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When Human Rights Clash at the European Court of Human RightsConflict or Harmony?$
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Stijn Smet and Eva Brems

Print publication date: 2017

Print ISBN-13: 9780198795957

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780198795957.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 06 July 2020

Conflict and Consent

Conflict and Consent

Does the Theory of Waiver of Fundamental Rights Offer Solutions to Settle Their Conflicts?

(p.58) 3 Conflict and Consent
When Human Rights Clash at the European Court of Human Rights

Sébastien Van Drooghenbroeck

Oxford University Press

There is an important interaction between the issue of conflicts between human rights and the question of the validity and effects of the waiver of these rights. Based on an analysis of some major judgments of the European Court of Human Rights, this chapter aims to shed light on the questions of if, and how, the existence or lack of ‘consent’ on the part of one of the parties to a conflict of rights affects the resolution of the conflict. Three conclusions emerge. At one end, there are cases in which the existence of ‘consent’ will totally ‘neutralize’—and thus ‘resolve’—the conflict. At the other end, there appear situations in which ‘consent’ will have no effect at all on the conflict. Between these two extremes, the issue of waiver is addressed as one argument among others, neither irrelevant nor decisive, in the exercise of balancing conflicting rights.

Keywords:   waiver, contractual relations, conflicting rights, European Convention of Human Rights, ECHR, European Court of Human Rights, ECtHR, balancing

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