Why do national court judges refer to human rights treaties? A comparative international law analysis of CEDAW.

Author:McCrudden, Christopher
Position:Convention on the Elimination of All Forms of Discrimination Against Women - Comparative International Law: Framing the Field
 
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  1. INTRODUCTION

    Comparative international law promises to bring fresh attention to the similarities and differences in how international law is understood and approached at the domestic level. (1) Comparative international human rights law applies this focus to similarities and differences in the ways that international human rights law is, for example, interpreted at the domestic level by courts. (2)

    As a contribution to this emerging field, I conducted a limited study of the domestic judicial interpretation of one core international human rights convention, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (3) In an attempt to test the utility of a comparative international law approach, an analysis was conducted of 325 national judicial decisions across fifty-five jurisdictions, in which CEDAW was referred to in the report of the case, including the arguments made to, or the reasoning of, the court (subsequently referred to as "the dataset").

    A more detailed description of this study, the methodology I adopted in conducting the study, a justification of that methodology including its focus on the domestic judicial use of CEDAW, the important limitations of the methodology I adopted, and the detailed findings of the study will all be published as a chapter in a separate Colloquium volume, Comparative International Law. (4) This chapter should be of interest to future scholars attempting to conduct any similar inquiry, particularly those interested in considering how to test hypotheses and predictions emerging from the field of comparative international human rights law.

    Although I do not seek to go into detail here on these findings, a brief sketch of them is necessary for understanding the analysis conducted in the current article. There are four important empirical findings from this study. First, references to CEDAW are seldom more than cursory and are usually to be found combined with lists of other international instruments. CEDAW is infrequently singled out for special mention and even less frequently subject to substantive interpretation.

    Second, although there are significant differences between jurisdictions in nonsubstantive areas (for instance, in how CEDAW is received into the national legal and judicial systems, in the techniques of interpretation applied, and in the legal status of CEDAW at the national level), these differences appear to have relatively little effect on the substantive interpretation of CEDAW.

    Third, although there are prominent examples of cases in which national courts adopt substantively different interpretations of CEDAW, the evidence from the dataset shows a remarkable absence of divergence across jurisdictions as to the substantive meaning of CEDAW. This is the case not only with regard to the results that the courts arrive at, but also in the conception of rights incorporated in CEDAW (to whom are obligations owed, by whom, and with what limitations?). This finding is significant but the implications of this finding should not be exaggerated; it arises partly because they are relatively few instances in which the same issue arises in different jurisdictions. The lack of disagreement may signal that the comparative case law available on any particular substantive issue is relatively thin.

    Fourth, courts did not tend to refer to the interpretations of CEDAW by other foreign domestic courts, and little transnational judicial dialogue takes place in the interpretation of CEDAW by national judges, even where engagement with foreign judicial sources is otherwise commonplace in the interpretation of national constitutional and statutory law, and even in cases where there are directly relevant foreign judgments.

    The most difficult questions, assuming these findings are correct, are how and why these similarities and differences come about. In the present article, I present a preliminary analysis of these findings, tackling the difficult question of how to explain this pattern of use, and I tentatively suggest explanations. My provisional conclusion is that observable similarities and differences result, at least in part, from the functions that international human rights law fulfills in domestic jurisdictions, and that these functions may differ from the role that international human rights law plays at the international level.

  2. ANALYSIS AND A PROVISIONAL EXPLANATION

    This study challenges several current explanations of the domestic use of international law by domestic courts: that the interpretation of international law is likely to show significant variation domestically; (5) that domestic courts act as agents of the international legal order; (6) and that domestic courts seek to shape international legal approaches through their domestic interpretations, in order to serve national interests. (7) None of these suggestions drawn from recent scholarship is unequivocally supported by my study of the judicial use of CEDAW in national level cases. Indeed, the pattern of use is substantially different from what might have been predicted in each case. We need, therefore, to present additional or alternative explanations for the pattern of domestic use of international human rights law that replace, supplement, or complement these explanations.

    Domestic Courts and International Law

    The evidence I present in Comparative International Law indicates that domestic judges are primarily domestic actors who use CEDAW in order to advance domestic goals. Thus, although in legal theory international law may provide the "overarching normative framework" within which national courts operate, (8) that is often not how it seems, reading the judgments. In terms of Eyal Benvenisti's typology, (9) drawing from the evidence of the use of CEDAW, domestic courts see themselves as domestic players using international law strategically, but there is little evidence that they see themselves as agents or trustees of international law. They do not primarily see themselves, therefore, as seeking to achieve the goal of advancing international law as such (what Anthea Roberts has termed national courts as "impartial law enforcers" of international law (10)). Nor do they appear to see themselves as agents of a domestic community seeking to shape international legal approaches to suit the preferences of their own state (what Roberts has termed national courts as "partial law creators" of international law (11)). The strategic goals they seek to further are mostly institutional rather than national, supporting the recent findings by Aust, Rodiles, and Staubach.12 The keyword is mostly. There are examples where the relevant court does appear more in the guise of an "agent" of international law. (13)

    In general, however, my analysis coheres with that of Paul Stephan. Echoing Stephan's more general analysis, the evidence regarding CEDAW indicates that the national courts "have interests of their own, shaped by the incentives motivating those who work in those institutions and the institution's design." (14) My evidence also supports a modest generalization of Neha Jain's conclusion regarding the Indian Supreme Court's citation of international law. Discussing that particular court, she suggests that "the Supreme Court has used international law in the pursuit of primarily domestic goals." (15) Her description appears to describe accurately the approach taken by domestic courts more generally in the context of citation of CEDAW. Viewing the evidence presented previously through this lens seems to provide a more satisfying approach to explaining several critical findings.

    Substantive Interpretative Divergence

    Recent international law scholarship has suggested, contrary to the longstanding assumptions on which international law often proceeded in the past, (16) that the interpretation of international law at the domestic level is likely to show significant divergence from country to country and from region to region. (17) This argument mirrors similar arguments concerning the interpretation of international law at the international level, where significant differences in substantive interpretations of the same text have been observed. The latter phenomenon has been termed "fragmentation." (18)

    According to Sally Merry, the domestic reception of international legal norms (what she calls "vernacularization") "falls along a continuum depending on how extensively local cultural forms and practices are incorporated into imported institutions." (19) Using her analytical continuum of "vernacularization," she compares jurisdictions based on such factors as whether international human rights law has been "rejected"; whether it has been "ignored"; whether it has been "subverted" (by which Merry means "seized and transformed into something quite different from the transnational concept, out of the reach of the global legal system but nevertheless called by the same name"); (20) whether a process of "replication" is to be found in which "the imported institution remains largely unchanged from its transnational prototype" and any adaptation is "superficial and primarily decorative"; or whether "hybridization" can be identified, meaning that there is "a process that merges imported institutions and symbols with local ones, sometimes uneasily." (21)

    Susanne Zwingel has suggested that domestic reception of international norms is likely to result in significant differences from place to place, and that previous assumptions that such norms would lead to greater homogenization are exaggerated. (22) As Zwingel puts it, "universal principles, when applied to particular contexts, inevitably take on different forms." (23) There has long been a critique of how international law has been seen by scholars to operate in practice at the domestic level. The criticism is that the process has been seen as too top-down, with international law being received at the domestic level somewhat passively...

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