The Legal Status of Decisions by Human Rights Treaty Bodies: Authoritative Interpretations or mission éducatrice?

Forthcoming, 18(1) Global Community Yearbook of International Law and Jurisprudence 2019, (Oxford University Press: 2020)

Bocconi Legal Studies Research Paper No. 3483515

33 Pages Posted: 9 Nov 2019

See all articles by Leonardo S. Borlini

Leonardo S. Borlini

Bocconi University - Department of Law; BAFFI Center on Economics, Finance & Regulation Research Paper Series

Luigi Crema

University of Milan; University of Notre Dame - Notre Dame Law School

Date Written: November 8, 2019

Abstract

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. The following paper starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The paper then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on States to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The paper argues that the alleged existence of a general procedural obligation on States to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

Keywords: international supervision, human rights treaty monitoring body, interpretation of treaties, obligation to consider, subsequent practice

JEL Classification: L

Suggested Citation

Borlini, Leonardo Sergio and Crema, Luigi, The Legal Status of Decisions by Human Rights Treaty Bodies: Authoritative Interpretations or mission éducatrice? (November 8, 2019). Forthcoming, 18(1) Global Community Yearbook of International Law and Jurisprudence 2019, (Oxford University Press: 2020) , Bocconi Legal Studies Research Paper No. 3483515, Available at SSRN: https://ssrn.com/abstract=3483515 or http://dx.doi.org/10.2139/ssrn.3483515

Leonardo Sergio Borlini (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

BAFFI Center on Economics, Finance & Regulation Research Paper Series ( email )

Via Roentgen 1
University Bocconi
Milan, Milan 27010
Italy

HOME PAGE: http://didattica.unibocconi.it/docenti/cv.php?rif=49517

Luigi Crema

University of Milan ( email )

Via Festa del Perdono, 7
Milan, 20122
Italy

University of Notre Dame - Notre Dame Law School ( email )

Eck Hall of Law
Notre Dame, IN 46556
United States

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