Limitation and Derogation Provisions in International Human Rights Law Treaties and Their Use in Disaster Settings

Sommario, Emanuele

doi:10.4324/9781315115238-7

Cited by 6 publications

(3 citation statements)

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“…obligations, including any applicable law on derogations and limitations (→ Emergency, State of; → Limitations and Restrictions of Rights). The ILC thereby underscores the indivisibility of human rights, but also the difficulty it faced in formulating an exhaustive list of relevant human rights, or in precisely circumscribing the topic of 'derogable and non-derogable rights' (ILC, Report of the ILC [2016] at 31-2; Cubie and Hesselman [2015]; Sommario [2018]).…”

Section: Marlies Hesselman and Dug Cubiementioning

confidence: 99%

Natural Disasters

Hesselman¹,

Cubie²

2022

Elgar Encyclopedia of Human Rights

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Section: Marlies Hesselman and Dug Cubiementioning

confidence: 99%

Natural Disasters

Hesselman¹,

Cubie²

2022

Elgar Encyclopedia of Human Rights

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“…In Book VI -4:1 presumption of ca prescribed. The arti may have been cau for which different damage was caused person who is acc The 'Acquis' of the Council of Europe in the Sphere of Disaster Preparedness… life of the nation' in the meaning of Article 15 of the ECHR could be a basis for derogating certain human rights obligations under the so-called 'derogation clause' 33 . Fortunately, so far no invocation of Article 15 in this context has ever happened following a disaster on the territories of state parties to the ECHR.…”

Section: Joint and Sevmentioning

confidence: 99%

The ‘Acquis’ of the Council of Europe in the Sphere of Disaster Preparedness and Response

Balcerzak

2019

CLR

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The article discusses the problem of the indeterminate defendant in European tort law systems and in the projects aiming to unify tort law in Europe, such as Draft Common Frame of Reference and Principles of European Tort Law. The given issue relates to a situation where there is a damage caused by one factor, yet upon available evidence one may indicate a few potential factors which might have led to the damage, but it cannot be ascertained which factor was the actual cause of it. The problem is addressed with reference to two scenarios. First, when there is a limited and known number of persons acting tortiously, each of whom potentially might have led to the damage, but only one of them had actually caused it. Second, when it is certain that one tortfeasor from the undetermined group of tortfeasors caused damage to some of the injured persons from the group of the injured persons, but it cannot be established precisely which tortfeasor caused damage to precisely which injured person. In comparative law analysis, one may find various attempts to deal with the given issue, which come from the balance of ratios given to different solutions, as well as the legal possibilities or obstacles in national tort law systems. The main possibilities are: all-or-nothing approach, joint and several liability, and proportional liability. Those solutions are discussed in article in more detail with conclusion that the bold proposition of proportional liability presented in Principles of European Tort Law seems to be the most appropriate.

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“…90 In this case too, the ILC preferred to make a renvoi to the pertinent legal system rather than directly addressing this issue, reflecting recurring scenarios where States have limited or expressly derogated from their human rights obligations in times of disaster. 91 Furthermore, it should be noted that the relevance of human rights for the DAs is not limited to Article 5. In particular, the basis of several provisions pertaining to the so-called "horizontal" dimension of the project have also been underpinned by relevant human rights obligations.…”

Section: G Bartolinimentioning

confidence: 99%

A universal treaty for disasters? Remarks on the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters

Bartolini¹

2017

Int. rev. Red Cross

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This article analyzes the Draft Articles on the Protection of Persons in the Event of Disasters adopted by the International Law Commission in 2016 in light of the recommendation made by the Commission to elaborate a convention on the basis of this project. While the latter proposal is still under evaluation by the United Nations General Assembly, which has recently decided to postpone its decision until 2020, such a potential outcome would represent a significant novelty in the area of disaster law, currently characterized by a fragmented legal framework and the lack of a universal flagship treaty. The Draft Articles thus aim to provide a systematization of the main legal issues relevant in the so-called disaster cycle, with solutions that accommodate the different interests of actors involved in a disaster scenario – namely, the affected State, external assisting actors and disaster victims – using a complex “checks and balances” approach.

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Limitation and Derogation Provisions in International Human Rights Law Treaties and Their Use in Disaster Settings

Cited by 6 publications

References 0 publications

Natural Disasters

Natural Disasters

The ‘Acquis’ of the Council of Europe in the Sphere of Disaster Preparedness and Response

A universal treaty for disasters? Remarks on the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters

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