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Neus Torbisco-Casals, Graduate Institute of International and Development Studies (Geneva) International Courts, Democracy and Culture: Minority Litigation and Plural Pathways to Justice

The proliferation and strengthening of international courts have been hailed as a step towards the consolidation of an international rule of law. Moreover, in the current climate of growing populism and renewed hostility against minorities, international adjudication bears the promise of upholding a global legal order based on equal dignity and human rights. Probably for this reason, members of disempowered groups increasingly turn to courts for protection, which has led to a rising judicialization of identity and cultural disputes. As a result, judges (both domestic and international) are playing a central role in dealing with identity-based conflicts across deeply entrenched socio-cultural divides.

To be sure, the judicial mobilisation of minorities to advance their claims is not new. Yet important questions arise as to whether and how public courts (especially international courts) can engage the multifaceted dimensions of such struggles and eventually restrain, as minority litigants expect, the discretionary powers of dominant majorities in promoting a regressive agenda. This paper seeks to examine the trend to seek justice and accommodation through litigation with a special focus on international human rights adjudication. In particular, I will explore concerns regarding the capacity of international courts to restore the equal status of groups which are systemically disadvantaged in mainstream democratic processes. Here important questions arise as to whether courts can engage the multifaceted dimensions of conflicts in contexts of deep diversity and institutional distrust; or how to avoid the reproduction of ethnic and racial biases due to the predominant unrepresentativeness of the international bench. By examining such limitations, the article seeks to lay the ground for further inquiries into the transformative potential of international adjudication and ultimately into the limitations of minority litigation for the resolution of broader political and cultural conflicts. The on-going judicial battles over freedom of religious expression in Europe, and the challenges arising from the judicialisation of the Catalan self-determination struggle will be taken as examples to illuminate the challenges and tensions outlined.

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