Mechanisms of defragmentation of international law: Systemic interpretation, evolutive interpretation and judicial activism of the European court of Human Rights

• Main Author: Đajić Sanja V.
• Format: Article
• Language: English
• Published: University of Novi Sad, Faculty of Law 2019-01-01
• Series: Zbornik Radova: Pravni Fakultet u Novom Sadu
• Subjects: european court of human rights; fragmentation of international law; right to access to court; un security council resolutions; systemic integration; evolutive interpretation; judicial activism
• Online Access: https://scindeks-clanci.ceon.rs/data/pdf/0550-2179/2019/0550-21791902363Q.pdf

This article explores mechanisms for overcoming fragmentation of international law which were developed by the European Court of Human Rights, such as systemic integration, evolutive interpretation, a set of autonomous methods of interpretation, and other forms of judicial activism. The overview of case law demonstrates that the European Court of Human Rights habitually relies on systemic integration despite the fact that the Convention itself does not mandate the reliance on general international law. European Court of Human Rights relies on Article 31(3)c of the 1969 Vienna Convention on the Law of Treaties for solving conflicts between external international sources and obligations stemming from the European Convention. In doing so the Court tends, at least in principle, to harmonize conflicting instruments in order to give effect to both. Even when the Court opts for one of the two instruments this is the result, at least in the Court's view, of the systemic integration, whether systemic approach stricto sensu or lato sensu. In addition to systemic integration the Court also engages evolutive interpretation or other so-called autonomous methods of interpretation. The cases under discussion deal with issues of state immunity and the right to access to court, as well as with the conflict between UN SC Resolutions and the right to access to court. All these cases demonstrate the relevance of the principle enshrined in Article 31(3)c of the Vienna Convention on the Law of Treaties. They equally testify that the process of fragmentation of international law is coupled with the analogous process of defragmentation, but also that the European Court of Human Rights, unlike many of its counterparts, is one of the factors of defragmentation of international law.