Treaty clauses and fragmentation of international law: Applying the more favourable protection clause in human rights treaties

Abstract

This article argues that despite the growing interest in the so-called fragmentation of international law, little, if any, attention has been paid to the role of the more favourable protection clause in addressing certain aspects of the interaction between treaties on human rights. It shows that both the Inter-American Court of Human Rights and the European Court of Human Rights do not employ the clause, found in their respective constitutive instruments, to fulfil its initial aim and design. The article compares the practices of the two courts and explores the underlying reasons for not using, or misapplying, the clause. Moreover, the analysis finds that even though the clauses in the European Convention on Human Rights and the American Convention on Human Rights are very similar, the two courts have adopted completely different understandings of how the clause should be applied, thereby strengthening the fragmentation narrative. The discussion proceeds to suggest a novel way in which the more favourable protection clause may be used. It contends that the clause is a provision subject to violation by the contracting parties by way of offering an alternative manner in which international courts can engage with the proliferation of human rights treaties and revisit the allocation of competence among international and national courts. The Author [2016]. Published by Oxford University Press.