The Overseas Exchange of Human Rights Jurisprudence: The U.S. Supreme Court in the European Court of Human Rights

Published date01 September 2009
Date01 September 2009
DOI10.1177/1057567709336230
Subject MatterArticles
The Overseas Exchange of
Human Rights Jurisprudence:
The U.S. Supreme Court in the
European Court of Human
Rights
Antenor Hallo de Wolf
University of Bristol, Bristol, UK
Donald H. Wallace
University of Central Missouri, Missouri
A recent study indicated that even though courts around the world have long looked to the
decisions of the U.S. Supreme Court (USSC) for guidance, a diminishing number of foreign
courts are citing the writings of American justices. By contrast, foreign courts in developed
democracies often cite the rulings of the European Court of Human Rights (ECtHR).
However, this study did not specifically examine citations by the ECtHR of USSC
decisions. The use by the ECtHR of law of other jurisdictions is now relatively
commonplace. This article discusses the use of the individual rights decisions of the USSC
by the ECtHR. Included is a discussion of the methodology used by the ECtHR and an
analysis of decisions citing USSC decisions where the government loses. This examination
adds to the literature on the evolving relationship between domestic institutions and legal
norms from extra-jurisdictional sources.
Keywords: human rights; jurisprudence; European; Supreme Court
An emerging global community of courts is developing. Constitutional courts are citing
each other’s precedents on a wide range of human rights-oriented issues, resulting in
an emerging global jurisprudence in areas such as the death penalty and privacy rights. In
the words of the Chief Justice of the Norwegian Supreme Court: ‘‘It ... is the duty of
national courts ... to introduce new legal ideas from the outside world into national
judicial decisions’’ (Jackson, 2003, p. 292). The trend is particularly seen with human rights
issues, as suggested by Slaughter (2000, p. 1111): ‘‘Courts may ... feel a particular com-
mon bond with one another in adjudicating [these issues] because such cases engage a core
judicial function in many countries around the world.’’ International and regional courts are
also engaged in this process. The European Court of Human Rights (ECtHR) under its
Convention examines complaints from individuals and states alleging violations of human
rights. The use by the ECtHR of human rights jurisprudence from other jurisdictions is now
Authors’ Note: Please address correspondence to Dr. Donald H. Wallace, Professor of Criminal Justice,
Department of Criminal justice, 300 Humphreys Building, University of Central Missouri, Warrensburg,
MO 64093 USA; email: wallace@ucmo.edu
International Criminal
Justice Review
Volume 19 Number 3
September 2009 287-307
#2009 Georgia State University
Research Foundation, Inc.
10.1177/1057567709336230
http://icjr.sagepub.com
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http://online.sagepub.com
287
relatively commonplace. Such use has become so prevalent that it seems obvious to the
ECtHR that the views of other jurisdictions may be used to inform its opinions.
By contrast, a recent study by Liptak (2008) in the New York Times indicated a contrary
trend for international use of U.S. Supreme Court (USSC) opinions. Even though courts
around the world have long looked to the decisions of the USSC for guidance, citing and
often following them in hundreds of their own rulings since World War II, today American
legal influence is waning. A diminishing number of foreign courts are citing the writings of
American justices. Furthermore, foreign courts in developed democracies often cite the
rulings of the ECtHR in cases concerning equality, liberty, and prohibitions against cruel
treatment but do not look to the rulings of the USSC (Liptak, 2008).
Absent from Liptak’s (2008) discussion is the extent of the use by theECtHR of rulings by
the USSC, two judicial bodies with constitutional authority to develop a jurisprudence for
human rights. Just as the USSC supervises the justice systems of 50 semiautonomous states
by enforcing the norms of the U.S. Constitution, the ECtHR works to ensure compliance by
the 47-membercountries of the Counsel of Europe with the legalnorms of the European Con-
vention on Human Rights (ECHR). This articleaddresses the use by the ECtHR of individual
rights decisions by the USSC. Theindividual rights considered in these decisions have impor-
tant substantive and procedurallimitations for domestic criminal legal systems. In doing so, a
discussion of the historical and operational contexts foruses of international sources of law is
provided, which precedes an overview of the ECtHR’s references to USSC jurisprudence.
Overview
The waning influence of USSC jurisprudence in other national courts comes at a time of
domestic U.S. controversy over the USSC’s most recent instances of citing foreign law.
This recent practice has generated heated comments from some members of the USSC,
asserting that such usage challenges national sovereignty. The ECtHR has been more
inclined toward using foreign sources of law. International courts such as the ECtHR have
entered into forms of ‘‘transjudicial dialogue’’ (Slaughter, 19941995, p. 213). This is par-
ticularly the case for courts deciding on human rights issues, which according to Nelken, is
an area of law that has the greatest ability to travel (Nelken, 1995; see also McCrudden,
2000). The ECtHR has not shied away from referring to other sources of international law
(including treaties or customary international law) or quoting directly from the case law of
other jurisdictions. However, in relationship to the total number of decisions issued by the
ECtHR (annually nearly 30,000 applications are disposed of by decision or judgment), it
would appear that there is a certain paucity in the references or citations to the jurisprudence
of other jurisdictions (Miller, 2002). Some commentators have suggested that this may be
due to a desire by the ECtHR to maintain its independence and autonomy as well as the
integrity of its own jurisprudence (Miller, 2002, p. 499; see also Douglass-Scott, 2006).
When reference to the law of other jurisdictions is made, it is mainly used to inform the
view of the ECtHR, and it does not obviously directly influence the outcome of their judg-
ments. This is not to say that the ECtHR does not give any weight to foreign rules or judicial
decisions. They will just not always be a determinant in the outcome of a case. Neverthe-
less, it is interesting to observe that, in general, the ECtHR does not appear to have any
reservations with regard to this transnational legal exchange of views.
288 International Criminal Justice Review

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