The ICCPR and the regional human rights conventions do not explicitly prohibit discrimination based on sexual orientation, or provide the right to marry and have a family for same-sex couples, thus leaving an open margin of interpretation to their judicial and quasi-judicial enforcement bodies. However, regional courts and the Human Rights Committee (HRC) jurisprudence seems to have followed a path of convergence rather than fragmentation. This article will analyse the case-law of the regional judicial bodies and of the HRC on the matter through the lens of the prohibition of discrimination, assessing how such convergence has been reached and evaluating its nature. The analysis will reveal that beneath a seeming trend of convergence in the case outcomes , there are signs of a strong point of divergence and many threats of future fragmentation. In particular, there is a deep contrast between the European and the Inter-American Court of Human Rights in terms of prohibited discrimination based on sexual orientation. Moreover, the convergence reached among regional human rights bodies and the HRC hides vague and highly debated concepts and definitions on sensitive topics like marriage and adoption.
This book provides an innovative analysis of the complex issue of judicial convergence and fragmentation in international human rights law, moving the conversation forward from the assessment of the two phenomena and investigating their triggering factors. With a wide geographical focus that include the most up-to-date case-law from the three main regional systems (the African, European and Inter-American) and the UN Human Rights Committee, the book confirms the predominant judicial convergence across international human rights law. On this basis, the book engages with an interdisciplinary investigation into the legal and non-legal factors that could explain both convergence and fragmentation, ranging from the use of judicial dialogue and the notions of necessity and proportionality to the composition of the courts and the role of NGOs. The aim is to provide the tools to understand the dynamics between human rights adjudicatory bodies and possibly foresee future instances of judicial fragmentation.
Judicial fragmentation on indigenous property rights: causes, consequences and solutionsThis paper engages in the analysis of the phenomenon of judicial fragmentation as affecting the case-law of regional human rights bodies on indigenous property rights. It aims at identifying the features of such divergent understanding of indigenous rights between the European Court of Human Rights and the Inter-American Court of Human Rights, investigating the causes behind it. Finally, after having highlighted some of the adverse consequences of judicial fragmentation, the article presents some possible solutions for ensuring convergence and a higher standard of protection for indigenous rights.
Following the International Law Commission Report on Fragmentation in International Law (IL), scholars have started to question whether such fragmentation could also have affected its subbranches, and, especially, international human rights law (IHRL). Due to the proliferation of both IHRL norms and institutions, especially at the regional level, this appeared to be a real possibility.
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