The cross-border fertilization of human rights norms : understanding the motivations and impacts of transjudicial conversation in the Philippine context
Issued Date
2024
Copyright Date
2021
Resource Type
Language
eng
File Type
application/pdf
No. of Pages/File Size
ix, 124 leaves: ill.
Access Rights
open access
Rights
ผลงานนี้เป็นลิขสิทธิ์ของมหาวิทยาลัยมหิดล ขอสงวนไว้สำหรับเพื่อการศึกษาเท่านั้น ต้องอ้างอิงแหล่งที่มา ห้ามดัดแปลงเนื้อหา และห้ามนำไปใช้เพื่อการค้า
Rights Holder(s)
Mahidol University
Bibliographic Citation
Thesis (M.A. (Human Rights and Democratisation))--Mahidol University, 2021
Suggested Citation
James, Gregory Alcaraz Villasis, 1989- The cross-border fertilization of human rights norms : understanding the motivations and impacts of transjudicial conversation in the Philippine context. Thesis (M.A. (Human Rights and Democratisation))--Mahidol University, 2021. Retrieved from: https://repository.li.mahidol.ac.th/handle/20.500.14594/99376
Title
The cross-border fertilization of human rights norms : understanding the motivations and impacts of transjudicial conversation in the Philippine context
Author(s)
Advisor(s)
Abstract
The research explores the causes and impacts of the phenomenon of transjudicial conversation involving human rights norms in the context of the Philippine Supreme Court. Transjudicial conversation refers to a judicial occurrence where a domestic court engages in a "dialogue" with foreign tribunals through cross-referencing the latter's judicial opinions. The qualitative analysis of the decisions delivered by the Philippine high court from 1987 to 2019 (during which the present constitution is effective) on issues involving three human rights concerns (free speech, religious freedom, and environmental rights) revealed that the court assumes a participative role in the transjudicial conversation phenomenon by cross-referencing foreign judgments. The examination of these cases alongside relevant literature showed that the motivations behind this engagement may be attributed to the genealogical link between the domestic rights guarantees and their foreign counterpart, the historical-political alliances between the interlocutor courts, the constitutional system of the borrowing courts, and the foreign academic trainings of the judge who pens the decision. A case study of judgments likewise revealed that the participation of the Philippine Supreme Court in the transjudicial conversation phenomenon generally causes the cross-border fertilization of human rights norms. Particularly, the impact of this engagement contributes in the filling of the gap in the domestic understanding of human rights concepts, the compliance with the obligations under international human rights treaties and conventions, and the alignment of the domestic human rights norms with the evolving concept in the international sphere. While the phenomenon poses promising impacts in the development of domestic human rights norms, the danger remains that too much engagement in the cross-border citation of foreign human rights judgments may lead to a crisis on the legitimacy of the court as a democratic institution. As such, the author recommends that the Supreme Court should lay down guidelines intended to regulate the cross-referencing of foreign decisions to avoid unbridled use of foreign judicial opinions. IMPLICATION OF THESIS. The study aids in the understanding of the phenomenon of transjudicial conversation regarding human rights norms in the context of the Philippine Supreme Court. Because of its significance in the development of rights norms, the causes and specific effects of such phenomenon must be documented and analyzed, especially in the Philippines where no study on this matter has yet been undertaken (Hirschl, 2014). In so doing, an understanding of this occurrence could provide a better outlook for human rights lawyers and civil society organizations in their court advocacies, specifically in their work in promoting and protecting rights using legal mechanisms. Similarly, this could provide a guidepost for future scholars who wish to study similar or related subjects thereby enriching the body of knowledge concerning the relationships between the transjudicial conversation and the development of domestic human rights norms.
Description
Human Rights and Democratisation (Mahidol University 2021)
Degree Name
Master of Arts
Degree Level
Master's degree
Degree Department
Institute of Human Rights and Peace Studies
Degree Discipline
Human Rights and Democratisation
Degree Grantor(s)
Mahidol University