Edited by William A. Schabas and Shannonbrooke Murphy
Chapter 2: The human rights judgments: the jurisprudence of regional human rights tribunals – lex specialis or lex regionis?
The jurisprudence of regional human rights tribunals has contributed significantly to the evolution of human rights law and to international law in general. The decisions and judgments of regional tribunals, although based in the general law of treaties, involve the use of methodology, principles and norms specific to human rights law. While the approaches to issues sometimes diverge – reflecting each region’s unique history, culture and institutional concerns, as well as differences in the plain language of the regional human rights instruments – overall, the commonalities in jurisprudence far outnumber the differences. An examination of the case law reveals a commitment to the principles of subsidiarity with regional supervision, autonomous interpretation of the terms in human rights treaties, and interpretation that is both dynamic and pro homine. The tribunals have also developed extensive jurisprudence on positive and negative obligations, jus cogens, territorial application of treaties, continuing obligations and reparations. Despite their achievements, all the regional tribunals face challenges that hamper their long-term effectiveness. KEYWORDS: human rights, international courts and tribunals, treaty interpretation, subsidiarity, jus cogens, reparations
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