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Home EJIL Analysis We Need to Look at International Human Rights Law (Also) as a Whole

We Need to Look at International Human Rights Law (Also) as a Whole

Published on October 17, 2014        Author: 

Eva bootEva Brems is a Professor of Human Rights Law and Director of the Human Rights Center at Ghent University, Belgium.

As a political and ethical project, human rights are one, indivisible and universal. As law however, they are fragmented. Yet most situations of alleged human rights violations fall within the scope of several human rights provisions from different sources at the same time. Hence the relevance of a holistic perspective on international human rights law.

Fragmentation

The complex architecture of international human rights law is characterized by a multitude of highly diverse sources. These sources can be differentiated in several cross-cutting ways: by governance level (regional, world), by their material scope (general, categorical , single issue), by their personal scope (universal or specific target group), by their legal force (hard or soft law) and by the type of monitoring mechanism that accompanies them.

The fragmentation of human rights law is accompanied by increasing specialization of human rights scholarship. As the field has grown, general human rights experts have largely been replaced by experts of ‘religious freedom’, ‘children’s rights’, ‘the European Convention on Human Rights’ and such. While this has brought the discipline to a higher lzevel, it has also contributed to creating a fragmented, compartmentalized view of human rights law.

Agents’ Perspectives

In all this, there is a risk to overlook the basic fact that rights holders as well as public authorities and other duty bearers under human rights norms are confronted simultaneously with a multitude of these sources. To any particular situation, a dozen relevant human rights sources may apply.

Moreover, some human rights monitoring bodies are mandated to apply to any single case a whole range of human rights treaties adopted at the same governance level (the Inter-American Commission and Court) or even all relevant human rights instruments ratified by the state concerned (the African Commission and Court) .

Why Human Rights Integration

This reality makes it seem highly relevant for human rights scholars to add a holistic perspective to their work. This implies studying not just separate norms or mechanisms, but also their simultaneous application, and what this implies for human rights holders and duty bearers.

Yet there may also be a need for normative development toward stronger integration of international human rights law. Several arguments may be advanced to support this.

In a top-down reasoning focused on international law, an integrated approach can bring human rights law closer to the ethical and political project of human rights, by making the universality and indivisibility of human rights real. Together, these principles require that all human rights should carry the same weight, and that they should be read together, strengthening each other. Yet the reality of human rights implementation is often far removed from these principles, as cases involving multiple human rights are routinely examined through the lens of one human right only, and as the invoking of multiple norms in a single situation remains the exception rather than the rule.

Additionally, in a bottom-up reasoning centered on human rights holders, an integrated approach at the level of human rights implementation is needed for full human rights justice. A single case may present prima facie violations of civil rights as well as social rights, and in addition involve children’s rights, women’s rights and minority rights. This brings the case within the powers of several international human rights monitoring bodies, yet given their limited powers, any of these can only deliver partial human rights justice. Moreover, the current situation occasionally leads to contradictory rulings by different international bodies, a situation of which states take advantage to the detriment of human rights. Consider in this respect European states’ reactions to the conflicting case law of the European Court of Human Rights and the Human Rights Committee on bans of religious dress .

Finally, a legal argument should be mentioned. Article 31 (3) (c) of the Vienna Convention on the Law of Treaties states as a general rule of treaty interpretation that ‘there shall be taken into account, together with the context:… (c) any relevant rules of international law applicable in the relations between the parties.’ Koskenniemi in his ILC Report entitled ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ has named this ‘the principle of systemic integration’ (208). In a report for the International Law Commission, he has formulated the rule of systemic integration as follows: ‘This means that although a tribunal may only have jurisdiction in regard to a particular instrument, it must always interpret and apply that instrument in its relationship to its normative environment – that is to say “other” international law. ‘(212) This ‘other international law’ includes conventions concluded among the same parties, or even – according to the ILC’s preferred interpretation- those concluded by the party/parties in the dispute (and not necessarily all other parties to the main treaty)(238).  If the interpretation of the International Law Commission is followed, human rights integration at the level of monitoring bodies is thus mandatory as a matter of public international law. Those bodies’ current practice of human rights integration is promising, yet limited and inconsistent.

Integrative Principles

It seems useful for international human rights law to develop  a number of guiding principles for integrated human rights implementation. It is submitted that these should apply to states implementing their human rights obligations as well as to national and international human rights monitoring bodies. These could clarify for example that a ‘margin of appreciation’ left to states by one monitoring body remains circumscribed by a state’s obligations as interpreted by other monitoring bodies.  In addition, they might include a lex specialis priority rule (so that for instance the work of the CAT Committee is to be integrated in the Human Rights Committee’s or a regional human rights court’s interpretation of torture), as well as a rule that gives priority to the most rights-protective provision in case of conflict (cf. art. 53 ECHR).

Such principle of human rights integration could be a nucleus of ‘general human rights law’.

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Filed under: EJIL Analysis, Human Rights
 
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