Judicial Engagement in International Human Rights Comparativism
20 Pages Posted: 10 Aug 2015
Date Written: August 10, 2015
Fragmentation in international law and jurisprudence has become a significant concern of academic discourse over the past decade. It thus does not come as a surprise that the notion of judicial dialogue is attracting increasing attention as a potential means for enhancing coherence. Insufficient attention has been paid so far to the extent to which the notion of dialogue has become manifest in international human rights jurisprudence and the normative basis on which it is grounded. Human rights law is particularly interesting for this debate because of its multiplicity of international and regional instruments. Arguably the variety of judicial bodies entrusted with the interpretation of these instruments might foster fragmentation and jeopardize universal human rights protection. Therefore the question arises of whether and to what extent this risk can be overcome by the respective bodies’ mutual engagement with each other’s jurisprudence.
In an effort to answer this question the contribution by Anja Seibert-Fohr takes the Human Rights Committee as an example and considers whether and to what extent the Committee is part of an international judicial dialogue. Based on an analysis of the Committee’s views in the individual communication procedure, it describes the relevant partners and the Committee’s jurisprudential practice of referring to international jurisprudence. It analyzes the Committee’s methodology and endeavors to identify the normative foundations of its international human rights comparativism. In order to recognize the Committee’s impact on international human rights protection more generally the contribution advocates a more inclusive approach to judicial interchange which goes beyond the customary notion of judicial dialogue. It identifies modes of interaction which go beyond the formal confines of a dialogue. To capture them the author introduces the notion of judicial engagement into international human rights comparativism and distinguishes between different degrees of engagement, depending on their respective rationales.
Keywords: human rights, fragmentation, judicial dialogue, Human Rights Committee
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