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

ABSTRACTThis Article identifies, describes, and provides two military justice examples of a phenomenon that is labeled as cherry-picking, whereby scholars and jurists rely upon extrajurisdictional 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 these may result in counterproductive advocacy strategies by human rights activists when increases to international human rights standards would, in turn, lead 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 demonstrates how the phenomenon can be ultimately damaging to the cause of those who care about human rights protections.I. INTRODUCTIONInternational human rights, in the abstract, are unquestionably a communal good-something to be promoted.1 Perhaps because of this fact, there is a strong tendency among some scholars and lobbyists to advocate for expansive interpretations of domestic and international human rights.2 In marshaling their arguments in favor of broad individual rights, these advocates will often point to extrajurisdictional sources to suggest that conventional interpretations of certain rights are deficient or incorrect.3This type of reasoning can represent what I will call cherry-picking, whereby only the most expansive aspects of human rights doctrines from around the world are packaged together and offered as either positive or normative interpretations of given international human rights. In either case, such scholarship and jurisprudence fail to consider, first, the reality that similarly worded rights may mean different things in different legal contexts and second, that there are typically valid reasons (consistent with the goal of advancing respect for international human rights) for different, rather than universally lofty, interpretations of a given right within different instruments. In other words, the idea that extrajurisdictional sources can create or give a universalized meaning to a particular international human right is misplaced both as a matter of international law and-if one seeks to expand respect for international human rights-as a matter of theory.Through examination of two case studies involving domestic military justice laws, this Article discusses the internationally recognized right to a fair trial by an independent and impartial tribunal and will demonstrate that the right's demands are not universal, but heavily contingent upon the domestic and international legal regimes that apply in particular contexts. Part II of this Article introduces the first case study-Canadian military summary trials- and deconstructs recent attempts by commentators to use jurisprudence of the European Court of Human Rights (ECtHR) to ascribe overly expansive fair trial obligations to Canada. Although these commentators deploy extrajurisdictional international human rights law (IHRL) as an argument to insist that Canadian summary trials are unfair, the analysis in Part II reveals that summary trials are consistent with both domestic constitutional law and any international law that is actually binding on Canada-specifically, the International Covenant on Civil and Political Rights (ICCPR).4Part III of this Article introduces a second military justice case study involving the Canadian Federal Court's 2013 decision in Tindungan v. Canada (Minister of Citizenship and Immigration)5- another example of an instance where domestic constitutional and international human rights to a fair trial have been conflated and confused. In that case, the American military justice system was found not to meet basic fairness standards that are internationally recognized to be fundamental to any tribunal system6 largely because the American system was not compatible with the Supreme Court of Canada's jurisprudence on fair military trials. …

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