would have immediately

scored top marks had the authoropenly limited his efforts tocovering international systems ofhuman rights protection. Thealternative to expand quiteconsiderably the scope of the

exercise and to enter into a moredetailed comparative analysis of

both domestic law and internationalinstruments was neither intendednor feasible. Tomuschat was carefulto exclude this option in the Prefaceby rightly emphasising that, giventhe vast dimensions of the areacovered, it was not possible todevote monographic attention toeach one of the issues discussed.Despite this caveat, the book still

seems a little lopsided. Perhaps heshould consider changing the title toInternational Human Rights once athird edition of the book iscontemplated which will hopefullybe the case.