miércoles, 11 de junio de 2014

Fragmentación en el Derecho Internacional

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.