Laura Van den Eynde

Cette contribution1 s'interesse a la provenance d'eventuels arguments de droit compare « non obligatoires » (c'est-a-dire dont l'application ne s'impose pas) au sein des decisions judiciaires. Certains juges, face au defi de l'interpretation auquel ils sont confrontes particulierement en matiere de droits fondamentaux - integrent du materiau etranger dans leur raisonnement. Cette pratique, souvent appelee « dialogue des juges », a ete abondamment examinee et discutee. On a pu souligner qu'elle presentait des opportunites, mais qu'elle posait egalement de nombreuses questions2. Neanmoins, on en sait peu sur la facon dont le juge prend connaissance du materiau etranger. Du reste, on ne* connait pas bien le role joue par les acteurs presents aupres du juge et leur contribution a la diffusion de concepts et de normes juridiques3. Or, des individus ou des groupements externes se mobilisent et participent aux debats interpretatifs qui se deploient devant le...

Dispatches exposes networks supporting anti-gay lawsHaving revealed the extent of vicious gay hate crime in Russia in 2014’s award-winning documentary Hunted, Liz MacKean and the Dispatches team return with an investigation into the global networks that are supporting a wave of anti-gay laws around the world.Equality for gay communities across the globe may feel more within reach than ever before, with gay marriage laws passed in the US and Ireland in the last 2 months alone. But in this special one hour programme, filmed across four continents, Dispatches exposes a well-funded backlash against gay rights, led by a global network of organisations that promote what they believe to be family values.One group, the World Congress of Families – an umbrella organisation of religious conservative groups which has established links in over 80 countries – is based in America, where same-sex marriages have just been made legal in all 50 states. The WCF and their associates (who boast combined...

The South African Constitutional Court’s participation in global judicial dialogue has been documented and appraised. Indeed, since its founding, Justices have referred to and discussed many foreign judicial decisions. But how has the Constitutional Court’s case law influenced debates before other courts? The approach of this contribution is to look at South African constitutional jurisprudence as a ‘sender’ of information. It scrutinizes some landmark cases of the US Supreme Court and the European Court of Human Rights on issues similar as those decided by the South African Constitutional Court to see whether the South African precedents were considered. More specifically, the content of the parties’ submissions and the amicus curiae briefs submitted in these landmark cases are analyzed to see whether South African cases are referred to and in what form. The contribution also explores which actors refer to South African cases and to what purpose they cite South African cases. Two t...

Several cases of the South African Constitutional Court have become classics in comparative constitutional law scholarship and the Court’s participation in global judicial dialogue has been documented. Indeed, since the Court’s founding, Justices have referred to and discussed many foreign judicial decisions. But how has the Constitutional Court’s case law influenced debates before other courts? This contribution scrutinises some landmark cases of the US Supreme Court and the European Court of Human Rights on two issues similar as those decided by the South African Constitutional Court to see whether the South African precedents were considered. It is found that South African precedents, which themselves encapsulate external influences, now serve litigants worldwide to argue their point of views. The groundbreaking cases coming from a relatively young Court are used, mainly in amicus curiae briefs, as resources to advance the interpretation of human rights. However, these references...

Introduction As underlined by the editor of this volume and by other contributors, much remains to be explored as to ‘how judges learn about foreign law developments’. This chapter lifts the veil on one of the ways via which judges – in this context, judges of the European Court of Human Rights (ECtHR or the Court) – learn about foreign legal material: the contributions made by amici curiae, or ‘friends of the court’. The hypothesis that ECtHR judges find inspiration to look at the jurisprudence of other courts in amicus curiae briefs stems from judgments directly indicating that comparative elements were brought by amici, from statements of the judges themselves and from scholarly literature. The hypothesis is thus the following: briefs which try to inform and/or to influence the Court by engaging in comparative legal analyses and by referring to various international, regional and domestic court decisions can encourage the Court to have this ‘dialogue’. This contribution empirically examines whether, and in what form, amici indeed bring this information in their briefs to the ECtHR, and whether traces of the comparative references of the briefs can be found in the Court’s judgments. An exploration of the briefs’ content and their influence on the judgments helps to explain one of the methods through which ECtHR judges become aware of foreign decisions. It also seeks to provide answers to questions asked in this volume regarding the impact of the Court’s use of amicus curie briefs on the extent, methods and purposes of the ECtHR’s engagement in judicial dialogue. This chapter focuses on the briefs submitted by human rights non-governmental organisations (NGOs) to the Grand Chamber of the ECtHR. This topic is particularly relevant, as no empirical work has yet examined the content of the briefs and drawn the link with the practice of the ECtHR’s judicial dialogue. While some studies have closely examined the role of civil society organisations before the ECtHR, they do not focus on the comparative material that their briefs bring before the Court. Most authors who assert that amici play an important role base their findings on a small number of cases, often those that are most frequently cited; or they only rely on the references in the judgments.

Le dialogue des juges, qui désigne l’échange d’arguments, d’interprétations, de concepts et de solutions juridiques entre magistrats, a fait couler beaucoup d’encre ces dernières années. Même s’il a été davantage abordé dans le monde anglo-saxon 1, ainsi que dans les cadres européens, au sujet des cours constitutionnelles et en matière de droits fondamentaux 2, le thème du dialogue des juges ne se limite pas exclusivement à ces champs et croise

This research explores the role of public interest litigants in the circulation of arguments among courts regarding the interpretation of fundamental rights. Such circulation is often labeled ‘judicial dialogue’. ‘Public interest litigants’ are here defined as entities (individuals or groups) with no direct interest in the case, who use procedural avenues to participate in the litigation. Despite extensive scholarly attention for judicial dialogue, the necessity for more empirical research devoted to the exchanges among jurisdictions had been stressed. Three jurisdictions with different postures towards cross-citations were chosen for the analysis: the U.S. Supreme Court, the European Court of Human Rights and the South African Constitutional Court. Among their vast case law, landmark cases were selected dealing firstly with death penalty or related questions and secondly with discrimination on the basis of sexual orientation. Briefs submitted by public interest litigants to courts ...

Pierre-Yves Baudot et Anne Revillard (dir.), L’État des droits. Politique des droits et pratiques des institutions, Paris : Presses de Sciences Po, 2015, 256 p. Compte rendu par Adélaïde Remiche et Laura Van den Eynde (Centre de droit public, Université libre de Bruxelles). Cet ouvrage s’inscrit dans le prolongement d’un colloque intitulé « L’État des droits. Pratiques des droits dans l’action publique » qui s’est tenu en juin 2012 à l’Université Paris-13-Villetaneuse et à Sciences Po. Ses di..

The European Court of Human Rights does not traditionally welcome requests from groups alleging violations of which they are not themselves victims. The Câmpeanu case highlighted the narrowness of the Court’s case law relating to the concept of victim and the sometimes harsh consequences to which it may lead. The Court avoids these consequences by insisting on the exceptional nature of the facts submitted to it, but does not really grasp the opportunity to expand the access of groups to its courtroom. This comment critically looks at the Court’s reasoning and argues for a more ambitious approach.

This article explores the practice of third-party interventions by human rights non- governmental organisations (NGOs) before the European Court of Human Rights (ECtHR). Although permitted for over two decades, this practice has not been exhaustively documented. The approach adopted in this research has been to carefully review the Court’s database and to collect the amicus curiae briefs themselves, ranging from 1986 to 2013. This approach enables an accurate depiction of the amicus curiae activity before the Court in terms of figures. First, this research confirms the numerical increase of amicus participation. A little more than 140 human rights NGOs have been identified as third-party interveners before the Court: in addition to the traditional UK- based charities and large transnational human rights organisations, the Court is more and more confronted with the presence of smaller and more specialized groups, as well as, recently, conservative groups. Finally, the results challenge the assumption that the presence of human rights NGOs acting as amici increases the likelihood that the Court finds a violation.