Fragmentation of International Law Revisited: Insights, Good Practices, and Lessons to be Learned from the Case Law of the European Court of Human Rights

Abstract

This article discusses the contribution of the European Court of Human Rights to mitigating difficulties arising from the fragmentation of international law. It argues that the Court's case law provides insights and good practices to be followed. First, the article furnishes evidence that the Court has developed an autonomous and distinct interpretative principle to construe the European Convention on Human Rights by taking other norms of international law into account. Second, it offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. It analyses the Court's approach to subtle contextual differences between similar or identical international norms and its position towards the requirements of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). It concludes that international courts are developing innovative interpretative practices, which may not be strictly based on the letter of the VCLT.

Chapter 1 Interpretation of Conventionality Control Parameters

“…169 Given that the Strasbourg jurisprudence interprets the ECHR by resorting to public international law including universal human rights instruments, Adamantia Rachovista observes a positive potential for combating the fragmentation of international law: that the ECtHR interprets the ECHR by taking a great variety of relevant international law norms into account, suggests, in principle, that the Court employs a policy of embedding the ECHR into international law and, hence, avoids taking any kind of isolationist or fragmented approach towards international law. 170 Similarly, Lucas Lixinski points out that the San José Court, by acting in the way it does, performs a service that favours the 'defragmentation' of international law, while not unauthorisedly expanding its mandate, and therefore, promotes the unity of international law, while preserving its own institutional constraints. 171 As a justification for such regional interpretative practices, the present volume rather focuses on the pro homine principle reflected in the so-called more favourable provisions (Article 53 of the ECHR and Article 29(b) of the ACHR).…”

The European Court of Human Rights’ Engagement with International Human Rights Instruments: Looking at the Cases of Domestic Violence

“…Whereas the Court's engagement with the relevant international and regional human rights instruments is a welcome step towards the protection of domestic violence victims, the Court's increasing use of non-binding instruments in its rulings have resulted in criticisms in the scholarship (Dzehtsiarou, 2018;Rachovitsa, 2015). The criticisms were raised after the case of Valiuliene v Lithuania (2013).…”

An Analysis of the Adequacy of Protection Afforded by the Convention on the Rights of Persons with Disabilities (CRPD) in Situations of Armed Conflict

“…There is still a lacuna in IHL, however, since the CRPD is only meant to apply vertically between the rights of individuals and the acts of states. This makes the CRPD insufficient to apply to situations of armed conflict in which IHL's horizontal relationship would be more appropriate in regulating the actions of both states and non-state actors [31,257], as opposed to solely relying on Article 11 of the CRPD that applies through a vertical relationship of a state party's obligation to protect its subjects with disabilities within a state's territory or those under its extraterritorial control through belligerent occupation [258].…”