The Rule of Advice in International Human Rights Law

Abstract

Advisory jurisdiction is a ubiquitous feature of international human rights adjudication. Yet the attention of legal scholars is almost entirely devoted to contentious jurisdiction. This Article aims to fill that gap in the literature. By introducing two models of advisory jurisdiction, and analyzing the example of the Inter-American Court of Human Rights-the world's most active international advice-giver-the Article shows how international human rights courts may utilize advisory proceedings to influence state conduct, in a mechanism the Article calls "ruling through advice."The Article also shows how human rights courts may attempt to guide states and national courts by means of an "anticipatory adjudication"mechanism. Using the Inter-American Court's groundbreaking advisory opinion on same-sex marriage as a case study, the Article argues that, despite the domestic implementation of its opinion, the Court misused its advisory powers, putting the regional human rights system at risk. The insights that both the conceptual model and the case study offer contribute to a broader conversation about international courts' advisory role.