This chapter moves away from the judicial behaviour of human rights systems and explores how other factors may influence convergence and fragmentation. First, it shows the reader how non-governmental organisations can be determinant in fostering convergence or triggering fragmentation through different activities. Thy include direct intervention in litigation, lobbying or through third party interventions, that is, amicus curiae. Second, it analyses all the instances where fragmentation does not arise simply because the case does not reach the merits stage. The increasing habit of regional court to encourage applicants to resort to friendly settlements could significantly limit the instances of fragmentation.

This chapter offers an assessment of judicial fragmentation in international human rights law. The first part of the chapter presents a comparative analysis of the case-law of the three regional systems and the UN Human Rights Committee on rights that are the highly susceptible to trigger fragmentation, either for the relevance of religious, cultural and political concerns or for the vagueness of some terms in the norms’ provisions that could possibly allow very different interpretations. As this analysis shows a substantial convergence or absence of fragmentation, the second part of the chapter focuses on the detailed analysis of the few cases of judicial fragmentation identified, exploring their features in depth. They include case-law on freedom to wear religious attire, indigenous rights and the right to marry for same-sex couples.

This chapter introduces a cutting-edge study on the composition of the bodies under analysis to assess how this may influence their adjudication. An empirical quantitative study on the judges’ and commissioners’ background is combined with an analysis of their ‘judicial behaviour’ through their separate opinions. This demonstrates that judicial convergence could be partly due to the personal identity and background of those individuals called to interpret the law and adjudicate the cases. In particular, this chapter shows signs of a possible ‘Europeanisation’ of the African and Inter-American judges, which could encourage the African and Inter-American Court to converge with the European case-law. The chapter also discusses the role played by the secretariats in influencing the adjudication of human rights regional and international bodies. Drawing on interviews with members of the registries of the three regional courts, it concluded that specific agendas, priorities and internal organisations may encourage judicial convergence.

This book explored the issue of judicial convergence and fragmentation in international human rights law, focusing on the case-law of the African Court and Commission on Human and People’s Rights, the European Court of Human Rights, the Inter-American Court of Human Rights and the UN Human Rights Committee.

This chapter introduces and discusses the approach of each body to deference and subsidiarity, and assesses how the differences may affect convergence and fragmentation. From the margin of appreciation (MoA), typical of the European Court, to the conventionality control (CC) of the Inter-American Court, the chapter investigates all the different shades of subsidiarity and deference and put them in a comparative perspective. Moreover, through specific examples, this chapter shows how different approaches may trigger fragmentation (such as in the headscarf cases) and how convergence on the level of deference and subsidiarity may, on the contrary, foster convergence (such as in defamation cases).

This chapter discusses the interpretation and application of the complex notions of necessity and proportionality, a cornerstone for any human rights adjudication and rights balancing exercise. Through an original and comprehensive analysis of the practice of the human rights bodies, this chapter shows the reader how these bodies managed to reach convergence on the interpretation and application of necessity and proportionality, despite all the impending factors.

Considering that judicial fragmentation and convergence concern the interpretation of human rights norms and provisions, this chapter discusses how the human rights bodies under analysis engage with the theory of treaty interpretation. In particular, the chapter illustrates how the human rights systems are engaging differently with judicial dialogue. Through a detailed analysis of the practice of each body, this chapter shows how judicial dialogue led to convergence and how the lack of it led to fragmentation. However, the chapter also highlights situations where despite judicial dialogue fragmentation still arose, discussing the duality and complexity of this instrument for the maintenance of convergence.

This chapter introduces the concepts of convergence and fragmentation in international human rights law (IHRL) by providing and discussing their definitions and meanings. Building on the conclusion of the 2006 ILC Report on Fragmentation in international law and drawing on existing literature on the matter, the chapter assesses the extent of normative fragmentation and proposes a new definition of judicial fragmentation in IHRL. Moreover, this chapter also engages in a discussion of how convergence and fragmentation relate to the concepts of universality and relativism, key for any comparative discussion on human rights.