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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
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.

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M. T. Kamminga , ‘Final Report on the Impact of International Human Rights Law on General International Law’, in M. T. Kamminga and M. Scheinin (eds.), The Impact of Human Rights on General International Law (2009), 1 at 12

B. Simma , ‘Universality From the Perspective of a Practitioner’, (2009) 20 EJIL 265, at 266

A. Mowbray , ‘The Creativity of the European Court of Human Rights’, (2005) 5 Human Rights Law Review 57, at 61

G. Cohen-Jonathan and J.-F. Flauss , ‘Cour Européenne des Droits de l’Homme et Droit International Général (2008)’, (2008) LIV AFDI 529

I. Ziemele , ‘Customary International Law in the Case Law of the European Court of Human Rights – The Method’, (2013) 12 The Law and Practice of International Courts and Tribunals 243, at 246

B. Simma and T. Kill , ‘Harmonising Investment Protection and International Human Rights: First Steps towards A Methodology’, in C. Binder et al. (eds.), International Investment Law for the 21st Century (2009), 678 at 689

G. Letsas , ‘Strasbourg's Interpretive Ethic: Lessons for an International Lawyer’, (2010) 21 EJIL 509, at 529–30

G. Nolte , ‘Subsequent Practice as a Means of Interpretation in the Jurisprudence of the WTO Appellate Body’, in E. Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (2011), 138 at 143

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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