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For the Sake of Human Rights: When ECtHR and illegal de facto States speak the same language

par D'Aloia, Stefano
Référence GCILS Internal Meeting (11-04-2024: Glasgow)
Publication Non publié, 2024-04-11

Communication à un colloque

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Résumé :

In the last 30 years, the ECtHR has developed its own approach to the “Namibia exception”, namely the possibility to grant legal effects to acts or documents issued by an entity born in violation of a jus cogens norm. The legal reasoning of the ECtHR is simultaneously based on the protection of the human rights of the inhabitants of the affected territory and on the aim to avoid the creation of a vacuum within the Council of Europe. By analysing a broad corpus of domestic courts’ decisions and governmental staetments, one can demonstrate that (1) the specific concern for the inhabitants’ human rights is not reflected by general States practice and (2) those few States that use a reasoning similar to that used by the ECtHR are the States involved in the violation of the jus cogens norm.