This Article documents the patterns of judicial divergence in the area of non-derogable rights. It examines the increased conservatism of the European Court of Human Rights relative to other international bodies in one specific area; the interpretation and protection of human rights violations in situations of emergency. This Article explores the responses of international courts and tribunals to situations where states have limited the exercise of their citizens' rights as a result of political crisis. These limitations are examined in relation to the agreed obligations of states to protect rights when they sign human rights treaties. Part I looks at the pivotal role of the European Court and Commission of Human Rights. Case by case analysis reveals that both institutions have developed state focused doctrines at the expense of protecting individual rights. Part II recounts how the Inter-American Court, in its short history, has shown greater willingness to confront state violations of rights in situations of political instability where the state argues that it is justified by the crisis in limiting its international obligations. Part II also examines the multi-layered thinking of the Court, its mechanisms for interlinking different rights as a means of compounding protection for the individual citizen. Part III looks at the Human Rights Committee of the United Nations. Part III suggests that, despite its burden of inter-state political wrangling and its disadvantages of limited procedural accessibility, it has functioned reasonably well in confronting state obligations in situations of emergency. This Article concludes that more attention must be paid to the similarities and differences in jurisprudence emerging from different international tribunals. Equally, it strongly re-enforces the dangers of failing to pay due regard to the political leanings of judges monitoring state obligations in international courts. Ultimately, it points to the danger of assuming that a vision of universal human rights goals will be realized without active oversight of the judicial branch.
Fionnuala Ni Aolain,
The Emergence of Diversity: Differences in Human Rights Jurisprudence,
19 Fordham Int'l L.J. 101
Available at: https://ir.lawnet.fordham.edu/ilj/vol19/iss1/6