Mellisa Waters on Transnational Judicial Dialogue
Essay Preview: Mellisa Waters on Transnational Judicial Dialogue
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Melissa Waters is a Professor of Law at Washington University in St. Louis School of Law. She introduced herself with an anecdotal reference to her life growing up in Arkansas. Calling herself a hillbilly that came to Tulsa whenever the family wanted to go to the “Big City”, because of this she still enjoys coming to Tulsa and thinks of it as the “big city” where Utica Square is a shopping Mecca.
Melissa Waters discussed Transnational Judicial Dialogue (TJD) and the ways the worlds judges are talking to each other. The Honorable Aharon Barak and a few other judges started talking to one another long before any others, and Melissa presents Barak as being influential in advancing judicial dialogue among the worlds judges. Melissa focused on how TLD has affected the development of International Law. The synergistic relationship between domestic and international courts has helped shape the course of events and has shaped international law itself. Melissa then asked 2 questions “Where have we been” and “Where are we headed” To start on the where have we been discussion she discussed the evolution of thought on the death penalty in the worlds courts and how TJD has affected the rulings that surround the death penalty.
She showed this affect by illustrating how the death penalty has created a convergence of key norms. It starts with the inhumane or degrading treatment and punishment of prisoners, something that the majority of nations recognize as a right. This prohibition has long been viewed as not encompassing the death penalty. Discussions between international organizations and tribunals came to the conclusion that this prohibition did include the death penalty. In a landmark 1989 case brought before the European Court of Human Rights, Soering v. UK found that the death penalty and the subsequent incarceration on “Death Row” were inhumane and degrading. Jamaica soon followed suit finding that the death penalty be imposed within 5 years or it is cruel and unusual, South African courts found that “any use of the death penalty is cruel and unusual.
The “where are we going” question is neatly illustrated above by the rulings in Jamaica and South Africa that followed on the heels of the Soering v. UK ruling by the European Court of Human Rights. So what do domestic courts see? Domestic courts are looking more and more to international cases and rulings to develop their own domestic case law. To illustrate this Canada disagreed with the European Court in Soering. In establishing its own judicial identity Canadian courts envisioned a narrow position for itself by giving greater deference to the political actors involved. In essence saying this is an arena for legislation and political action more than it is the arena for the judiciary. In the 10 years following Soering more and more courts around the world decided that the European court was right in its decision and that the Canadian court was wrong. 10 years after its initial ruling on the death penalty the Canadian court overturned itself and followed the trend of other world courts