Thursday 12 May 2011

Case Note on Humanitarian Law and ECHR

It might be an unexpected place to look for it, but the newest issue of the Chinese Journal of International Law (vol. 10(1), 2011, 129-140) includes a case note by Eriko Tamura of Kansai University in Japan entitled 'The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts'. This is the abstract:

This note analyses the 2005 Isayeva cases of the ECtHR, involving a non-international armed conflict, in order to show whether the Court applied only and directly the stricter standards of HRL (right to life in Article 2 of the ECHR) and, if not, how the Court substantially relied on IHL, by focusing on the differences of the principles of necessity and proportionality for the use of force between HRL and IHL. It concludes, contrary to what some authors insist, that even in the absence of the invocation of a public emergency in Article 15 of the ECHR by the State concerned, and therefore cautiously, the Court did indirectly apply IHL as an interpretive guideline for HRL.