Cross-Fertilisation Under the Looking Glass: Transjudicial Grammar and the Reception of Strasbourg Jurisprudence by International Criminal Tribunals
chapter 1 in T. Mariniello and P. Lobba (eds), Judicial Dialogue on Human Rights: The Practice of International Criminal Tribunals (Brill, 2017) 13-39
Grotius Centre Working Paper 2017/061-HRL
28 Pages Posted: 21 Jun 2017
Date Written: June 16, 2017
What rules of transjudicial communication govern the international criminal tribunals’ invocation of the European Court of Human Rights’ jurisprudence? What parameters should guide the assessments of inter-curial cross-referencing and on what basis can the specific instances thereof be deemed appropriate or otherwise? In tackling these questions, the present chapter seeks to make a methodological contribution to the debate on judicial cross-fertilization in the area of human rights, although the findings may be of a more general application. The horizontal and discretionary character of transjudicial communication does not – and should not – mean that it is free from any (informal) conventions, and that the recipient court can treat the donor court’s case law the way it pleases. Although broader extra-judicial objectives are sometimes attributed to the cross-fertilization practice, no valid benchmarks can be derived from them such that could be deployed in categorising any inter-systemic transposition of legal tests either as ‘use’ or ‘abuse’. Instead, one should look to how the recipient court identifies, construes, adjusts, and applies foreign rationes: it is the method that matters. Transjudicial cross-referencing is motivated primarily by the recipient court’s aspiration to enhance the quality of its legal analyses and persuasiveness of its reasoning. Thus, any appraisal of this practice should consider, at least, whether it is in fact capable of promoting that goal. The chapter identifies, and demonstrates with examples from jurisprudence, four basic rules of ‘transjudicial grammar’ that international criminal judges should respect when relying on Strasbourg human rights tests. It also reflects on the potential consequences of failing to abide by those rules by way of gauging their deterrent potential.
Keywords: cross-referencing, judicial dialogue, human rights, international criminal tribunals, European Court of Human Rights
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