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In recent years, human rights courts and treaty bodies have increasingly been shaping their
approach to the problems they were presented with by referring to one another, borrowing each
other's solutions to similar problems of interpretation. This process of judicial dialogue has
involved both international courts and expert bodies, and domestic courts. It is leading gradually to
the development of a case-law that is sometimes detached from the intentions of the authors of the
treaties that human rights courts and bodies apply: instead of focusing on the original intent that
guided the negotiators, or of interpreting the text literally, the interpreters seek guidance -- and
legitimacy -- by looking at what other courts and bodies have done, when confronted with similar
problems ; and instead of reading the States' obligations restrictively, as a derogation to the
principle of State sovereignty, they read these obligations extensively, adopting forms of reasoning
that are more typically associated with that of domestic constitutional or supreme courts than with
that of international jurisdictions.
Consider the following four examples, and then contribute to the general discussion that follows.
European Court of Human Rights (4th sect.), Pretty v. United Kingdom (Appl. No.
2346/02), judgment of 29 April 2002, para. 66:
In the case of Rodriguez v. Attorney General of Canada ([1994] 2 L.R.C. 136), which
concerned a not dissimilar situation to the present, the majority opinion of the Supreme
Court considered that the prohibition on the appellant in that case from receiving
assistance in suicide contributed to her distress and prevented her from managing her
death. This deprived her of autonomy and required justification under principles of
fundamental justice. Although the Canadian court was considering a provision of the
Canadian Charter framed in different terms from those of Article 8 of the Convention,
comparable concerns arose regarding the principle of personal autonomy in the sense
of the right to make choices about one's own body.
Example 4 is the Cadder case presented to the Supreme Court of the United Kingdom
in 2010, in which the Supreme Court was asked to re-examine the earlier position of the
British courts concerning the right of a person detained by the police to have access to
a lawyer upon being first questioned. Such a right was affirmed for the first time by the
European Court of Human Rights in the Salduz v. Turkey judgment of 27 November
2008, on the basis of articles 6(1) and 6(3)(c) of the European Convention on Human
Rights. The UK Supreme Court therefore had to decide which weight was to be
recognized to the Salduz jurisprudence, and whether safeguards provided for the
detainee in Scotland, that the European Court of Human Rights by definition could not
have considered in Salduz, could compensate for the absence of a lawyer during the
first interrogation (read the excerpts of the decision here).
(a) a regional human rights court referring to the International Court of Justice, to
another regional human rights court, and to UN human rights treaty bodies' approaches
(Mamatkulov and Askarov);
(b) a regional human rights court referring to a domestic supreme court (Pretty);
(c) a regional human rights court referring to the approach of an expert body, from the
same regional organization, based on a separate legal instrument (Demir and Baykara);
(d) a national court referring to the interpretation given by a regional human rights court
to an instrument binding on the State concerned, as well as to how other national courts
have reacted to such interpretation (Cadder).
Which motivations can explain, in each case, the choice to follow the approach adopted
by another body?
2. What are the advantages and the dangers associated with an increased use of judgments or
materials from other jurisdictions in human rights litigation? Are certain uses of
comparative jurisprudence legitimate, while others are not?
3. What are the key factors that favor the development of this approach, based on a dialogue
across jurisdictions? Why did it gain in importance in recent years?
La semejanza principal consiste en que, todos los casos planteados se refieren a si existe o no
una violación a un derecho humano. La diferencia principal consiste, en que en algunos casos
se toma como un criterio orientador la determinación hecha por otra corte o consejo de
expertos, y en otros como el caso Cadder, existe también una relación de obligatoriedad para
adoptar el criterio de una Corte regional.
Finally, the communication between different jurisdictions is favored, by technological factors and by the
universality of human rights.