Fragmentation in International Human Rights Law

Beyond Conflict of Laws

Marjan Ajevski

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317442936
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explores the effects of institutional fragmentation in international human rights law, by comparing the rights jurisprudence of three human rights courts and bodies, namely the European Court for Human Rights, the Inter-American Court for Human Rights and the Human Rights Committee. Contributions cover the areas of freedom of expression (journalism and the media), right to privacy, freedom of assembly and freedom of association (political parties), and measure the extent of fragmentation of human rights protection. Moreover, the volume argues that, while the conflict of laws approach, favoured by the International Law Commission, might work in avoiding outright conflict in obligation, in practice it is not an approach that presents a viable research agenda when it comes to understanding the causes and consequences of institutional fragmentation. This is especially evident in areas like international human rights, where the possibility of a silent drift between the jurisprudence of the three courts is a real possibility.

This book was originally published as a special issue of the Nordic Journal of Human Rights.

Fragmentation in International Human Rights Law – Beyond Conflict of Laws

Marjan Ajevski

I. The Hydra that is Fragmentation

Like tackling the mythical hydra, the attempt of defining fragmentation is fraught with peril. It seems that once one solves one head of complexity, two more pop up in its place. The struggle for definition starts with the idea of the existence of a unified legal order, that of international law, which is under threat of shattering under the pressure of divergent “self-contained” regimes. These regimes, the story goes, have their own law-making and law application rules and mechanisms as well as “rules concerning the consequences of breaches of their respective primary norms”.¹ However, once we start looking at how “self-contained” these regimes really are, we immediately notice their inter-relatedness in assumptions, sources, methods etc. both with general international law and amongst themselves.² So much for “autonomous systems decoupled from general international law”.³ But this does not cure international lawyers’ anxieties,⁴ unfortunately, for while these regimes may not be completely separate from international law, they still somehow threaten its unity by their ability to pronounce on issues relevant to international law and to do so in a way that conflicts with each other. In the proverbial state of nature without a hierarchical centre, what is to stop a normative conflict from ensuing, or so the fear goes.

Even if “self-contained” regimes do not, as such, exist, regimes certainly do. Of course, pinning down what exactly we mean by a regime – even a special one – as it turns out is not an easy feat. The International Law Commission found at least three ways in which the term is used:

Sometimes violation of a particular group of (primary) rules is accompanied by a special set of (secondary) rules concerning breach and reactions to breach. This is the main case provided for under article 55 of the articles on Responsibility of States for internationally wrongful acts.

Sometimes, however, a special regime is formed by a set of special rules, including rights and obligations, relating to a special subject matter. Such rules may concern a geographical area (e.g. a treaty on the protection of a particular river) or some substantive matter (e.g. a treaty on the regulation of the uses of a particular weapon). Such a special regime may emerge on the basis of a single treaty, several treaties, or treaty and treaties plus non-treaty developments (subsequent practice or customary law).

Finally, sometimes all the rules and principles that regulate a certain problem area are collected together so as to express a “special regime”. Expressions such as “law of the sea”, “humanitarian law”, “human rights law”, “environmental law” and “trade law”, etc. give expression to some such regimes. For interpretative purposes, such regimes may often be considered in their entirety. [footnotes omitted]⁵

But even this taxonomy does not seem all that clear since the narrowest (first) definition fails the test with international criminal law, for example, for it can fit both the first and the third definition as it has a special set of primary rules for which the violation of “is accompanied by a special set of (secondary) rules concerning breach and reactions to breach”.⁶ Just think of the obligation of all states to prevent and punish genocide as part of the primary rules on genocide found in the genocide convention, not to mention all the other specificities like individual criminal responsibility, lack of reciprocity in its implementation etc. The Convention stakes out the crime of genocide, its mens rea and actus reus and prescribes both individual and state responsibility for those acts. It is both a very large part of international criminal law as a branch of international law in the third sense but it is also a single convention that outlines rules and responsibilities for states and individuals. The invocation of Hart’s primary and secondary rules analogy seems unhelpful for all of these layers of regimes have primary and secondary rules to some extent, the main difference being whether your particular point of view is from the inside or outside of the regime. From inside, the European Union regimes seems quite reified and autonomous, state-like almost, until one is presented with the Kadi Court of First Instance⁷ and European Court of Justice⁸ judgments and the outside/inside perspective that they offer.

The discussion on fragmentation seems to be further complicated by the introduction of another kind of fragmentation, institutional fragmentation. So far we have been talking about substantive fragmentation, the separation of “law into highly specialized ‘boxes’ that claim relative autonomy from each other and from general law”⁹ – hence the idea of human rights law, humanitarian law, law of the sea, the regime governing the river Danube etc. But the proliferation of different institutions within these “specialised boxes” (especially the box in its widest sense) adds a further twist to the story and another layer of anxiety for order-inclined lawyers since the existence of different institutions pronouncing on the meaning of the norms of those same boxes may, inevitably, lead to further specialisation into smaller and smaller boxes trying to occupy the same space. In a sense, it increases the problem exponentially since every new institution has the potential of interacting with every other.

The problems of international human rights and international criminal law seem to be particularly acute in this sense since while they rest on an assumption of normative unity due to their allegiance to the Universal Declaration on Human Rights, this presumption can easily be threatened by increasing the number of institutions that can authoritatively pronounce on the meaning of the regime norms. It seems in international human rights and international criminal law this presumptive unity can not only be shattered from the “outside” – by another regime taken in its widest sense – but, and probably more dangerously, from the “inside” by one of the sibling institutions. The proliferation of the UN system of right protection adds a further layer to the institutional dimension of fragmentation since not only do these human rights bodies cover normatively quite similar norms and topics with other human rights institutions outside the UN system, but with human rights bodies within the UN system itself.

II. The Conflict Bias

Similar to survivor bias,¹⁰ fragmentation talk has its conflict bias or interaction bias. Let me explain. Survivors’ bias is a bias that skews results by the mere fact of looking at instances of success. For instance, during World War II, what was to become the US Air Force wanted to know where to place additional armour most effectively on its bomber aircraft in order to increase the survivability of both crew and aircraft. The samples that they had to use to identify the vulnerable areas on the planes were the bombers that had returned from their missions carrying the scars of their ordeal. Naturally, the military wanted to put the additional protection on those areas that showed the most damage. It was not until a very smart mathematician pointed out that the areas that were mostly affected by damage were the least ones to worry about since the planes suffered extensive damage to them but still managed to survive the flight back. It was the areas that were undamaged that needed re-enforcement since logic would dictate that the planes that did not make it back were most likely brought down by damage in those areas.¹¹ The same can be said with researching success in investment. If one focuses on the calculating and forecasting models of successful investors one runs the risk of finding genius where chance might be the better explanation if the failing investors were not also included in the study.

Similarly with the fragmentation debate, if the fear of fragmentation is that autonomous regimes, thanks to their internal mechanisms of law-making and law application, would become, well, autonomous then focusing on the visible points of interaction – on the conflict – would skew the perception towards over or under estimating the extent of the fragmentation or to the forces that might operate to mitigate fragmentation in the first place. Not only that, but once we frame the fragmentation debate into a debate about interaction or conflict, then our solution is the familiar conflict of laws rules.¹² The solution for a nail is a hammer.

This conflict or interaction bias has been pervasive in the literature and it is the default conclusion of the ILC Study Group.¹³ The assumption is that the proliferation of regimes leads to some kind of divergence which breeds conflict, the conclusion being to focus on the visible points of interaction whether it is conflict of cross fertilisation. An attempt was made to overcome the focus of conflict and interaction with the study of Multi-Sourced Equivalent Norms (MSEN) performed by Tomer Broude and Yuval Shany.¹⁴ In their study they defined MSEN as

Two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content; and (3) have been established through different international instruments of “legislative” procedures or are applicable in different substantive areas of the law.¹⁵

This certainly is a novel approach – it tries to play down the conflict and interaction part of fragmentation and does try to emphasise the identical normative content of the norms. However, it is still predicated on the same subject being covered by MSE norms with the background assumption of a latent conflict or interaction ensuing. It is geared toward answering a specific systemic question of points of contact between system entities grouped by the normative equivalence of the norms themselves. It is geared towards answering interaction problems not normative divergence or convergence research.

More recently, Philippa Webb takes a novel approach in her latest book¹⁶ where she tries to track down three international law doctrines, genocide, immunities and use of force through their development in four jurisdictions: the International Court of Justice (ICJ), the International Criminal Court (ICC), the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). She strives to answer the question of what lies ahead for international law: integration or fragmentation.

This study takes a similar approach with rights that are based on different conventions but are understood to be normatively equivalent – they are the same norms, it is the enforcement mechanism and actor that is different, so-called institutional fragmentation. The rationale is that the fear of fragmentation is no less mitigated when there are no visible points of conflict or interaction between the institutions since the lack of interaction might also mean that for some specific regimes there is no meeting point. For example, there is hardly a place where the European Court of Human Rights and the Inter-American Court of Human Rights can meet since both of them cover different regional groups of states, even though they share a normative source – normative equivalence if you will – through the Universal Declaration of Human Rights. Certainly, if that is the case then no amount of conflict of laws rules will mitigate this type of drift. Moreover, if there is close to no divergence between these systems then maybe a better solution to fragmentation may not be con...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Foreword: Fragmentation in International Human Rights Law – Beyond the State of Nature
• 1. Fragmentation in International Human Rights Law – Beyond Conflict of Laws
• 2. Comparative International Human Rights Law: An Analysis of the Right to Private and Family Life across Human Rights “Jurisdictions”
• 3. Freedom of Speech as Related to Journalists in the ECtHR, IACtHR and the Human Rights Committee – a Study of Fragmentation
• 4. Comparative Freedom of Assembly and the Fragmentation of International Human Rights Law
• 5. Fragmentation in International Human Rights Law: Political Parties and Freedom of Association in the Practice of the UN Human Rights Committee, European Court of Human Rights and Inter-American Court of Human Rights
• Index