Autore:
Palma, Antonio J. Titolo:
Il caso Hassan contro Regno Unito: CEDU, art. 15, diritto internazionale umanitario e la ricerca di un commodus discessus tra (supposte) antinomie normative e stato di eccezionePeriodico:
Ordine internazionale e diritti umaniAnno:
2015 - Fascicolo:
1 - Pagina iniziale:
111 - Pagina finale:
128The essay deals with the recent judgement of the Grand Chamber of the European
Court of human rights on the case Hassan vs. The United Kingdom.
In particular, it shows the new theory of the Court regarding the relationships
between ECHR and international humanitarian law, with specific reference to article 5 of
the Convention. Moreover it analyzes the problem of the possible co-application of
international law of human rights and international humanitarian law in the light of article
15 of the ECHR, which provides the rules for the state of emergency in the European
context.
After describing the facts which have led to the recourse to the European Court by
the brother of the victim and after providing some brief considerations about the
application-field of the treaty at issue (and, in particular, about the so-called “jurisdiction
criterion”), the essay will try to explain the relationship between the Convention and
international humanitarian law, in the light of the “harmonizing interpretation” developed
by the Court. According to such a theory, indeed, in case of apparent conflict between
human rights norms and humanitarian ones, the latter should be applied, even though it is
necessary to point out that the Court, while developing its opinion, has never explicitly
resorted to the lex specialis principle, employed by the International Court of Justice in
similar cases.
Afterwards, the essay will show, on the one hand, the criticisms about this theory
developed in the dissenting opinion formulated by Judge Spano and, on the other, several
critical profiles of this harmonizing interpretation, such as the unjustifiable deminutio of the
protection of fundamental rights below the minimum threshold guaranteed by conventional
provisions and the supposed obsolescence of the mechanism of suspension of guarantees
defined by art. 15 ECHR.
Finally, and in order to find out a possible legal solution to the apparent conflict
between the European Convention and international humanitarian law, the essay will deal
with the principle stipulated in article 53 ECHR, according to which conventional
provisions do not impair the wider and deeper protection of fundamental human rights
already guaranteed at the domestic constitutional level or by other international norms
regarding the State concerned.
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Opere monografiche dal catalogo BNCF
SICI: 2284-3531(2015)1<111:ICHCRU>2.0.ZU;2-J
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