THE EUROPEAN COURT OF HUMAN RIGHTS’ CONTROL OVER STATES’ DEROGATION IN TIME OF EMERGENCY: EXAMPLE OF EFFECTIVENESS OF THE LESSONS LEARNED FROM WW2

Marine Toullier

Abstract


This Article has two aims: the first is to check if the European Court of Human Rights has learned lessons from WW2, being a safeguard for the arbitrary abuses, the escalating of violence, protectionism, nationalism, etc, and the second aim is to analyse if European Court is playing a moderating role towards the Member States in controlling state’s derogation in time of emergency. Because of terrorism, we are at a crossroads, like the tightrope walker who roams on a thread at a vertiginous height and can fall any time. We reached a crucial point, where our societies have the choice between two roads: growing of the extremes, withdrawal behaviours, nationalism, escalation of intolerance, even civil wars between cultural or ethnical or religious groups inside the population, or, a multidimensional integration to guarantee both for state and human beings security, survival of our free-based societies and our values. To help European States to choose the second path, the European Court of Human Rights should be a helpful instrument, because it supposed to put forward measures to control what are genuine abuses and prevent the states from authoritarian drifts. This Article will study from the case law about states’ derogation in time of emergency, if the conditions are gathered for the European Court of Human Rights to constraint member states to be reasonable. The structure of the study of the European Court of Human Rights case law will follow the level of control of the European judge: 1. The Court exerts a limited control over the conditions of implementation of Article 15, 2. But the Court imposes a stricter control over the respect of the Convention for the Protection of Human Rights and Fundamental Freedoms by the measures taken in the framework of the derogation of Article 15.


Keywords


Derogations, Time of Emergency, ECtHR, France

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DOI: http://dx.doi.org/10.13165/j.icj.2017.03.002

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