Why international law can’t save us (part 1): Theoretical Fragmentation.

Assuming that everyone reading this blog is familiar with the concept of international law and human rights law, in the next few weeks I will develop an analysis focused on the inconsistencies and flaws of these regimes. I will also outline the characteristics of international law that need to be consolidated or further developed and when possible, I will suggest the tools and machinery that might be useful to obtain a better, faster and more coherent enforcement of human rights law.

The first shortcoming of international human rights law is its failure to adjust to and coordinate with other areas of international law. This concept is related to the structure of international law, specifically to the pathological fragmentation of this field that threatens its consistency. International human rights law is a self-contained regime, a subsection of international law, thus inheriting its lack of hierarchy and decentralization while struggling to achieve autonomy and dominance. While attempting to do so, it interacts with and is limited by international law.

The discourse regarding the position of international human rights law and its emergence as an independent body of law is highly divided: some believe that the interference might have a positive effect on international law, ‘’humanizing’’ it and its subsequent fields, while others see it as an intruder that deepens and consolidates its fragmentation.

Furthermore, human rights law itself faces this innate fragmentation due to regional and international overlapping and disconnected rules and to the interpretation made by States that has to conciliate both international and domestic provisions simultaneously.Comparative case law- the relationship between the interpretation of certain human rights concepts made by the ECHR and the ICJ – points to the existence of a judicial facet of fragmentation.

One of the alarming consequences of fragmentation is the conflict of norms.Conflicts might arise from the struggle to merge and harmonize human rights law and international law when they contain uncoordinated rules regarding jurisdiction, interpretation or regulation of a certain conduct.  Thus, fragmentation is a troubling concept from a technical and practical point of view. On the other hand, from an idealistic perspective centered on the goals and purposes of the human rights movement it might be considered beneficial: some human rights techniques that deal with conflict resolution in a sui generis manner are starting to infiltrate other areas of international law. Finally, international human rights law also has a strong political and organizational foundation that allows it to bend general international law. If organs of different international organizations claim legitimacy and regulative authority in the human rights field they will only contribute to the formation of an even more disperse framework.

 

 

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