Article

The application of the American and European conventions of human rights in time of war or other public emergencies : some highlights and comparisons

Pablo Antonio Fernández-Sánchez and Francesco Seatzu

• ISIL yearbook of international humanitarian and refugee law, Vol. 11, 2011, p. 1-46

English

The authors survey the application of modern International Human Rights Law (IHRL) and International Humanitarian Law (IHL) as treated by both the Inter-American Court of Human Rights (ACtHR) and the European Court of Human Rights (ECtHR). The authors compare and contrast the idiosyncrasies of each court’s application of both sources of law to states of public emergency. Recognizing that both IHL and IHRL may have overlapping application, the authors trace the courts’ movement from a regime of lex specialis, in which IHL was more likely to be applied in states of emergency, to one of complementarity. The authors then consider each courts’ governing standards with regards to non-derogable rights in times of war or public emergencies under Articles 15 (European) and 27 (Inter-American) of each court’s governing Conventions. While the both Courts are in dialogue on non-derogable rights, the authors’ analysis finds the American Court more strictly defines “emergency,” attempting to limit the periods in which an emergency can be defined, and has generally attempted to expand its perspective with regard to relevant international law in comparison to the European Court. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• ISIL yearbook of international humanitarian and refugee law / THE INDIAN SOCIETY OF INTERNATIONAL LAW
• ISIL yearbook of international humanitarian and refugee law [Vol. 11, 2011] / THE INDIAN SOCIETY OF INTERNATIONAL LAW