International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-Fertilization
32 Pages Posted: 30 Jun 2015
Date Written: June 28, 2015
This article takes a critical view on the debates around the phenomenon of jurisprudential cross-fertilization between international criminal tribunals and human rights courts, in particular the European Court of Human Rights. Asymmetries of cross-citation and influence along this axis of cross-judicial communication can be explained by distinct judicial styles and uneven mutual relevance, rather than by any sort of hierarchy. However, the discourse surrounding the tribunal-oriented ‘cross-fertilization’ has a normative pull that introduces an informal hierarchy, which is a means to ensure the tribunals’ conformity with human rights law. However valid its agenda may be, this approach is legally groundless and incompatible with the terms of transjudicial communication and it underestimates the pluralist nature of international human rights, among other discontents. Ultimately, it is also ineffective in serving its main ideological purpose.
Keywords: cross-fertilization, international criminal tribunals, European Court of Human Rights, transjudicial communication, pluralism, autonomy, contextualization
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