Forum Shopping for Human Rights
116 Pages Posted: 23 Nov 1999 Last revised: 26 Dec 2014
Date Written: December 31, 2011
The article analyzes a growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated.
Most commentators have viewed this practice of "forum shopping for human rights" as a danger to be avoided. This article questions that conventional wisdom and offers in its place a re-envisioning of the human rights petition system. Although efficiency, finality and other concerns weigh against some varieties of duplicative review, this article argues that forum shopping, if properly regulated, will enhance the development of international human rights law. Forum shopping is the only way that many aggrieved individuals can receive a complete review of the rights violations allegations in their petitions, and it serves the further salutary function of encouraging jurists on human rights tribunals to engage in a dialogue to harmonize the content of legal rules shared by more than one treaty.
The article first examines the haphazard approach to forum shopping that States have adopted in various human rights treaties, and it discusses two different strands of case law that together create incentives for individuals to forum shop for a favorable human rights ruling. The article then critiques the established view that forum shopping is harmful to human rights law, and it identifies in a comprehensive way the theoretical justifications for and against the practice of forum shopping. Building upon this theoretical analysis, the article then develops a comprehensive proposal for reforming the current approach to forum shopping and discusses alternative ways in which the proposal can be implemented into practice.
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