Do the 'Underlying Values' of the European Convention on Human Rights Begin in 1950?

Polish Yearbook of International Law, Vol. 33 (2013), pp. 247-258

18 Pages Posted: 22 Sep 2014

See all articles by William A. Schabas

William A. Schabas

Middlesex University, London; Leiden University, The Netherlands

Date Written: July 28, 2014

Abstract

Prior to its ruling in Janowiec and Others v. Russia, the Grand Chamber of the European Court of Human Rights had recognised a “humanitarian exception” to the general rule by which the procedural obligations imposed by articles 2 and 3 of the European Convention only arise if the substantive violation of the Convention occurs after the entry into force of the Convention for the respondent State. In Janowiec, the Court was invited to apply this “humanitarian exception” to one of the great unpunished atrocities perpetrated on European soil in the past century. The Court declined to do so, mechanistically imposing its own temporal limitation on the “humanitarian exception” by which the substantive violation of the right to life and the prohibition of ill treatment must take place after the adoption of the Convention on 4 November 1950. The essay concludes that this limitation is questionable, that the reasoning behind it is dubious, and that the result is a regrettable confirmation of a situation of impunity.

Keywords: European Court of Human Rights, European Convention on Human Rights, Katyn, war crime, NKVD, Janowiec

JEL Classification: K33, K39

Suggested Citation

Schabas, William A., Do the 'Underlying Values' of the European Convention on Human Rights Begin in 1950? (July 28, 2014). Polish Yearbook of International Law, Vol. 33 (2013), pp. 247-258, Available at SSRN: https://ssrn.com/abstract=2473112 or http://dx.doi.org/10.2139/ssrn.2473112

William A. Schabas (Contact Author)

Middlesex University, London ( email )

The Burroughs
WG 11
London, NW4 4BT
United Kingdom

Leiden University, The Netherlands ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

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