The Formation of a Common Law of Human Rights

This paper describes the practice of borrowing, from court to court, doctrines that gradually define the interpretation of human rights law. The shift is from rules-based adjudication, in which the interpretation of the text takes place within the legal system in which the interpreter operates, to a form of adjudication in which the task of the court is to express the consensus that emerges from a transnational dialogue between jurisdictions as to what the appropriate interpretation of human rights should be, across different legal systems. The paper first describes the origins of the development of human rights law in the form of a human rights jus commune (II). It then distinguishes this phenomenon from other scenarios, in which human rights bodies refer to one another, but where such cross-references have other justifications, and thus do not illustrate the phenomenon of human rights jus commune as such (III). It then highlights what is specific about the development of a human rights jus commune. It shows in particular how this can strengthen the legitimacy of human rights adjudication, allowing judicial and non-judicial human rights bodies to move together, and faster, in the protection of human rights (IV). At the same time however, the practice of relying on precedents set by other human rights bodies is at times inconsistent, and external observers may see it as ad hoc, as a form of "cherry-picking", and therefore ultimately as poorly justified -- in fact risking to undermine the legitimacy of human rights courts or expert bodies, when it was intended to strengthen it (V). In order to rescue the current practice from the risk of suspicion, this paper describes what a dialogic approach could consist in, explaining why case law "external" to the legal system which the "receiving" body belongs to cannot be treated as binding precedent, but nevertheless should not be simply ignored or dismissed as irrelevant (VI). It ends with a brief conclusion VII).