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ABSTRACT
The article draws attention to how integrative interpretation – a methodology where the European Court of Human Rights integrates its normative environment into the interpretation of the European Convention of Human Rights – may offer an important path to bridging many of the challenges caused by fragmentation in the field of human rights. More specifically, the article offers insight into a selection of ECHR cases that are characterised by the existence of normative overlap between the ECHR, the CEDAW and the CRC; and by the fact that interaction between these legal sources actually takes place in the interpretation carried out by the Court. Interaction is discussed through two topics: the issue of state obligations in relation to domestic violence, and the issue of state obligations in relation to expulsion of immigrants with children. The article demonstrates that systemic integration may result in a strengthening of the protection of human rights under ECHR through what is termed ‘interpretive widening and thickening’.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 Ragnar Nordeide, The Interaction between the European Convention on Human Rights (ECHR) and Other International Law. What Role for a Purposive Conception of the ECHR? (Series of dissertations submitted to the Faculty of Law, University of Oslo No. 90, 2015), 16.
2 Some examples are the UN Convention for the Protection of All Persons from Enforced Disappearance, adopted on 20 December 2006 (entry into force 23 December 2010), the UN Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 (entry into force 3 May 2008), the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul convention), adopted on 7 April 2011 (entry into force 1 August 2014), the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (the Lanzarote Convention), adopted on 25 October 2007 (entry into force 1 July 2010).
3 Such thickening is also referred to as institutional fragmentation, cf. Marjan Ajevski, ‘Fragmentation in International Human Rights Law – Beyond Conflict of Laws’, Nordic Journal of Human Rights 32, no. 2 (2014): 87–98 at 88, https://doi.org/10.1080/18918131.2014.897795.
4 For instance, the growth of the UN Treaty Body System has resulted in a growing backlog of State reports, individual communications, and urgent actions; in insufficient compliance by States parties with their reporting obligations; and in diverging working methods among the treaty bodies, cf. ‘Treaty Body Strengthening’, The Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx (accessed October 10, 2018).
5 Cf. Julia Kozma, Manfred Nowak, and Martin Scheinin, consolidated draft statute for the establishing of a World Court of Human Rights, included in the report Protecting Dignity: An Agenda for Human Rights (Swiss Federal Department of Foreign Affairs and the Geneva Academy of International Humanitarian Law, 2011). See also Manfred Nowak, ‘The Right of Victims of Human Rights Violations to a Remedy: The Need for a World Court of Human Rights’, Nordic Journal of Human Rights 32, no. 1 (2014): 3–17 at 10, https://doi.org/10.1080/18918131.2013.877552. For a critique of the proposal, cf. Philip Alston, ‘Against a World Court of Human Rights’, NYU School of Law, Public Law Research Paper No. 13–71, SSRN, https://ssrn.com/abstract=2344333.
6 The use in this article of the two concepts ‘systemic integration’ and ‘normative environment’ draws on the presentation and elaboration of the concepts in Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (13 April 2006), UN Doc A/CN.4/L.682, 211 (para. 419) and 243–4 (paras. 479–480).
7 Vienna Convention on the Law of Treaties, adopted on 23 May 1969 (entry into force 27 January 1980).
8 For a critical analyses of the relationship between VCLT Article 31 (3) (c) and the principle of systemic integration, cf. Adamantia Rachovitsa, ‘The Principle Of Systemic Integration In Human Rights Law’, International & Comparative Law Quarterly 66, no. 3 (2017): 557–88, https://doi.org/10.1017/S0020589317000185.
9 Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 131, ECHR 2010. Similar formulations are found in, inter alia, Golder v. the United Kingdom, 21 February 1975, § 35, Series A no. 18; Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI; Fogarty v. the United Kingdom [GC], no. 37112/97, § 35, ECHR 2001-XI (extracts); McElhinney v. Ireland [GC], no. 31253/96, § 36, ECHR 2001-XI (extracts); Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 65–8, ECHR 2008. Cf. Ragnar Nordeide, ‘The ECHR in its Normative Environment: Diffculties arising from a Regional Human Rights Courts’s Apprach to Systemic Integration’, in The Practice of International and National Courts and the (De-)Fragmentation of International Law, ed. Ole Kristian Fauchald and André Nollkaemper (Oxford and Portland: Hart Publishing, 2012), 121 ff.
10 Rachovitsa, ‘The Principle of Systemic Integration’.
11 Nordeide, ‘The Interaction between’.
12 Ajevski, ‘Fragmentation in International Human Rights’, 90–91, and the other articles included in Marjan Ajevski, ed. ‘Fragmentation in International Human rights Law – Beyond Conflict of Laws’, Special issue, Nordic Journal of Human Rights 32, no. 2 (2014).
13 Ronagh J. A. McQuigg, The Istanbul Convention, Domestic Violence and Human Rights (London: Routledge, 2017), 60.
14 Patricia Londono, ‘Developing Human Rights Principles in Cases of Gender-based Violence: Opuz v Turkey in the European Court of Human Rights’, Human Rights Law Review 9, no. 4 (2009): 657–67 at 657, https://doi.org/10.1093/hrlr/ngp022.
15 Ibid., 658.
16 See for instance the preamble to the Council of Europe Istanbul Convention.
17 Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Explanatory Report to the Istanbul Convention), Council of Europe Treaty Series No. 210 (2011), para. 2.
18 Andrew Byrnes and Eleanor Bath, ‘Violence Against Women, the Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women – Recent Developments’, Human Rights Law Review 8, no. 3 (2008): 517–33 at 518, https://doi.org/10.1093/hrlr/ngn022.
19 It had already adopted a brief general recommendation on the subject, cf. CEDAW-Committee, General recommendation No. 12 Violence against women (1989).
20 CEDAW-Committee, General recommendation No. 19 Violence against women (1992), para. 6.
21 Ibid., para. 24 (t).
22 Ibid.
23 Ibid., para. 9.
24 Byrnes and Bath, ‘Violence against Women’, 519.
25 Competence to assess individual complaints is established through the Optional Protocol to the Convention, adopted on 15 October 1999 (entry into force 22 December 2000).
26 Byrnes and Bath, ‘Violence against Women’, 533.
27 Opuz v. Turkey, no. 33401/02, ECHR 2009.
28 Ibid., § 23.
29 Ibid., § 195.
30 In its interpretation of the content of positive state obligations and the principle of due diligence, it looked for ‘any consensus and common values emerging from the practices of European States and specialised international instruments, such as CEDAW’, cf. Ibid., § 164.
31 Ibid., §§ 149, 153.
32 Ibid., § 145.
33 Ibid.
34 Ibid., § 176.
35 Ibid., § 184.
36 Ibid., § 185.
37 Ibid., §§ 186–7, that refers back to § 74.
38 Ibid., § 72 ff.
39 Ibid., § 187 ff.
40 Ibid., § 200.
41 McQuigg, ‘The Istanbul Convention’, 65.
42 Explanatory Report to the Istanbul Convention, para. 6.
43 Further, in the Explanatory Report to the Istanbul Convention it is acknowledged that the ECtHR in its case law has set down ‘important standards in the field of violence against women, … which provided guidance to the drafters for the elaboration of numerous positive obligations and measures needed to prevent such violence.’ Cf. Ibid., para. 29. The Opuz-case is explicitly mentioned several times, se for instance Ibid., para. 49.
44 Talpis v. Italy, no. 41237/14, 2 March 2017.
45 Sara De Vido, ‘States’ Positive Obligations to Eradicate Domestic Violence: The Politics of Relevance in the Interpretation of the European Convention on Human Rights’, ESIL Reflections 6, no. 6 (2017): 1–11 at 2, http://www.esil-sedi.eu/node/1815.
46 Ibid., 1.
47 CEDAW-Committee, General recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19 (2017), CEDAW/C/GC/35, para. 8.
48 Opuz v. Turkey is explicitly referred to in Ibid., footnote no. 2.
49 Anette Faye Jacobsen, ‘Children’s Rights in the European Court of Human Rights – An Emerging Power Structure’, International Journal of children’s Rights 24, no. 3 (2016): 548–574, at 553, https://doi.org/10.1163/15718182-02403003.
50 See the concurring opinion of judge Jebens in the case Nunez v. Norway, no. 55597/09, 28 June 2011 where he states that ‘an applicant’s children are indirectly protected under the Convention, even if they are not applicants in an expulsion case which concerns a parent. The protection of the children in such situations has become clearer in recent years, and may even have increased, as a result of the Court’s reliance on other international legal instruments, in particular the UN Convention on the Rights of the Child, notably its Article 3 … ’.
51 Nunez v. Norway, § 68.
52 Jeunesse v. the Netherlands [GC], no. 12738/10, 3 October 2014.
53 CRC-Committee, General Comment no. 5 General measures of implementation of the Convention on the Rights of the Child (2003), para. 12. CRC-Committee, General Comment no. 12 The right of the child to be heard (2009), para. 2.
54 CRC-Committee, General Comment No. 7 Implementing child rights in early childhood (2005).
55 CRC-Committee, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (2013).
56 Ibid., para. 2.
57 Ibid., para. 39.
58 For a broad account of the different State obligations embedded in CRC Article 3 No. 1, see Kirsten Sandberg, ‘Barnets beste som rettighet’, in Rettigheter i velferdstaten. Begreper, trender, teorier, eds. Ingunn Ikdahl and Vibeke Blaker Strand (Oslo: Gyldendal, 2016), 57–83.
59 CRC-Committee, GC no. 14, para. 6.
60 Ibid., para. 37.
61 Ibid., para. 32.
62 Ibid., para. 97.
63 Ibid., para 6 (c).
64 Nunez v. Norway, para. 70. Jenuesse v. the Netherlands, para. 107.
65 Nunez v. Norway, para. 70. Jenuesse v. the Netherlands, para. 108.
66 The applicant in Nunez had two children; the applicant in Jeunesse had three children.
67 Nunez v. Norway, para. 70. Jenuesse v. the Netherlands, para. 107.
68 Ibid.
69 Nunez v. Norway, para. 80.
70 Ibid., para. 84.
71 Jeunesse v. the Netherlands, para 109.
72 See for instance Krasniqi v. Austria, no. 41697/12, 25 April 2017.
73 Jeunesse v. the Netherlands, paras. 73–4.
74 Ibid., para. 106 ff.
75 Ibid., para. 120.
76 Ibid.
77 In similar direction, cf. Ciara Smyth, ‘The Best Interests of the Child in the Expulsion and First-entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?’, European Journal of Migration and Law 17 (2015): 70–103 at 97, https://doi.org/10.1163/15718166-12342072; Lourdes Perioni, ‘Jeunesse v. the Netherlands: Quiet Shifts in Migration and Family Life Jurisprudence?’, blog published 30.10.2014 by Strasbourg Observers, https://strasbourgobservers.com/2014/10/30/jeunesse-v-the-netherlands-quiet-shifts-in-migration-and-family-life-jurisprudence/; Council of Europe, Commissioner for Human Rights, Realising the right to family reunification of refugees in Europe, issue paper 2017, https://rm.coe.int/prems-052917-gbr-1700-realising-refugees-160×240-web/1680724ba0.
78 The ECtHR has so far granted the Contracting States a large margin of appreciation in cases that involve religion, which does not par with the approach taken by UN treaty bodies. This practice indicates that the ECHR does not contain the strongest human rights in relation to issues that involve prohibitions against the use of religious clothing and symbols in public institutions, cf. Vibeke Blaker Strand, ‘Prohibitions against Religious Clothing and Symbols in Public Schools and Universities: Narrowing the Scope by Introducing the Principle of Equal Treatment of Religious Manifestations’, Religion & Human Rights. An International Journal 10, no. 2 (2015): 160–90 at 186, https://doi.org/10.1163/18710328-12341285.
79 However, the relationship between systemic integration and dynamic interpretation is not touched upon in this article.
80 See preambles to i.e. the ECHR, the CRDAW and the CRC.
81 International Law Commission, finalized by Koskenniemi, Fragmentation of International Law, 211 (para. 420).