The Principle of Systemic Integration in Human Rights Law

Abstract

International lawyers and courts consider the principle of systemic integration to be a potential answer to difficulties arising from the fragmentation of public international law. This article questions the application of this approach in the context of human rights treaties. It is argued, first, that in many instances, systemic integration raises serious interpretational and jurisdictional concerns and, second, that systemic integration may give rise to a less diverse international law. Copyright

Full text

The Principle of Systemic Integration in Human Rights Law!
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The Principle of Systemic Integration in Human Rights Law - A Critical Appraisal
Dr Adamantia Rachovitsa∗
Forthcoming at International & Comparative Law Quarterly, 2017
This version has been accepted for publication. It has been revised following peer review
but it is subject to editorial input by CUP
I. INTRODUCTION
The principle of systemic integration is being expounded as the answer to
certain difficulties arising from the fragmentation of public international law (PIL), in
a similar vein to the way that ‘number 42’ was the ultimate answer to everything in the
universe in the novel, ‘The Hitchhiker’s Guide to the Galaxy’.1 International lawyers
and judges contemplate and discuss systemic integration without, however, explaining
the application of this principle of interpretation in legal reasoning. This article makes
two arguments: First, the uncritical application of systemic integration raises serious
interpretational and jurisdictional concerns. Second, systemic integration does not
necessarily yield the results hoped for, but may instead create new hegemonies among
international courts and give rise to a poorer and less diverse international law in the
future.
The article focuses on the application of systemic integration of treaties – more
specifically, in the human rights area. Although the function of systemic integration has
been explored across different functional regimes (e.g. trade law or investment law vis-
à-vis human rights), not much has been written concerning the human rights regime
itself. The analysis discusses the case law of the European Court of Human Rights
(ECtHR), the Inter-American Court of Human Rights (IACtHR) and the African Court
of Human and Peoples’ Rights (ACtHPR). The study of the application of systemic
integration in human rights law draws lessons for the development of human rights law
and international law. International human rights courts are particularly inclined to
apply this principle of interpretation. Although human rights treaties are not inherently
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∗ Assistant Professor of Public International Law, Department of International Law, Faculty of Law,
University of Groningen, The Netherlands; PhD (Nottingham) [a.rachovitsa@rug.nl]. I would like to
thank Professor Sandesh Sivakumaran and Eva Kassoti for constructive feedback on an earlier version
of this article. Thanks are also due to the anonymous reviewers for their valuable comments.
Responsibility for errors or ommissions rests with the author alone.
1 D Adams, The Hitchhiker’s Guide to the Galaxy (Random House, 1995).
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different vis-à-vis other treaties, they are drafted in a distinctively open textured manner
which makes them conducive to further development. Moreover, permanent
international courts on human rights engage with international law questions, including
interpretative issues, on a regular basis and, hence, are bound to reflect on and refine
their approaches in a more systematic way than other international courts.2 Therefore,
their case law should provide a useful understanding of the difficulties arising from the
application of systemic integration and lessons to be learned by international law, in
general. Finally, the human rights regime evidences a certain propensity toward
innovation often in terms of addressing how human rights law can include and articulate
other interests (human rights-related or not) under international law. Systemic
integration is used as the interpretative means (and justification) for international courts
to engage in this exercise. The analysis demonstrates the rarely discussed implications
of this exercise to the progressive development of international law.
The question of the fragmentation of PIL has been at the forefront over the last
decade. The diversification and expansion of the scope of PIL, and the proliferation of
international bodies exercising (semi-) judicial functions, have increased the likelihood
of conflicting or diverging interpretations of similar or identical rules.3 Interpretation is
considered to be the main approach for mitigating such difficulties.4 A treaty shall be
construed, as far as possible, in consistency with other PIL rules. Article 31 (3)(c)
VCLT is of interest in this regard, since it specifically points out that a treaty shall be
interpreted by taking into account any relevant rules of international law applicable in
the relations between the parties.
Fragmentation of PIL, however, does not concern only the risk of divergences
among international courts. The discussion is underpinned by an equally important
concern: due to their limited jurisdiction, international courts are unable to grasp, and
respond holistically (and therefore effectively) to, global legal problems. International
courts decide the cases brought before them in a “piecemeal” fashion by ‘squeezing’;5
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2 P Webb, International Judicial Integration and Fragmentation (OUP, 2013) 157.
3 International Law Commission, ‘Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law’, Report of the Study Group of the International Law
Commission finalised by M Koskenniemi, 13 April 2006, UN Doc A/CN.4/L.682 (ILC Final Rep).
4 ILC Final Rep (n 3) [34]-[37]; MT Kamminga, ‘Final Report on the Impact of International Human
Rights Law on General International Law’ in MT Kamminga and M Scheinin (eds), The Impact of
Human Rights on General International Law (OUP, 2009) 1-2.
5 Sir F Berman, ‘Treaty Interpretation in a Judicial Context’ (2004) 29 Yale JIL 315.

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or reducing the dispute to fit the court’s competence.6 An international court is
competent to decide a case insofar as the subject matter of the dispute falls within the
scope of the treaty under discussion.7 A case will not be heard in all of its international
law relevant aspects, and a given international court is not entitled to resolve the dispute
itself; the court is mandated to decide the dispute pursuant to its jurisdiction and
applicable law.8 The widening and enrichment of PIL, coupled with the proliferation of
international bodies, has emphasised these disparities in PIL – and the fact that PIL
itself is, to a great extent, fragmented. Similar or even identical rights and obligations
under different treaties retain their separate existence, notwithstanding the treaties’
respective contexts, their objects and purposes, the subsequent practice of parties and
preparatory work.9 It follows that it is an inherent feature of any international court’s
judicial function to decide a case brought before it through the lens of its jurisdiction.
Against this background, systemic integration is being presented not only as a
means to avoid dissonant interpretations and/or judgments, but also as a remedy for the
“piecemeal” judicial function of international courts. The International Law
Commission (ILC), in its work on fragmentation, is leading the way in asserting that
systemic integration is the process whereby international treaty obligations are
interpreted by reference to their normative environment, so that, consequently, treaties
appear as parts of a coherent and meaningful whole. In this sense, systemic integration
goes further than stating the applicability of general international law in the operation
of treaties. It specifically points to the need to interpret one treaty by reference to
another treaty, with the objective of ‘connect[ing] the separate treaty provisions […] as
aspects of an overall aggregate of the rights and obligations of the States’.10 This is
arguably the most obscure aspect of systemic integration. Whereas, in general, taking
other treaties into account when interpreting a treaty is part of the international lawyer’s
mindset and enhances consistency in PIL,11 it is unclear what it means to set the
objective to systemically integrate one treaty into another in order to achieve ‘a sense
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6 Sir R Jennings, ‘Reflections on the Term “Dispute”’ in R StJ Macdonald (ed), Essays in Honour of
Wang Tieya (Martinus Nijhoff Publishers, 1994) 403.
7 L Caflisch, ‘The Law – Substantive and Procedural Questions’ (2008) 7 The Law and Practice of
International Courts and Tribunals 294.
8 Webb (n 2) 158, 162.
9 International Tribunal for the Law of the Sea, Mox Plant (Ireland v UK) Provisional Measures, 3
December 2001 (2002) 41 ILM 405 [51] (emphases added).
10 ILC Final Rep (n 3) [467], [413]-[415].
11 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WTO
Panel Report, WT/DS291R, WT/DS292R/WT/DS293, 29 September 2006 [7.70].

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of coherence and meaningfulness’.12 Many scholars have endorsed the ILC’s approach
and, moreover, they posit that Article 31 (3)(c) VCLT may be taken to express the
principle of systemic integration.13
This article’s starting point is that the principle of systemic integration should not
be equated to Article 31 (3)(c) VCLT. It argues that the principle of systemic
integration14 – either allegedly derived from Article 31 (3)(c) VCLT or as a stand-alone
principle – cannot remedy the international courts’ fragmented lens.15 The purpose of
interpretation is not to integrate treaties into a coherent whole, but to introduce any
relevant rules in the process of a treaty’s interpretation and to offer interpretative
guidance (Article 31 (3)(c) VCLT being one means to do so).16 Part II of the article
demonstrates that the application of systemic integration in many cases finds its place
outside the realm of interpretation and raises serious jurisdictional concerns regarding
the mandate of international courts. The crucial questions in legal reasoning with regard
to pursuing systemic integration concern the degree to which other treaties will be
relevant and the weight that will be attached to it in informing the interpretation of a
given treaty.17
Part III turns to explore the reasons that systemic integration of treaties falls
short of international lawyers’ expectations. It submits that the principle is still shaped
by – and possibly reinforces – existing institutional preferences and biases, and that it
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12 ILC Final Rep (n 3) [419].
13 ibid [410]-[460]; C McLachlan, ‘The Principle of Systemic Integration and Article 31 (3)(c) of the
Vienna Convention’ (2005) 54 ICLQ 279; J d’Aspremont, ‘The Systemic Integration of International
Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal
Order’ in A Nollkaemper and OK Fauchald (eds), The Practice of International and National Courts and
the (De-) Fragmentation of International Law (Hart Publishing, 2012) 141. Also, M Forowicz, The
Reception of International Law in the European Court of Human Rights (OUP, 2010) 13; R Nordeide,
‘The ECHR and its Normative Environment: Difficulties Arising from a Regional Human Rights Court’s
Approach to Systemic Integration’ in Nollkaemper and Fauchald above, 131. P Merkouris, Article 31
(3)(c) VCLT and the Principle of Systemic Integration (Brill-Nijhoff, 2015).
14 The ILC Final Rep (n 3) [473]-[474]; McLachlan (n 13) 280; and Merkouris (n 13) equate the principle
of systemic integration to Article 31 (3)(c) VCLT. Cf. B Simma and T Kill, ‘Harmonising Investment
Protection and International Human Rights: First Steps towards A Methodology’ in C Binder et al. (eds),
International Investment Law for the 21st Century (OUP, 2009) 678; R Higgins, ‘A Babel of Judicial
Voices? Ruminations From the Bench’ (2006) 55 ICLQ 791; D French, ‘Treaty Interpretation and the
Incorporation of Extraneous Legal Rules’ (2006) 55 ICLQ 281; Webb (n 2); I van Damme, Treaty
Interpretation by the WTO Appellate Body (OUP, 2009); M Samson, ‘High Hopes, Scant Resources: A
Word of Skepticism about the Anti-Fragmentation Function of Article 31(3)(c) of the Vienna Convention
on the Law of Treaties’ (2011) 24 LJIL 701; VP Tzevelekos, ‘The Use of Article 31(3)(C) of the VCLT
in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the
Reinforcement of Human Rights Teleology?’ (2010) 31 Michigan JIL 621.
15 McLachlan (n 13) 288.
16 Samson (n 14) 710-713; Simma and Kill (n 14) 692-694; Webb (n 2) 5; van Damme (n 14) 365. R
Gardiner, Treaty Interpretation (2nd edn, OUP, 2015) 327.
17 ILC Final Rep (n 3) [419], [435]-[438], [473]-[474]; McLachlan (n 13) 310; Gardiner (n 16) 327.

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cannot serve as a tool to prioritise among important concerns either. Furthermore,
systemic integration in human rights law does not necessarily always benefit the
diversity of PIL, but, on the contrary, may hinder its progressive development. In an
effort to create coherence, one runs the risk of reducing the existing or potential reach
of PIL to the restricted vocabulary and structure of the human rights paradigm.
Systemic integration fuels the phenomenon of exercising undue interpretative authority
over other treaties, as well as raising the possibility of the emergence of new informal
hegemonies among international courts. The analysis concludes that, despite the
appealing nature of the principle of systemic integration, international courts and bodies
should exercise caution.
II. INTERPRETATIONAL AND JURISDICTIONAL CONCERNS
This part of the article highlights the limits to the application of the principle of
systemic integration when interpreting a given treaty. Three principal issues arise when
the interpreter loses sight of the appropriate weight that should be attached to other
treaties in order to inform the construal of the treaty under interpretation. First, systemic
integration of treaties may lead the interpreter to disregard the textual limits set forth
by the treaty under interpretation. Second, systemic integration can foster the risk of
downplaying the contextual nuances between different treaties. Third, uncritically
employing systemic integration may result in the indirect application and supervision
of other treaties under the guise of interpretation, thereby raising serious implications
for the court’s mandates and legitimacy.
A. Disregarding the Textual Limits of the Treaty Under Interpretation
The obvious limit to applying systemic integration, as is the case with any
interpretation principle, is the explicit letter of the treaty under interpretation.18 The
weight accorded to other treaty provisions, and their impact on the construal of the said
treaty, cannot lead to an interpretation that goes beyond its explicit text. There are
instances, however, in which reliance upon other treaties drives an interpretation that
distorts the language of a human rights treaty.
In the Zolotukhin case, the applicant alleged a violation of Article 4 of
Additional Protocol 7 (Article 4 of AP7) to the European Convention on Human Rights
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18 Pretty v United Kingdom, 29 April 2002 [39].

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(ECHR),19 complaining that he had been prosecuted twice for the same offence.20
Article 4 of AP 7 reads, ‘No one shall be liable to be tried or punished again in criminal
proceedings under the jurisdiction of the same State for an offence for which he has
already been finally acquitted or convicted in accordance with the law and penal
procedure of the State’. The Court’s position at that point was that the term ‘offence’
should be understood by reference to the legal classification under national law. Hence,
if an act was classified as two distinct criminal offences under municipal law, the
prohibition under Article 4 of AP 7 would not apply. The Grand Chamber revisited the
definition of the term ‘offence’ by finding recourse to similarly drafted treaty provisions
envisaging formulations of the ne bis in idem principle. Reference was made to the
respective provisions of the International Covenant on Civil and Political Rights
(ICCPR);21 the Statute of the International Criminal Court;22 the Charter of
Fundamental Rights of the European Union (EU Charter);23 the Convention
Implementing the Schengen Agreement;24 and the Inter-American Convention on
Human Rights (IACHR).25 Article 14 (7) ICCPR and Article 50 EU Charter contain the
term ‘offence’, Article 8 (4) IACHR refers to ‘cause’, Article 54 of the Schengen
Agreement mentions ‘acts’ and Article 20 (1) ICC Statute refers to ‘conduct’. The Court
emphasised that the jurisprudence of the Court of Justice of the European Union
(CJEU) and the IACtHR followed the most favourable approach to the individual and
that, for this reason, it could not ‘justify adhering to a more restrictive approach’26 than
the one followed by the CJEU and the IACtHR. The Grand Chamber unanimously
overruled its previous case law and dramatically altered the scope of applicability of
Article 4 AP 7.
The driving force behind the Court’s reasoning was the construal of the ECHR
in light of relevant treaties and the Court’s willingness to align its position with the
jurisprudence of other international courts. Nonetheless, the strong inferences drawn
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19 (Concluded 4 November 1950; entered into force 3 September 1953) ETS 5.
20 Sergey Zolotukhin v Russia, 10 February 2009 (Grand Chamber).
21 (Adopted 16 December 1966; entered into force 23 March 1976) 999 UNTS 171.
22 (Concluded 17 July 1998; entered into force 1 July 2002) 2187 UNTS 90.
23 Official Journal of the European Communities, 18.12.2000, C 364/1.
24 Convention Implementing the Schengen Agreement between the Governments of the States of the
Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual
Abolition of Checks at their Common Borders (concluded 14 June 1985; entered into force 19 June
1990).
25 (Concluded 21 November 1969; entered into force 18 July 1978) OAS Treaty Series No 36.
26 Zolotukhin [80].

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by the jurisprudence of the CJEU and the IACtHR on the pretext of the most favourable
interpretation for the individual are ill founded. This is because the rulings of the two
international courts develop the Schengen Agreement and the IACHR respectively,
which encapsulate the ne bis in idem prohibition in broader terms to the ECHR.27
Ironically, the ECtHR relied upon this practice in order to provide a broad definition to
the specific and restricted term ‘offence’ under Article 4 of AP 7. The Grand Chamber
afforded such great weight to these treaties that it effectively disregarded the textual
limits of the ECHR. It is doubtful whether, as has been argued, this judgment is a
positive example of constructive dialogue among international courts or an opportunity
to fill in gaps.28 The Grand Chamber in the Mamatkulov and Askarov and Scoppola
cases overruled its previous jurisprudence by disregarding the limits set forth by the
ECHR in a similar fashion.29
Likewise, the IACtHR in Artavia Murillo et al. – a case concerning in vitro
fertilisation and the question of whether Article 4 IACHR protects the right to life of
the embryo – pursued a construal of the IACHR that went against its letter. Even though
Article 4 (1) provides that ‘[the right to life] shall be protected by law and, in general,
from the moment of conception’, the Court ruled that the embryo cannot be understood
to be a person for the purposes of Article 4.30 A forceful argument for reaching this
conclusion was that trends in international law do not support the position that the
embryo should be treated in the same way as a person, or that it has a right to life.31 The
Court pursued the systematic interpretation of the IACHR by taking other treaties and
instruments into account as well as the practice of human rights bodies,32 including the
Universal Declaration on Human Rights;33 the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW)34 and the views of the CEDAW
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27 ibid [36]-[38], [40].
28 Cf. Forowicz (n 13) 360-1; T Treves, ‘Judicial Lawmaking in an Era of “Proliferation” of International
Courts and Tribunals: Development or Fragmentation of International Law?’ in R Wolfrum and V Röben
(eds), Developments of International Law in Treaty-Making (Springer, 2005) 614-5.
29 Mamatkulov and Askarov v Turkey, 4 February 2005 (Grand Chamber) [109]-[113], [123]-[125].
Scoppola v Italy (No 2), 17 September 2009 (Grand Chamber) [96]-[110]; cf. Partly Dissenting Opinion
of Judge Nicolaou joined by Judges Bratza, Lorenzen, Jočiené, Villiger and Sajó in Scoppola, 44-7.
30Artavia Murillo et al. (In vitro fertilization) v Costa Rica, IACtHR Series C 257 (2012) [264] (emphases
added).
31 ibid [253].
32 ibid [224]-[244].
33 United Nations General Assembly (UNGA) Res 217 A (III) (10 December 1948).
34 Convention on the Elimination of All Forms of Discrimination against Women (concluded 18
December 1979; entered into force 3 September 1981) 1249 UNTS 13.

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Committee; the Convention on the Rights of the Child (CRC);35 the ICCPR and the
practice of the Human Rights Committee (HRC); the African Charter on Human and
People’s Rights (ACHPR);36 and, finally, the ECHR and case law of the ECtHR.
However, this was an inappropriate application of systemic integration, not only
because many of these treaties do not bind the member states to the IACHR37 but also,
most importantly, because none of these treaties explicitly protect unborn life. Article
4 IACHR is a unique formulation of the right to life in international human rights law
and, hence, it is questionable how other (general) treaties and instruments shed light on
its interpretation. The Court’s problematic line of reasoning is illustrated by its
reference to the Vo. v France case, in which the ECtHR highlighted that ‘unlike Article
4 of the American Convention on Human Rights, which provides that the right to life
must be protected “in general, from the moment of conception”, Article 2 of the
Convention is silent as to the temporal limitations of the right to life […]’.38
Most international human rights treaties are able to accommodate change
through time due to their vaguely drafted text, affording considerable leeway to the
interpreter. Yet, the interpreter cannot pursue a construal of the treaty that qualifies as
a revision of the text.39 In the foregoing cases the ECtHR and the IACtHR seem to have
crossed that line.
B. Duly Appreciating the Contextual Nuances between Different Treaties?
International courts and bodies have an extensive case law drawing synergies
and links between the treaty that they interpret and apply and other treaties. This
practice is welcome and attuned to the goal of pursuing coherence in PIL. Nonetheless,
taking account of norms that are similar or identical to those in the treaty under
interpretation is subject to pertinent contextual nuances pertaining to the purpose,
function and aims of the other treaty provisions.40 In order for the interpreter to
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35 Convention on the Rights of the Child (adopted by UNGA Res. 44/25 (20 November 1989) UN Doc
A/RES/44/25; entered into force 2 September 1990) 1577 UNTS 3.
36 (Adopted 27 June 1981; entered into force 21 October 2001) 1520 UNTS 217.
37 Dissenting Opinion of Judge Eduardo Vio Grossi in Artavia Murillo et al. 113, 128; LM De Jesús, ‘A
Pro-choice Reading of a Pro-life Treaty: The Inter-American Court on Human Rights’ Distorted
Interpretation of the American Convention on Human Rights in Artavia v. Costa Rica’ (2014) 32
Wisconsin ILJ 250-2.
38 Vo. v France, 8 July 2004 (Grand Chamber) [75] (emphases added). See Dissenting Opinion of Judge
Eduardo Vio Grossi in Artavia Murillo et al. 113.
39 Human Rights Committee, Atasoy and Sarkut v Turkey, Communication Nos 1853/2008 and
1854/2008, UN Doc CCPR/C/104/D/1854-1854/2008, 29 March 2012 [7.13].
40 Mox Plant (n 9); Permanent Court of Arbitration, Access to Information under Article 9 of the OSPAR

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ascertain and give due regard to such nuances, he/she needs to not only identify the core
of similarity among equivalent41 treaty provisions but also appreciate the differences
between them. The question is, therefore, whether international courts meaningfully
engage with another treaty so as to value the different context from which these
provisions originate. It is important that the international judge examines and explains
how that treaty is relevant and, accordingly, how it informs the construal of the treaty
under interpretation. This section argues that such nuances are easily disregarded.
The Van der Mussele and Siliadin cases exemplify how the ECtHR should give
consideration to other treaties while preserving the ECHR’s specificity.42 In Van der
Mussele, the applicant alleged a violation of the prohibition on forced or compulsory
labour under Article 4 (2) ECHR. The Plenary Court had recourse to the 1932
International Labour Organisation (ILO) Convention concerning Forced or
Compulsory Labour43 and the 1959 ILO Convention on the Abolition of Forced
Labour.44 The definition of forced or compulsory labour contained in ILO Convention
No 29 and the standards adopted by the ILO Committee of Experts45 had an informative
impact on the construction of Article 4 ECHR. The Court underlined that the ILO
Convention will provide the ‘starting point for the interpretation of Article 4’,46 but that
‘sight should not be lost of [the European] Convention’s special features’.47 The
question as to whether the applicant unwillingly offered his services was not assessed
against the formal ILO approach to the meaning of consent48 but against the structure
and the aims of Article 4 ECHR. Hence, the ECtHR neither employed an unqualified
reliance on, nor integrated, ILO Convention No 29. Likewise, in the Siliadin case, the
ECtHR took cognisance of the ILO Convention No 29 to define ‘forced or compulsory
labour’, according to which the work or service has to be extracted by an individual
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Convention (Ireland v UK), Final Award, 2 July 2003, 42 ILM 1118 [142].
41 Broude and Shany use the term ‘equivalent’ to denote norms that are identical or similar in their
normative context and have been established through different instruments, or are applicable in different
substantive areas of law, in T Broude and Y Shany, ‘The International Law and Policy of Multi-Sourced
Equivalent Norms’ in T Broude and Y Shany (eds), Multi-Sourced Equivalent Norms in International
Law (Hart Publishing, 2011) 5, 9.
42 Van der Mussele v Belgium, 23 November 1983 (Plenary).
43 Convention concerning Forced or Compulsory Labour, C29 (concluded 28 June 1930; entered into
force 1 May 1932) 39 UNTS 55 (ILO Convention No 29).
44 Convention concerning the Abolition of Forced Labour, C105 (concluded 25 June 1957; entered into
force 17 January 1959) 320 UNTS 291 (ILO Convention No 105).
45 ‘Abolition of Forced Labour’: General Survey by the Committee of Experts on Application of
Conventions and Recommendations, 1979.
46 Van der Mussele [32] (emphases added).
47 ibid.
48 ibid [37].

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under the menace of penalty. Although the applicant in these specific circumstances
had not been threatened by a penalty, the Court found that she was in an equivalent
situation due to her vulnerable position.49 In this way, the Court, in light of the specific
facts, equated the ILO standard of being threatened by a menace of penalty to
perceiving to be threatened by a penalty.
In contrast, in other instances the ECtHR drew interpretative guidance from
other treaties while ignoring contextual differences and uncritically transposing
detailed standards into the ECHR’s scope. In the National Union of Rail, Maritime and
Transport Workers case, the Court held that the Convention protects sympathy strikes.
It employed a series of relevant international treaties and practice in its legal reasoning,
but it failed to examine exactly how these norms were relevant and how they aided the
interpretation of Article 11 ECHR.50 The Court stressed that the ILO Committee of
Experts and the Committee on Freedom of Association supported in their views the
assertion that a general prohibition of sympathy strikes violates the right to strike, even
though these bodies simply mentioned that a general ban could lead to abuse in light of
the specific circumstances.51 Further, the restrictions set forth to the right to strike, as
envisaged in the EU Charter, were not sufficiently addressed. Finally, the Court heavily
relied upon Article 6 of the European Social Charter (ESC),52 without acknowledging
that most of Article 6’s undertakings are optional and that ten European states have
chosen not to guarantee the right to strike under the ESC.
The expansive interpretation of the ECHR in the National Union of Rail,
Maritime and Transport Workers case follows up the Court’s approach in the area of
socio-economic rights. In Demir and Baykara, the Grand Chamber accepted that the
right of public officials to form and join a trade union and to bargain collectively has
become one of the essential elements of Article 11 ECHR.53 This judgment also paved
the way for recognising the right to strike and the right to collective action under Article
11.54 The legal reasoning in these cases was underpinned by consideration of the ILO
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49 Siliadin v France, 26 July 2005 [118].
50 National Union of Rail, Maritime and Transport Workers v United Kingdom, 8 April 2014 [26]-[37],
[76], [84]-[104]; cf. Concurring Opinion of Judge Wojtyczek, 47-9.
51 V Velyvyte, ‘The Right to Strike in the European Union after Accession to the European Convention
on Human Rights: Identifying Conflict and Achieving Coherence’ (2015) 15 HRLR 80.
52 European Social Charter (revised) (concluded 3 May 1996; entered into force 1 July 1999) CETS No
163.
53 Demir and Baykara, 12 November 2008 (Grand Chamber) [65]-[86], [153]-[154].
54 Enerji Yapi-Yol Sen v Turkey, 21 April 2009 [16], [24], [31]; Danilenkov and Others v Russia, 30 July
2009 [102]-[108], [123].

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Conventions and the ESC as well as their progressive development by their respective
monitoring bodies. The judgments share the same methodology: namely, discerning an
alleged common denominator by reference to a great variety of treaties. One could
argue that this so-called integrated approach to the interpretation of the ECHR seeks to
integrate socio-economic rights into the construal of individual and political rights, and
that it is founded upon the ideas of cross-fertilisation and convergence among different
treaties.55 Yet the ideas of cross-fertilisation or convergence of treaty norms cannot
justify the transplantation of detailed treaty provisions into the scope of the ECHR.
Another example demonstrating how the ECtHR pursues systemic integration
by ignoring crucial contextual differences is the Opuz case. The applicant claimed a
breach of Article 2 due to the lack of a deterrent effect in Turkish legislation, since
perpetrators of domestic violence could not be prosecuted if the victim withdrew her
complaint. Despite the clear absence of consensus among member states on this matter,
the Court ruled that states have the positive obligation under the ECHR to establish and
effectively apply a system punishing all forms of domestic violence, and to provide
sufficient safeguards for the victims.56 This conclusion was reasoned by invoking the
due diligence standard as a yardstick for assessing state responsibility in the context of
violence against women.57 In the process of discerning a common denominator by
taking a series of treaties and international practice into account, the ECtHR detached
the different variants of the due diligence standard from their treaty contexts. More
specifically, the Court drew upon General Recommendation 19 issued by the CEDAW
Committee and the Committee’s views in individual communications, including the
A.T. v Hungary case.58 A careful reading of A.T. reveals that the CEDAW Committee
did not explicitly refer to a failure to exercise due diligence.59 The ECtHR also devoted
special attention to the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women, which was the only treaty in force (at the time)
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55 V Mantouvalou, ‘Labour Rights in the European Convention on Human Rights: An Intellectual
Justification for an Integrated Approach to Interpretation’ (2013) 13 HRLR 538; cf. H Cullen, ‘The
Collective Complaints System of the European Social Charter: Interpretative Methods of the European
Committee of Social Rights’ (2009) 9 HRLR 72.
56 Opuz v Turkey, 9 June 2009 [87]-[90], [138], [145].
57 UNGA Res 48/104, ‘Declaration on the Elimination of Violence Against Women’ (20 December 1993)
UN Doc A/RES/48/104.
58A.T. v Hungary, CEDAW Committee,
Communication No 2/2003, 26 January 2005; Fatma Yildirim v Austria, CEDAW Committee,
Communication No 6/2005, 6 August 2007.
59 Report of the UN Special Rapporteur on Violence against Women, its Causes and Consequences (20
January 2006) UN Doc E/CN.4/2006/61 [23].

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addressing violence against women,60 and the practice of the Inter-American
Commission on Human Rights (IACmHR). In the Maria Da Penha v Brazil case, the
IACmHR held that states must exercise due diligence by preventing and investigating
domestic violence incidents.61 The ECtHR, however, did not read this case with the
caveat in mind that the IACmHR employed the due diligence standard by ascertaining
jurisdiction over, and applying, the specialised Belem Convention (and not the
IACHR).62
In Lohe Issa Konate v Burkina Faso, the question before the African Court of
Human and Peoples’ Rights was whether the harsh criminal penalties levied by Burkina
Faso against the applicant, on charges of defamation, represented a disproportionate
interference with his right to freedom of expression under the African Charter on
Human and Peoples’ Rights.63 A specific feature of the right to freedom of expression,
and other rights envisaged in the ACHPR, is that they are subject to the so-called
clawback clauses.64 According to Article 9 (2), ‘Every individual shall have the right
to express and disseminate his opinions within the law’. The idea behind subjecting the
right of freedom of expression to the limits of domestic law is to give considerable
leeway to member states. The Court, however, held that the phrase ‘within the law’
must be interpreted in reference to international standards.65 It based its reasoning on a
consideration of Article 19 ICCPR and the views of the HRC (and the African
Commission’s practice).66 Although this is, in principle, a welcome development in the
context of a growing convergence among international courts when interpreting
limitation and clawback clauses,67 it is not entirely clear to what extent other treaties
may be used in this regard. The ICCPR, the IACHR and the ECHR do not contain
similar clauses and, therefore, one might question whether they can be used to
“neutralise” these clauses in the ACHPR. In fact, the only similar human rights treaty
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
60 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against
Women (concluded 9 June 1994; entered into force 5 March 1995) (1994) 33 ILM 1534 (Belem
Convention).
61 Maria Da Penha v Brazil, Report No 54/01 [55], [56].
62 ibid [60].
63 Lohe Issa Konate v Burkina Faso, ACtHPR App No 004/2013 (2014) [164], [176].
64 CA Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African Charter on
Human and Peoples’ Rights’ in MD Evans and R Murray (eds), The African Charter on Human and
Peoples’ Rights (CUP, 2002) 195.
65 Lohe Issa Konate [125]-[131].
66 ibid [128]-[129].
67 D Shelton, ‘International Decisions’ (2015) 109 AJIL 635.

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is the Revised Arab Charter,68 which prescribes clawback clauses to many of the rights
provided therein, but the ACtHPR made no mention of it. The Vice-President of the
Court, in a separate opinion attached to another case, pointed out this problematic issue,
but concluded, with no further explanation, that the ACHPR should be interpreted in
the same spirit as the ICCPR.69
The IACtHR, for its part, does not elaborate on any contextual differences
between treaties. The ECtHR is more mindful, although many pertinent issues are still
not sufficiently addressed. To summarise, the application of the principle of systemic
integration should not be understood as the legal basis for aligning the meaning of a
treaty with the content of other treaties. After all, human rights treaties establish a
minimum standard for a selective catalogue of rights. In many instances, the ECtHR
follows such an intensive integrative and harmonising interpretation of the ECHR with
regard to other treaties that it raises questions about the boundary between interpreting
and re-writing the ECHR. Mitigating fragmentation does not equate to striving for
uniformity. International courts can and should justify different approaches and
interpretations, if such decisions are dictated by different contexts.70 The ECtHR’s great
receptiveness to other treaties is not always accompanied by a rigorous examination
into how these treaties are relevant to the ECHR.
Other international bodies pursue a more robust analysis of what a relevant rule
of PIL is for the purposes of the treaty under interpretation. The Appellate Body of the
WTO, in the Measures Affecting Trade in Large Civil Aircraft dispute, scrutinised in
detail whether other international treaties related closely to the issues under dispute.71
It found that the provisions of the 1992 Agreement between the EU and the USA
concerning the application of the GATT Agreement on Trade in Civil Aircraft to trade
in large civil aircraft were not relevant for the purpose of informing the meaning of
‘benefit’ under Article 1.1(b) of the Agreement on Subsidies and Countervailing
Measures under discussion.72 The ICJ, in the Questions of Mutual Assistance case,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68 League of Arab States, Revised Arab Charter on Human Rights (adopted 22 May 2004; entered into
force 15 March 2008) reprinted in 12 (2005) Int’l Hum. Rts. Rep. 893.
69 Separate Opinion of Vice-President Fatsah Ouguergouz in Tanganyika Law Society and Legal and
Human Rights Centre and Reverend Christopher R. Mtikila v United Republic of Tanzania, ACtHPR
App Nos 009 & 011/2011 (2013) [29]-[31].
70 Higgins (n 14) 799; Webb (n 2) 5.
71 Report of the Appellate Body, WTO, European Communities and Certain Member States – Measures
Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, 18 May 2011 [845].
72 ibid [846]-[855]. Also United States Import Prohibition of Certain Shrimp and Shrimp Products,
Report of the Appellate Body, WT/DS58/AB/R, 12 October 1998 [130].

The Principle of Systemic Integration in Human Rights Law!
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accepted that the 1977 Treaty of Friendship and Co-operation between France and
Djibouti was relevant and had ‘some bearing’ 73 on the interpretation of the 1986
Convention on Mutual Assistance in Criminal Matters, although it did not elaborate
further. There is, therefore, room for improvement, and international human rights
courts should aim in this direction.
C. Indirectly Applying and Supervising Other Treaties
A concern when applying the principle of systemic integration (or Article 31
(3)(c) VCLT with the objective of systemic integration in mind) is the risk of conflating
the use of a treaty for the purpose of interpretation and the de facto application of that
treaty.74 Systemic integration may lead not only to transposing detailed standards into
the scope of a human rights treaty, but also to indirectly applying and supervising these
standards under the pretext of interpretation. This, in turn, stretches – if not contravenes
– the limited ratione materiae jurisdiction of an international human rights court.75 As
will be discussed, both the IACtHR and the ECtHR discern a common denominator in
the various relevant treaties by reading them together and subsequently integrate this
denominator into the scope of the IACHR and the ECHR respectively. The ECtHR
articulates its practice mostly in terms of a European consensus; the IACHR puts
forward the international corpus juris, positing that a comprehensive and integrative
reading of the IACHR alongside other treaties is justified on multiple grounds,
including the pro homine principle, Article 29(b) IACHR and Article 31 (3)(c) VCLT.76
The Taşkin and Tătar judgments marked a discernible shift in the ECtHR’s
interpretation of the ECHR with respect to the use of other relevant treaties concerning
environmental protection.77 The consideration of environment-related norms took the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
73 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Merits, Judgment, 4
June 2008 [2008] ICJ Rep. 177 [114] (emphasis added).
74 Gardiner (n 16) 313.
75 Separate Opinion of Judge Vendross in Golder v United Kingdom, 21 February 1975 (Plenary). See
discussion in Part III.C regarding the exceptional nature of the ACtHPR’s jurisdiction.
76 G Neuman, ‘Import, Export and Regional Consent in the Inter-American Court of Human Rights’
(2008) 19 EJIL 101; H Tigroudja, ‘La Cour Interaméricaine des Droits de l’ Homme au Service de l’
“Humanisation du Droit International Public” - Propos Autour des Récents Arrêts et Avis’ (2006) 52
Annuaire Français de Droit International 620-1; A Rachovitsa, ‘Treaty Clauses and Fragmentation of
International Law: Applying the More Favourable Protection Clause in Human Rights Treaties’ (2016)
16 HRLR 77; C Medina, The American Convention on Human Rights (Intersentia, 2016) 51-5.
77 Joint Dissenting Opinion of Judges Costa, Ress, Türmen, Zupančič and Steiner in Hatton and others
v United Kingdom, 8 July 2003 (Grand Chamber). T Stephens, International Courts and Environmental
Protection (CUP, 2009) 320.

The Principle of Systemic Integration in Human Rights Law!
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form of fully integrating detailed obligations under the Aarhus Convention regarding
access to information, public participation in decision-making and access to justice into
the positive obligations of Article 8 ECHR. In effect, the Court provided for indirect
procedural environmental rights and assessed member states’ acts and omissions
against these standards.78 In a different series of cases concerning children’s rights,
systemic integration, Article 31 (3) VCLT and the international corpus juris for the
protection of the child served as the bases for the IACtHR to establish the content of
Article 19 IACHR by incorporating provisions of the CRC.79 Although the Court
proclaims that the CRC merely throws light on Article 19 IACHR, it does in fact
integrate detailed requirements of the CRC.80
Even more striking is the ECtHR’s practice regarding the Hague Convention on
the Civil Aspects of International Child Abduction.81 Systemic integration provides the
means for the Court to transplant technical provisions of the Hague Convention into
Article 8 ECHR. In addition to this, the Court held that any weakening of the Hague
Convention’s guarantees reduces the protection under the ECHR.82 National
authorities’ failure to meet the six-week requirement to reach a decision on the
expeditious return of the abducted child (Article 11 of the Hague Convention), or to
diligently enforce this decision, automatically gives rise to a violation of Article 8
ECHR.83 In this way, the Court effectively supervises the implementation of the Hague
Convention under the guise of the ECHR.84
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
78 M Fitzmaurice, ‘Environmental Degradation’ in D Moeckli, S Shah and S Sivakumaran (eds),
International Human Rights Law (OUP, 2013) 640.
79 ‘Street Children’ (Villagran-Morales et al.) v Guatemala, IACtHR Series C 63 (1999) [192], [194];
‘Juvenile Reeducation Institute’ v Paraguay, IACtHR Series C 112 (2004) [148].
80 ‘Street Children’ [195], [196]; Gomez-Paquiyauri Brothers v Peru, IACtHR Series C 110 (2004)
[164]–[173]; ‘Juvenile Reeducation Institute’ [161]-[163], [172], [230]. J Butler, ‘The Rights of the Child
on the Case Law of the Inter-American Court of Human Rights: Recent Cases’ (2005) 5 HRLR 159, 161,
166-7.
81 Convention on the Civil Aspects of International Child Abduction (concluded 25 October 1980;
entered into force 1 December 1983) 1343 UNTS 89 (Hague Convention). Neulinger and Shuruk v
Switzerland, 6 July 2010 (Grand Chamber) [131]-[132].
82 Monory v Romania and Hungary, 5 April 2005 [81]. Also Bianchi v Switzerland, 22 June 2006 [92];
Carlson v Switzerland, 6 November 2008 [73].
83 Carlson [76]; Monory [81], [79], [85]; H.N. v Poland, 13 September 2005 [79]; Karadžić v Croatia,
15 December 2005 [59]; Bianchi [94]; P.P. v Poland, 8 January 2008 [89]. On enforcement issues, see
e.g. H.N. [80]; Karadžić [60]-[61]; Maire v Portugal, 26 June 2003 [75]; Bianchi [98]; Lafargue v
Romania, 13 July 2006 [103]. PB Beaumont, ‘The Jurisprudence of the European Court of Human Rights
and the European Court of Justice on the Hague Convention on International Child Abduction’ (2008)
335 RdC 19.
84 J Arato, ‘Constitutional Transformation in the ECTHR: Strasbourg’s Expansive Recourse to External
Rules of International Law’ (2012) 37 Brook. J.Int’l.L. 353.

The Principle of Systemic Integration in Human Rights Law!
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International courts have gone so far as to pronounce on member states’ failures
to honour and implement other treaties. In Carlson, Switzerland’s actions were ‘not in
accordance with Article 11 of the Hague Convention’.85 In Fornerón and Daughter, the
IACtHR found that the fact that Argentina did not specifically criminalise the sale of a
child in its domestic law ‘does not satisfy the provision of Article 35 [CRC]’86 and is
in dissonance with its obligations under the Optional Protocol of the Convention on the
Rights of the Child on the Sale of Children, Child Prosecution and Child Pornography.87
In Rantsev, the ECtHR found a procedural violation of the right to life because Cyprus
had failed to make use of the procedures envisaged in a Mutual Legal Assistance
Convention.88 The IACtHR decided that states were in violation of their obligation to
prosecute and punish those responsible for serious human rights violations under the
right to a fair trial and to judicial protection due to the lack of relevant extradition
treaties.89 In other words, according to the Court, the IACHR specifically binds member
states to conclude extradition agreements.
Turning to another area, in Gonzales Lluy the IACtHR heard a case concerning
the right to health.90 Notwithstanding the fact that the IACHR does not provide for the
right to health and Article 26 IACHR is merely a commitment to progressive
development rather than a recognition of socio-economic rights,91 the Court decided to
uphold the right to health by linking it to the right to personal integrity (and the right to
life). In particular, the Court read into the scope of the right to personal integrity the
state’s obligation to regulate, monitor and supervise the services provided by private
healthcare centres.92 This link was furnished in light of the interdependence and
indivisibility of civil and political rights on the one hand and economic, social and
cultural rights on the other – and by taking into consideration a series of international
treaties and documents, including the Additional Protocol to the American Convention
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
85 Carlson [76].
86 Fornerón and Daughter v Argentina, IACtHR Series C 242 (2012) [141].
87 ibid [142].
88 Rantsev v Cyprus and Russia, 7 January 2010 [241]-[242].
89 Goiburú et al. v Paraguay, IACtHR Series C 153 (2006) [130]-[132]; Cantuta v Peru, IACtHR Series
C 162 (2006) [227].
90 Gonzales Lluy et al. v Ecuador, IACtHR Series C 298 (2015). See also Suárez Peralta v Ecuador,
IACtHR Series C 261 (2013).
91 Art 26 (Progressive Development) reads: ‘The States Parties undertake to adopt measures, both
internally and through international cooperation, especially those of an economic and technical nature,
with a view to achieving progressively, by legislation or other appropriate means, the full realization
of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in
the Charter of the Organization of American States as amended by the Protocol of Buenos Aires’.
92 Gonzales Lluy et al. [167].

The Principle of Systemic Integration in Human Rights Law!
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on Human Rights in the Area of Economic, Social and Cultural Rights,93 the CRC and
the International Covenant on Economic, Social and Cultural Rights (ICESCR).94 The
ICESCR Committee’s General Comments articulating a detailed framework for the
requirements of availability, accessibility, acceptability and quality of all health
services, goods and facilities qualified as the standard of assessment of Ecuador’s
obligations under the IACHR.95 Although the Court was divided, the point of
disagreement among the judges was the scope and nature of Article 26 IACHR and,
accordingly, the question of whether the right to health should become justiciable under
Article 26 or the rights to life and personal integrity.96 The President of the Court
attached an insightful concurring opinion to the judgment, arguing that, if one were to
define the entire content and scope of a right by means of other treaties, this would
result in modifying the IACHR and delegitimising the Court.97 What was not addressed,
however, was the question of why these concerns are not equally applicable when
detailed soft-law and hard-law standards regarding the right to health are fully
incorporated under the right to personal integrity.
From the cases discussed, it follows that, although both the ECtHR and the
IACtHR argue that other treaties (and instruments) are used as interpretative references
in their reasoning, in practice they transplant external standards under the protective
scope of their constitutive instruments. The specific application of systemic integration
results, in many instances, in the indirect application of other treaties under the pretext
of interpretation. States may provide different levels of protection for the same rights
in different international treaties, or even strategically create treaty divergences or
conflicts.98 This does not signify that international judges have the competence to
resolve such issues, or to align the content of one treaty with another. In other cases,
the Courts effectively supervise other treaties.99 This practice stretches their mandates
and circumvents the consent of the states that have not ratified these treaties, by
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
93 (Adopted 17 November 1988; entered into force 16 November 1999) OAS Treaty Series No 69.
94 (Adopted 16 December 1966; entered into force 3 January 1976) 993 UNTS 3. Gonzales Lluy et al.
[172]-[174], [193], [196].
95 ibid [176], [192]-[193].
96 Cf. Concurring Opinion of Judge Humberto Antonio Sierra Porto and Concurring Opinion of Judge
Eduardo Ferrer Mac-Gregor Poisot (Judges Roberto F Caldas and Manuel E Ventura Robles adhered to
this Opinion).
97 Concurring Opinion of Judge Humberto Antonio Sierra Porto in Gonzales Lluy et al. [1], [4], [7], [31],
[32].
98 In general, S Ranganathan, Strategically Created Treaty Conflicts and the Politics of International
Law (CUP, 2014).
99 Neuman (n 76); Tigroudja (n 76) 622-3; Butler (n 80).

The Principle of Systemic Integration in Human Rights Law!
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imposing on them obligations that they have not assumed. Even in the scenario that
member states (some or all of them) have ratified these treaties, they have not consented
to the Courts supervising their implementation. Establishing the content and meaning
of the rights provided for under the ECHR and the IACHR by reading into them, not
only external detailed obligations, but also arguably new rights, crosses the line
between interpreting and modifying human rights treaties.100
III. SYSTEMIC INTEGRATION: FALLING SHORT OF
EXPECTATIONS
Having discussed certain doctrinal (interpretational and jurisdictional) issues
that arise when applying systemic integration, this part of the article explores the
broader implications of applying systemic integration within the human rights arena.
Systemic integration falls short of international lawyers’ expectations for reasons which
are rarely addressed. The first section highlights the fact that the application of the
principle of systemic integration is subject to the institutional and policy preferences of
international courts and, hence, there are inherent limitations to pursuing a uniform or
consistent interpretation of human rights law. The second section discusses the
argument that systemic integration has the potential to establish priorities among
important concerns, rather than resolving treaty conflicts. The case law of the ECtHR
reveals that when such an exercise takes place, it may upset the aims and structure of
the treaty under interpretation. The third section questions the well-established
presumption that the more receptive an international court is to other treaties, and the
more systemically it integrates them in its reasoning, the more effectively it mitigates
fragmentation.101 The analysis addresses the risk that international courts exercise
undue interpretative authority over other treaties, thereby leading to the emergence of
new informal hegemonies among international courts. The final section argues that
systemic integration in the human rights regime may hinder the progressive
development of other interests and concerns under PIL and cause our imaginative space
to become stagnated, preventing us from looking beyond the human rights regime(s).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
100 O Ruiz Chiriboga, ‘The American Convention and the Protocol of San Salvador: Two Intertwined
Treaties. Non-enforceability of Economic, Social and Cultural Rights in the Inter-American System’
(2011) 31 NQHR 172.
101 Forowicz (n 13) 21; cf. S McInerney-Lankford, ‘Fragmentation of International Law Redux: The Case
of Strasbourg’ (2012) 32 OJLS 623.

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A. Systemic Integration is Shaped by Institutional Preferences
The principle of systemic integration does not escape the functional biases and
preferences of international courts. The application of systemic integration is subject to
the legal and institutional aspects of fragmentation that it purports to overcome in the
first place. Interpretation is, therefore, an invaluable – but limited – tool for
international lawyers and judges.
Debates in the literature usually revolve around the question of whether the
introduction of relevant treaties in the process of interpretation could promote, for
example, the receptiveness of an investment arbitration tribunal or a WTO Panel to
human rights law and, hence, ground a holistic construal of different areas of law.102
An interesting exercise that demonstrates the intrinsic difficulties involved is to adopt
a narrower frame of reference and explore how international courts in the same area of
law are restricted not only by the mandate defined by their subject area (e.g. human
rights, trade) but also by their own judicial policies and preferences. Systemic
integration as a policy goal and/or interpretation tool does not necessarily mitigate these
preferences and biases, nor does it bring coherence to a specific area of PIL – let alone
PIL as a whole.
For instance, the IACtHR and the ECtHR are not equally willing to take
indigenous peoples’ rights into account when interpreting the IACHR and the ECHR
respectively. The IACtHR has enlarged the scope of Article 21 IACHR by reading into
it a collective understanding of the right to property in accordance with Article 13 of
ILO Convention No 169 regarding the duty of state parties to respect the special
relationship that indigenous peoples develop with the lands that they occupy or use.103
According to the Court, a comprehensive and integrative reading of the IACHR
alongside other treaties is required in order to promote the uniform interpretation of
international human rights law.104 This ‘effort of normative integration’105 serves the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
102 E.g. E de Wet and J Vidmar, ‘Conflicts Between International Paradigms: Hierarchy versus Systemic
Integration’, 2013, 23 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2269703>.
103 Yakye Axa Indigenous Community v Paraguay, IACtHR Series C 125 (2005) [124]-[129], [136]-
[137], [149]-[151]; Sawhoyamaxa Indigenous Community v Paraguay, IACtHR Series C 146 (2006)
[117]-[121], [134]-[141].
104 E.g. Yakye Axa Indigenous Community [151]; Separate Opinion of Judge Cançado-Trindade in Caesar
v Trinidad and Tobago, IACtHR Series C 123 (2005) [62]-[63].
105 Concurring Opinion of Judge Poisot in Liakat Ali Alibux v Suriname, IACtHR Series C 276 (2014)
[74].

The Principle of Systemic Integration in Human Rights Law!
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aim of incorporating the indigenous world view into human rights.106 However, the
ECtHR does not share the same degree of sympathy for indigenous peoples’ rights. In
the Handölsdalen Sami Village case, the Court did not address how indigenous peoples’
rights and the relevant treaties could inform the ECHR’s interpretation.107 This point
demonstrates not only the different approaches taken by the Courts, but also the
selectiveness underlying the application of systemic integration. The IACtHR uses
systemic integration and the pro homine interpretation to construe the corpus juris of
international human rights law with the aim of serving specific judicial policy goals in
the Latin American region.108 Consequently, any claim for a uniform interpretation of
human rights or the use of integration is subject to (and even reinforces) existing biases
and judicial policies. In addition, institutional preferences and structural biases
permeate the human rights expertise from within, since human rights lawyers may
regard themselves as experts in very specific areas (for example, children’s or anti-
discrimination lawyers) and, therefore, adopt opposing perspectives and priorities.109
These preferences and biases on an institutional, judicial policy and expertise level are
entrenched into the practice of human rights; at the very least, one should be aware of
them.
B. Prioritising Concerns Beyond Treaty Conflicts?
The principle of systemic integration holds a prominent position in discussions
of treaty (or norm) conflicts. Although many scholars have acknowledged that Article
31 (3)(c) VCLT is not equipped to resolve true treaty conflicts,110 the ILC assigns such
a role to the provision in its alleged capacity as an expression of the principle of
systemic integration. Furthermore, it has been argued that the principle of systemic
integration offers the prospect of balancing different values and interests without
necessarily predicating or establishing the prevalence of one norm over another.111 The
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
106 Joint Separate Opinion of Judges Cançado-Trindade, Pacheco Gomez and Abreu Burelli in Mayanga
(Sumo) Awas Tingi Community v Nicaragua, IACtHR Series C 79 (2001) [13].
107 Handölsdalen Sami Village and Others v Sweden, 30 March 2010. This is despite the strong objections
raised by Judge Ziemele in her separate opinion.
108 Neuman (n 76); A Rodiles, ‘The Law and Politics of the Pro Persona Principle in Latin America’ in
HP Aust and G Nolte (eds), The Interpretation of International Law by Domestic Courts (OUP, 2016)
153.
109 M Payandeh, ‘Fragmentation within International Human Rights Law’ in M Andenas and E Bjorge
(eds), A Farewell to Fragmentation (CUP, 2015) 297.
110 McLachlan (n 13) 318-9; Tzevelekos (n 14) 665-670, 686. M Milanović, ‘Norm Conflict in
International Law: Whither Human Rights?’ (2009-2010) 20 Duke J. of Comp. & Int’l L. 69.
111 McLachlan (n 13) 318-9.

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interpreter has a role in ‘prioritiz[ing] concerns that are more important at the cost of
less important objectives’.112 These claims have not been elaborated on, but a few
points need to be underlined in light of ongoing judicial practice. First, the task of
balancing values or interests is different to prioritising them; prioritising is but one
option. Second, as will be discussed below, it is doubtful whether the balancing of
interests and values vis-à-vis treaty provisions can be addressed within the realm of
interpretation.113 Third, it is unclear how one can decide which concerns are most
important and prioritise them accordingly; this is an exercise that is dependent on the
interpreter’s standpoint.
For its part, the IACtHR does not seem inclined towards considering, let alone
prioritising, interests and values reflected by other treaties unless these interests are
perfectly aligned to the aims of the IACHR. To take an example, the Court was firm in
its position that a bilateral investment treaty between Paraguay and Germany had no
legal bearing in assessing whether a series of rights, including the right to property, of
the Sawhoyamaxa community under the IACHR had been violated.114 In a similar vein,
in the Wong Ho Wing v Peru case, the bilateral extradition treaty between Peru and
China was largely treated as a fact under domestic law, rather than as an international
treaty to be considered in the process of interpreting and applying the right to life under
the IACHR.115 In other words, the general interest of international cooperation in the
specific area of extradition did not have any bearing. Finally, in assessing the
compatibility of El Salvador’s amnesty law with the IACHR, the Court stated that it
would take the 1992 Peace Accord and Additional Protocol II to the 1949 Geneva
Conventions (AP II) into account.116 In this instance, there seemed to be a discrepancy
between, on the one hand, the requirement of the AP II to grant the broadest possible
amnesties and the need to maintain the negotiated peace,117 and, on the other, the
Court’s inflexible approach in declaring all amnesty laws to be incompatible with the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
112 ILC Rep (n 2) [419].
113 Gardiner (n 16) 281.
114 Sawhoyamaxa Indigenous Community [140].
115 Wong Ho Wing v Peru, IACtHR Series C 297 (2015) [126], [138], [239]; cf. Soering v United
Kingdom, 7 July 1989 (Plenary) [83]-[90].
116 Massacres of El Mozote and Nearby Places v El Salvador, IACtHR Series C 252 (2012) [284]-[287].
117 Concurring Opinion by the President of the Court, Judge García-Sayán in Massacres of El Mozote.

The Principle of Systemic Integration in Human Rights Law!
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IACHR.118 The Court did not enter this discussion, and reiterated its general position –
declaring El Salvador’s amnesty law inconsistent with the guarantees of the IACHR.119
On the other side of the spectrum, the ECtHR is willing not only to balance
external concerns and interests against the guarantees of the ECHR, but also to prioritise
the former over the latter. In many instances, the ECtHR took other treaties (or the lack
thereof) into account, but did not proceed to resolve (or avoid) a norm conflict. It
arguably prioritised the admittedly weighty interests reflected by these treaties under
PIL over the applicability and application of the ECHR. This had a significantly
restrictive impact on the protective scope of the rights in question. In Carson, the Grand
Chamber accepted that the absence of bilateral reciprocal treaties in the social security
sphere is a sufficient reason to limit the applicability of Article 14 ECHR; otherwise,
the application of Article 14 ECHR would effectively undermine the right of states to
enter into reciprocal agreements.120 In Waite and Kennedy, the Plenary Court held that
the right to access a court should be substantially restricted so as not to undermine the
proper functioning of international organisations and international cooperation.121 In
Bosphorus, the Court established the presumption of equivalent or comparable
protection between EU law and the ECHR by relying upon the principle of pacta sunt
servanda and the need for the proper functioning of international organisations
(Ireland’s EU membership).122
A cluster of cases concerning the Hague Convention on Child Abduction also
illustrates that prioritising the purposes and goals of other treaties may interfere with
the aims, structure and effectiveness of the ECHR. The applicants before the ECtHR
claimed that returning the child pursuant to the Hague Convention would be in violation
of the best interests of the child and the right to family life under Article 8 ECHR. The
Court would not rigorously review whether the return of the child was in breach of the
guarantees of Article 8 ECHR unless there was an arbitrary decision by national
authorities.123 The crux of these cases was that Article 13 (b) of the Hague Convention
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
118 JM Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd edn,
CUP, 2014) 218-9, 322-3; Neuman (n 76) 108-9.
119 For criticism to the Court’s practice see L Mallinder, ‘The End of Amnesty or Regional Overreach?
Interpreting the Erosion of South America’s Amnesty Laws’ (2016) 65 ICLQ 660-1.
120 Carson and others v United Kingdom, 16 March 2010 (Grand Chamber) [89].
121 Waite and Kennedy v Germany, 18 February 1999 (Grand Chamber) [63].
122 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v Ireland, 30 June 2005 (Grand Chamber)
[150].
123 Maumousseau and Washington v France, 6 December 2007 [71]; cf. Dissenting Opinion of Judge
Zupančič joined by Judge Gyulumyan, 39-40. Eskinazi and Chelouche v Turkey, 6 December 2005, 21-

The Principle of Systemic Integration in Human Rights Law!
23!
envisages an exception to the state parties’ obligation to return the child if there is a
grave risk that the child’s return would expose him or her to physical or psychological
harm or otherwise place the child in an intolerable situation. The Court’s standing case
law, to apply the Hague Convention’s provisions de facto via the ECHR,124 and the
importance attached to preserving the main aim of the Convention (the expeditious
return of the child) created the uncomfortable situation whereby the Court was obliged
to review the Hague Convention against the ECHR.125 On the one hand, Article 13 (b)
of the Hague Convention is an exceptional ‘escape clause’ to the return of the child,
and has to be narrowly interpreted, whereas, on the other hand, the protection of the
best interests and rights of the child serve as primary considerations under Article 8
ECHR, which, in turn, may be subject to restrictions. The ECtHR was hesitant to review
the application of the Hague Convention against the guarantees of Article 8 ECHR in
light of the risk of undermining the effective implementation of the Hague
Convention.126 The Grand Chamber, in Neulinger and Shuruk, restored this imbalance,
ruling that the conditions for the enforcement of the return of the child need to be in
strict conformity with Article 8 ECHR.127
Consequently, the IACtHR and ECtHR have different approaches in this instance.
The IACtHR appears to be fixed in its position of giving little weight to the values and
interests of other treaties, unless these converge with the aims and effectiveness of the
IACHR. Some scholars have argued that this practice can be rigid and one-sided on
certain occasions, especially when discussing amnesty laws. The ECtHR employs
systemic integration in order to justify the prioritisation of significant interests over the
ECHR as an issue of legal methodology. The foregoing cases demonstrate that the
argument that systemic integration is a means of balancing or even prioritising among
other important interests can lead to significant restrictions of human rights guarantees.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2. E Sthoeger, ‘International Child Abduction and Children’s Rights: Two Means to the Same End’
(2011) 32 Michigan JIL 521-2.
124 Cf. discussion in Part II.C.
125 Maumousseau and Washington [73]; cf. Dissenting Opinion of Judge Spielmann in Neulinger and
Shuruk, 8 January 2009 41; Dissenting Opinion of Judge Dedov in Adžić v Croatia, 12 March 2015, 27-
9.
126 Neulinger and Shuruk [134], [137], [145]. Also Concurring Opinion of Judge Lorenzen joined by
Judge Kalaydjieva, 54; Concurring Opinion of Judge Cabral Barreto, 56; Concurring Opinion of Judge
Malinverni, 57; Joint Separate Opinion of Judges Jočienė, Sajó and Tsotsoria, 61-2.
127 Neulinger and Shuruk [132]-[133], [138]-[141]; X. v Latvia, 26 November 2013 (Grand Chamber)
[94], [106].

The Principle of Systemic Integration in Human Rights Law!
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C. Exercising Undue Interpretative Authority over Other Treaties
An international court’s receptiveness to relevant PIL rules can be a reliable
indicator of a reduced risk of diverging interpretations and/or judgments, as well as
bolstering cross-fertilisation.128 At the same time, however, an international court’s
systematic engagement with, and integration of, other treaties raises questions
regarding its authority to shape the construal of these treaties. When an international
court takes a treaty provision into account for interpretation purposes, it inevitably
engages in an articulation of its ordinary meaning.129 While international courts have
the inherent power to construe general international law, they do not have the
competence to authoritatively ascertain the ordinary meaning of treaties other than the
instruments subject to their jurisdiction.
An exceptional instance is the African Court of Human and Peoples’ Rights.
Article 3 (1) of the Protocol establishing the ACtHPR provides that ‘[t]he jurisdiction
of the Court shall extend to all cases and disputes submitted to it concerning the
interpretation and application of the Charter, this Protocol and any other relevant
Human Rights instrument ratified by the States concerned’.130 Pursuant to this wide
jurisdiction, the Court has indeed interpreted, applied and, accordingly, found a
violation of, for example, the ICCPR131 or the Revised ECOWAS treaty.132 Yet, even
in light of the exceptional scope of the ACtHPR’s competence, concerns regarding the
potential for undue interpretative authority over other treaties are not mitigated. Such
concerns relate, obviously, to the risk of divergent interpretations of a treaty which is
already supervised by another body. The Vice-President of the ACtHPR underlined this
risk in his separate opinion in the Tanganyika Law Society and Legal and Human Rights
Centre and Reverend Christopher R. Mtikila v United Republic of Tanzania case.133
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
128 Forowicz (n 13).
129 T Broude, ‘Fragmentation(s) of International Law: On Normative Integration as Authority Allocation’
in T Broude and Y Shany (eds), The Shifting Allocation of Authority in International Law (Hart
Publishing, 2008) 112; Samson (n 14) 708-9.
130 Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African
Court on Human and Peoples' Rights (adopted 11 July 2003; entered into force 24 January 2014) OAU
Doc. OAU/LEG/EXP/AFCHPR/PROT (III) (emphases added); F Viljoen, International Human Rights
Law in Africa (2nd edn, OUP, 2012) 435-9.
131 E.g. Mohamed Abubakari v United Republic of Tanzania, ACtHPR App No 007/2013 (2016) [145].
132 Economic Community of West African States (ECOWAS) Revised Treaty (adopted 24 July 1993;
entered into force 23 August 1995) 2373 UNTS 233. E.g. Lohe Issa Konate [164], [176].
133 Separate Opinion of Vice-President Fatsah Ouguergouz in Tanganyika Law Society and Legal and
Human Rights Centre and Reverend Christopher R. [16].

The Principle of Systemic Integration in Human Rights Law!
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Nonetheless, these concerns are also manifested (and merit equal consideration) in
instances in which a treaty is not subject to supervision by an international body and/or
the interpretation of one of its provisions is contested or unclear.134 The WTO Appellate
Body135 and international investment tribunals tend to engage only very reluctantly with
the interpretation of other treaties.136 Human rights courts, however, show no signs of
hesitance in this regard.
The X and others case137 serves as a good example of a Grand Chamber divided
over the ordinary meaning of the European Convention on the Adoption of Children.138
Seven dissenting judges strongly opined that the majority’s interpretation adhered
neither to the letter nor to the object and purpose of Article 7 of the said Convention.139
Moreover, the ECtHR defines the ordinary meaning of debated provisions of the Hague
Convention and corrects the (alleged) shortcomings of national courts’ decisions when
applying the Hague Convention.140 Judge Pinto De Albuquerque argued that, in the
absence of an oversight body for the Hague Convention, the ECtHR should ensure the
uniformity of the interpretation and implementation of states’ obligations under the
Hague Convention.141 The IACtHR, in Artavia Murillo, engaged extensively with many
human rights treaties and it is arguable that in the process of doing so it pursued an
inappropriate interpretation of the CRC and the ICCPR.142 The Court read and adopted
a specific interpretation of the right to life under these treaties that does not necessarily
reflect their ordinary meaning or the current views of their supervisory bodies.143 Such
instances may be somewhat exceptional (thus far) but they are arguably symptomatic
of future trends.144 The questions that come to the surface, but are rarely discussed in
literature and judicial practice, are the following: Are international courts entitled to
have a say on the interpretation of other treaties? If so, what are the implications for the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
134 Enerji Yapi-Yol Sen and Danilenkov and Others cases; Velyvyte (n 51) 80.
135 L Bartels, ‘Jurisdiction and Applicable Law Clauses: Where Does a Tribunal Find the Principal Norms
Applicable to the Case Before It?’ in Broude and Shany (n 41) 140-1.
136 M Hirsch, ‘The Interaction Between International Investment Law and Human Rights Treaties: A
Sociological Perspective?’ in Broude and Shany (n 41) 216-7.
137 Samson (n 14) 708-9.
138 2008 European Convention on the Adoption of Children (Revised), CETS No 202.
139 Joint Partly Dissenting Opinion of Judges Casadevalli, Ziemele, Kovler, Jočienė, Śikuta, De Gaetano
and Sicilianos in X and others v Austria, 19 February 2013 (Grand Chamber) [19].
140 Monory [81]; Bianchi [92].
141 Cf. Concurring Opinion of Judge Pinto De Albuquerque in X v Latvia 44.
142 Jesús (n 37) 258-262.
143 ibid 254-5.
144 L Silberman, ‘Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence’
Institute of International Law and Justice (New York University, School of Law), Working Paper 2005/5,
32 at <www.iilj.org>.

The Principle of Systemic Integration in Human Rights Law!
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development of international law, and what is the role that these courts assume?
In general, all international courts are equal participants in the development of
PIL, including general international law (international customary law and general
principles of law) and treaties.145 As far as treaties are concerned, international courts
frequently refer to and use them as interpretative aids. When doing so, they make sure
to approach the authoritative meaning of a treaty provision by relying on how its
interpretation has been developed by the respective supervisory body. If a treaty lacks
a monitoring body, it is the state parties to this treaty that ascribe authoritative
interpretations. Yet, it would be unreasonable to question altogether the authority of
international courts and bodies to interpret another treaty, should such an issue arise
when deciding a case. Their interpretations may not be authoritative, but they do enjoy
a certain authority.146
The weight of this authority is determined by how an international court
ascertains the ordinary meaning of a treaty provision. In the Hague Abduction cases
discussed above, the only source that the ECtHR employed as an interpretative aid to
support its findings was the 1980 Explanatory Report on the Hague Convention.147 It is
only after the use of the Hague Convention became contested that the Court employed
additional and more recent resources to interpret the Hague Convention.148 Although
the practice of national authorities (primarily courts) of member states to the Hague
Convention is critical in the sense that it is genuinely authoritative, the ECtHR is not
rigorous in identifying and analysing such practice.149 The ECtHR in Monory invoked
the practice of European states, although the treaty is widely ratified on a global level
by 94 states150 and, if one reads through the references in Monory, the Court essentially
cites the practice of one European state! In Neulinger and Shuruk, the ECtHR looked
selectively into the practice of certain European and Australian domestic courts.151
Conversely, the weight of the authority of an interpretation by the ECtHR will
subsequently be tested against the practice of member states with respect to this other
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
145 E.g. AAC Trindade, ‘The Development of International Human Rights Law by the Operation and the
Case-Law of the European and Inter-American Courts of Human Rights’ (2004) 25 HRLJ 158.
146 Gardiner (n 16).
147 Maumousseau and Washington [43]; Neulinger and Shuruk [58]; X. v Latvia [45]; Adžić [63].
148 Neulinger and Shuruk [67]; X. v Latvia [36]; Adžić [64]-[65].
149 Cf. the detailed analysis of the US Supreme Court in similar cases discussed in A Roberts,
‘Comparative International Law? The Role of National Courts in Creating and Enforcing International
Law’ (2011) 60 ICLQ 86.
150 Monory [76].
151 Neulinger and Shuruk [60]-[74].

The Principle of Systemic Integration in Human Rights Law!
27!
treaty. This means that, for instance, the ECHR member states can, in theory, dismiss
the ECtHR’s findings (as to the interpretation of the Hague Convention); this, however,
would put them in a difficult position since they have to conform to the Court’s
judgments.
The increasing receptiveness of an international court to relevant treaties, if
accompanied by an integrative interpretation, raises questions not only on the level of
interpretation but also regarding the role that the court assumes in asserting authority
over other treaties.156 There is the risk of establishing novel, informal hierarchies among
international courts on the basis of who exercises and concentrates persuasive
interpretative and normative power when construing certain treaties. One could not fail
to note that the fragmentation discussion has unfolded as a critique against (or in favour
of) sustaining formal or informal hierarchies among international courts. The
perception that the multiplicity of international courts poses a danger to the unity of
PIL partly reflects the hegemonic conflict stemming from the ‘loss of hierarchical
position by institutions of the ancient régime’157 (referring mostly to the role of the
International Court of Justice). In this context, other international courts are not exempt
from the same note of caution. Why should one presume that the ECtHR or the IACtHR
are immune to establishing new forms of informal hegemonies?158 It is important to be
mindful that shared ownership over international law goes hand in hand with the burden
of shared responsibility for developing international law and managing international
dispute settlement.159 Shared responsibility is not restricted to drafting treaty clauses
for regulating overlapping jurisdiction, applying procedural principles or exercising
judicial comity.160 In the everyday operation of international courts, international
lawyers and judges need to be aware of the systemic implications of their judgments in
order to avoid exercising undue authority over other treaties. Creativity does not
preclude prudence. International courts should conduct more rigorous research on a
comparative and international level, and they should enhance the quality of judicial
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
156 Broude (n 133) 112.
157 M Koskenniemi, ‘Global Legal Pluralism: Multiple Regimes and Multiple Modes of Thought’
(Harvard, 5 March 2005), 6 <http://www.helsinki.fi/eci/Publications/Koskenniemi/MKPluralism-
Harvard-
05d%5B1%5D.pdf>; cf. T Treves, ‘Advisory Opinions of the International Court of Justice on Questions
Raised by Other International Tribunals’ (2000) 4 Max Planck YbkUNL 221.
158 Cullen (n 55) 93.
159 B Simma, ‘Universality from the Perspective of a Practitioner’ (2009) 20 EJIL 266.
160 K Oellers-Frahm, ‘Multiplication of International Courts and Tribunals and Conflicting Jurisdiction
– Problems and Possible Solutions’ (2001) 5 Max Planck YbkUNL 88-90.

The Principle of Systemic Integration in Human Rights Law!
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reasoning and methodology, especially when interpreting a treaty that does not fall
within their jurisdiction.161
Finally, an argument that is often raised is that certain international courts may
present the only viable opportunity to meaningfully develop a given international treaty
which lacks an implementation mechanism. The IACtHR used this reasoning as a basis
not only for taking other treaties into account, but also for exercising jurisdiction over
the Inter-American Convention to Prevent and Punish Torture,162 despite the fact that
it is unclear whether this Convention assigns this task to the Court.163 Although such
an argument could be somewhat understandable given the shortcomings of the
international judicial system, it is tenuous for two reasons.166 First, this argument
disregards the pivotal role that domestic courts can play in the determination and
development of international law and treaties. National courts serve the role of
providing accessible justice on a daily basis.167 There is evidence to indicate that
domestic courts increasingly engage with questions of international law, employ
complex interpretative principles (including systemic integration) and come up with
original decisions.168 This is not to say that innovative approaches in international
litigation are not needed. Rather, the point is that we should not wait for domestic
remedies to be exhausted in order to pursue international justice.169 We should treat the
national judge as an agent of international justice as well. This is all the more pertinent
since the national judge is in a unique position to apply the principle of systemic
integration without being confined by the limited jurisdiction of an international
court.170
The second reason that the systematic and integrative approach of international
courts towards other treaties is problematic is its repercussions for their legitimacy and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
161 In the case of the ACtHPR, this is the case even when a relevant human rights treaty falls under its
jurisdiction!
162 (Concluded 9 December 1985; entered into force 28 February 1987) OAS Treaty Series No 67.
163 ‘Street Children’ [248]. According to Art 8 ‘[a]fter all the domestic legal procedures of the respective
State and the corresponding appeals have been exhausted, the case may be submitted to the international
fora whose competence has been recognized by that State’.
166 A third reason is obviously the jurisdictional confines of an international court. See discussion in Part
II.
167 A Roberts et al., ‘Comparative International Law: Framing the Field’ (2015) 109 AJIL 472-4.
168 E.g. A Nollkaemper, National Courts and International Rule of Law (OUP, 2012) 264-276; Rodiles
(n 108) 161-8; HP Aust, A Rodiles and P Staubach, ‘Unity or Uniformity? Domestic Courts and Treaty
Interpretation’ (2014) 27 LJIL 92-100.
169 Cf. D Shelton, ‘Legitimate and Necessary: Adjudicating Human Rights Violations Related to
Activities Causing Environmental Harm or Risk’ (2015) 6 Journal of Human Rights and the Environment
141.
170 Rachovitsa (n 76) 96-100.

The Principle of Systemic Integration in Human Rights Law!
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the overall effectiveness of human rights.171 There are growing concerns among
member states to the ECHR regarding the ECtHR’s practice of uncritically applying
the principle of systemic integration. The lack of transparent legal reasoning and
foreseeability in the case law, as well as the states’ unwillingness to transform, de facto,
the ECtHR into a supervisory mechanism for other treaty obligations, have led to a
series of incongruous preliminary objections ratione materiae. Moldova, in Tănase,
strongly argued that the Court should not have used the European Convention on
Nationality172 in order to construe the ECHR, and that the weight attached to the said
Convention was inappropriate.173 Turkey, in Demir and Baykara, objected to the
integration of ILO conventions under the scope of Article 11 ECHR.174 Similarly, the
United Kingdom, in National Union of Rail, Maritime and Transport Workers, opposed
the interpretative relevance of the legal assessments of the European Committee on
Social Rights and the ILO Committee of Experts to the interpretation of Article 11
ECHR.175 From the other side of the Atlantic, member states to the IACHR have also
started to show signs of unease. Paraguay, in the ‘Juvenile Reeducation Institute’ case,
contested the idea that socio-economic rights can be read into the scope of Article 26
IACHR.176 In Acevedo Buendía, Peru raised a preliminary objection arguing that an
alleged violation of the right to social security falls outside the Court’s competence.177
Against this background, the current president of the IACtHR and various scholars
caution that the IACtHR’s practice of strongly pursuing a pro homime interpretation of
the IACHR by applying systemic integration will delegitimise the Court and undermine
the progress achieved.178
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
171 Rodiles (n 108) 163.
172 European Convention on Nationality (concluded 6 November 1997; entered into force 1 March 2000)
ETS No 166.
173 Tănase v Moldova, 27 April 2010 (Grand Chamber) [36]–[39], [124], [135]–[8], [176].
174 Demir and Baykara [137].
175 National Union of Rail, Maritime and Transport Workers [69], [94]–[98].
176 ‘Juvenile Reeducation Institute’ [254].
177 Acevedo Buendía et al. (‘Discharged and Retired Employees of the Comptroller’) v Peru, IACtHR
Series C 198 (2009) [12]-[19]. See also Velásquez Paiz et al. v Guatemala, IACtHR Series C 307 (2015)
(only in Spanish) [16]-[19]; Espinoza Gonzáles v Peru, IACtHR Series C 295 (2015) (only in Spanish)
[18]-[19].
178 Concurring Opinion of Judge Humberto Antonio Sierra Porto in Gonzales Lluy et al. [23]-[32];
Rodiles (n 108) 161-2; Neuman (n 76); C Binder, ‘The Prohibition of Amnesties by the Inter-American
Court of Human Rights’ 12 (2011) GLJ 1208, 1227-8.

The Principle of Systemic Integration in Human Rights Law!
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D. Does Systemic Integration in the Human Rights Regime Limit the
Potential of International Law?
The role that international courts assume and their perception of the
interpretation task are significant to the development of PIL. Georges Abi-Saab’s
metaphor of international law as a parasitic plant that grows erratically by seizing on
all opportunities and latching onto anything that offers the possibility of moving
towards the light179 makes one quick to ascribe only weaknesses to the development of
PIL and disregard the qualities of diversity and the richness encapsulated precisely in
the absence of a centralised legislative and judicial authority. PIL, despite its
sophistication, widening and thickening in recent years, holds more firmly than ever to
its archaic tendency to grow erratically. In an effort to look into PIL in an orderly way
– with a vision and a goal to bring together and integrate all the disparate elements of
the system into a single coherent story – international courts should be mindful of the
unintended implications. The uncritical application of the principle of systemic
integration, especially in the context of (and by) international human rights law, may
narrow the existing and potential reach of PIL by reducing various concerns and
interests to the human rights paradigm.
An exemplary case concerns the integration of environmental norms into the
scope of the ECHR, which brought about the long-awaited integration of environmental
concerns into the human rights discourse.180 This is, in principle, a positive
development. Few note, however, the now-prevailing individualistic perspective
towards the environment, and fewer still recognise that the concept of the environment
as a public good, indispensable for the life and welfare of society as a whole, is being
reduced to a restricted set of individual rights of a procedural character.181 Neither the
European nor the Inter-American Courts of Human Rights addresses the ecological
approach to the environment, nor do they appreciate environmental integrity and
degradation as values for the community per se.182 This narrow approach has important
legal consequences: environmental damage can only be translated into the violation of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
179 G Abi-Saab, ‘Fragmentation or Unification: Some Concluding Remarks’ 31 (1998-1999) N.Y.U. J.
Int'l L. & Pol. 930-1.
180 E.g. A Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in
A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (OUP, 1996)
52; Stephens (n 77) 320.
181 F Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21 EJIL 41.
182 ibid 50; Shelton (n 169) 145, 154.

The Principle of Systemic Integration in Human Rights Law!
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a human right;183 the victim requirement as an admissibility condition before
international courts is not informed by the collective dimension of environmental
integrity; and assessment of environmental regulations introduced by states is confined
to the potential limitations to human rights.184 It could be argued that other regimes and
approaches mitigate the shortcomings entrenched in human rights discourse and
practice. Yet such an argument disregards the fact that the practice of international
human rights courts and bodies is disproportionately influential and, hence, it is highly
likely that the ‘narrowest but strongest argument for a human right to the
environment’185 will survive and become mainstreamed into the future development of
international law, hindering its potential evolution in different directions.186
Similar considerations apply to other areas and concerns under PIL. It is unclear
to what extent human rights treaties – even in light of the integrative and ground-
breaking jurisprudence of the IACtHR – are structurally equipped to include and
articulate indigenous understandings of ownership.187 It is clear that the IACtHR has
not acknowledged indigenous people, as a collective group, as the right-holders under
the IACHR, but rather as individual members of the community.188 Neither does the
systemic integration approach of the IACtHR give due regard to the potential of the UN
Declaration on the Rights of Indigenous Peoples.189 The IACtHR made a choice – one
that was never acknowledged – between the ILO Conventions and the UN Declaration,
which sets more demanding standards, more difficult to reconcile with those of the
IACHR.190 Equally concerning is the integration of socio-economic rights into the
discourse of civil and political human rights, insofar as we might question whether it is
reasonable to expect that the imbalance of power in labour relations and in the complex
area of social rights can and should be mediated through the ECHR or the IACHR. In
the same vein, the language of human rights is (to some extent) ill suited to describe
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
183 D Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and
the Environment 90.
184 R Desgagne, ‘Integrating Environmental Values into the European Convention on Human Rights’
(1995) 89 AJIL 264, 280-5.
185 Boyle (n 180) 59-60.
186 A Grear, ‘Editorial – Where Discourses Meet’ (2010) 1 Journal of Human Rights and the Environment
1; C Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1 Journal of Human
Rights and the Environment 7. For similar thoughts, albeit in a different context, see Webb (n 2) 149,
209.
187 M Koskenniemi, ‘Letter to the Editors of the Symposium’ (1999) 93 AJIL 357-9.
188 Medina (n 76) 5.
189 UNGA Res 61/295 (2 October 2007) UN Doc A/RES/61/295.
190 C Charters, ‘Multi-Sourced Equivalent Norms and the Legitimacy of Indigenous Peoples’ Rights
under International Law’ in Broude and Shany (n 41) 315.

The Principle of Systemic Integration in Human Rights Law!
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how corruption causes harm to socio-economic rights,191 or to acknowledge the effects
of systemic discrimination and stigmatisation.192 In addition, despite the significant
contribution of human rights courts and bodies to the recognition of domestic violence
as a human rights issue, there are limits to how far human rights law can go to protect
individuals from violations occurring in the private sphere.193 Another topical question
is whether international human rights law is capable of articulating and remedying the
contemporary refugee crisis.194 And then there is the issue of protecting human rights
online. International human rights law is currently attempting to grasp the concerns
pertinent in the digital environment in legal form.195 To what extent, however, will the
human rights paradigm recognise the complex and distinctive interrelation of
network/national/individual security and privacy online? In the online environment,
privacy and aspects of security can be in both a symbiotic and an antithetical
relationship,196 and privacy can be a strong prerequisite for exercising freedom of
expression. Nonetheless, according to the structure of human rights law, it is not
possible to protect privacy and freedom of expression at the same time; instead, one
can only be assessed as a legitimate restriction on the other. How will this dynamic
relationship be incorporated into, and inform, legal reasoning and the proportionality
test?197
The foregoing points do not aim to understate the relevance and significance of
the human rights approach to other interests and concerns. Pursuing systemic integration
within the human rights arena may lead to progressive developments in PIL and enrich
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
191 C Rose, ‘The Limitations of a Human Rights Approach to Corruption’ (2016) 65 ICLQ 405.
192 Garib v The Netherlands, 23 February 2016; cf. Joint Dissenting Opinion of Judges López Guerra
and Keller. See L Lavrysen, ‘Strasbourg Court fails to acknowledge discrimination and stigmatization
of persons living in poverty’, 10 March 2016 <http://strasbourgobservers.com/2016/03/10/strasbourg-
court-fails-to-acknowledge-discrimination-and-stigmatization-of-persons-living-in-poverty/>.
193 RJA McQuigg, ‘Domestic Violence as a Human Rights Issue: Rumor v. Italy’ (2015) 26 EJIL 1024.
194 The Chamber of the Strasbourg Court upheld its strong record of protecting refugees and asylum
seekers from collective expulsions; see Khlaifia and Others v Italy, 1 September 2015. However, it is
alarming that, upon referral of the case to the Grand Chamber, the Chamber’s judgment as to the violation
of the prohibition of collective expulsion of aliens was overturned. The Grand Chamber does not seem
to grasp either the legal or the pragmatic challenges of the refugee crisis; Khlaifia and Others v Italy, 15
December 2016 (Grand Chamber).
195 UNGA Res 68/167, ‘The Right to Privacy in the Digital Age’ (21 January 2014) UN Doc
A/RES/68/167 (adopted without a vote); UN HRC Res 32/13, ‘The Promotion, Protection and Enjoyment
of Human Rights on the Internet’ (18 July 2016) UN Doc A/HRC/RES/32/13 (adopted without a vote as
orally revised).
196 Report of the Special Rapporteur on the Right to Privacy, JA Cannataci, UN Doc A/HRC/31/64, 8
March 2016 [24]-[25].
197 See pending case before the ECtHR Bureau of Investigative Journalism and Alice Ross v United
Kingdom (case communicated on 5 January 2015), App No 62322/14.

The Principle of Systemic Integration in Human Rights Law!
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the human rights discourse while adding value to, and highlighting, new interests.
However, one should question whether we should settle for the strongest arguments,
which in practice seem to be the easiest arguments to make. Human rights are
simultaneously part of the solution and the problem; its well-established and powerful
– doctrinal and rhetorical – vocabulary dominates the imaginative scope of international
law and overshadows other articulations.198 In this context, the principle of systemic
integration arguably tends to accelerate and intensify this process: the human rights
paradigm does not only overshadow but also subsumes other emerging areas of, and
concerns in, law by “squeezing” them into its own vocabulary, aims, structure and
scope. Aspects of these interests that are not readily reducible to human rights needs
remain embryonic or fall between the cracks.199 In this sense, international law’s store
of available words and possible future meanings is being constrained and
impoverished.200 Progress and stagnation stand on opposite sides of a very fine line:201
mitigating fragmentation and ensuring consistency should not impede the progressive
development of PIL in pursuit of more radical and imaginative changes, even if this
means that the available narratives become less coherent.
It needs to be underscored that this is a process familiar in many quarters of
international law and practice: other areas and regimes may raise similar questions when
engaging with other treaties and concerns. It is also true that, in general, human rights
law shapes and, in turn, is shaped by other fields and norms in a dynamic and non-linear
fashion.202 The present discussion, however, shifts the debate from the conventional
focus on interactions among well-known regimes (or the interactions of regimes vis-à-
vis general international law) to how the human rights paradigm develops and/or inhibits
the legal articulation of numerous other interests under PIL. Applying systemic
integration arguably has a unique net effect in the human rights area for a number of
reasons: in contrast to other international institutions, human rights courts and bodies
are increasingly receptive towards the interpretative technique of systemic
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198 D Kennedy, ‘The International Human Rights Regime: Still Part of the Problem?’ in R Dickinson et
al. (eds), Examining Critical Perspective on Human Rights (CUP, 2014) 19.
199 JH Knox, Report of the Independent Expert on the issue of human rights obligations relating to the
enjoyment of a safe, clean, healthy and sustainable environment, UN Doc A/HRC/22/43, 24 December
2012 [51], [53].
200 P Allott, Eunomia – New Order for a New World (OUP, 2004) 6-8.
201 Francioni (n 181) 54.
202 E.g. Kamminga (n 4); AN Pronto, ‘“Human-Rightism” and the Development of General International
Law’ (2007) 20 LJIL 753.

The Principle of Systemic Integration in Human Rights Law!
34!
integration;203 moreover, as discussed earlier, human rights is a persuasive and
appealing discourse that can monopolise our attention; and, finally, judgments by
prominent human rights courts are particularly influential and contain the promise of
enforcement, especially vis-à-vis norms and treaties that lack monitoring
mechanisms.204
To conclude, the consideration and possible incorporation of other interests
under PIL into human rights and the role of systemic integration as an interpretation
tool must not become our comfort zone. On the one hand, human rights bodies should
acknowledge, engage with and integrate other concerns into their interpretation. On the
other hand, and to the extent that the human rights structure and its conceptual tools fail
to accommodate other concerns, we should continue exploring what is legally possible
and acceptable for the international legal community.205 This could involve forging
different norm interactions and synergies, looking into different international fora and
enquiring into other approaches. One way forward could be to move in the direction of
setting up more monitoring mechanisms and/or international judicialisation. In this
way, various interests in international society would be evenly represented and more
diverse approaches could be on the table. Yet, even if it is to be assumed that states
would give their consent to establishing these mechanisms, international supervision
(of a judicial nature or otherwise) in itself does not necessarily guarantee that we will
respond effectively to emerging and complex questions. Human rights and international
law expertise need to be creative in construing the law and mindful of their limitations.
IV. CONCLUSIONS
This article has argued that systemic integration is neither the ultimate answer
to difficulties arising from the fragmentation of PIL nor a problem-free interpretative
technique. Legal interpretation alleviates certain difficulties presented by fragmentation
but it cannot resolve the need for international courts to do away with their fragmented
lens and “piecemeal” decision-making. One might also assume that applying systemic
integration within one functional regime – the human rights regime – would present
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203 Gardiner (n 16) 310. See also the discussion in Simma and Kill (n 14); Van Damme (n 14).
204 Francioni (n 181) insists on expanding the human rights structure; cf. L Rajamani, ‘The Increasing
Currency and Relevance of Rights-Based Perspectives in the International Negotiations on Climate
Change’ (2010) 22 Journal of Environmental Law 391.
205 Aust, Rodiles and Staubach (n 168) 78-9 and references therein.

The Principle of Systemic Integration in Human Rights Law!
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fewer challenges vis-à-vis applying systemic integration across different regimes. The
analysis provided evidence demonstrating that this is not the case. In fact, it is perhaps
a greater challenge to identify subtle contextual differences between treaties stemming
from the human rights regime or to preserve the aims and specificity of the ECHR, the
IACHR or the ACHPR vis-à-vis other treaties.
The application of systemic integration (or Article 31 (3)(c) with the goal of
systemic integration in mind) should not be understood as the legal basis upon which
to align the content of a treaty with the content of other treaties. Ensuring consistency
and cross-fertilisation requires due appreciation of the contextual nuances in different
treaties. In the current practice of the ECtHR and the IACtHR, we also encounter cases
in which the Courts indirectly apply and supervise other treaties under the guise of
systemic integration. Such instances seriously call into question the Courts’
jurisdictional confines and mandates, if indeed they do not exceed them. The critical
analysis in this article should not be seen as a call for textualism or a reduction in
creativity. It is rather a call to be creative while striving for more rigorous methodology
and transparency in legal reasoning and judgments. Legal reasoning is not merely a
matter of rigid legal technique but encapsulates the delicate balance between, on the
one hand, employing other treaties to interpret a treaty and, on the other hand, knowing
where the limits to the exercise of interpretation lie.
Most importantly, this article has stressed that we should be aware of the
(unintentional) ramifications of pursuing systemic integration or systemic integration-
like interpretative exercises in the human rights area. A court’s systematic engagement
with other treaties, especially when those treaties lack a monitoring mechanism, may
lead the exercise of undue interpretative authority over treaty provisions that are
contested or unclear. Moreover, systemic integration does not always benefit the
diversity of PIL or the development of other bodies of law. Providing the opportunity
for other areas of PIL to reach their potential, addressing pressing global issues via
different avenues or even acknowledging that human rights law cannot mitigate the
prevalent policy incoherence in international law-making are viable alternatives to
merely reducing various concerns to the human rights regime. These concerns are not
frequently raised, notwithstanding the fact that international human rights courts have
made important contributions to progressively developing both their own treaty
regimes and other interests under PIL. Yet there remains a real risk that human rights
practice and discourse will monopolise and subsume some of these interests.