Interpreting Rights Collectively. Comparative Arguments in Public Interest Litigants Briefs on Fundamental Rights Issues

Transcription

1 Interpreting Rights Collectively Comparative Arguments in Public Interest Litigants Briefs on Fundamental Rights Issues Laura Van den Eynde Research Fellow (F.R.S-FNRS) Promoters: Julie Allard (ULB) & Emmanuelle Bribosia (ULB) Thesis Guidance Committee: Julie Allard (ULB) Emmanuelle Bribosia (ULB) Isabelle Rorive (ULB) Sébastien Van Drooghenbroeck (Université Saint-Louis Bruxelles) 2015

2 Table of Contents List of Abbreviations... xi Introductory Chapter Introduction and Hypotheses Public Interest Litigation: Notion and History Fields and Methodology A Comparative Approach Selection of Jurisdictions Selection of Case Studies: Landmark Cases Data Collection Analyzing the Data and Revealing the Briefs Influence Outline of the Chapters Chapter 1: Public Interest Litigants Forms of Participation in Proceedings Introduction Support to Individual Victims and Sponsoring of Test Cases or of Class Actions The Public Interest Litigant Acting as Claimant: the Issue of Standing Standing in U.S. Federal Law A Limited Locus Standi at the European Court of Human Rights A Generous Locus Standi in Fundamental Rights Matters in South Africa The Amicus Curiae: Definitions, Roles and Procedure An Evolving Understanding of the Amicus Curiae The Roles of Amicus Curiae Informational Role Legitimizing Role Reinforcement and Representational Role Long-Term Advocacy and Publicizing Role Before the United States Supreme Court Evolution and Procedure Landscape Before the European Court of Human Rights Evolution and Procedure Landscape v

3 4.5. Before the South African Constitutional Court Evolution and Procedure Landscape The Difficult Task of Measuring Amicus Curiae s Influence Conclusion Chapter 2: Comparative Reasoning in Adjudication Introduction The Judicial Use of Comparative Arguments: Definitional and Novelty Aspects Rationales for Engaging into Comparison when Interpreting and Adjudicating Fundamental Rights To Learn and Produce Better Outcomes To Act as Signaling Devices To Participate in the Global Enterprise of Human Rights Adjudication Critics Objections against the Practice v. Supporters Rejoinders Sovereignty and Democratic Processes Incommensurability Deriving from Particularism Cherry Picking and Judicial Activism Methodological Concerns Where to Look? How Do Judges Inform Themselves and Can Accurately Assess Foreign Material? Cross-Juridictional Variations: Scope of the Phenomenon and Interpretation Techniques At the U.S. Supreme Court Scope of the Phenomenon of Judicial Dialogue Favored Interpretations Methods At the European Court of Human Rights Scope of the Phenomenon of Judicial Dialogue Favored Interpretations Methods At the South African Constitutional Court Scope of the Phenomenon of Judicial Dialogue Favored Interpretations Methods Conclusion vi

4 Chapter 3: The Comparative Elements in Public Interest Litigants Briefs in Inhuman and Degrading Treatment Cases (Death Penalty and Related Issues) Introduction United States Supreme Court Introduction Furman v. Georgia (1972) Gregg v. Georgia (1976) Coker v. Georgia (1977) Enmund v. Florida (1982) Thompson v. Oklahoma (1988) Stanford v. Kentucky (1989) Atkins v. Virginia (2002) Roper v. Simmons (2005) Baze v. Rees (2008) Kennedy v. Louisiana (2008) European Court of Human Rights Introduction Soering v. the United Kingdom (1989) Öcalan v. Turkey (2005) Boumediene and Others v. Bosnia and Herzegovina (2008) Al-Saadoon and Mufdhi v. the United Kingdom (2010) Babar Ahmad and Others v. the United Kingdom (2010) Al Nashiri v. Poland (2014) South African Constitutional Court Introduction State v. Makwanyane (1995) Mohamed v. President of the Republic of South Africa (2001) Minister of Home Affairs and Others v. Tsebe and Others (2012) Conclusion Chapter 4: The Comparative Elements in Public Interest Litigants Briefs in Sexual Orientation Cases Introduction The European Court of Human Rights Introduction Dudgeon v. the United Kingdom (1981) vii

5 2.3. Smith and Grady v. the United Kingdom and Lustig-Prean and Beckett v. United Kingdom (1999) Fretté v. France (2002) Karner v. Austria (2003) E.B. v. France (2008) Schalk and Kopf v. Austria (2010) Gas and Dubois v. France (2012) X. v. Austria (2013) Vallianatos and Others v. Greece (2013) Oliari and Others v. Italy (2015) The United States Supreme Court Introduction Bowers v. Hardwick (1986) Romer v. Evans (1996) Boy Scouts of America v. Dale (2000) Lawrence v. Texas (2003) Hollingsworth v. Perry (2013) United States v. Windsor (2013) Obergefell v. Hodges et al. (2015) The South African Constitutional Court Introduction National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998) National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs and Others (1999) Du Toit v. Minister of Welfare and Population Development (2002) Minister of Home Affairs v. Fourie (2005) Conclusion Chapter 5: Cross-Analysis and Discussion Introduction Public Interest Litigants Comparative Material s Influence on the Judges Presence of Groups and Modes of Access Modes of Access: All Avenues Are Used Diverse Landscapes and Key Repeat Players Profiles Professional and Assimilationist NGOs, Cause Lawyers and Epistemic Communities viii

6 The Appearance of Conservative Groups Presence of Comparative Material in the Briefs A Variety of Uses Comparative Reasoning Sensu Lato Comparative Law Sensu Stricto : Mainly Norm-Centric before the U.S. Supreme Court but Reason-Centric before the Two Other Jurisdictions Limited Pool of Cited Jurisdictions and Scarcity of Methodological Insights Shaped by Legal Culture: Why Some Public Interest Litigants are More Inclined to Cite Comparative Arguments Transnational Actors Most Domestic Actors in Europe and South Africa Why So Few U.S. Domestic Actors? Shaping the Legal Culture: Public Interest Litigants Influence on the Sources of Adjudication: Justifications Provided for the Relevance of Comparative Material Cross-References Offer Guidance The Constitutional License (South Africa), the Framers Intent (U.S.) and/or the Court s Own Jurisprudence (South Africa and U.S.) Leadership, Diplomatic Relations and Other Practical Consequences in Foreign Policy Because Universal Fundamental Rights or Moral Questions Are at Stake On Consensus and Consistency among Nations Conclusion General Conclusion ix