Este
reporte fue elaborado por Oswaldo
Ruiz-Chiriboga.
La revista Nordic
Journal of Human Rights (Vol. 32,
No. 2, 2014) publicó un número especial dedicado al tema de la fragmentación del
derecho internacional, el cual contiene los siguientes artículos de interés:
Lucas Lixinski
This
article compares the application of the right to private and family life across
different human rights jurisdictions. It chooses instances of “convergence”
(that is, situations that fall under the purview of this right for all
jurisdictions) and of “divergence” (situations that fall under the right for
some jurisdictions, but under a different right in others). Through this
exercise, the article demonstrates how the similarity in the language of the
relevant treaties influences treaty application for the “easy” cases, but how,
when faced with a “hard” case, a human rights jurisdiction is more likely to
follow its own path, which is often more attuned to the legal sensitivities
around the implementing body. Therefore, while at the same time institutional
fragmentation is avoided in the instances of convergence, the hegemonic
tendencies of international human rights law as a European project are also
skirted, as seen in the “divergence” cases.
Marjan Ajevski
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”.
Orsolya Salát
Assuming
that the issue of fragmentation of international human rights law can also be
usefully examined in the case-law on particular rights using a comparative
method, this article examines the divergence and convergence of freedom of
assembly guarantees and jurisprudence in international fora. It finds that some
identified divergences in fact point to underlying common concerns and
assumptions about assemblies. On this basis, the article argues that the
fragmentation discourse is prone to structurally analogous, though “reverse”,
fallacies as the methodology of comparative law. In particular, the
functionalist method is much criticised for being apologetic or trapped within
one's own conceptual and institutional system, a concern which might be present
in the fragmentation debate as well. The article concludes on this basis by
formulating some suggestions which might be applied to examining fragmentation
in international human rights law and potentially beyond.
Svetlana Tyulkina
The
article is a part of a Special Issue on institutional fragmentation in
international human rights law and it focuses on freedom of association as
related to political parties. It investigates how this right is being
interpreted and applied in three selected jurisdictions – the UN Human Rights
Committee, the European Court of Human Rights and the Inter-American Court of
Human Rights. The article starts with analysing the conventional texts
regulating the content of the freedom of association and possible limitations
states may impose on the exercise of this freedom. It further examines how the
freedom of association of political parties is interpreted by three
international institutions of human rights protection. Based on an analysis of
the conventional texts and the relevant jurisprudence, it investigates whether
there is a fragmentation with respect to the freedom of association specific to
political parties and what it means for the claim on the universality of human
rights.
