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Abstract
In its report on the fragmentation in international law, the ILC decided not to deal with the issue of institutional fragmentation – the fragmentation of international law brought on by the existence of different institutions dealing with norms that are “normatively equivalent”. This is a study of institutional fragmentation within human rights law; specifically it is an attempt to gauge the extent of fragmentation through the case-law of three courts, the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee, focusing on freedom of speech as related to journalists. It compares the texts, scope, tests and justifications of the three human rights conventions and concludes that, at least in this narrow field, the fear of fragmentation is unwarranted, with a large caveat which pertains to the doctrine of the margin of appreciation as practiced by the ECtHR and its “slipperiness”.
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 – 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. M Koskenniemi, Report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (International Law Commission, Geneva, UN Doc A/CN.4/L.682, 2006).
2. T Broude and Y Shany (eds), Multi-Sourced Equivalent Norms in International Law (Studies in International Law, Hart Publishing, Oxford, Portland, OR, 2013).
3. For the sake of expedience in the continuation of the article, all of these institutions will be called courts.
4. General Assembly resolution 217 A (III), 10 December 1948.
5. P van Dijk, GJH van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Intersentia, Antwerp, 2006); R Hanski, M Scheinin, UNHR Committee and ÅaIfm Rättigheter, Leading Cases of the Human Rights Committee (Institut for Human Rights, Åbo Akademi University, 2007); L Burgorgue-Larsen, A Úbeda de Torres and R Greenstein, The Inter-American Court of Human Rights: Case-Law and Commentary (Oxford UP, Oxford, New York, 2011); and J Casadevali, E Myjer, M O'Boyle and A Austin (2012). Freedom of Expression: Essays in Honour of Nicolas Bratza, President of the European Court of Human Rights (Wolf Legal Publishers, Oisterwijk, 2012); AR Mowbray, Cases and Materials on the European Convention on Human Rights (Oxford UP, Oxford, 2007) and; AR Mowbray, Cases, Materials, and Commentary on the European Convention on Human Rights (Oxford UP, Oxford, 2012).
6. “ … Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration …”
7. “Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man …”
8. “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, …Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,
9. For the European Convention: “ … Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared …” For the Covenant: “ … Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights …” For the American Convention: “ … Considering that these principles have been set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights, and that they have been reaffirmed and refined in other international instruments, worldwide as well as regional in scope;Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights; and …”
10. Universal Declaration of Human Rights, General Assembly Resolution 217 A (III), 10 December 1948.
11. For the European Convention: “ … Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend …
12. For the European Convention: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”; for the Covenant: “Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”; and, for the American Convention: “1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice”.
13. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, IACtHR, 13 November 1985, para s 30–31.
14. General Comment No 34, Art 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011.
15. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at paras 11–12.
16. C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 426.
17. Handyside v United Kingdom (Application No 5493/72), Section judgment, ECtHR, 7 December 1976, at para 48.
18. Article 13, paras 2 and 4, American Convention on Human Rights.
19. Case of Palamara-Iribarne v Chille (Merits, Reparations, and Costs), Judgment, IACtHR, 22 November 2005.
20. Case of Palamara-Iribarne v Chille, (Merits, Reparations, and Costs), at para 68.
21. Case of Palamara-Iribarne v Chille, (Merits, Reparations, and Costs), at para 71.
22. Observer & Guardian v UK (Application No 13585/88), Plenary session, ECtHR, 26 November 1991 (hereafter the Spycatcher case).
23. C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 69–70, para 60 (emphasis added).
24. Gaweda v Poland (Application No 26229/95), Section Judgment, ECtHR, 14 March 2002, but see also C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 61–63.
25. Gaweda v Poland (Application No 26229/95), Section Judgment, ECtHR, 14 March 2002, at paras 59–60.
26. New York Times v United States (1971) 403 US 713.
27. Partially Dissenting Opinion by Judge de Meyer (Concerning Prior Restraint) joined by Judges Pettiti, Russo, Foighel and Bigi, Observer and Guardian v UK (Application No 13585/88), Plenary Session, ECtHR, 26 November 1991.
28. See the dissenting opinions in Open Door & Dublin Well Woman v Ireland (Application No 14234/88; 14235/88), ECtHR, 29 October 1992.
29. Yildirim v Turkey (Application No 3111/10), ECHR, 18 December 2012.
30. “The Court reiterates that Article 10 does not prohibit prior restraints on publication as such. This is borne out not only by the words ‘conditions’, ‘restrictions’, ‘preventing’ and ‘prevention’ which appear in that provision, but also by the Court's judgment[s] … On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest. This danger also applies to publications other than periodicals that deal with a topical issue.” Yildirim v Turkey (Application No 3111/10), ECHR, 18 December 2012, at para 47.
31. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 13.
32. Case of Perozo v Venezuela (Preliminary Objections, Merits, Reparations, and Costs), Judgment IACtHR, 28 January 2009, at para 151.
33. Case of Perozo v Venezuela (Preliminary Objections, Merits, Reparations, and Costs), Judgment IACtHR, 28 January 2009, at paras 151–61.
34. Özgür Gündem v Turkey (Application No 23144/93), ECtHR, 16 March 2000, at para 43.
35. Özgür Gündem v Turkey (Application No 23144/93), ECtHR, 16 March 2000.
36. Özgür Gündem v Turkey (Application No 23144/93), ECtHR, 16 March 2000.
37. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 7.
38. The Committee's General Comment No 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, Official Records of the General Assembly, Fifty-ninth Session, Supplement No 40, vol I (A/59/40 (Vol I)), annex III.
39. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 7.
40. Gauthier v Canada, Communication No 633/1995, UN Doc CCPR/C/65/D/633/1995 (5 May 1999).
41. Gauthier v Canada, Communication No 633/1995, UN Doc CCPR/C/65/D/633/1995 (5 May 1999), at para 13.6.
42. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, IACtHR, 13 November 1985, paras 42–51.
43. Case of “The Last Temptation of Christ” (Olmedo-Bustos et al.) v Chile (Merits, Reparations and Costs), Judgment, IACtHR, 5 February 2001.
44. AS Sweet and J Mathews, “Proportionality balancing and Global Constitutionalism” (2008) 47 Columbia J of Transnational Law 73–165, at 97–104.
45. See cases Case of Perozo et al. v Venezuela (Preliminary Objections, Merits, Reparations, and Costs), Judgment, IACtHR, 28 January 2009 and Case of Ríos et al. v Venezuela (Preliminary Objections, Merits, Reparations, and Costs), Judgment, IACtHR, 28 January 2009.
46. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 24.
47. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 26.
48. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at paras 24–26.
49. Case of Claude-Reyes et al v Chile (Merits, Reparations and Costs), Judgment, IACtHR, 19 September 2006, at para 89.
50. Case of Claude-Reyes et al v Chile (Merits, Reparations and Costs), Judgment, IACtHR, 19 September 2006, footnotes omitted.
51. Case of Kimel v Argentina (Merits, Reparations and Costs), Judgment, IACtHR, 2 May 2008.
52. Sunday Times v UK, A.30 (1979) 2 EHRR 245, at para 47.
53. Sunday Times v UK, A.30 (1979) 2 EHRR 245, at para 49.
54. C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 312–15.
55. Malone v United Kingdom (Application No 8691/79), Section judgment, ECtHR, 2 August 1984; see also C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 313–14.
56. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 24.
57. G Slapper and D Kelly, The English Legal System, 2012–2013 (Routledge, London, 2012).
58. Case of Usón Ramírez v Venezuela (Preliminary Objections, Merits, Reparations, and Costs) Judgment, IACtHR, 20 November 2009.
59. Case of Usón Ramírez v Venezuela (Preliminary Objections, Merits, Reparations, and Costs) Judgment, IACtHR, 20 November 2009, at para 63; the IACtHR did not question the fact that only individuals are the beneficiaries of the rights under the Convention and, therefore, institutions do not have the right to honour as individuals do.
60. Case of Usón Ramírez v Venezuela (Preliminary Objections, Merits, Reparations, and Costs) Judgment, IACtHR, 20 November 2009, at para 65.
61. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at paras 35–36.
62. Silver v UK (Applications No 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75), ECtHR, Section Judgment, 25 March 1983.
63. Silver v UK (Applications No 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75), ECtHR, Section Judgment, 25 March 1983, at para 97.
64. C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 325.
65. C Ovey, RCA White and FG Jacobs, The European Convention on Human Rights (Oxford UP, Oxford, 2010), at 326–27.
66. See, for instance, Ceylan v Turkey (Application No 23556/94), ECtHR, Section Judgment, 8 July 1999; Incal v Turkey (Application No 41/1997/825/1031), ECtHR, Section Judgment, 9 June 1998; Arslan v Turkey (Application No 23462/94) ECtHR, Section Judgment, 8 July 1999. P van Dijk, GJH van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Intersentia, Antwerp, 2006), at 340–42.
67. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, IACtHR, 13 November 1985, at paras 42–44.
68. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, IACtHR, 13 November 1985, at paras 42–44.
69. L Burgorgue-Larsen, A Úbeda de Torres and R Greenstein, The Inter-American Court of Human Rights: Case-Law and Commentary (Oxford UP, Oxford, New York, 2011), at 541; but also see the many references to the ECtHR in the Compulsory Membership in Journalist Organizations.
70. Case of Herrera-Ulloa v Costa Rica (Preliminary Objections, Merits, Reparations and Costs), Judgment IACtHR, 2 July 2004, at para 121.
71. Case of Herrera-Ulloa v Costa Rica (Preliminary Objections, Merits, Reparations and Costs), Judgment IACtHR, 2 July 2004, at para 121.
72. Case of Herrera-Ulloa v Costa Rica (Preliminary Objections, Merits, Reparations and Costs), Judgment IACtHR, 2 July 2004, at para 121. also referring to the necessity test of the ECtHR.
73. A Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford UP, Oxford, 2012), at 3–4.
74. Ireland v UK (Application No 5310/71), ECtHR, Judgment, Plenary, 18 January 1978.
75. Spielmann (2012), at 4–5.
76. Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia, Antwerp, Oxford, 2002); at 2–7.
77. G Letsas, “Two Concepts of the Margin of Appreciation” (2006) 26(4) Oxford J of Legal Studies 705–32.
78. G Letsas, “Two Concepts of the Margin of Appreciation” (2006) 26(4) Oxford J of Legal Studies 705–32, at 706.
79. G Letsas, “Two Concepts of the Margin of Appreciation” (2006) 26(4) Oxford J of Legal Studies 705–32.
80. HLL Hill, “Universality versus Subsidiarity: A Reply” (1998) 1 European Human Rights Law Rev 73–81, at 75.
81. Dissenting Opinion of Judge De Meyer, Z v Finland (Application No 22009/93), ECtHR, Section Judgment, 25 February 1997.
82. Y Arai-Takahashi, “The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg's Variable Geometry”, in A. Føllesdal, G. Ulfstein and B. Peters (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge UP, Cambridge, 2013) 62–105.
83. J Brauch, “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law” (2005) 11 Columbia J of European Law 113–50.
84. Spielmann (2012).
85. See for instance the Concurring Opinion of Judge Rozakis and the Dissenting opinion of Judge Malinverni in the Lautsi judgment, Lautsi v Italy, Application No 30814/06, ECtHR, Grand Chamber, 18 March 2011.
86. For a more detailed list see Spielman (2012), at 3, footnote 8.
87. Case of Ricardo Canese v Paraguay (Merits, Reparations and Costs), Judgment IACtHR, 31 August 2004.
88. Case of Ricardo Canese v Paraguay (Merits, Reparations and Costs), Judgment IACtHR, 31 August 2004. paras 96–97.
89. For a contrary opinion see A Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford UP, Oxford, 2012).
90. Länsman v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992, 8 November 1994.
91. Länsman v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992, 8 November 1994. para 9.4
92. See for instance the Brighton declaration and its urging of the inclusion of the phrase margin of appreciation in the preamble to the Convention, Section B – Interaction Between the Court and National Authorities, High Level Conference on the Future of the European Court of Human Rights, Brighton Declaration, 20 April 2012 (available at http://hub.coe.int/20120419-brighton-declaration last visited 23 Sep. 13).
93. HLL Hill, “Universality versus Subsidiarity: A Reply” (1998) 1 European Human Rights Law Rev 73–81, at 75; J Brauch, “The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law” (2005) 11 Columbia J of European Law 113–50; and Y Arai-Takahashi, “The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg's Variable Geometry”, in A. Føllesdal, G. Ulfstein and B. Peters (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge UP, Cambridge, 2013), 62–105.
94. Handyside v United Kingdom, (Application No 5493/72), Section judgment, ECtHR, 7 December 1976, para 49.
95. Handyside v United Kingdom, (Application No 5493/72), Section judgment, ECtHR, 7 December 1976.
96. Handyside v United Kingdom, (Application No 5493/72), Section judgment, ECtHR, 7 December 1976.
97. J Tasioulas, “Human Rights, Legitimacy, and International Law” (2013) 58(1) American J of Jurisprudence 1–25.
98. Case of Usón Ramírez v Venezuela (Preliminary Objections, Merits, Reparations, and Costs), Judgment IACtHR, 20 November 2009, at para 83.
99. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85, IACtHR, 13 November 1985, at paras 70–71.
100. Case of Herrera-Ulloa v Costa Rica (Preliminary Objections, Merits, Reparations and Costs), Judgment IACtHR, 2 July 2004, at para 116.
101. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at paras 2–3.
102. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 5.
103. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011, at para 2
104. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011.
105. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011.
106. General Comment No 34, Article 19, Freedoms of Opinion and Expression, United Nations Human Rights Committee, 102nd Session, UN Doc CCPR/C/GC/34, 12 September 2011.
107. One question that I would like to pose that is not relevant to the task of this article, is that while certainly reasoning is one of the hallmarks of a human being, one can think of societies where the expression of ideas is anything but free and those societies can still exist.
108. Observer & Guardian v UK (Application No 13585/88), Section Judgment, ECtHR, 26 November 1991.
109. Observer & Guardian v UK (Application No 13585/88), Section Judgment, ECtHR, 26 November 1991, at paras 61–70.
110. Just as an example, the ICCPR has been signed and ratified by nations as diverse as all of the EU nations, United States of America, as well as Iran, Iraq, Egypt, India, while China is a signatory but has not ratified it.