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Menschenrechtsschlitz im Inter-Amerikanischen System: Modell für Europa?

Thilo Rensmann
Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America
Vol. 33, No. 2 (2000), pp. 137-156
Stable URL: http://www.jstor.org/stable/43238842
Page Count: 20
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Since scans are not currently available to screen readers, please contact JSTOR User Support for access. We'll provide a PDF copy for your screen reader.
Menschenrechtsschlitz im Inter-Amerikanischen System: Modell für Europa?
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Abstract

Following the fall of the iron curtain and the accession of many Middle and Eastern European States to the European Convention on Human Rights, the European Court of Human Rights faces new challenges. On the one hand the Strasbourg court will have to address the manifold problems of the transition from dictatorship to democracy and the rule of law. On the other hand the Court will increasingly need to deal with individual applications arising from civil war scenarios such as the current conflict in Chechnya. The challenges lying ahead for the European Court are thus very similar to the problems which the Inter-American Court has been struggling with ever since its inception. The author tries to explore the extent to which the experience gathered in the American hemisphere may be transposed into the European context. On a procedural level, the Inter-American System demonstrates that an implementation mechanism which is solely based on the review of individual applications is not suitable for addressing large-scale human rights violations in civil strife. Against this backdrop the author advocates the strengthening of monitoring systems based on country reports and onsite visits within the Council of Europe. The recent withdrawal of Peru from the supervisory jurisdiction of the Inter-American Court highlights the problem of acceptance of human rights monitoring in States which are in a transition to democracy and the rule of law. The confrontation between Peru and the Inter-American Court demonstrates that a careful balance will have to be struck between an activist approach to human rights protection on the one hand and due regard for the new sensitivities of democratically elected governments with respect to domestic public opinion on the other. The European Court of Human Rights is increasingly confronted with the phenomenon of forced disappearances. This is an area in which the case law of the Inter-American Court has broken new ground. The Strasbourg convention organs have begun to adopt the approach of their Inter-American counterparts. The recent practice of the European Court and Commission demonstrates, however, that the Inter-American approach cannot be applied indiscriminately to all situations in Europe but must rather be carefully adapted to specific cases at issue. Finally, the Strasbourg organs have not yet made any clear pronouncements on the interplay between Convention rights and humanitarian law. This will be of growing importance in order to adjudge cases adequately within civil war situations such as Chechnya. The European Court of Human Rights will be able to glean important insights from the recent case law of the Inter-American Commission which has made a number of interesting propositions with regard to the relationship between regional human rights protection and the ius in bello.

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