The application of public international law by the European Court of Human Rights : a legal empirical analysis

Abstract

This thesis examines the application of general rules of public international law by the European Court of Human Rights (ECtHR). The research was conducted in light of the debate on the fragmentation of international law. Its aims are two-fold. On the one hand, it delves into the case law of the ECtHR in order to better understand the approach that Court takes to Public International Law (PIL) issues. On the other, it hopes to establish a workable methodology for legal scholars who are confronted with the need to address questions with a factual/ empirical component. Current literature does not convincingly show how the ECtHR applies norms of PIL, nor is it clear what, if any, factors may play a role in the Court's application of PIL. This is in part due to the lack of any convincing broad studies on the Court's case law. Thus, the main research question is what approach to Public International Law is used by the European Court of Human Rights? Flowing from this main question are other questions such as, is the approach consistent throughout all cases? If not, are there any aspects of a case that correlate with the different approaches taken by the Court? Does the Court's contribution to PIL constitute an example of fragmentation, or does the Court, through judicial dialogue, mitigate any such problems? The thesis consists of three parts. The first provides a literature background to the fragmentation debate as well as the methodological outline, the second part deals with the case law of the ECtHR, while the final part contains a presentation of the results of the research, and its corresponding conclusions.