Le droit coutumier, les normes impératives (jus cogens) et la Cour européenne des droits de l’homme’

Schabas, William ORCID: https://orcid.org/0000-0002-7462-4284 (2020) Le droit coutumier, les normes impératives (jus cogens) et la Cour européenne des droits de l’homme’. Révue québécoise de droit international, h.s. (Dec 20) . pp. 681-704. ISSN 0828-9999 [Article]

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Abstract

The European Court of Human Rights consults a range of international law sources for purposes of interpreting the human rights norms set out in the European Convention on Human Rights. It has often justified this with reference to article 31(3)c) of the Vienna Convention on the Law of Treaties, which invites consideration of "any relevant rules of international law applicable in the relations between the parties". Although the Court does not make any real distinction between treaty law instruments that may be applicable and other sources, such as resolutions, guidelines and principles adopted at the international level, it almost never considers customary international law as a source of fundamental rights. Exceptionally, it refers to customary international with respect to the principle of legality, in accordance with the text of article 7. The Court has frequently considered customary international law, but on issues other than fundamental rights, such as State immunities. The Court has also declared that certain norms are jus cogens. The article reviews the use of customary international law and jus cogens by the Court, and proposes that in the future it should make greater use of these sources.

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