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Letting States off the Hook? The Paradox of the Legal Consequences following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems

Clara Burbano Herrera UGent and Yves Haeck UGent (2010) Netherlands Quarterly of Human Rights. 28(3). p.332-360
abstract
Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it will be shown that in fact each regional system has given different legal consequences to the incompliance with its interim measures, but paradoxically, the effects are not directly related to the type of legal instrument in which the interim measures are contemplated. The issue is relevant because on the one hand interim measures are mostly adopted in dramatic contexts where the life and personal integrity of human beings are endangered and because a survey of the case-law shows that under the European system the cases of incompliance seem to be on the rise, and on the other hand, because it appears that under the Inter-American system there are many cases in which provisional measures have been issued which will be decided soon on the merits, and therefore during the examination of which it will be decided whether the member States have complied or not with the Inter-American Court’s interim measures and what consequences incompliance entails.
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author
organization
year
type
journalArticle (original)
publication status
published
subject
journal title
Netherlands Quarterly of Human Rights
Neth. Q. Hum. Rights
volume
28
issue
3
pages
29 pages
publisher
Intersentia
place of publication
Antwerp-Oxford-Portland
Web of Science type
Article
Web of Science id
000281941200001
JCR category
LAW
JCR rank
128/128 (2010)
JCR quartile
4 (2010)
ISSN
0169-3441
language
English
UGent publication?
yes
classification
A1
copyright statement
I have transferred the copyright for this publication to the publisher
id
1088002
handle
http://hdl.handle.net/1854/LU-1088002
date created
2010-12-15 17:37:29
date last changed
2010-12-16 12:42:52
@article{1088002,
  abstract     = {Anyone who proves that he or she is in a situation of danger and who is a potential victim of a violation of a right set forth in the American or the European Convention on Human Rights may be protected by interim measures. Interim measures in the human rights systems may be defined as an instrument, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency, which a favourable final judgment would therefore not be able to undo. They result in protection offered by the State in compliance with the legally binding order of the Inter-American or European Court on Human Rights. While this legal figure is nowadays applied more and more frequently and in most cases the American and European countries have complied with the order of their respective Court of Human Rights, the question that this contribution would like to answer is what the legal consequences of incompliance are and whether the difference as to the legal basis of the interim measures in both human rights systems has influenced the legal effect that the respective Courts have given to non-compliance with the measures. After an overview of the case-law, it will be shown that in fact each regional system has given different legal consequences to the incompliance with its interim measures, but paradoxically, the effects are not directly related to the type of legal instrument in which the interim measures are contemplated. The issue is relevant because on the one hand interim measures are mostly adopted in dramatic contexts where the life and personal integrity of human beings are endangered and because a survey of the case-law shows that under the European system the cases of incompliance seem to be on the rise, and on the other hand, because it appears that under the Inter-American system there are many cases in which provisional measures have been issued which will be decided soon on the merits, and therefore during the examination of which it will be decided whether the member States have complied or not with the Inter-American Court{\textquoteright}s interim measures and what consequences incompliance entails.},
  author       = {Burbano Herrera, Clara and Haeck, Yves},
  issn         = {0169-3441},
  journal      = {Netherlands Quarterly of Human Rights},
  language     = {eng},
  number       = {3},
  pages        = {332--360},
  publisher    = {Intersentia},
  title        = {Letting States off the Hook? The Paradox of the Legal Consequences following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems},
  volume       = {28},
  year         = {2010},
}

Chicago
Burbano Herrera, Clara, and Yves Haeck. 2010. “Letting States Off the Hook? The Paradox of the Legal Consequences Following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems.” Netherlands Quarterly of Human Rights 28 (3): 332–360.
APA
Burbano Herrera, C., & Haeck, Y. (2010). Letting States off the Hook? The Paradox of the Legal Consequences following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems. Netherlands Quarterly of Human Rights, 28(3), 332–360.
Vancouver
1.
Burbano Herrera C, Haeck Y. Letting States off the Hook? The Paradox of the Legal Consequences following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems. Netherlands Quarterly of Human Rights. Antwerp-Oxford-Portland: Intersentia; 2010;28(3):332–60.
MLA
Burbano Herrera, Clara, and Yves Haeck. “Letting States Off the Hook? The Paradox of the Legal Consequences Following State Non-compliance with Provisional Measures in the Inter-American and European Human Rights Systems.” Netherlands Quarterly of Human Rights 28.3 (2010): 332–360. Print.