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Disputation: Ragnar Nordeide

Cand.jur Ragnar Nordeide will be defending the thesis “The Interaction between the European convention on Human Rights (ECHR) and other International Law. What role for a purposive conception of the ECHR?” for the degree of Ph.D.  

Ragnar Nordeide

Copyright: The Prime Minister's Office

Trial lecture - time and place

Adjudication committee

  • Professor Kjetil M. Larsen, University of Oslo (leader)
  • Professor Erika de Wet, University of Pretoria, South Africa (1. opponent)
  • Attorney-at-Law Ole Spiermann, Adv.fa Bruun & Hjejle, Copenhagen (2. opponent)

Chair of defence

Dean Hans Petter Graver 

Supervisors

  • Attorney-at-Law Marius Emberland
  • Professor Geir Ulfstein

Summary

How to deal with issues arising from the interaction between norms of international law has been a central issue for the last two decades. The end of the last millennium saw more international law and more international institutions than ever before, and the UN General Assembly had declared the last decade of the 20th century to be the ‘Decade of International Law’. This development led to a clarification of the methodological techniques existing in international law for dealing with interactions between different international obligations, and of the need to secure both coherence and contextual sensitivity.

The number of cases in which the European Court of Human Rights (the Court) has had to deal with the interaction between the European Convention on Human Rights (ECHR) and other international law has increased; and particularly so in the last twenty years. The ECHR’s interaction with other international law denotes the way in which other international law may both assist in the interpretation of and conflict with the ECHR. The research question of this study is whether the Court’s purposive conception of the ECHR sets governing parameters for the ECHR’s interaction with other international law.

The research question stems from the way in which the Court in its interpretation and application of the ECHR has placed considerable emphasis on an approach that seeks to realise the Convention’s object and purpose (a ‘purposive conception’ of the ECHR). The Convention’s object and purpose has also served as a basis for the Court’s characterisations of the ECHR as a treaty creating ‘objective obligations’, as a treaty of a ‘peremptory character’, and as a ‘constitutional instrument of European public order’. On the face of it, these characterisations would seem to provide strong parameters for the Court’s approach to the ECHR’s interaction with other international law. There is however little empirical evidence to substantiate this assumption.

The thesis first analyses the Court’s characterisations in detail, in order to explain why they imply parameters for the ECHR’s interaction with other international law but at the same time seem difficult to apply as governing parameters. The thesis then goes on to analyse to what extent the Court on the basis of its purposive conception of the ECHR has developed more concrete governing parameters within three main themes of interaction between the ECHR and other international law: a) the scope of the Article 1 obligation as regards the ECHR’s extraterritorial reach and Member States’ transfer of powers to international organisations; b) to what extent conflicting international law can act as a justification for interferences with ECHR rights; and c) the Court’s use of other international law in its further realisation of the Convention rights.

The main answer to the research question is that the Court’s purposive conception of the ECHR sets governing parameters for the ECHR’s interaction with other international law, but that this governing role is conditioned on the Court’s differentiation and modification of the parameters implied in the Court’s characterisations of the ECHR obligations. This approach shows that the Court seeks to employ its purposive conception of the ECHR in a way which can be justified on the basis of the international legal order of which the ECHR forms part, rather than on the basis of a characterisation of the ECHR obligations that implies setting the ECHR apart from the surrounding international law. This has implications both for the theoretical analyses of the Court’s practice in this area, and for how one should approach previous practice when arguing cases before the Court where the main question is the relationship between the ECHR obligations and other international Law.
 

 

Published Aug. 10, 2016 10:15 AM - Last modified Jan. 4, 2018 11:30 AM