Incidental Jurisdiction in Human Rights Litigation: Surprising Absence and Rival Techniques

Abstract

Human rights courts and bodies do not rely on the concept of incidental jurisdiction. As far as I am aware, they never have. Given that these courts and bodies are in many ways typical examples of international courts, this is at first glance surprising. However, a closer look suggests that human rights bodies employ rival techniques to tackle the same problem to which incidental jurisdiction is supposedly responding. This essay sets out, first, that there is nothing unique about the institutional set up of human rights courts and human rights bodies in international law that might explain the absence of incidental jurisdiction. Second, I offer a plausible reconstruction of this absence. I argue that it is not only a rational response to the particular demands of human rights litigation, but that it may even be normatively preferable. The tension between dispute settlement and state consent is modified and heightened in international human rights law; this justifies treating incidental questions with the weight usually attached to the main issues of a case by turning them into questions of treaty interpretation. Third, I illustrate these rival techniques in two areas: jurisdiction in international human rights law, and cases involving armed conflicts.