When facing a difficult case, a court can cite a decision made by other courts and thus engage with the arguments in the reasoning for its own judgment. This is called judicial dialogue.
Judicial dialogue can either be horizontal, between different domestic courts – for example the Norwegian Supreme Court and the German Constitutional Court; or vertical, between national courts and international courts – for example between the Norwegian Supreme Court and the European Court of Human Rights.
A court needs to give good reasons for its decision in order to be legitimate. That’s why it’s useful for courts to look at what other courts did in similar cases. This will reassure both individuals directly affected by the decisions and society in general, that judges make these decisions after careful consideration of relevant arguments in which all potential sources of enlightenment have been taken into account.
Often, these difficult cases come up in areas of human rights law that are affected by rapid social, ethical, technological or scientific changes and developments.
Consider for example the Polish Constitutional Court, which has engaged with the arguments of a large number of foreign and international courts in its decision of whether a hijacked passenger aircraft with the intent to commit acts of terrorism, could be shot down. The key question is whether the right to life of one individual or group of individuals can be privileged over the right to life of another individual or group of individuals.
But how well does this method fare when human rights are at stake?
Amrei Müller at PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order - has studied different forms of judicial dialogue on human rights law. Müller asks whether this dialogue leads to a better protection of human rights at the domestic and international level.
Solving ‘difficult’ cases through judicial dialogue
The number of national and international courts participating in judicial dialogue on human rights and the frequency with which it occurs has increased in recent years. One reason for this is that more judgments have become available on-line. In addition, more courts are translating their judgments into English.
Courts engage in judicial dialogue on human rights for many reasons. One of the most common is to solve ‘difficult’ cases.
- There are many difficult questions that judges have to decide, especially in the area of human rights. These difficult cases arise when you have rights that conflict with each other or when rights have to be restricted e.g. for reasons of national security, public safety or public health, says Müller.
Another example is the European Court of Human Rights’ and the United Kingdom Supreme Court’s engagement with foreign and international judgments in their discussion of whether prohibiting assisted suicide unduly restricts the human right to privacy.
The right to privacy could arguably include the right of an individual to choose how and when to end his life. For courts, it raises hard questions about the extent to which the right to privacy can be restricted by considerations of public interests that underlie this prohibition: the requirement to protect the right to life, to prevent individuals from taking hasty decisions to end their lives, and to prevent potential abuse of any legalisation of assisted suicide.
- In cases like these, judges have to strike the right balance between conflicting rights or between rights and public interests. It is a delicate balancing exercise as any restriction of a human right has to be proportionate, Müller explains.
Proportionality means that the measures taken to restrict a right are appropriate and necessary to meet the specific objective of the restriction. In these cases, the judges can look to other courts to see how they have solved similar challenging cases before.
Encouraging effectiveness in domestic courts
Müller has also examined how the European Court of Human Rights uses judicial dialogue to encourage Russian and German courts to effectively use the provisions of the European Convention of Human Rights in their jurisdictions.
Müller has found that there are three conditions under which the European Court of Human Rights is less likely to strictly scrutinise the court’s judgements for their compatibility with The Convention:
If the domestic courts gave good reasons for how they arrived at a certain conclusion; if they applied the Convention directly or if they applied their domestic law in light of the Convention; and if they apply what the Court has said before in its judgements.
- This can be thought of as an incentive for domestic courts to do a good job in securing the rights of the European Convention at the domestic level, says Müller.
Domestic courts generally prefer light scrutiny because light scrutiny is less likely to lead the Court to find a violation of the Convention. Finding a violation always implies criticism of the domestic courts’ conduct – something that domestic courts wish to avoid.
The Court is communicating this through dialogue with domestic courts. By engaging with the arguments of the national courts and commenting on the quality of domestic procedures, the Court shows what it wants them to do in future cases. And good behaviour is rewarded.
- If you do your job at the domestic level, your national judgments will be scrutinised less strictly. For instance, there is the German Constitutional Court or some regional courts in Russia that pick up on these signals and will give better reasons the next time, says Müller
A tool for the promotion of human rights
For the European Court of Human Rights, judicial dialogue with domestic courts is thus a tool that has the potential to strengthen human rights protection at a domestic level in a sustainable fashion.
It aims at the incremental improvement of the the domestic system for the protection of human rights, in which domestic courts work together with the European Court of Human Rights to protect human rights. Müller has found that especially the German courts have engaged more with the Convention and jurisprudence of the European Court of Human Rights over the years, something which has also strengthened the position of the Convention in German law.
However, in some cases this is more difficult.
- In some cases the dialogue to encourage better reasoning and the effective application of the Convention does not work. The judges may not be aware of the Convention and the jurisprudence of the European Court of Human Rights, there may be language issues, the mind-set of the judges, and so on, Müller says.
Mixed effects for the protection of human rights
Judicial dialogue can either increase or limit the protection of human rights. There is no guarantee that judges will always cite foreign or international decisions that promote the protection of human rights.
For example, national courts sometimes choose not to follow more progressive foreign or international judgments. They use arguments with references to culture, history or the constitutional foundations of their respective country, thereby protecting their own interpretation of human rights.
However, most judicial dialogue does contribute to protecting human rights, notes Müller. It also encourages the development of a shared understanding of how to interpret similar rights set out in international and regional human rights treaties as well as in the domestic constitutions of numerous states.
- Judicial dialogue helps determining the universal core of each human right, and the fundamental principles of human rights law, that are then applied by different courts, Müller concludes.
This article has also been published at ScienceNordic.