Dreptul internațional public a facilitat protecția drepturilor omului dar, câteodată, a și limitat-o

11 ianuarie 2018
402 citiri

It will now be shown how the European Court of Human Rights has made use of the jurisprudence of the ICJ and how the two courts are intertwined, emphasizing first and foremost how public international law has facilitated the protection of human rights, without forgetting that, on occasion, it has also limited them, as is the case, for example, in matters of jurisdictional immunities.
Before going to the heart of the subject, it is necessary to bear in mind that the commitments of States under the UN Charter go hand in hand with their commitments under the European Convention on Human Rights. The Courts of The Hague and of Strasbourg do not have the same role, but they come together in many areas and there is no watertight partition between them. The solutions adopted by the ICJ have an impact on the fundamental rights protected by international law, rights that an individual can invoke in Strasbourg. The European Court takes into account the rulings of the International Court concerning principles of international law, seldom straying from its decisions. Strasbourg has largely drawn inspiration from them when justifying its findings either in a politically sensitive international context of where there is a need to make good an omission. In addition, since human rights protection has become the cornerstone of the system of public international law, Strasbourg has on occasion turned on the ICJ to complement or fine-tune the content and protection of the rights secured by the Convention.
Moreover – and this is quite natural – parties to proceedings in Strasbourg have also relied on the case-law of the ICJ (…) References to the ICJ jurisprudence can also be found in the separate (concurring or dissenting) opinions of judges. The significant number of international public law specialists on the Strasbourg bench is not unrelated to that tendency.
Whilst it examines the cases before it from the standpoint of inter-State relations, the ICJ, like its predecessor, has delivered judgments which carry considerable weight in respect of rights under international law that individuals themselves may invoke.
As then the President of the ICJ, Dame Rosalyin Higgings pointed out, in a speech given at the European Court of Human Rights in 2009, the PCIJ, between 1922 and 1946 had already ruled on ‘leading’ principles such as non-discrimination. This is one of these principles that Strasbourg has strived to enforce in more recent years; the case-law of the PCIJ is still of great influence today.

Dean Spielmann
(Fragmentation orpartnership? The reception of ICJ case-law by the European Court of Human Rights, în M. Andenas & E. Bjorge (coord.), A Farewell to Fragmentation: Reassertion and Convergence in International Law (Studies on International Courts and Tribunals,Cambridge: Cambridge University Press, 2015,la pp. 175-176)

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