Design Team Working Papers

This page contains a variety of resources that were used by the the Design Team in their discussions.  Included are excerpts from numerous sources, in some cases to illustrate the "moving parts" of particular issues, and in other cases to offer sample language to illustrate how drafters of related documents had captured the issues.  This page evolved throughout the design period, with new material being added as particular issues were encountered, and other material being deleted once particular portions of the Draft Statute had been drafted to the satisfaction of the Design Team.  The list below is as it existed at the conclusion of the Design Team's work, and is offered not as a cohesive document, but as a historical record of a part of the process.  It can be viewed as "selected working papers," or "the film that ended up on the cutting room floor."  It is a series of glimpses into the minds of the Design Team.

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Structure of the Court
    Parallel origin
        National Judiciaries collaboration and
        Nation States treaty-based system of accession
         
Selection of Justices
    Regional nominating groups:
        5 from Asia;
        4 from US, Canada & Europe;
        4 from Africa; and
        2 from Latin America, Caribbean & Oceania

Selection of Cases

Subject Matter Jurisdiction
    Human Rights

Parties
    Individual applications
    Class actions
    Nation State Respondents
        Members
        Non-Members

Exhaustion of National and Regional Remedies

Substantive Law
    
Standing

Types of Proceedings
    Contentious
    Advisory

Remedies
    Provisional
    Writs
    Affirmative and Negative Injunctions

Funding
    Based on GDP per capita

Selection of Cases (Certiorari)

After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law.

Certiorari is most commonly used by the United States Supreme Court, which is selective about which cases it will hear on appeal. To appeal to the Supreme Court one applies to the Supreme Court for a Writ of Certiorari, which it grants at its discretion and only when at least three members believe that the case involves a sufficiently significant federal question in the public interest.

Brenner, Saul. 2000. "Granting Certiorari by the United States Supreme Court: An Overview of the Social Science Studies," Law Library Journal 92 (spring): 193–201.

The United States Supreme Court gets roughly 10,000 petitions for certiorari per year, of which it accepts, hears and decides roughly 75 cases.


Class Actions

A class action must have the following characteristics:

  1. Commonality.  There must be one or more legal or factual claims common to the entire class (in some cases, it must be shown that the common issues will predominate the proceedings over individual issues, such as the amount of damages due to a particular class member);
  2. Adequacy.  The representative parties must adequately protect the interests of the class;
  3. Numerosity.  The class must be sufficiently large to make individual suits impractical (in other words, from the standpoint of judicial economy, a class action is a superior vehicle for resolution than numerous individual suits would be); and
  4. Typicality.  The claims or defenses must be typical of the plaintiffs or defendants.


Standing

The underlying justification for Public Interest Law is to make practical the filing of suits on behalf of deserving groups of individuals who would otherwise be unable to advocate for themselves.  The concept is related to "class action litigation."  The types of remedies that are sought from courts in Public Interest Litigation can include compensatory damages, court monitoring, and even the framing of guidelines in the absence of legislation.

Public Interest Litigation has now broadened in scope to cover larger and larger groups of citizens who may be affected by government inaction.

The invocation of PIL can sometimes be used for the extra-judicial purposes of gaining publicity for a particular cause, or to affect public policy.  Some courts are reluctant to entertain PIL, even cases filed by well known non-governmental organizations, citing concerns of separation of powers and the desirability of exercising judicial abstention on matters that are non-justiciable, or political, in nature.


Remedies

From the Indian Constitution, Part III, Fundamental Rights, Article 32 Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.


From the Indian Constitution, Part VI, The States, Article 226  Jurisdiction of High Courts to Issue Writs

(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without:

                 (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

                 (b) giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.


Exhaustion of National and Regional Remedies

The international rule of exhaustion of local remedies before taking to international remedies is one of the basic rules in international law. The object of the rule is to enable the respondent State the first opportunity to correct the harm and to make redress. The application of the rule of domestic remedies to the protection of human rights depends on conventional provisions.

A person whose rights have been violated should make use of domestic remedies to right a wrong, rather than first address the issue to an international committee, court or other tribunal. Access to an international organ should be available, but only as a last resort, after the domestic remedies have been exhausted. A person should seek redress from domestic remedies because these are normally quicker, cheaper and more effective than the international ones.

If no domestic remedies are available or there is unreasonable delay on the part of national courts in granting a remedy, clearly, a person should have recourse to international remedies. The rule of local remedies should not constitute an unjustified impediment to access to the international remedies.


Substantive Law to be Applied

1. The Court, whose function is to decide in accordance with international (human rights law such disputes as are submitted to it, shall apply:

    a. international (human rights) conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

    b. international (human rights) custom, as evidence of a general practice accepted as law;

    c. the general principles of (human rights) law recognized by civilized nations;

    d. subject to the provisions of Article 59, human rights judicial decisions, and the teachings and writings of preeminent human rights experts, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties are in agreement that the Court may do so.


Standard of Review

Will the Court limit itself to the "record," according "due deference" to findings of fact, and concerning itself exclusively to errors of law and withholding or abuse of discretion?   What if there is no record available?


Office of Human Rights Ombudsman

Analog - United Nations High Commissioner on Human Rights

Should there be an Office of Human Rights Ombudsman attached to, but independent from, the Court, the purpose of which would be to provide assistance to those wishing to file an action, or those with an action pending before the Court.  Assistance could be provided based up the complexity of the proceeding, the limited resources of the petitioner, the prima facie strength of the claims, the size of the class whose rights are implicated, and the degree of human rights deprivation.  The Office of Human Rights Ombudsman could also investigate potential human rights violations, conduct stakeholder outreach, and petition for review by the Court.  In the event that the Office of Human Rights Ombudsman were to petition for review of a case by the Court, the Court's determination of whether to accept the case for review would be conducted in the same manner as the Court uses to determine whether to accept a case for review when the request for review is made by an outside party.

Court-Annexed Mediation

Removal of Justice on 75% Vote of Members

Subpoena Power (Court and Ombudsman)

Advisory (distinguished from Contentious) Jurisdiction

Clerk Does Rulemaking Subject to Executive Committee Oversight

Minimum Number of Members to Give Effect to the Court

National Judiciary Members Agree to Abide by Court Writs and Subpoenas

Enforcement Division

Intergovernmental Organizations as Defendants

75% Impeachment vs. Life Appointment