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The Use of Documents Other than the European Convention on Human Rights and Its Protocols in Cases Before the European Court of Human Rights: Reflections from and upon a Users' Perspective

par Staes, Dorothea
Référence Human Rights and International Legal Discourse, 2014, 2, page (186-215)
Publication Publié, 2014-04-01

Article révisé par les pairs

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Résumé :

With tendencies of globalisation came a gradual ‘diversification’ of the area of human rights (law). The judges of the European Court of Human Rights, situated within this ‘chaotic’ environment, import numerous and varying ‘external’ documents to apply and interpret the European Convention on Human Rights and the Protocols thereto. To address this phenomenon, the article starts from (and reflects upon) a users’ perspective on human rights. The bottom-up approach zooms in on the dynamic use of the ‘external’ instruments and, more particularly, on the opportunities as well as on the effects of the referencing practice. The Strasbourg judges started importing the references in a spontaneous manner, possibly encouraged by the (third) parties to the case. By doing so, they demonstrate a broad view on the multi-dimensional and diverse legal picture. The latter observation does however not imply that their view is necessarily ‘integrated’. Backed up by case law examples it seems that both tendencies of ‘integration’ in a sense of ‘coordination’ between the diverse instruments, and tendencies of ‘opposition’ result from the referencing practice. Evaluating these tendencies from a users’ view, which is unavoidably subjective, makes clear that the development of ‘coordination’ on the one hand and the creation of ‘opposition’ on the other hand, seems underpinned by specific motives and that neither the one nor the other tendency reflects the ideal situation from a users’ point of view.