13 - Forum Shopping and Human Rights: Staring at the Empty Shelves

Summary

A recurring theme is the legitimacy and harmonization of jurisprudence among international courts and tribunals. In this context, an important procedural consideration is so-called forum shopping; a strategy by which litigants pursue parallel or sequential proceedings, among multiple jurisdictions, in order to achieve the most favourable result. This chapter explores the differential treatment of forum shopping between the specialized regimes for human rights and the investor-State dispute settlement (ISDS) regime. It contends that the notable contrast between the restrictive rules applicable to individual human rights complaint procedures and the laissez-faire approach of the ISDS regime is instructive as to the place of human rights in the praxis of the international legal order; a procedural privileging of secondary human rights norms such as property rights over the most fundamental jus cogens norms such as the prohibition of extra-judicial executions and torture. The shift from norms to procedures provides a more honest picture of where the contemporary international legal order stands in regard to the fundamental principles that it espouses as unimpeachable axioms.