Fragmentation of International Law Redux: The Case of Strasbourg

Abstract

The fragmentation of international law in the European context is the principal focus of this review essay based upon Magdalena Forowicz’s The Reception of International Law in the European Court of Human Rights. The article commends the book’s detailed analysis of the reception of international law in the jurisprudence of the European Court of Human Rights (ECtHR) and welcomes its contribution to the literature on the principle of systemic integration derived from Article 31(3)(c) of the Vienna Convention on the Law of Treaties. It considers the book’s analysis of the ECtHR approach to international law and the factors influencing fragmentation or harmonization identifiable across a range of areas of the Court’s jurisprudence. It assesses the book’s criticism of system-bolstering jurisprudence and its implicit support of a broader harmonizing role for the ECtHR. The article contends that Court’s approach to international law reflects the specific nature of the European Convention on Human Rights (ECHR) as a regional human rights instrument. It examines the putative harm resulting from fragmentation and is somewhat critical of the book’s overarching thesis in favour of harmonization. In this it distinguishes harmonization and teleological interpretation, arguing that the book does not adequately reflect the ways in which system bolstering interpretations may support the effective protection of fundamental rights. This is particularly relevant in cases where the fragmentation identified is traceable to the defence of a higher standard of human rights protection embodied in the ECHR.