Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW
American Journal of International Law, Forthcoming
25 Pages Posted: 28 Oct 2015 Last revised: 30 Nov 2015
Date Written: October 26, 2015
An analysis was conducted of 325 national judicial decisions across 55 jurisdictions, in which CEDAW was referred to in the reported decision. Despite predictions to the contrary based on previous scholarship, significant variations between courts in their interpretation of CEDAW occurred relatively infrequently, courts referred relatively seldom to interpretations of CEDAW by other national courts, and there was little evidence of transnational dialogic approaches to judging. An analysis of these results suggests that domestic judges invoking CEDAW act primarily as domestic actors who use international law in order to advance domestic goals, rather than acting primarily as agents of the international community in applying CEDAW domestically, or contributing to the transnational shaping of international law to suit national interests. The Article suggests an understanding of the domestic implementation of a human rights treaty as not only law, but as a unique kind of law that performs a particular function, in light of its quality as something akin to hard and soft law simultaneously.
Keywords: international human rights, comparative international law, CEDAW, judicial decisions
JEL Classification: K33, K41
Suggested Citation: Suggested Citation