Fragmentation in International Human Rights Law – Beyond Conflict of Laws

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 conflict of laws rules but rather pinpointing the conditions, structures, institutions that drive this convergence (provided that convergence is what we strive towards, a normative question that is not directly part of this study) and replicating them. In short, there is still a lot we do not know, but certainly focusing on interaction alone is not the only way forward. What happens when the only point of contact is the normative equivalence of the norms themselves as is the case with human rights?

III. The Focus of the Special Issue

The approach of the Special Issue is to look at the consequences of institutional fragmentation within a specific branch – that of international human rights law (IHR). There is a presumption of normative unity in IHR, to a large extent stemming from its shared commitment to the Universal Declaration on Human Rights.¹⁷ Consequently, the understanding of the rights and the extent of their protection should be, in principle, if not identical then at least largely overlapping.

The study has employed functionalist comparative law methodology using small n studies of the most similar case¹⁸ systems. The reason for this approach is that the study is an attempt to pinpoint whether the practice of the institutions – their interpretation and application of human rights norms – has led to fragmented human rights protection. The systems under study were the European Court of Human Rights, the Human Rights Committee and the Inter-American Court of Human Rights. The decision for examining these three jurisdictions was based on the fact that they are all courts taxed with interpreting and applying conventions that protect civil and political rights (most similar case study). There was some consideration of whether the African Court/Commission should be included in the study; it is after all, a regional system of rights protection just like the ECtHR and the IACtHR. Ultimately, however, two considerations tipped the scales for its exclusion: a conceptual and a practical one. As a practical consideration, the African Charter has three outright conceptual differences with the other conventions: (1) the Charter includes not only civil and political but social and economic rights; (2) the other conventions (except for ICCPR, article 1 which in itself has no direct connection with the other articles in it) are designed as rights of individuals while the Charter specifically protects individuals’ and peoples’ rights; and (3) the Charter includes duties resting upon individuals rather than the state, which the others do not. In that sense, the African system presents a problem from the viewpoint of the most similar cases approach since it is likely that the normative choices included during the drafting of the Charter would influence the African Court's/Commission's practice. From a practical consideration, the inclusion of a fourth jurisdiction ran the risk of overburdening the study with information without a clear conceptual benefit.

Furthermore, the choice of jurisdictions was partly due to the study's specific approach that goes beyond the conflict of laws and regime interaction but at the same time remains mindful of it. The basic idea was to treat each of these systems as separate legal systems and compare how their jurisprudence has developed over time. It presupposed that these institutions serve similar functions – the interpretation and adjudication of human rights treaty norms that are normatively equivalent – and that in the performance of this function are faced with broadly similar issues and problems i.e. that they, at a minimum, protect civil and political rights but also issues relating to their specific situation of being an international body dealing with sovereign states with different level of institutional and democratic development.

The purpose of the comparison is to see the extent to which fragmentation is an issue in these jurisdictions not by focusing on instances of conflict or interaction, but rather on the black letter law developments (the principles and doctrines that each system has expounded during the interpretation and application of the respective conventions) in each system and comparing the similarities and differences between them. Consequently, the methodology used in the study is a comparative law methodology. It assumes that there already is fragmentation – the institutional kind where there is more than one institution without a hierarchical relationship, that can pronounce on the meaning of the normatively equivalent norms that are international human rights – and that the focus is on the question of assessing its extent.

With this approach, the focus of the case selection within the specific jurisdictions is not to find those cases that show how the specific regime interacts with its “outside” environment, but on the so called “leading cases” that develop the black letter law. What the focus on leading cases will hopefully reveal is the state of the law in the respective regime as a baseline for comparison of what is understood by, for instance, the right to have private correspondence in these three systems, in the hope that it will reveal the overlaps and/or divergence in the systems’ understanding of the substantive rights. By focusing away from regime interaction it should be possible to see the unobserved forces that drive the potential convergence or divergence. While regime interaction is not the primary focus, it is not completely sidelined either. The choice of jurisdictions should allow for both since while there is almost no chance of interaction, of creating overlapping obligations on states in case of the European and the Inter-American Courts, there is a real chance that that might happen in relation to the HRC and the European and Inter-American Courts, respectively, as in the case of religious education in Norwegian schools in respect to the HRC and the ECtHR.¹⁹

Furthermore, this study tries to table the discussion of fragmentation versus pluralism (and even whether there is actually a choice between the two) and does not strive to answer whether more or less fragmentation/pluralism is normatively desirable, nor whether fragmentation/pluralism is better at staving off hegemonic tendencies or not.²⁰ What it does try to ascertain is the extent of fragmentation or the extent to which there is convergence or divergence in the understanding of the equivalent norms by these three bodies. This brings us to the issue of at what point can we reasonably say that there is convergence and/or divergence and, especially, at what point do we say that fragmentation in IHL is significant and that it matters?

The answer can be given in several layers. The first layer is that, despite the common dedication to the Universal Declaration, the three conventions that form part of this study have noticeably different wording when it comes to the specific rights in question, both in length and in structure. However, despite this difference, there are also striking similarities between them: for instance, all of them have the familiar wording of “no one shall be subjected to torture or inhumane or degrading treatment or punishment”.²¹ Are these differences or similarities enough to be meaningful or significant when it comes to the severity of fragmentation/pluralism?

The second layer of complexity lies in the issue of the similarity or difference of doctrines, tests and justifications. When deciding a case, courts use tests, substantive doctrines and justifications in order to argue and justify why a case was decided one way rather than another. If the presumption of normative equivalence holds, then one would expect that the different courts would use the same or similar tests, doctrines and/or justifications to argue and settle similar cases. On the other hand, if the courts use different doctrines, tests or justifications to decide similar cases, then it is hard to see where the normative equivalence would be.

A third layer of complexity lays in the outcome of cases. It is conceivable that despite textual, doctrinal etc. divergences, there is a significant overlap in the outcomes of cases. The opposite also might be true, that despite a high overlap between doctrines, tests and/or justifications there would be a significant divergence in the outcome of cases, one system finding violations where the others would not. In all of these layers the question to be asked is at what point does a divergence or convergence become significant? Does the fact that courts use similar doctrines and justifications, but arrive at different outcomes, matter when it comes to fragmentation?

For the purposes of this study, we can conclude that a significant overlap/convergence has taken place when the courts use the same or similar doctrines, tests and justifications to decide cases and, vice versa, that if courts use different doctrines, tests and justifications to handle similar cases then a significant divergence is in place, which brings into question the normative unity of human rights norms. There are both theoretical and practical reasons on why this level of similarity/difference matters.

The theoretical standpoint has to do with the issue of interpretation and its constraints. As it has been argued, law – and anything else for that matter that is expressed in terms of language – is indeterminate.²² Texts – including laws, treaties etc. – have multiple meanings and judges make a “choice”²³ of applying one over others when deciding cases. The key insight of the indeterminacy thesis, however, is that indeterminacy is settled by people's beliefs, convictions in certain substantive worldviews – notions of the good life²⁴ – shared by interpretative communities (practices)²⁵ through which texts, laws, treaty provisions etc. gain their meaning. Only when mediated through these substantive worldviews do texts make sense. Consequently, the various elements internal to the practice that populate its four corners is what acts as a constraint on interpretation. In practices such as law, these elements, like the understandings of what is a treaty, what is a reservation, margin of appreciation, etc., give outlays of what it is possible to argue (and argue successfully) at any given time – the so called “weak constraints of practice”.²⁶ If certain elements are not part of the argumentation and justifications of a case, while others not internal to the practice are, then the case itself becomes suspect for no other reason than simply by not falling within the understanding of what it is to “do” law.

It is for this reason that the focus on measuring convergence and divergence should be on tests, doctrines and justifications. It is not the case that if the courts use similar tests, doctrines and justifications then they will decide similar cases with the same outcome in all instances, but it is certainly safe to assume that this will be the situation in most of the cases that they decide. Moreover, the overlap (and vice versa) of substantive justifications should give a clear indication of the shared or divergent notions of the “good life” between these courts, increasing the likelihood of convergence or divergence, respectively.

Moreover, there is a further reason to focus on this level of the judicial decision rather than rely completely on the outcomes of the decisions and that is related to the nature of judging. In the course of deciding a case, judges are expected to use their discretion in determining the relevance of facts and how and which facts fall under which qualification. This is something that has been alluded to in the article of Orsolya Salát in this issue, and that is that cases can be decided this way or that because of the way that judges qualify certain factual patterns, peaceful assembly, non-peaceful assembly, peaceful in part etc., and there is a limitless supply of situations that the world can throw at us that judges have to grapple with. Having said that, what matters is not that the judges have decided two similar cases differently, but the reasons why they have decided to do so, since even the most similar cases can have circumstances both in the initial occurrence of the case as well as at the time and place of application. To put it another way, it might matter greatly which international system is deciding the case and the type of environment the court is working in, and the best way to gauge this is to look at the tests, doctrines and justifications that the different courts use, and not focus only or even predominately on outcomes. Outcomes matter, but they matter in the sense that they are the products of structures and arguments that are different in their purposes/intentions.

There are also practical reasons for focusing on this level of comparison. For instance, concentrating on textual similarity or difference, due to interpretative dynamics, would miss completely the added value that institutions bring to the human rights regime and would defeat the purpose of this study which is to focus on the issue of institutional fragmentation. Consequently, excluding the interpretative outcomes of the institutions themselves would be highly nonsensical.

More importantly there is also the practical limitation of the sheer volume of cases needed to be researched if one was to focus on outcomes alone. For instance, the ECtHR has 35,854 judgments,²⁷ which complicates any data collection efforts in terms of quantitative comparison since the cases would have to be coded not by outcome and the treaty article involved but by factual pattern and issues discussed at a minimum in order to control for the similarity of cases. It is not that such research is impossible – some, like Lupu and Voeten,²⁸ have managed to code in certain fashion the majority of cases in the ECtHR, although probably not under the criteria listed above²⁹ – but that such an effort was beyond the resources of this studies presented here.

The articles in this Special Issue highlight the complexities of the fragmentation issue, in no small part due to the complexity of law and human rights. What the articles show is that there is a high level of contextuality in the different courts’ approaches to settling their cases. Depending on the rights involved (even depending on specific subsections of the rights in question) – whether the right is more or less controversial, whether the cases involve clear over-reaction by governments, whether the issue at stake is one of so called “third generation rights” (like indigenous people's rights or substantive equality) – the courts might have a high level of overlap in their doctrines and approaches, while elsewhere they might completely diverge. Where there is overlap, it seems that there is a high level of cross-referencing and migration of doctrines between these courts.

This brings me to the individual articles in this issue. Lixinski's article highlights one particular semblance of the fragmentation debate, the problem of perspective. In a sense Lexinski rightly points out that in essence there is no difference between the phenomenon we see as pluralism and the phenomenon we see as fragmentation – it is a difference in the point of observation. Fragmentation is a problem seen from above, maybe from the armchairs of traditional courts, like the International Court of Justice, while from below, or from the academic side, the world and the international system is plural, with different regimes ultimately following different sources of authority – a system that shuns deliberate order and in the true Hobbesian sense is anarchical. Of course, there are proposals in between these two polar opposites of a plural system that is respondent to the ultimate need of preservation of public autonomy.³⁰

As an example, Lixinski takes two instances of the right to private and family life, the personal correspondence of prisoners, and environmental cases. He finds in large part convergence when it comes to the personal correspondence of prisoners in the three jurisdictions both in doctrine and in level of protection (outcomes). On the other hand, when it comes to environmental cases, the story becomes more complicated. The ECtHR handles environmental cases under the scope of article 8, which has turned into a catch-all article for issues that do not squarely fit into any of the other rights. The IACtHR and the HRC, on the other hand, put these issues in the scope of their right to life articles or, for the IACtHR, in the article related to the general enjoyment of rights. The intriguing issue here is not that these courts have dealt with environmental rights cases using different articles of their founding conventions but that they have dealt with them at all, given the fact that the conventions in question are devoted to civil and political rights – why have these courts decided even to tackle cases and issues that were clearly not part of their original mandate? What is it that is driving the courts’ acceptance of environmental issues as part of their scope and agenda? Is it the failure of other regimes? Is it the desire to put their foot in the door of the next big global issue – a hegemonic desire?³¹ Is it the notion that human rights permeate every issue and, therefore, cannot be resolved without taking rights-friendly approaches?

Ajevski's contribution takes a much narrower approach to the issue of fragmentation and the freedom of expression. He compares the reasoning of the three courts in terms of the scope, tests and justifications found in their reasoning and finds a significant overlap, at least in the narrow field of journalists and media. Two things seem to stabilise the jurisprudence of the three courts, the proportionality test and, to a somewhat larger extent, the substantive understanding of the purpose of free speech in a democracy. While the proportionality test is the formula through which the rights issues are resolved, it is the substantive understanding of the importance of the freedom of expression for maintaining plural and democratic societies that seems to drive the jurisprudential overlap. What is striking, according to Ajevski, is the three courts’ devotion to a substantive view of democracy where rights are seen not only as enabling democratic decision-making but as a constraint on it as well. They see rights as both enabling democracy by protecting a vigorous and plural public sphere of deliberation, but also constraining majoritarian impulses by ensuring that democratic societies are also plural and equal in a substantive sense by protecting dissenting voices and minorities. He points to the margin of appreciation as a potential stepping stone in this seeming convergence of jurisprudence, the reasons being the doctrine's unpredictability and its recent attachment to the national trends of the Council of Europe members. A question then emerges: why would any other jurisdiction wish to follow or align itself with a jurisprudence that follows the national trends of a handful of states? Has the ECtHR, by adopting a reading of the margin of appreciation as one that has to follow the national trends of its members, shunned the Universal Declaration on Human Rights? Or does it, unselfconsciously, consider that the future of human rights is necessarily European, and that European trends are the most progressive ones?

Orsolya Salát's article tackles fragmentation of the freedom of assembly, a jurisprudentially under-utilised right. Because of the closeness in the issues of freedom of expression and freedom of assembly, judges across all jurisdictions have settled most issues of assembly under expression doctrines. For instance, the IACtHR does not have a single case on the freedom of assembly, she finds, even though protests and their suppression have been present in the Americas in the past. Moreover, she finds some doctrinal differences between the two remaining jurisdictions and poses a rather more significant question of perception: at what point do outcomes matter? When talking about the divergent route taken by the HRC and ECtHR in terms of the requirement of a prior permit for an assembly and what is defined as assembly, she points out

The diverging approach [of the HRC and the ECtHR] to the assembly claims [or the applicants] can be either considered (i) a difference arising out of institutional fragmentation; or (ii) a wholly innocent contingency of the complaints – in one case explicitly referring to freedom of assembly next to freedom of expression, and not in the other; or (iii) a wholly innocent contingency of divergent regulation: the Queensland town requiring permit for even one-person public addresses, while in the Hungarian case, quite to the contrary, a notice could only be required if something could be qualified as an “assembly”.³²

In short, even the minute circumstances of a case may matter for its final outcome, and concentrating on outcomes alone (violation or non-violation of a right) is not enough of a clue to gauge the extent of fragmentation. In her final remarks, she points out some of the problems that comparative studies of this kind can encounter, and urges the awareness of the problems that international lawyers can encounter in using comparative methods and encourages them to familiarise themselves with the drawbacks of these methods in order to avoid, or at least minimise, them.

Last, but by no means least, Svetlana Tyulkina's article on the freedom of association in relation to political parties offers us a perspective that involves not just case-law regulation but soft law (at least when it comes to the ECHR and the Council of Europe) as well. She focuses on the key issue of political parties when discussing freedom of association – their banning. What she finds in her study is that the three jurisdictions share the same standards and tests and put the restrictions on political parties under the proportionality test which is anchored by the substantive understanding that “it is in the very best interest of any true democracy to encourage their active involvement in dialogue between governments and citizens”.³³ The substantive notion of democracy again anchoring the jurisprudence of the three courts via the formula of the proportionality test. This does not mean that there is uniformity in approach; the ECtHR and the Council of Europe have taken great strides in regulating the banning of political parties, in effect normalising the conduct while at the same time minimising it. On the other hand, the UN system seems to be interested more in banning extreme parties advocating racial or ethnic hatred or extremism while at the same time lagging behind in regulating the conduct.

Overall, this study seems to raise more questions than it answers. The results regarding the extent of fragmentation are mixed, partly stemming from the lack of clarity of what the fear is that fragmentation poses. If it is the fact that different courts can come to conflicting results, that is no less of a problem in national jurisdictions – let us not forget the fractured way in which the French high courts responded to the ECtHR article 6 jurisprudence as relating to the Advocate General and its counterpart in the Cour de Cassation and Counsil d'Etat, respectively,³⁴ where the Cour de Cassation practically ostracised the Advocate General while the Counsil d'Etat made only minor, cosmetic changes. We should also not forget the fact that technically the regulation that was under review in the Lautsi³⁵ judgment was unconstitutional but because of its jurisdictional issues was not heard by the Constitutional Court but by the Administrative Court which ruled on its legality.³⁶ Neither France nor Italy considers themselves as having problems of fragmentation. Probably the reason for this is that the unity of their national system is never in doubt, there is no “other”, no competitor to the French or Italian system, respectively, which can claim to have a right to decide in all matters French or Italian. Which brings us back to the issue of perspective highlighted by Lixinski – whether fragmentation is a problem may depend on where you are coming from, and, equally important, what your fears are. By embracing pluralism/fragmentation in a substantive sense, have we also forgone the universalist ideal, the notion that every human being is endowed with rights because of his or her inherent human dignity, regardless of the circumstances in which those rights are exercised?

What is also clear from this study is that to have a shared substantive understanding of rights matters matters a great deal if there is to be a shared understanding of the purpose and intent of rights – what the rights are for and what are they there to protect. Having a common formula (like the proportionality test) through which to answer the questions that come up during rights reviews also helps greatly. There is a dark cloud on the horizon, though, highlighted by the emerging trend of the ECtHR tying the margin of appreciation to a European consensus which overshadows a new question in the fragmentation debate that is quite pertinent in rights issues – why and how much should the circumstances of the application of rights (as Tyulkina puts it, the political, social, legal, cultural, historical circumstances) matter in rights jurisprudence. As we have seen from Salát's article, circumstances present during the initialisation of the case can, do and should matter (the arguing for nuance and detail is after all what legal argumentation is partially about), but should the circumstances of application matter? The answer to that question might just give you the answer to the question of whether one is a “pluralist” or a “de-fragmentationalist”.

Acknowledgements

This article was presented as part of a workshop funded by the MultiRights project. I wish to thank the participants to the workshop “Fragmentation of International Human Rights – Beyond the Conflict of Laws” held at the Central European University in Budapest which was funded by MultiRights project which is an advanced grant of the European Research Council – Lucas Lixinski, Svetlana Tylkina, Orsolya Salát, Kristin Henrard, Andreas Føllesdal, and Renata Uitz for helpful and lively discussion. I would also like to thank the Board and the reviewers of this journal for their comments; they were very helpful. And last, but not least, I wish to thank Natasha Telson for her Herculean efforts in facilitating the coordination of the whole issue.

Notes

1. B Simma and D Pulkowski, “Of Planets and the Universe: Self-contained Regimes in International Law” (2006) 17(3) European J of Int Law 483–529.

2. PM Dupuy, “A Doctrinal Debate in the Globalisation Era: On the ‘Fragmentation’ of International Law” (2007) 1 European J of Legal Studies 1–19.

3. B Simma and D Pulkowski, “Of Planets and the Universe: Self-contained Regimes in International Law” (2006) 17(3) European J of Int Law 483–529.

4. M Koskenniemi and P Leino, “Fragmentation of International Law? Postmodern Anxieties” (2002) 15(3) Leiden J of Int Law 553–79.

5. M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Geneva, International Law Comm, 2006); MA Young. “Introduction: The Productive Friction Between Regimes”, in MA Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge UP, Cambridge, 2011), at 5.

6. M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Geneva, International Law Comm, 2006).

7. Case T–85/09, Kadi v Commission, [2010] ECR II–5177.

8. Case C–402/05 P and C–415/05, P. Kadi & Al Barakaat International Foundation v Council & Commission, [2008] ECR I–6351.

9. M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Geneva, International Law Comm, 2006).

10. http://www.freakonomics.com/2009/09/17/survivor-bias-on-the-gridiron/ (last accessed 1 October 2013).

11. Example taken from http://youarenotsosmart.com/2013/05/23/survivorship-bias/ (last accessed 1 October 2013).

12. J Crawford and P Nevill, “Relations between International Courts and Tribunals: The ‘Regime Problem’”, in M Young (ed), Regime Interaction in International Law (Cambridge UP, Cambridge, 2012).

13. M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Geneva, International Law Comm, 2006).

14. T Broude and Y Shany (eds), Multi-Sourced Equivalent Norms in International Law (Studies in International Law, Hart Publishing, Oxford, Portland OR, 2011).

15. T Broude and Y Shany (eds), Multi-Sourced Equivalent Norms in International Law (Studies in International Law, Hart Publishing, Oxford, Portland OR, 2011); but also see F Fontanelli, Review of “Tomer Broude and Yuval Shany (eds). Multi-Sourced Equivalent Norms in International Law” (2012) 23(2) European J of Int Law 597–604.

16. P Webb, International Judicial Integration and Fragmentation (Oxford UP, Oxford, 2013).

17. See, for example, the Preambles of the European Convention on Human Rights, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child, which in different ways credit the Universal Declaration on Human Rights.

18. Here I use the expression “by most similar cases” as it is most widely used in social sciences to denote case selection rather than its legal studies counterpart to denote individual cases decided by a panel of judges. In this sense, in this sentence, the words “cases” and “case selection” mean the three jurisdictions that are under scrutiny in this study as subjects of study, and not their jurisprudence. Throughout this introduction and in the studies themselves, cases, case-law or similar phrases are used in their more common legal studies meaning rather than their sociological meaning. See for instance Chapters 2 and 3 of S Choudhry, The Migration of Constitutional Ideas (Cambridge UP, Cambridge, 2006).

19. Unn & Ben Leirvag v Norway, Comm No 1155/2003, HRC, UN Doc CCPR/C/82/D/1155/2003, 23 November 2004; and ECtHR, Folgero v Norway, App No 15472/02, Judgment of 29 June 2007; but also see L Lixinski, “Choice of Forum in International Human Rights Adjudication and the Unity/Fragmentation Debate: Is Plurality the Way Forward?” (2008) XVIII Italian Yearbook of International Law 183–200.

20. M Koskenniemi, “Hegemonic Regimes”, in M Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge UP, Cambridge, 2011), 305–24.

21. European Convention of Human Rights, art 3; International Covenant on Civil and Political Rights, art 7; American Convention on Human Rights, art 5.

22. For a key international law proponent of this stream of thought see M Koskenniemi, “Letter to the Editors of the Symposium” (1999) 93(2) American J of Int Law 351–61; M Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument: Reissue with a New Epilogue (Cambridge UP, Cambridge, 2005); M Koskenniemi, The Politics of International Law (Oxford; Portland, OR, Hart Publishing, 2011).

23. It is arguable how much “choice” is really involved in interpreting one way rather than another since some, myself included, who argue the indeterminacy thesis also claim that in the end what settles indeterminacy is the substantive notion – a substantive worldview – in which we are convinced and through which texts, sentences, paintings, utterances make sense. If that is the case then we also have to accept that we do not exactly control which worldviews we are persuaded and convinced in and therefore have no “choice” but to interpret texts one way rather than another; see for instance: S Fish, “Working on the Chain Gang: Interpretation in the Law and in Literary Criticism” (1982) 9(1) Critical Inquiry 201–16; S Fish, “Wrong Again” (1983) 62 Texas Law Rev 229–316; S Fish, “Still Wrong after All These Years” (1987) 6(3) Law and Philosophy 401–18; S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke UP, Durham NC, 1989), especially the chapter titled Change (141–59).

24. M Koskenniemi, The Politics of International Law (Oxford; Portland, OR, Hart Publishing, 2011).

25. The idea of “interpretative communities” has been championed by Stanley Fish, his most detailed explication of his concept can be found in S Fish, Is there a Text in this Class?: The Authority of Interpretive Communities (Harvard UP, Cambridge MA, 1980); S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke UP, Durham NC, 1989); S Fish “Afterword”, in GA Olson and L Worsham (eds), Postmodern Sophistry: Stanley Fish and the Critical Enterprise (State U of New York P, Albany, 2004), 273–84.

26. S Fish, “Working on the Chain Gang: Interpretation in the Law and in Literary Criticism” (1982) 9(1) Critical Inquiry 201–16; S Fish, “Wrong Again” (1983) 62 Texas Law Rev 229–316; S Fish, “Still Wrong after All These Years” (1987) 6(3) Law and Philosophy 401–18.

27. As of 7 June 2013.

28. E Voeten, “The Impartiality of International Judges: Evidence from the European Court of Human Rights” (2008) 102(4) American Pol Sci Rev 417–33; Y Lupu and E Voeten, “Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights” (2012) 42(2) British Journal of Political Science 413–39.

29. For the methodology and coding please visit http://dvn.iq.harvard.edu/dvn/dv/Voeten/faces/study/StudyPage.xhtml?globalId=hdl:1902.1/19324&studyListingIndex=0_9c0f66c3d256529f67040b4a858d (last visited 7 June 2013).

30. N Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford UP, Oxford, New York, 2010).

31. M Koskenniemi, “Hegemonic Regimes”, in M Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge UP, Cambridge, 2011), 305–24.

32. O Salát, “Comparative Freedom of Assembly and the Fragmentation of International Human Rights Law” (2014) 32(2) Nordic Journal of Human Rights 140–156.

33. S Tyulkina, “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” (2014) 32(2) Nordic Journal of Human Rights 157–175.

34. M de S-O l'E Lasser, “The European Pasteurization of French Law” (2004) 90 Cornell L Rev 995; M de S-O l'E Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford UP, Oxford, New York 2009).

35. Lautsi v Italy, Application No 30814/06, ECtHR, Grand Chamber, 18 March 2011.

36. P Ronchi, “Crucifixes, Margin of Appreciation and Consensus: The Grand Chamber Ruling in Lautsi v Italy” (2011) 13(3) Ecclesiastical Law J 287–97.