When International Law Ignores Comparative Law

The thesis concerns the methodology that the European Court of Human Rights employs when it engages with other relevant, extraneous to the ECHR rules or sub-systems of public international law. An important aspect of the research is how the ECtHR construes the notion of relevance and the extent to which ‘foreign’ to the ECHR law is relevant for the purposes of interpreting and applying the ECHR.
In this respect, comparative law seems to slowly emerge in general as a pertinent discipline also at the international level due to the establishment of many international courts and their engagement in borrowing legal reasoning and legal arguments from one another.
In the context of the research undertaken, it has incidentally emerged (not part of the thesis as such) that the discussion under the comparative judicial constitutional dialogue regarding the use of ‘foreign law’ by national courts has many affinities to the discussion under public international law concerning the use of other relevant rules of international law by international courts. Questions touching upon the determination of which rule (and to what extent) is comparable and relevant and whether there are neutral criteria to this end (eg. Sir Basil Markesinis) are equally applicable to the practice of both national and international courts.
From the present thesis’ point of view certain cases from the Court’s jurisprudence could be shortly discussed/presented in so far the use of certain ‘comparable’ (to the ECHR) rules and legal regimes. The influence that rules stemming from international criminal law may have on the ECHR is a characteristic example. Or the importance attached to the differences and similarities in the structure of and aims pursued in international human rights law, on one hand, and in international labour or environmental regimes, on the other hand.