Fragmentation of International Law Revisited: Insights, Good Practices and Lessons to Be Learned from the Case Law of the European Court of Human Rights
(2015) 28 Leiden Journal of International Law 863-885
31 Pages Posted: 24 Apr 2015 Last revised: 14 Mar 2017
Date Written: February 1, 2015
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, the Article offers a blueprint of the methodology that the Court employs when engaging with external norms in the interpretation process. The analysis explores 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 in the letter of the VCLT.
Keywords: fragmentation, European Court of Human Rights, interpretation , Article 31 (3)(c) VCLT, contextual differences
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