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?
In Part I the Article will briefly introduce the question of the fragmentation of international law, and will more extensively delineate the role that the ILC attributed to Article 31(3)(c) and the ILC’s expectations regarding its success in this role. Next, Part II will give an overview of the special elements of the ECHR socio-normative environment, which gave rise to the case law into which Article 31(3)(c) came into force. The Article will argue that, in addition to benefiting from the very special nature of the ECHR, the Strasbourg Court also has a significant number of interpretative tools that allow it to enjoy wide discretion in the choices it often has to make regarding the dilemma between unconditional integration into the international legal order and its (regional) human rights specialty. Once concluded the theoretical part of the study, the Article will proceed in Part III to test the use of Article 31(3)(c) in the case law of the ECtHR. The object of this Part of the study is to assess the validity of the presumptions that Parts I and H introduced with regard to the function of Article 31(3)(c) within a special regime of international law. Part III is structured at two main levels, and will first address the question of normative fragmentation, and second its judicial institutional counterpart. Finally, Part III will consider the evolutive effects of Article 31(3)(c) as these are integrated in the broader question of fragmentation generally, and will treat these effects separately in certain instances, as further delineated in that Part.