Judicial dialogue: advantages and pitfalls

In recent years, human rights courts and treaty bodies have increasingly been shaping their
approach to the problems they were presented with by referring to one another, borrowing each
other's solutions to similar problems of interpretation. This process of judicial dialogue has
involved both international courts and expert bodies, and domestic courts. It is leading gradually to
the development of a case-law that is sometimes detached from the intentions of the authors of the
treaties that human rights courts and bodies apply: instead of focusing on the original intent that
guided the negotiators, or of interpreting the text literally, the interpreters seek guidance -- and
legitimacy -- by looking at what other courts and bodies have done, when confronted with similar
problems ; and instead of reading the States' obligations restrictively, as a derogation to the
principle of State sovereignty, they read these obligations extensively, adopting forms of reasoning
that are more typically associated with that of domestic constitutional or supreme courts than with
that of international jurisdictions.

Consider the following four examples, and then contribute to the general discussion that follows.

The Case of Mamatkulov and Askarov v. Turkey

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Example 1 is a judgment of 4 February 2005 delivered in the case of Mamatkulov and

Askarov v. Turkey, in which the European Court of Human Rights considers for the first
time that a refusal by a State party to the European Convention on Human Rights to
comply with an interim measure indicated by a Chamber of the Court or its President on
the basis of Article 39 of the Rules of the Court constitutes a violation of Article 34 of the
European Convention on Human Rights. This article, the Court reasons, imposes an
obligation on the Contracting Parties not to hinder in any way the effective exercise of
the right to individual application, and by disregarding an appeal not to execute a
decision that might result in a violation of the ECHR, the State concerned would be
depriving the right to file an application from having any useful effect. This represented
a shift in attitude from the part of the Court. In its previous case law, while finding that
there existed a general practice of States parties to the Convention to comply with such
interim measures, the Court had fell short from identifying the emergence of a rule of a
customary nature in the application of the European Convention on Human Rights (see
especially Cruz Varas v. Sweden, judgment of 20 March 1991, Series A No. 201, at
para. 100). Its change of position, expressed in paras. 111-129 of its judgment, is based
on the views expressed by other courts or human rights treaty bodies concerning the
obligatory nature of interim measures, summarized by the Court in its description of
"relevant international law and practice" (paras. 40-53, here, the French version of the
judgment is available here).

The Case of Pretty v. United Kingdom

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Example 2 is a case where the European Court of Human Rights reads the
requirements of Article 8 of the European Convention on Human Rights (right to respect
for private and family life), in the context of a "right to die" case, by seeking inspiration
from the attitude of the Supreme Court of Canada, which had dealt with a similar
situation a few years earlier.

European Court of Human Rights (4th sect.), Pretty v. United Kingdom (Appl. No.
2346/02), judgment of 29 April 2002, para. 66:

In the case of Rodriguez v. Attorney General of Canada ([1994] 2 L.R.C. 136), which
concerned a not dissimilar situation to the present, the majority opinion of the Supreme
Court considered that the prohibition on the appellant in that case from receiving
assistance in suicide contributed to her distress and prevented her from managing her
death. This deprived her of autonomy and required justification under principles of
fundamental justice. Although the Canadian court was considering a provision of the
Canadian Charter framed in different terms from those of Article 8 of the Convention,
comparable concerns arose regarding the principle of personal autonomy in the sense
of the right to make choices about one's own body.

(the French version of the judgment can be accessed here)

The Case of Demir and Baykara v. Turkey

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Example 3 is the 2008 Demir and Baykara v. Turkey case, also decided by th
eEuropean Court of Human Rights. Here, a Turkish civil servants' trade union sued the
local administration for its failure to comply with the terms of a collective agreement
concluded with the union. After the local Council failed to uphold certain provisions of
the agreement, the union's president sued the local administration. Following
procedures filed before the Turkish courts, the Turkish Court of Cassation not only
refused to give effect to the provisions of the collective agreement in favour of the trade
union members but also came to the conclusion that the union itself had not acquired
legal personality at the time of its establishment. The union applied to the European
Court of Human Rights, requesting, inter alia, that the right to conclude collective
agreements be recognized as a component of the right to form and join unions,
guaranteed under Article 11 of the European Convention on Human Rights. Turkey
claimed, however, that Article 11 of the Convention could not be invoked by the
applicants as they were civil servants and not ordinary contractual employees (indeed,
the second sentence of Article 11, paragraph 2 ECHR notes that this article "shall not
prevent the imposition of lawful restrictions on the exercise of these rights by members
of the armed forces, of the police or of the administration of the State"). It also noted
that, in the past, article 11 ECHR had been interpreted restrictively, as not including a
right to collective bargaining (see European Court of Human Rights, National Union of
Belgian Police v. Belgium, judgment of 27 October 1975, paragraph 38, Series A no.
19).

It is noteworthy that , in order to justify an expanded reading of the requirements of

Article 11 ECHR, the Grand Chamber of the Court relied on the reading by the
European Committee of Social Rights of Articles 5 and 6 of the Revised European
Social Charter. In particular, Article 6 of the Revised European Social Charter (not
ratified by Turkey), includes an undertaking "to promote, where necessary and
appropriate, machinery for voluntary negotiations between employers or employers'
organisations and workers' organisations, with a view to the regulation of terms and
conditions of employment by means of collective agreements" (art. 6 para. 2). The case
is of particular interest because of the detailed reasons the European Court of Human
Rights provides, explaining its reliance on comparative law and on sources of
international law other than the European Convention on Human Rights (see
paragraphs 65-86 of the judgment, here; the French [official] and Turkish [non-official]
versions of the judgment are also available).

The Case of Cadder (Appellant) v Her Majesty's

Advocate (Scotland) (Respondent)
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Example 4 is the Cadder case presented to the Supreme Court of the United Kingdom
in 2010, in which the Supreme Court was asked to re-examine the earlier position of the
British courts concerning the right of a person detained by the police to have access to
a lawyer upon being first questioned. Such a right was affirmed for the first time by the
European Court of Human Rights in the Salduz v. Turkey judgment of 27 November
2008, on the basis of articles 6(1) and 6(3)(c) of the European Convention on Human
Rights. The UK Supreme Court therefore had to decide which weight was to be
recognized to the Salduz jurisprudence, and whether safeguards provided for the
detainee in Scotland, that the European Court of Human Rights by definition could not
have considered in Salduz, could compensate for the absence of a lawyer during the
first interrogation (read the excerpts of the decision here).

[1.5.6] Discussion - What reasons and policies justify

judicial dialogue?
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Having read these examples, please contribute to the debate below by considering the following
three questions:
1. What similarities and differences exist between these different modalities of
courts referring to each other's judgments?
The examples are, respectively, that of

 (a) a regional human rights court referring to the International Court of Justice, to
another regional human rights court, and to UN human rights treaty bodies' approaches
(Mamatkulov and Askarov);

 (b) a regional human rights court referring to a domestic supreme court (Pretty);

 (c) a regional human rights court referring to the approach of an expert body, from the
same regional organization, based on a separate legal instrument (Demir and Baykara);

 (d) a national court referring to the interpretation given by a regional human rights court
to an instrument binding on the State concerned, as well as to how other national courts
have reacted to such interpretation (Cadder).

Which motivations can explain, in each case, the choice to follow the approach adopted
by another body?

2. What are the advantages and the dangers associated with an increased use of judgments or
materials from other jurisdictions in human rights litigation? Are certain uses of
comparative jurisprudence legitimate, while others are not?

3. What are the key factors that favor the development of this approach, based on a dialogue
across jurisdictions? Why did it gain in importance in recent years?

La semejanza principal consiste en que, todos los casos planteados se refieren a si existe o no
una violación a un derecho humano. La diferencia principal consiste, en que en algunos casos
se toma como un criterio orientador la determinación hecha por otra corte o consejo de
expertos, y en otros como el caso Cadder, existe también una relación de obligatoriedad para
adoptar el criterio de una Corte regional.

Pienso que la ventaja de adoptar criterios de otras jurisdicciones es positivo, en el sentido de

que crea uniformidad en los fallos a nivel internacional, además de que esto puede generar que
los tratados internacionales de derechos humanos adquieran más fuerza jurídica y dejen de ser
vistos como catálogos de buenas intenciones.

La comunicación entre distintas jurisdicciones es favorecida, por factores tecnológicos y por la

universalidad de los derechos humanos.
The main resemblance is that, all the cases raised refer to whether there is a violation of a human right. The
main difference is that in some cases the decision made by another court or expert council is taken as a
guiding judgment, and in others, such as the case of Cadder, there is also a mandatory relationship to adopt
the judgment of a regional Court.
I think that the advantage of adopting judgments from other jurisdictions is positive, in the sense that it
creates uniformity in international rulings, and that this can cause international human rights treaties to
acquire more legal force and cease to be catalogs of good intentions.

Finally, the communication between different jurisdictions is favored, by technological factors and by the
universality of human rights.