scholarly journals The Threat to the Life of the Nation as an Introductory Premise of the Derogation of Obligations in the Domain of Human Rights

Author(s):  
Tadeusz Jasudowicz

Abstract The subject of the study is the issue defined in international documents by the term “threat to the life of the nation” as a preliminary condition for departing from obligations in the field of human rights. This premise was adopted both in the International Covenant on Civil and Political Rights, as well as in similar regulations for individual continents, including the European Convention on Human Rights. However, on a practical basis, this issue has raised and continues to raise multiple interpretation doubts. In the presented considerations, various aspects of this problem are presented in the light of the jurisprudence of the European Court of Human Rights. On the basis of these, it can be assumed that one cannot identify the category of the nation with the categories of the state and//or the population, since each of these categories has its due autonomy; while on the other hand, they accompany, coexist and remain in mutual relations and interaction. Hence, in international norms, both the treaty provisions and the treaty bodies in their rulings consistently confirm “the life of the nation” as the fundamental protected value, which does not prevent them from associating this value with values important for the state as such and for the population/society. The classic model of this approach has already been established by the ECtHR in the Lawless case, where the Court described a derogation situation as “an exceptional crisis or emergency situation that affects the entire population and poses a threat to the organized life of the community that comprises the state

2012 ◽  
Vol 8 (2) ◽  
pp. 283-296
Author(s):  
Yaël Ronen

AbstractThis article analyses the way in which the use of the rights to family life and to private life has evolved as a bar to the deportation of immigrants. The analysis focuses on the jurisprudence of the European Court of Human Rights (ECtHR) with respect to the European Convention on Human Rights and Fundamental Freedoms, which uses a rights-based framework; and of the UN Human Rights Committee (HRC) with respect to the International Covenant on Civil and Political Rights, which uses a status-based framework. It notes the interaction between the two bodies and the attempt in each forum to modify its normative framework to follow the other's. The article further considers the implications of each normative framework for both integrated immigrants and other immigrants.


KPGT_dlutz_1 ◽  
2018 ◽  
Vol 32 (1) ◽  
pp. 27-48
Author(s):  
Vivianny Galvão

O direito estatal à suspensão das obrigações do Pacto Internacional de Direitos Civis e Políticos Resumo: Este artigo dedica-se à análise do artigo 4.º do Pacto Internacional de Direitos Civis e Políticos de 1966, com especial atenção à interpretação do direito estatal à suspensão das obrigações internacionais. Cabe, atualmente, ao Conselho de Direitos Humanos das Nações Unidas a tarefa de investigar os casos em que esta suspensão acontece, bem como fiscalizar os motivos da suspensão e estabelecer os parâmetros considerados legítimos. Os direitos humanos trazidos pelo Pacto Internacional sobre os Direitos Civis e Políticos, além dos demais tratados em matéria de direitos humanos, limitam o direito estatal de suspensão. As medidas aplicadas pelo Estado que evocam o direito de derrogação precisam ser consideradas estritamente necessárias e sua adoção, fundamentada e temporária; caso contrário, o Estado derrogador será considerado violador das obrigações assumidas na ordem internacional. Somente o instrumento da denúncia é capaz de desobrigar o Estado dos acordos firmados e, ainda assim, essa desvinculação não alcançariam em tese certos costumes internacionais nem, tampouco, as normas de ius cogens ou obrigações erga omnes. Infere-se que a lógica do artigo 4.º, também presente na Convenção Europeia de Direitos Humanos, está norteada pela preservação do Estado Democrático de Direito conforme se extraiu da criação da categoria dos direitos irrevogáveis. Além disso, mesmo diante da possibilidade de suspensão parcial e temporária dos direitos, o Conselho de Direitos Humanos não deixa de fiscalizar a atuação do Estado, pelo contrário, esse Conselho passa a emitir recomendações mais contundentes contra o Estado. Palavras-chave: Direito de suspensão. Direitos humanos. Direito Internacional. Pacto Internacional de Direitos Civis e Políticos. _____ The state right to the suspension of the obligations of the international covenant on civil a: nd political right Abstract: This article is devoted to the analysis of the article 4 of the International Covenant on Civil and Political Rights (ICCPR), 1966, with special attention to the interpretation of state law to the suspension of international obligations. The UN Human Rights Council is now responsible for investigating the cases in which this suspension takes place, as well as monitoring the reasons for the suspension and establishing the parameters considered legitimate. The human rights brought by the ICCPR, in addition to the other human rights treaties, limit the State's right to suspend. The measures applied by the State that evoke the right of derogation must be considered strictly necessary and the adoption, substantiated and temporary. Otherwise, the derogating State shall be considered as violating the obligations assumed in the international order. Only the instrument of denunciation can release the State from the agreements reached and, even so, that untying would not achieve in theory certain international customs nor the norms of jus cogens or obligations erga omnes. It is inferred that the logic of Article 4, which is also present in the European Convention on Human Rights, is guided by the preservation of the Democratic Rule of Law as derived from the creation of the category of irrevocable rights. Moreover, even in the face of the possibility of partial and temporary suspension of rights, the Human Rights Council does not cease to supervise the actions of the State; on the contrary, this Council is issuing more forceful recommendations against the State. Keywords: Human rights. International Covenant on Civil and Political Rights. International Law. Right of suspension.


Author(s):  
Grischa Merkel

This chapter focuses on issues surrounding the pretrial detention and civil detention of dangerous individuals. It first considers the legal principles of the European Convention on Human Rights (ECHR) and their interpretations by the European Court of Human Rights before discussing international regulations on pretrial detention such as those provided by the International Covenant on Civil and Political Rights (ICCPR). It then examines two major decisions made by the European Court of Human Rights concerning the question of which actions can be deemed a deprivation of liberty. It also looks at pretrial detention based on reasonable suspicion of the commission of a crime and goes on to explain the principle of proportionality underpinning the civil detention of dangerous individuals. The chapter concludes with an analysis of three different ways legal procedures can be affected by charges of terrorism.


2014 ◽  
Vol 9 (2-3) ◽  
pp. 151-180 ◽  
Author(s):  
Jeroen Temperman

This article ventures into the contentious question of whether the denial of historical atrocities is per se removed from the protection of freedom of expression and the related question if states may under international human rights law proactively combat, through criminal legislation (‘memory laws’), such types of extreme speech. In so doing, the article compares and contrasts approaches employed by the un Human Rights Committee that monitors the un International Covenant on Civil and Political Rights with that of the European Court of Human Rights, regional watchdog of the European Convention on Human Rights. It is argued that both approaches are shifting—though not quite in converging directions. The article makes a case for a contextual rather than exclusively content-based approach. An approach in which the question of ‘likelihood of harm being done to the targeted group’ is guiding, best resonates with the necessity principle.


2019 ◽  
Vol 19 (3) ◽  
pp. 517-536
Author(s):  
Christophe Deprez

Abstract This article seeks to provide a comparative and up-to-date overview of the applicable rules and relevant practice of the European Court of Human Rights and of the United Nations Human Rights Committee on forum duplication in international human rights litigation. While specific inadmissibility clauses have been included in both the European Convention on Human Rights and the Optional Protocol to the International Covenant on Civil and Political Rights with a view to preventing multiple human rights petitions in relation to the same matter, their respective scopes differ. Moreover, the applicable normative framework has led to important—and diverging—judicial developments in Strasbourg and in Geneva, which may be of great significance in human rights practice and therefore deserve to be thoroughly addressed.


2019 ◽  
Author(s):  
Tzehainesh Teklè

Abstract This article examines the role played by International Labour Standards (ILS) of the International Labour Organisation (ILO) and the pronouncements of the ILO supervisory bodies in the development of the European Court of Human Rights (ECtHR)’s jurisprudence by focussing on the ECtHR’s case law on discrimination. This analysis is conducted against the background of the role that the ECtHR has been playing in making the European Convention of Human Rights (ECHR) an instrument that protects not only civil and political rights but also social and economic rights, and its consideration of the ECHR as a ‘living’ document. This study concludes with a reflection on the benefits of the ECtHR’s use of ILS and the work of the ILO supervisory bodies and challenges ahead.


2020 ◽  
Author(s):  
Léon E Dijkman

Abstract Germany is one of few jurisdictions with a bifurcated patent system, under which infringement and validity of a patent are established in separate proceedings. Because validity proceedings normally take longer to conclude, it can occur that remedies for infringement are imposed before a decision on the patent’s validity is available. This phenomenon is colloquially known as the ‘injunction gap’ and has been the subject of increasing criticism over the past years. In this article, I examine the injunction gap from the perspective of the right to a fair trial enshrined in Art. 6 of the European Convention on Human Rights. I find that the case law of the European Court of Human Rights interpreting this provision supports criticism of the injunction gap, because imposing infringement remedies with potentially far-reaching consequences before the validity of a patent has been established by a court of law arguably violates defendants’ right to be heard. Such reliance on the patent office’s grant decision is no longer warranted in the light of contemporary invalidation rates. I conclude that the proliferation of the injunction gap should be curbed by an approach to a stay of proceedings which is in line with the test for stays as formulated by Germany’s Federal Supreme Court. Under this test, courts should stay infringement proceedings until the Federal Patent Court or the EPO’s Board of Appeal have ruled on the validity of a patent whenever it is more likely than not that it will be invalidated.


2019 ◽  
Vol 21 (1) ◽  
pp. 48-53
Author(s):  
Kaushik Paul

In recent years, the wearing of Islamic dress in public spaces and elsewhere has generated widespread controversy all over Europe. The wearing of the hijab and other Islamic veils has been the subject of adjudication before the European Court of Human Rights (ECtHR) on many occasions. The most recent case before the ECtHR as to the prohibition on wearing the hijab is Lachiri v Belgium. In this case, the ECtHR held that a prohibition on wearing the hijab in the courtroom constitutes an infringement of Article 9 of the European Convention on Human Rights (ECHR), which guarantees the right to freedom of religion or belief. From the perspective of religious freedom, the ruling of the Strasbourg Court in Lachiri is very significant for many reasons. The purpose of this comment is critically to analyse the ECtHR's decision in Lachiri from the standpoint of religious liberty.


2021 ◽  
pp. 1-21
Author(s):  
Nedim Begović

Abstract The article analyses the case law of the European Court of Human Rights on accommodation of Islamic observances in the workplace. The author argues that the Court has not hitherto provided adequate incentives to the states party to the European Convention on Human Rights to accommodate the religious needs of Muslim employees in the workplace. Given this finding, the author proposes that the accommodation of Islam in the workplace should, as a matter of priority, be provided within a national legal framework. In Bosnia and Herzegovina, this could be achieved through an instrument of contracting agreement between the state and the Islamic Community in Bosnia and Herzegovina.


2016 ◽  
pp. 1147-1165
Author(s):  
Bogusław Sygit ◽  
Damian Wąsik

The aim of this chapter is describing of the influence of universal human rights and civil liberties on the formation of standards for hospital care. The authors present definition of the right to life and the right to health. Moreover in the section it is discussed modern standards of hospital treatment under the provisions of the International Covenant on Economic, Social and Cultural Rights: availability, accessibility, acceptability and quality. The authors discuss in detail about selected examples realization of human rights in the treatment of hospital and forms of their violation. During the presentation of these issues, the authors analyze a provisions of the International Covenant on Civil and Political Rights and European Convention on the Protection of Human Rights and Fundamental Freedoms and use a number of judgments of the European Court of Human Rights issued in matters concerning human rights abuses in the course of treatment and hospitalization.


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