Fragmentation as Discourse : Ordering the Relationship Between International Human Rights Law and International Humanitarian Law at the European Court of Human Rights
Junkkari, Isabell (2021)
Junkkari, Isabell
2021
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https://urn.fi/URN:NBN:fi-fe2021111355071
https://urn.fi/URN:NBN:fi-fe2021111355071
Tiivistelmä
In Public International Law, the precise relationship between International Human Rights and International Humanitarian Rights remains ill-defined. The European Court of Human Rights has added to the discussion with two judgments, Hassan v. the United Kingdom and Georgia v. Russia II. In order to assess how both lawyers and judges attempted to order the IHL-HRL relationship in these two cases, a partial discourse analysis was undertaken. In examining the discourses used during argumentation and judgment stages of the cases, several topoi, including lex specialis, fragmentation, and jurisdiction, were identified. These themes were argued within what this paper classifies as discourses of displacement, derogation, modification, interpretation, conformity, complexity and chaos. Lex specialis was an ordering tool implicitly used by all parties to solve norm conflict; the respondent government of the UK and applicant government of Georgia used the principle as a discursive tool.
In building their arguments, the parties to the cases developed four separate narratives, which can be placed within the larger debate of theoretical approaches to fragmentation: species-species, genus-species, complementary, and integrationist. The respondent governments of the United Kingdom and Russia built their argumentation largely within fragmentary narratives that see IHL as an entirely separate regime from HRL. The applicant in Hassan, despite its use of outwardly unitary language, also built their argument within a larger particularist narrative. By contrast, the Court chose complementary narratives in their judgments, in a discourse that considers IHL and HRL to be integrable. Nevertheless, the Court’s approach was inconsistent. In Georgia v Russia II, the ECtHR accepted Russia’s fragmentary narrative for the time period it termed “active phase of hostilities,” but employed an integrationist narrative for the period of occupation.
In building their arguments, the parties to the cases developed four separate narratives, which can be placed within the larger debate of theoretical approaches to fragmentation: species-species, genus-species, complementary, and integrationist. The respondent governments of the United Kingdom and Russia built their argumentation largely within fragmentary narratives that see IHL as an entirely separate regime from HRL. The applicant in Hassan, despite its use of outwardly unitary language, also built their argument within a larger particularist narrative. By contrast, the Court chose complementary narratives in their judgments, in a discourse that considers IHL and HRL to be integrable. Nevertheless, the Court’s approach was inconsistent. In Georgia v Russia II, the ECtHR accepted Russia’s fragmentary narrative for the time period it termed “active phase of hostilities,” but employed an integrationist narrative for the period of occupation.
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