According to well-established case law of the European Court of Human Rights, the prohibition on expulsion resulting in ill-treatment under Article 3 of the European Convention on Human Rights is ‘absolute’: it does not allow for balancing of interests. Analysis of the Court's case law, however, shows that the application of the provision involves various forms of balancing, for example when delimiting the burden of proof or qualifying an act as ill-treatment. The absolute character expresses a value judgement about the importance of the prohibition, and it serves as an argumentative tool applied to sustain wide or inclusive readings of Article 3 ECHR.

Over the last decade international lawyers have been increasingly concerned with the ‘fragmentation’ of international law. However, given that this expression has been repeatedly used by the profession since the mid-nineteenth century to depict the state of international law, one may wonder about its recent revival in the international legal discourse. Why has it re-emerged? What can we learn from previous invocations? An answer may be sought by contextualizing the fragmentation debate in a historical perspective. This brings out the repetitive and relatively stylized modes in which the profession has narrated legal developments. This essay suggests a correlation between periods of crisis in general and a critical view of fragmentation on the one hand, and periods of scholarly enthusiasm and the prevalence of positive views about fragmentation on the other. This analysis sheds critical light on both the implicit assumptions and political implications of the current debate on fragmentation.