Consensus-Based Interpretation of Regional Human Rights Treaties [1 ed.] 9789004375512, 9789004375529

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Consensus-​Based Interpretation of Regional Human Rights Treaties

International Studies in Human Rights VOLUME 129

The titles published in this series are listed at brill.com/​ishr

Consensus-​Based Interpretation of Regional Human Rights Treaties By

Francisco Pascual-​Vives

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Pascual Vives, Francisco José, author. Title: Consensus-based interpretation of regional human rights treaties / by Francisco Pascual-Vives. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Series: International studies in human rights ; volume 129 | Includes bibliographical references and index. Identifiers: LCCN 2018056512 (print) | LCCN 2018056992 (ebook) | ISBN 9789004375512 (ebook) | ISBN 9789004375529 (hardback : alk. paper) Subjects: LCSH: International human rights courts. | International and municipal law. | International law and human rights. | Regionalism (International organization) Classification: LCC K3240.5 (ebook) | LCC K3240.5 .P37 2019 (print) | DDC 341.4/8026–dc23 LC record available at https://lccn.loc.gov/2018056512

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0924-4751 ISBN 978-90-04-37552-9 (hardback) ISBN 978-90-04-37551-2 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

To My Parents

∵

Contents Foreword  xi Carlos Jiménez Piernas Abbreviations  xiv Introduction 1 1 Object 1 2 Methodology and Sources of Knowledge 6 3 Structure 8

part 1 Theoretical Framework: Consensus, Sectorialization and Subsidiarity  Introduction to Part 1 12 1 The Notion of Consensus in Public International Law 13 1 The Two-​Fold Dimension of Consensus in Public International Law 13 2 A Focus on the Substantive Dimension of Consensus 16 2.1 International Court of Justice 16 2.1.1 A Consensualist Approach before the International Court of Justice 16 2.1.2 Evidence of Customary International Law 20 2.1.3 Customary Rules of International Human Rights Law and International Humanitarian Law 24 2.2 Regional International Courts and Tribunals 28 2.2.1 Court of Justice of the European Union 28 2.2.2 European Court of Human Rights 31 2.3 Sectorial International Courts and Tribunals 35 2 The Challenges Arising from the Specialization and Sectoralization of Public International Law 40 1 Coordination Tecniques: A Way to Navigate Through the System 41 2 Inter-​Judicial Deference: An Antidote against Judicial Activism 43 3 Subsidiarity as a General Principle in International Human Rights Law 54 1 Conclusion of Regional Human Rights Treaties 55

viii Contents 2 Partial Suspension of Regional Human Rights Treaties 60 3 Enforcement of Judgments of Regional Human Rights Courts and Tribunals 65

part 2 Consensus and Evolutive Interpretation  Introduction to Part 2 72 4 Evolutive Interpretation as a Method of Interpretation in Public International Law 73 1 The Temporal Element and the Law of Treaties 73 1.1 The Works of the International Law Commission 73 1.2 International Case Law Supporting the Principle of Contemporaneity 77 2 Evolutive Interpretation and the Law of Treaties 79 3 Evolutive Interpretation in International Case Law 82 3 .1 International Court of Justice 82 3 .2 Other International Courts and Tribunals 86 3 .3 Regional Human Rights Courts and Tribunals 90 5 The Evolution of Regional Human Rights Treaties through the Notion of Consensus 95 1 Tension between Sovereignty and Cooperation 95 1.1 The Role of the Principle of Sovereignty 95 1.2 The Erosion of the Principle of Sovereignty 99 1.2.1 Searching for Consensus beyond Regional Human Rights Subsystems 100 1.2.2 Searching for Consensus within Regional Human Rights Subsystems 104 1. 2. 2. 1 A Constitutionalist Approach 104 1 . 2. 2. 2 A Consensualist Approach 106 2 Tension between Universalism and Regionalism 109 2.1 Evidence of Consensus by Reference to Universal Practice 109 2.1.1 Participation in International Treaties as Evidence of a General Agreement 109 2.1.2 Non-​Participation in International Treaties and the Principle of Systemic Integration 113 2.2 Evidence of Consensus by Reference to Regional Practice 118 2.2.1 Practice of the Council of Europe 118

Contents

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2.2.2 Practice of the European Union 120 2.2.3 Practice of the Organization of American States 123 3 Tension between International and Constitutional Jurisdictions 125 3 .1 Reinforcing the International Character of Regional Human Rights Courts and Tribunals 125 3 .2 Guaranteeing the Unity of Public International Law and the Risks Posed by Judicial Activism 128 3 .2.1 The Double Instance as a Formula to Strengthen the Unity of Public International Law 128 3 .2.2 A First Risk of Fragmentation: Judicial Activism and Evolutive Interpretation 132 3 .2.3 A Second Risk of Fragmentation: Judicial Activism and the Jurisdiction of Regional Human Rights Courts and Tribunals 135

part 3 Consensus and the National Margin of Appreciation  Introduction to Part 3 138 6 Scope of the National Margin of Appreciation 139 1 The National Margin of Appreciation: An Indeterminate Concept 139 1.1 The Praetorian Origins of the National Margin of Appreciation 139 1.2 The Complex Systematization of the National Margin of Appreciation 144 2 The National Margin of Appreciation in International Case Law 148 2.1 International Court of Justice 148 2.2 International Tribunal for the Law of the Sea 154 2.3 Inter-​State Arbitration 156 2.4 Court of Justice of the European Union 160 2.5 Investment Treaty Arbitration 163 2.6 World Trade Organization Panels 175 2.7 Preliminary Considerations: The National Margin of Appreciation as a Multifaceted Legal Concept 179 3 The Expansion of the National Margin of Appreciation in Regional Human Rights Subsystems 181

x Contents 7 Intrinsic Circumstances Conditioning the National Margin of Appreciation 190 1 Legal Nature of the International Obligation 190 1.1 Peremptory or Dispositive Nature of the International Obligation 190 1.2 Positive or Negative Nature of the International Obligation 192 2 Public or Private Dimension of the Interests at Hand 195 2.1 Enhancing the Protection of Public Interests 195 2.2 Consequences of Conflicting or Overlapping Interests or Rights 198 8 Consensus as an Extrinsic Circumstance Conditioning the National Margin of Appreciation 207 1 Substantive Dimension of Consensus: The Backbone of Regional Human Rights Case Law 207 1.1 National Margin of Appreciation and Consensus Generalis 207 1.2 National Margin of Appreciation and the Absence of Consensus Generalis 210 1.2.1 Challenges Posed by an Evolutive Consensus: Right to Access to a Court and Jurisdictional Immunities 210 1.2.2 Respecting the Regulatory Power of the State in the Absence of Consensus: the Right to Express Religious Convictions, Neutrality and Secularism 212 2 Formal Dimension of Consensus: An Emerging Coordination Technique in Regional Human Rights Case Law 222 Final Considerations 226 Bibliography 237 Table of Jurisprudence and Case Law 256 Table of International Treaties 277 Table of Authors 281 Index 286

Foreword In my foreword to the monograph by Dr Bjorn Arp, currently a fellow at the Center on International Commercial Arbitration at American University Washington College of Law (Las minorías nacionales y su protección en Europa, Madrid 2008, Ed. Centro de Estudios Políticos y Constitucionales, pp. xiii–​ xviii), I took stock of my work as a research director for various young professors whose academic careers I had the opportunity to supervise at several Spanish universities. I admit that I have always been particularly interested in two major areas of public international law, namely, the law of international responsibility and the powers and competences of states. Indeed, this interest has led me to supervise seven doctoral theses on these subjects. However, under the right circumstances, I have not spurned the chance to supervise work in other fast-​ growing fields as well, such as international human rights law, as the aforementioned work proves. The same could largely be said for the present monograph by Dr Pascual-​Vives, for which I have the honour of writing the foreword. In both cases, particularly in light of the known risks of taking on possible dogmas and ideological biases in the study of human rights, I have tried to instil in the authors the need for strict application of the inductive or empirical method in the study of the corresponding legal institutions, as well as for rigorous analysis of codification processes and international practice in general, especially of the relevant case law. With regard to the present monograph, I can say that Dr Pascual-​Vives was both willing and able to apply this research credo to the letter, even if it sometimes meant criticising the designs and challenging the clearly dysfunctional inertia of certain judgments issued by international regional human rights courts and tribunals, which at times have acted like courts of cassation. The exhaustive research conducted by Dr Pascual-​Vives, who benefited from the generous support from the European Commission through the Erasmus+ programme, is testament to his intellectual maturity. It has also earned him this magnificent edition of his work, published by Brill/​Martinus Nijhoff, whom I would like to thank for the excellent reception they have given us. With regard to the subject matter, briefly, this work proposes that the risks arising from the sectoralization of public international law can be combatted through the use of well-​established legal categories in the international legal system, which are the keystones to systematic unity. Building on this idea, the work examines how the ECtHR and the IACtHR frequently rely on the concept of consensus to interpret regional human rights treaties.

xii Foreword Most international courts and tribunals use a consensualist approach, as explained in part 1, to determine the law applicable to a dispute. This approach allows for an evolutive interpretation of regional human rights treaties. However, it also makes it possible to rule out such interpretations at times, invoking the concept of the national margin of appreciation. The monograph is structured in keeping with this reasoning. Part 2 looks at the grounds on which the ECtHR and the IACtHR have based this evolutive interpretation of regional human rights treaties. Part 3, on the other hand, seeks to systematise how regional human rights courts and tribunals invoke the concept of the national margin of appreciation to adopt decisions more respectful of the principle of state sovereignty. This work shows how the mechanisms used by the ECtHR and the IACtHR to identify that consensus (consensus generalis) or the absence thereof largely depend on the specific circumstances of the European and American regional subsystems. In Europe, the interplay between the Council of Europe and the European Union has enriched citizens’ legal heritage. In the Americas, the General Assembly of the oas has promoted the development of certain fundamental rights, even in the absence of a (substantive) consensus amongst its Member States. In some cases, the concept of consensus has been set aside or relegated to a secondary plane in the case law of regional human rights courts and tribunals. In these precedents, the ECtHR and the IACtHR issue decisions that expand the legal heritage of individuals without sufficient support in state practice. Such cases evidence a certain drift (which the author calls ‘overstep’) towards the protection of human rights. Whilst this drift may be quite commendable politically, it can put the unity of the international legal system at risk. The consideration of the right to due process as a rule of jus cogens in the American subsystem, but not in the European one, exemplifies this contradiction perfectly. It is more the result of judicial activism than of a calm objective study of state practice. In this regard, it should not be forgotten that regional human rights courts and tribunals are international courts, not courts of cassation. Their operation, therefore, must be guided by the parameters, techniques, and categories of public international law. Mismanagement by these jurisdictional bodies of their powers can erode their legitimacy and, in the medium term, undermine the enormous progress made in international human rights law in the last fifty years. In closing, in light of the content and conclusions of this rigorous and thought-​provoking monograph, I  am confident that Dr Pascual-​Vives has a

Foreword

xiii

bright academic future. I encourage him to persevere in his scientific endeavours as honestly and fruitfully as he has done to date. Dr. Dr. Carlos Jiménez Piernas Professor of Public International Law and International Relations (University of Alcalá) Head of the International Legal Office (Spanish Ministry of Foreign Affairs, European Union and Cooperation)

Abbreviations Abbreviations Used AConHR American Convention on Human Rights AG Advocate General bit Bilateral Investment Treaty boe Boletín Oficial del Estado cacj Central American Court of Justice cfi Court of First Instance of the European Union ecj European Court of Justice EComHR European Commission on Human Rights EConHR European Convention on Human Rights ECtHR European Court of Human Rights EP European Parliament EU European Union eur Euros gats General Agreement on Trade in Services GC Grand Chamber of the European Court of Human Rights IAComHR Inter-​American Commission on Human Rights IACtHR Inter-​American Court of Human Rights icc International Criminal Court icj International Court of Justice ilc International Law Commission icrw International Convention for the Regulation of Whaling icsid International Centre for the Settlement of Investment Disputes ictr International Criminal Tribunal for Rwanda icty International Criminal Tribunal for the former Yugoslavia ihl International Humanitarian Law ilo International Labour Organization itlos International Tribunal for the Law of the Sea iwc International Whaling Commission jarpa Japanese Whale Research Program under Special Permit in the Antarctic jorf Journal Officiel de la République française nafta North American Free Trade Agreement oas Organization of American States pca Permanent Court of Arbitration pcij Permanent Court of International Justice sadc Southern African Development Community

xv

Abbreviations scc teu tfeu UN uncitral unclos USA/US vclt wto

Stockholm Chamber of Commerce Treaty of the European Union Treaty of Functioning of the European Union United Nations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea Unites States of America Vienna Convention on the Law of Treaties World Trade Organization

Abbreviations of Scientific Journals and Periodical Publications aedi afdi ajil Annuaire idi Arb Int’l ARevIEL Aus Yb IL byil cebdi cjel Conn jil Cornell Int’l L J cts CYbELS cyil ecr ehrlr ejil ejls elr FYbIL GerLJ gyil Hague yil HarILJ hrlj hrlr

Anuario Español de Derecho Internacional Annuaire Française de Droit International American Journal of International Law Annuaire de l’Institut de droit international Arbitration International Austrian Review of International and European Law Australian Yearbook of International Law British Yearbook of International Law Cursos Euromediterráneos Bancaja de Derecho Internacional Columbia Journal of European Law Connecticut Journal of International Law Cornell International Law Journal Consolidated Treaty Series Cambridge Yearbook of European Legal Studies Canadian Yearbook of International Law Reports of the Court of Justice of the European Union European Human Rights Law Review European Journal of International Law European Journal of Legal Studies European Law Review Finnish Yearbook of International Law German Law Journal German Yearbook of International Law Hague Yearbook of International Law Harvard International Law Journal Human Rights Law Journal Human Rights Law Review

xvi Abbreviations hrq icj Reports/​c ij Recueil

iclq ilr Israel LR IYbIL jids jiel ljil lpict mjil McGill LJ ndlr nilr njihr nqhr nyil Nor jil nyu Jour IL&P oidu OJ redi rbdi rcadi rdce rdi rede redf redi redm reei rgdip rscdpc

Human Rights Quarterly Reports of Judgments, Advisory Oponions and Orders of the International Court of Justice/​Recueil des arrêts, avis consultatifs et ordonnances de la Cour Internationale de Justice International and Comparative Law Quarterly International Law Reports Israel Law Review Italian Yearbook of International Law Journal of International Dispute Settlement Journal of International Economic Law Leiden Journal of International Law The Law and Practice of the International Courts and Tribunals Michigan Journal of International Law McGill Law Journal Nôtre Dame Law Review Netherlands International Law Review Northwestern Journal of International Human Rights Netherlands Quarterly of Human Rights Netherlands Yearbook of International Law Nordic Journal of International Law New  York University Journal of International Law and Politics Ordine internazionale e diritti umani Official Journal of the European Union Revista Española de Derecho Internacional Revue Belge de Droit International Recueil des Cours de l’Académie de Droit International de La Haye Revista de Derecho Comunitario Europeo Rivista di Diritto Internazionale Revista Española de Derecho Europeo Revista Española de Derechos Fundamentales Revista Española de Derecho Internacional Revista Española de Derecho Militar Revista Electrónica de Estudios Internacionales Revue Générale de Droit International Public Revue de Science Criminelle et de Droit Pénal Comparé

Abbreviations rtde rtdh SYbIL ujiel UNJYb unriaa Vand J Transnat’l L Va J Int’l L Yale jil Yale LJ Yearbook ilc ZaöRV zör

xvii Revue Trimestrielle de Droit Européen Revue Trimestrielle des Droits de l’Homme Spanish Yearbook of International Law Utrecht Journal of International and European Law United Nations Juridical Yearbook United Nations Reports of International Arbitral Awards Vanderbilt Journal of Transnational Law Virginia Journal of International Law Yale Journal of International Law The Yale Law Journal Yearbook of the International Law Commission Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für öffentliches Recht

Introduction

1 Object Over the last decades, public international law has been through a series of changes resulting from the evolution of international society.1 One of the novelties worth noting is the growing protagonism of the individual as a subject of international rights and obligations. From a universal standpoint, the international criminal ad hoc courts and tribunals and the icc have developed the passive international responsibility of the individual.2 Meanwhile, from the regional standpoint, international courts and tribunals supervising compliance with regional human rights treaties have facilitated the access of individuals to international justice.3 This study examines the ways in which the ECtHR and the IACtHR use a consensus-​based approach to interpret regional human rights treaties, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (EConHR)4 and the American Convention on Human Rights, adopted in San José on 22 December 1969 (AConHR).5 In fact, our initial hypothesis is that upon invoking consensus either for undertaking an evolutive interpretation or when resorting to the 1 Christian Dominicé, ‘La société internationale à la recherche de son équilibre. Cours général de droit international public’ (2013) 370 RCADI 9, 29–​32. 2 Concepción Escobar Hernández, ‘Algunas reflexiones sobre la Corte Penal Internacional como Institución Internacional’ (2000) 75 REDM 171; Eric David, ‘La Cour pénale internationale’ (2005) 313 RCADI 325; Theodor Meron, ‘Reflection on the Prosecution of War Crimes by International Tribunals’ (2006) 100 AJIL 551, 559–​568; Antonio Cassese, ‘The International Criminal Court Five Years On:  Andante or Moderato?’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff 2009) 21–​30; William A Schabas, An Introduction to the International Criminal Court (4th ed, CUP 2011) 23–​61; Andreas Th Müller, ‘International Criminal Tribunals as a Phenomenon of Globalization’ in Werner Gephart and others (eds), Tribunale Literarische Darstellung und juridische Aufarbeitung von Kriegsverbrechen im globalen Kontext (Vittorio Klostermann 2014) 71–​95. 3 Antônio A Cançado Trindade, ‘The International Law of Human Rights at the Dawn of the XXIst Century’ (1999) iii CEBDI 145, 186–​197; Gerhard Hafner, ‘The Emancipation of the Individual from the State under International Law’ (2011) 358 RCADI 263, 402–​428. 4 United Nations, Treaty Series, vol 213, No 2289, 221. 5 United Nations, Treaty Series, vol 1144, No 17955, 123.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004375512_​0 02

2 Introduction national margin of appreciation6 to exclude the international responsibility of the State, the ECtHR and the IACtHR are acting as international courts and tribunals, and they are adapting a consensualist approach to the institutional framework in which they operate.7 This study analyzes the practice of these regional human rights courts and tribunals. The aim is to show that their judicial function is primarily, though not exclusively, subject to parameters specific to public international law. We accept that the notion of consensus in the case law of these regional courts and tribunals has a complex and multifaceted nature. Therefore, it can be examined from different legal perspectives, such as criminal, constitutional and even procedural law.8 However, we will approach this topic from an international law standpoint, as we consider that they are called upon to undertake a very specific function: the interpretation of regional human rights treaties in accordance with public international law techniques, methods and notions. It is worth pointing out that this study does not seek to give more credit to public international law over other legal disciplines, but to value the protagonism and impact that some public international law concepts exert over the case law of the ECtHR and the IACtHR. Accordingly, this work emphasises the

6 Some scholars have already studied the scope and content of the notion of the national margin of appreciation: see Eva Brems, ‘The Margin of Appreciation Doctrine in the Case-​Law of the European Court of Human Rights’ (1996) 56 ZaöRV 240; Howard C Yourrow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights (Kluwer 1996); the contributions by Paul Mahoney, Johan Callewaert, Clare Ovey and Soren Prebensen; published in (1998) 19 HRLJ; Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Council of Europe 2000); Yukata Arai-​Takahashi, The Margin of Appreciation and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002); Thomas Kleinlein, ‘Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control’ (2017) 28 EJIL 854. 7 We are aware that other doctrinal approaches do not confer such an important role to consensus: see George Letsas, A Theory of Interpretation of the European Convention on Human Rights (oup 2007) 9 and 35. 8 This tension between international and domestic law has been very lucidly expressed by a former member of the ECtHR, stating that ‘I believe it would be very useful if the Court were to explain the concept of European consensus either in constitutional or international law terms. For the moment, and even if I have attempted to look at the concept through the eyes of international law, probably the proper understanding of the concept is a constitutional one. There are, however, several problems as concerns the use of a constitutional concept by an international court in the framework of the application of an international treaty’: see Ineta Ziemele, ‘Customary International Law in the Case Law of the European Court of Human Rights –​The Method’ (2013) 12 LPICT 243, 251.

Introduction

3

need for these regional human rights courts and tribunals to respect public international law categories.9 In particular, our study draws attention to the risks involved when regional human rights courts and tribunals make interpretations that stray or are distant from public international law. They often have a praiseworthy intention of promoting a pro homine interpretation that recognizes new rights to individuals or imposes additional obligations upon States. However, judicial activism is incompatible with the rule of law and often generates legal uncertainty. As we will examine, some decisions rendered by the ECtHR and the IACtHR have been reached through judicial activism according to what some have defined as ‘human rightism’.10 These decisions ‘overflow’ (or ‘overstep’) basic public international law concepts and categories,11 such as the notion of consensus. The study also examines how regional human rights courts and tribunals have addressed the sectorialization of public international law in different

9

10

11

This aim must be accomplished, amongst other means, by ensuring a balanced composition of the bench between experts and practitioners from various legal disciplines. As of 7 May 2018, it can be concluded from the abbreviated curriculum on the ECtHR website that thirteen of the forty-​seven judges comprising this court, including the President, are trained in general international law, accredited either by a doctorate or by university teaching [Guido Raimondi (Italy), Angelika Nussberger (Germany), Linos-​Alexandre Sicilianos (Greece), Ledi Bianku (Albania), Isil Karakas (Turkey), Nebojsa Vucinic (Montenegro), Hellen Keller (Switzerland); Iulia Antoanella Motoc (Romania), Síofra O’Leary (Ireland), Martins Mits (Latvia), Stéphanie Mourou-​Vikström (Monaco), Tim Eicke (United Kingdom) and Letif Hüseynov (Azerbaijan)]. As of 7 May 2018, it can be concluded from the abbreviated curriculum on the IACtHR website that two of the seven judges comprising this court are trained in general international law [Eduardo Vio Grossi (Chile)] and international criminal law [Elisabeth Odio Benito (Costa Rica)]. The IACtHR further includes a criminal law expert [Eugenio Raúl Zaffaroni (Argentina)] and four constitutional law experts including the President and Vice-​President [Roberto Caldas (Brasil), Eduardo Ferrer Mac-​Gregor Poisot (México), Humberto Sierra Porto (Colombia) and Leoncio Pazmiño Freire (Ecuador)]. Alain Pellet, ‘Human Rightism and International Law’ (2000) x IYbIL 1, 16–​17. Also available for reference is his conference held on 18 July 2000 within the ‘Gilberto Amado Memorial Lecture’, under the same title. This approach may even suggest the prevalence of international human rights law when interpreting general norms of public international law:  see Arnold N Pronto, ‘Human-​ Rightism and the Development of General International Law’ (2007) 20 LJIL 753. Contrary to what has been argued by some scholars, we do not consider that human rights courts or tribunals are entitled to ‘change’ the rules previously accepted by States, but only to interpret them. From our perspective, any change in the rules proposed by an international court or tribunal should be considered as an example of judicial activism: cf Magdalena Forowicz, The Reception of International Law in the European Court of Human Rights (oup 2010) 14.

4 Introduction manners. Firstly, the notion of consensus can be conceived as a general coordination technique applied to diverse specialized sectors, contributing to reinforce the unity of international law.12 And, secondly, we focus on how some categories created by these regional courts and tribunals, such as the notion of the national margin of appreciation, can assume vis expansiva towards other international legal sectors. Before explaining the methodology and structure of this study, six preliminary considerations must be noted. Firstly, we are fully aware that some scholars have already examined how the ECtHR and the IACtHR have implemented the method of evolutive interpretation.13 Nevertheless, this study analyzes the case law of these regional human rights courts and tribunals to determine how they have adopted solutions belonging to general international law, such as the notion of consensus, upon deciding on an evolutive interpretation of the EConHR and the AConHR. Secondly, this study conceives the ECtHR and the IACtHR as international courts and tribunals that contribute to the development of public international law by applying categories that are specific to this legal system. Notwithstanding both judicial organs have a very different nature, organization and function;14 they have generally developed a fruitful activity by protecting 12

13

14

As has been stated ‘the expansion and increasing complexification of international law and its subjects, lead to an even greater need for overarching principles to sustain the unity of the whole’:  see Vera Gowlland-​Debbas, ‘Law-​making in a Globalized World’ (2004/​2005) viii/​i x CEBDI 505, 531. The evolutive interpretation and the notion of consensus in the European regional subsystem have already been examined on a sectorial basis: see Laurence R Helfer, ‘Consensus, Coherence and the European Convention on Human Rights’ (1993) 26 Cornell Int’l L J 133; Paolo G Carozza, ‘Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights’ (1997–​1998) 73 NDLR 1217; Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998–​1999) 31 NYU Jour IL&P 843; George Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 EJIL 279. Héctor Gros Espiell, ‘Reflexiones en torno a la protección internacional de los derechos humanos en el ámbito regional americano’ (1989) Cursos de Derecho Internacional de Vitoria-​Gastéiz 161, 167–​175; Antônio A Cançado Trindade, ‘Le système inter-​américain de protection des droits de l’homme: état actuel et perspectives d’évolution à l’heure du XXIe siècle’ (2000) xlvi AFDI 548, 565–​577; Linos A Sicilianos, ‘La “réforme de la réforme” du systéme de protection de la convention européenne des droits de l’homme’ (2003) xlix AFDI 611; Lucius Caflisch, ‘L’efficacité du systéme européen de protection des droits de l’homme’ in Lucius Caflisch and others (eds), El Derecho Internacional: normas, hechos y valores. Liber Amicorum José Antonio Pastor Ridruejo (Servicio de Publicaciones de la Universidad Complutense de Madrid 2005) 43–​58; Leo Zwaak, ‘The Procedure before the

Introduction

5

human rights within the institutional framework of the international legal system.15 Thirdly, although this study inquires into the use of a consensus-​based approach to develop an evolutive interpretation of regional human rights treaties, it does not deal with the various methods of interpretation available to regional human rights courts and tribunals. For the purposes of this study, we only examine the interaction between evolutive interpretation and consensus. Fourthly, it is also worth identifying particular meanings that the ECtHR and the IACtHR have conferred on the concept of consensus and which fall outside the scope of this study.16 Within the European subsystem, the notion of consensus has been invoked to refer to the consensus reached within a State about a specific topic.17 Within the inter-​American subsystem, consensus has

15

16 17

European Court of Human Rights’ in Pieter Van Dijk and others (eds), Theory and Practice of the European Convention on Human Rights (4th ed, Intersentia 2006) 95–​290; Thomas Buergenthal, ‘The Evolving International Human Rights Systems’ (2006) 100 AJIL 783, 792–​797; Ed Bates, The Evolution of the European Convention on Human Rights. From its Inception to the Creation of a Permanent Court of Human Rights (oup 2010) 171–​511. The ECtHR and the IACtHR have often pursued this task by using an open and complementary approach:  see Case of the “Street Children” (Villagrán-​Morales et  al) v Guatemala, Merits, Judgment of 19 November 1999 Series C No 63, paras 170 and 176; Stoll v Switzerland [GC], No 69698/​01, para 111, ECtHR 2007; Scoppola v Italy (No 2) [GC], No 10249/​03, para 105, ECtHR 2009; Case of Artavia Murillo et al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257, paras 234–​242. For further discussion: see Héctor Gros Espiell, ‘La Convention Europeénne et la Convention Americaine des Droits de l’Homme. Analyse Comparative’ (1989) 218 RCADI 171, 241–​293 and 337–​375; Lucius Caflisch and Antônio A Cançado Trindade, ‘Les conventions américaine et européenne des droits de l’homme et le droit international général’ (2004) 108 RGDIP 5, 6–​31; Ludovic Hennebel, La Convention américaine des droits de l’homme. Mécanismes de protection et étendue des droits et libertés (Bruylant 2007) 450, 479, 499 and 509–​510. Kanstantin Dzehtsiarou, ‘Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights’ (2011) 3 Public Law 534, 548. L and V v Austria, No 39392/​98 and No 39829/​98, paras 30 and 51, ECtHR 2003. It is worth pointing out the approach taken in the context of the US federal system, which was reported in a seminar organized by the ECtHR in 2008 (‘Dialogue between judges’) by John L Murray, Chief Justice from Ireland in 2004–​2011. He made an interesting presentation (‘Consensus: concordance, or hegemony of the majority?’), in which he explained the role of consensus in federal systems and, in particular, in the case law of the US Supreme Court:  see Gregg v Georgia, vol 428 (1976) 153; Coker v Georgia, vol 433 (1977) 584; Enmund v Florida, vol 458 (1982) 782; Ford v Wainwright, vol 477 (1986) 399; Stanford v Kentucky, vol 492 (1989) 361; Atkins v Virginia, vol 536 (2002) 304; Roper v Simmons, vol 543 (2005) 551.

6 Introduction been used to refer to the agreements reached by the parties to international proceedings.18 It has also been used in cases involving the claims of indigenous peoples, as it is the form with which these peoples have made community decisions for centuries.19 In fifth place, for the purposes of this study, we must point out that the notion of consensus cannot be assimilated to customary international law,20 even though consensus is often used to determine the scope of customary international law, as will be later discussed. Finally, it is important to note that part of the contents included in this study have been previously published in Spanish language in two academic journals (Anuario Español de Derecho Internacional and Revista Española de Derecho Internacional).21 The author wishes to express his profound gratitude to the editorial boards of both journals, which have authorized the use of those materials for this publication, after having been updated and reviewed. 2

Methodology and Sources of Knowledge

The methodology chosen to develop this study is based primarily on the inductive method. This involves the observation of reality through the relevant sources of knowledge. In particular, special attention is paid to the case law of the ECtHR and the IACtHR. After having systematized the relevant case law of the regional human rights courts and tribunals, we use the deductive method in order to demonstrate that these judicial organs follow a consensus-​based approach, either when applying the evolutive interpretation of regional human rights treaties, or when invoking the national margin of appreciation.

18

19

20

21

Case of Huilca Tecse v Peru, Merits, Reparations and Costs, Judgment of 3 March 2005 Series C No 121, para 36; Case of the Yakye Axa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 17 June 2005 Series C No 125, para 140. Case of the Plan de Sánchez Massacre v Guatemala, Reparations, Judgment of 19 November 2004 Series C No 116, para 85; Case of the Xákmok Kásek Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 24 August 2010 Series C No 214, para 279. Cf Vassilis P Tzevelekos and Kanstantin Dzehtsiarou, ‘International Custom Making and the ECtHR’s European Consensus Method of Interpretation’ accessed 15 June 2016. Francisco Pascual-​Vives, ‘El margen de apreciación nacional en los tribunales regionales de derechos humanos: una aproximación consensualista’ (2013) 29 AEDI 217; Francisco Pascual-​Vives, ‘Consenso e interpretación evolutiva de los tratados regionales de derechos humanos’ (2014) lxvi REDI 113.

Introduction

7

With regard to the sources of knowledge, the study particularly focuses on the case law of the ECtHR (especially on the decisions of the Grand Chamber) and the IACtHR. In addition, it occasionally makes reference to decisions by the EComHR, notwithstanding that these decisions and those by the IAComHR fall outside the sources of knowledge specifically examined herein.22 For the purposes of this study, the expression ‘regional human rights courts and tribunals’ shall refer only to the ECtHR and the IACtHR. In addition to the decisions by regional human rights courts and tribunals, international case law at a universal (icj and arbitral awards), sectorial (itlos, investment treaty arbitration, wto panels and international criminal tribunals) and regional (ecj) level is also analyzed with three objectives. Firstly, to provide a general explanation of the consensus-​based approach to public international law (part  1). Secondly, to analyze how these courts and tribunals undertake an evolutive interpretation of regional human rights treaties (part 2). And thirdly, to examine the evolution of the notion of the national margin of appreciation, which has expanded from the European regional subsystem of human rights protection towards other legal sectors of public international law (part 3). All these decisions have been analyzed in their English language version with the exception of the icj, in which the French or English authoritative versions were used both as a source of knowledge and upon making any reference in the text and the footnotes. The term ‘case law’ is used in reference to the body of decisions issued by an international judicial organ, which can serve as precedents in international litigation.23 However, regarding arbitral decisions we consider that the term ‘case law’ does not quite apply, because of the ad hoc nature of these tribunals. We prefer to use the term ‘arbitral decisions’ when referring to these judicial organs, particularly to those settling investment claims. In fact, without prejudice to the effort these investment tribunals have been making in order to maintain a uniform and coherent arbitral practice,24 it is difficult to view this practice as ‘judicial precedents considered collectively’.25 22

23 24 25

The practice of IAComHR has been analized by Bernard Duhaime, ‘Subsidiarity in the Americas. What Room is There for Deference in the Inter-​American System?’ in Lukasz Gruszczynski and Wouter Werner (eds), Deference in International Courts and Tribunals. Standard of Review and Margin of Appreciation (oup 2014) 305–​315. Gilbert Guillaume, ‘The Use of Precedent by International Judges and Arbitrators’ (2011) 2 JIDS 5, 9–​10. Andrés Rigo Sureda, Investment Treaty Arbitration. Judging Under Uncertainty (cup 2012) 109–​131. Bryan A Garner (ed), Black’s Law Dictionary (10th ed, Thomson Reuters 2014) 984. In this context, however:  see Bing B Jia, ‘International Case Law in the Development of

8 Introduction The study also takes into consideration the institutional practice of States, as expressed through the resolutions adopted by institutions and bodies of international organizations. This is the case of the Parliamentary Assembly of the Council of Europe and the General Assembly of the oas. As we conclude in parts 2 and 3, their resolutions are highly interesting when evaluating how the formal notion of consensus can influence the case law of regional human rights courts and tribunals. The codification works of the ilc are also examined in parts 1 and 2. Part 1 refers to codification efforts regarding the identification of customary international law. Part 2 focuses on the codification of the law of the treaties, which culminated with the signature of the Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May 1969 (vclt).26 3 Structure This study examines the way in which a consensus-​based approach of public international law has been installed in regional human rights subsystems

26

International Law’ (2015) 382 RCADI 195, 378. The flexible approach that investment tribunals maintain regarding precedent is different than that maintained, for example, by the icj. On the occasion of the three cases on the nuclear disarmament, where the Court took a restrictive position on the conditions necessary to activate its jurisdiction, President Ronny Abraham appended a Declaration to the three Judgments explaining the reasons by which he had voted in favour of that approach, having expressed his concerns against it in a couple of separate opinions appended to previous judgments. Regarding the role of precedent in the icj, he declared that ‘I nonetheless take the view that even if a judge has expressed reservations, or indeed his disagreement, at the time the Court established its jurisprudence, once the Court has done so, he must consider himself to be bound by it thereafter (not legally, of course, but morally), just as much as if he had agreed with it. It is indeed a judicial imperative, which the Court has always recognized, and which in my view is incumbent upon all its Members, that it must be highly consistent in its jurisprudence, both in the interest of legal security and to avoid any suspicion of arbitrariness. It is true that precedent is not inviolate, and that the Court always has the power to change course or overturn its jurisprudence if, exceptionally, it considers that there are compelling reasons to do so, for example because of a change in the general context surrounding some particular judicial solution’: see Declaration of President Abraham, paras 9–​11. United Nations, Treaty Series, vol 1155, No 18232, 331.

Introduction

9

and how the ECtHR and the IACtHR use it to interpret the EConHR and the AConHR, respectively. This analysis is developed through three parts, each divided into several chapters and sections. Part 1 sets up the general theoretical framework. First of all, it explains from a formal and substantive point of view, the consensus-​based approach to public international law. Thereupon, it studies how this approach crystallized in the case law of the icj and how it was later received by other international courts and tribunals, as is the case of ecj, the regional human rights courts and tribunals, itlos, the icc, investment tribunals and wto panels. Secondly, we examine the specialization and sectorialization of public international law, concretely, the way in which both phenomena affect the relations among the diverse international courts and tribunals that have proliferated in recent years. As was stated above, the study analyzes how regional human rights courts and tribunals have reacted to the specialization and sectorialization of public international law, which solutions they ‘import’ from other international courts and tribunals and which formulas created by them might even be ‘exported’ to other legal sectors. The final chapter of part 1 deals with the principle of subsidiarity in regional human rights subsystems. This principle constitutes one of the backbones that articulates the application and interpretation of the EConHR and the AConHR. When analyzing the principle of subsidiarity, we focus on its operation during three different moments:  the conclusion of the regional human rights treaties, the partial suspension of their obligations, and the enforcement of the decisions issued by the ECtHR and the IACtHR. Part  2 examines the reasons that lead the ECtHR and the IACtHR to undertake an evolutive interpretation of regional human rights treaties and the formulas through which this consensus-​based interpretation has been implemented in practice. The first chapter examines the scope of this interpretative method in universal, regional and sectorial case law. Its use by regional human rights courts and tribunals is analyzed in the second chapter. Part 3 focuses on the notion of the national margin of appreciation. Many international courts and tribunals have explored the use of this concept in a way that does not truly adjust to the parameters initially established by the ECtHR. After comparatively analyzing this case law, we systematize the set of intrinsic and extrinsic circumstances frequently invoked by the ECtHR and the IACtHR when using this notion. In this context, particular attention is paid to the role that consensus plays in the regional subsystem as an extrinsic factor that may activate its application. Recourse to the national margin of appreciation by regional human rights courts and tribunals is not exempt from criticism due to the succinct theoretical development these judicial organs have made on this

10 Introduction notion. However, from the perspective of public international law, the notion of consensus can contribute to overcoming such criticisms. Finally, the study contains a section that exposes final considerations resulting from the analysis of case law undertaken in previous chapters. Furthermore, a series of indexes are included to compile judicial decisions, international treaties, the authors mentioned throughout the study and the bibliography in an orderly manner.

pa rt 1 Theoretical Framework: Consensus, Sectorialization and Subsidiarity

∵

Introduction to Part 1

Prior to studying how the notions of consensus and the national margin of appreciation have been used by the ECtHR and the IACtHR, it is necessary to delve into three issues that shape the theoretical framework of this study. Firstly, we examine the concept of consensus, analyzing its two-​fold dimension in public international law as well as its application by international courts and tribunals at universal, regional and sectorial levels. Secondly, we refer to the impact that specialization and sectorialization have on contemporary international law. Thirdly, we study the principle of subsidiarity to comprehend the complex equilibrium between sovereignty and cooperation in regional human rights subsystems.

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­c hapter 1

The Notion of Consensus in Public International Law The notion of consensus constitutes a central element in public international law, as recognized by international courts and tribunals. It can be conceived from both a formal and a substantive dimension. 1

The Two-​Fold Dimension of Consensus in Public International Law

It is important to distinguish between a formal and a substantive dimension of consensus in public international law. From a formal perspective,1 consensus constitutes a decision-​making mechanism in the institutional framework.2 This mechanism is characterized by the adoption of decisions when there are no objections, and which therefore does not require a formal vote.3 This study does not focus into the formal dimension of consensus and revolves around its substantive dimension, even though it will refer to the former to highlight their interactions,4 since both are closely tied.5

1 Eric Suy, ‘Role et signification du consensus dans l’elaboration du droit international’ in Pierluigi Lamberti Zanardi and others (eds), International Law at the Time of its Codification. Essays in Honour of Roberto Ago (vol I, Giuffrè Editore 1987) 521–​542; Gennadii M Danilenko, Law-​Making in the International Community (Martinus Nijhoff 1993) 277–​286. 2 Within the UN system, consensus was defined as ‘adoption of a decision without formal objections and vote; this being possible only when no delegation formally objects to a consensus being recorded, though some delegations may have reservations to the substantive matter at issue or to a part of it’: see (1987) UNJYb 174. 3 ‘Consensus’ in Jean Salmon (dir), Dictionnaire de droit international public (Bruylant 2001) 239–​240; Rüdiger Wolfrum and Jakob Pichon, ‘Consensus’ in Rüdiger Wolfrum (dir), The Max Planck Encyclopedia of Public International Law (vol ii, oup 2012) 673–​678; ‘Consenso’ in Santiago Muñoz Machado (dir), Diccionario del Español Jurídico (Real Academia Española/​Espasa 2016) 480. 4 See pt 3 ch 8 s 2 5 Anthony D’Amato, ‘On Consensus’ (1970) 8 CYIL 104; Jonathan I Charney, ‘Universal International Law’ (1993) 87 AJIL 529, 544–​550; Jaume Ferrer Lloret, El consenso en el proceso de formación institucional de normas en el Derecho internacional (Atelier 2006) 230; Andrew T Guzman, ‘Against Consent’ (2012) 52 Va J Int’l L 747.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​​9 789004375512_​0 04

14 ­chapter  From a substantive point of view, consensus implies a general agreement of the subjects operating in the international system. It represents their basic and common interests and convictions and allows them both to identify the content of the international rules applicable in their relations and to claim their binding nature. As a result of the decentralized and eminently voluntary nature of public international law, the formation, amendment and termination of international rules stems from the agreement reached jointly by the States (consensus generalis), in particular those especially affected. This consensus generalis appears not only through constant and uniform repetition of a practice (thus becoming customary international law),6 but also through its codification in international multilateral treaties. The notion of consensus, understood as a general (but not unanimous) agreement among the subjects of public international law,7 gives rise and provides meaning to the rule of the persistent objector in customary international law.8 A State that expressly and manifestly opposes the formation of a customary rule is not bound to it, though that initial opposition can be mainly considered as a strategy by the objecting State.9 In the same fashion, the formation of a customary rule is not subjected to the requirement of unanimous practice among States, as it will suffice to confirm a generalized acceptance of this practice, which should be continuous and uniform.10 This approach is respectful 6

7 8 9

10

Maurice Mendelson, ‘The Subjective Element in Customary International Law’ (1995) 66 BYIL 177, 191–​192; Mark E Villiger, Customary International Law. A Manual on the Theory and Practice of the Interrelation of Sources (Kluwer 1997) 49; Olufemi A Elias and Chin L Lim, The Paradox of Consensualism in International Law (Kluwer 1998) 169; Juan A Carrillo Salcedo, Curso de Derecho Internacional Público. Introducción a su estructura, dinámica y funciones (Tecnos 1999) 90; Hugh Thirlway, ‘The Law and Procedure of the International Court of Justice 1960–​1989: Supplement 2005’ (2005) 76 BYIL 1, 92–​100; José A Rodríguez Carrión, Lecciones de Derecho Internacional Público (6th ed, Tecnos 2006) 59 and 65. Contrary to the notion of ‘consensus omnium’: see Prosper Weil, ‘Towards Relative Normativity in International Law’ (1983) 77 AJIL 413, 434. Maurice Mendelson, ‘The Formation of Customary Law’ (1998) 272 RCADI 155, 225–​227. Jonathan I Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ (1985) 56 BYIL 1, 24. See also Philippe Cahier, ‘Changements et continuité du droit international. Cours général de droit international public’ (1985) 195 RCADI 9, 230–​231; Oriol Casanovas i la Rosa, Unity and Pluralism in International Law (Martinus Nijhoff 2001)  35; Pierre-​Hugues Verdier and Erik Voeten, ‘Precedent, Compliance, and Change in Customary International Law:  An Explanatory Theory’ (2014) 108 AJIL 389, 427–​429. In this sense, in the Final Report presented by the Committee on Formation of Customary (General) International Law of the International Law Association it was stated that ‘when one examines the emergence of such universally applicable customary rules and

The Notion of Consensus in Public International Law

15

to the role played by especially affected States in determining the process of crystallization of the customary rule. In treaty practice, the notion of consensus allows the reconciliation of the principles of good faith and relativity of treaties. They are reconciled through the eventual acceptance of those reservations to an international treaty that are not incompatible with its object and purpose;11 and through the recognition of several exceptions to the principle of non-​retroactivity of international treaties enshrined in Article 28 of the vclt. The notion of consensus additionally explains the amendment and modification of international treaties, as established in Articles 39 and 40 of the vclt. Furthermore, the substantive dimension of consensus can serve, from an essentially dogmatic standpoint,12 to explain the validity of public international law and to justify the binding character of customary rules and international treaties.13 In short, these norms are nothing but the result and expression of a general agreement reached by the subjects of public international law. This social agreement (consensus gentium) is precisely what makes the effectiveness and efficacy of public international law probable among States and

11 12

13

principles as those relating to diplomatic immunities, the prohibition of piracy and of privateering, and sovereign rights over the continental shelf, it is impossible to show that every State positively consented to the emergence of the rule in question. Yet it is virtually unanimously accepted that these rules have come to bind all States. It follows, therefore, that a practice does not need to be universal for all States to be bound by it: “general” practice suffices’:  see ‘Statement of Principles Applicable to the Formation of General Customary International Law’ in Report of the Sixty-​Ninth Conference of the International Law Association –​London (2000) 735. Réserves à la Convention sur le Génocide, Avis consultatif: CIJ Recueil 1951, 23–​24. Charles Chaumont, ‘Cours général de droit international public’ (1970) 129 RCADI 333, 380; Hermann Mosler, ‘The International Society as a Legal Community’ (1973) 140 RCADI 1, 96–​97; Prosper Weil, ‘Le droit international en quête de son identité. Cours général de droit international public’ (1992) 237 RCADI 9, 68–​80; Carlos Jiménez Piernas, ‘El papel de la noción de consensus en la fundamentación del derecho internacional público’ in Luiz Olavo Baptista and José R Franco da Fonseca (eds), O Direito Internacional no Terceiro Milênio (LTr Editora 1998) 104–​119; Juan A Carrillo Salcedo, ‘El fundamento del Derecho internacional: algunas reflexiones sobre un problema clásico’ (1998) L REDI 13, 23; Maurice Kamto, ‘La volonté de l’État en droit international’ (2004) 310 RCADI 9, 60–​67. Carlos Jiménez Piernas, ‘The International Practice and the Evidence (A Brief Guide for Young Lawyers)’ in Carlos Jiménez Piernas (ed), The Legal Practice in International and European Community Law. A Spanish Perspective (Martinus Nijhoff 2007) 612–​613 and 618–​620.

16 ­chapter  international organizations that apply and recognize customary rules and international treaties as mandatory.14 From a substantive standpoint, consensus is therefore a polyvalent and multifaceted concept. It provides an explanation of the formation, amendment and termination of customary rules and international treaties, as well as it offers a plausible theoretical justification for their mandatory character.15 2

A Focus on the Substantive Dimension of Consensus

This section studies international case law of universal (icj), regional (ecj, ECtHR and IACtHR) and sectorial (itlos, icc, investment tribunals and the wto panels) scope that applies a substantive dimension of consensus in the process of identifying customary international law. 2.1 International Court of Justice Our examination of the case law of universal character focuses on the icj decisions, distinguishing between those dealing with the application of general customary rules and those concerning the application of customary rules related to international human rights law and ihl.16 2.1.1 A Consensualist Approach before the International Court of Justice The substantive dimension of consensus has been manifested in the case law of the icj as from the North Sea Continental Shelf case.17 Eduardo Jiménez de 14

Rosalyn Higgins, ‘International Law and the Avoidance, Containment and Resolution of Disputes. General Course on Public International Law’ (1991) 230 RCADI 9, 41; Karl Zemanek, ‘The Legal Foundations of the International System. General Course on Public International Law’ (1997) 266 RCADI 9, 31–​32. 15 However, some scholars have made certain criticisms upon this consensualist approach:  see Ielbo M Lobo de Souza, ‘The Role of State Consent in the Customary Process’ (1995) 44 ICLQ 521; Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 AJIL 1, 34–​38. 16 The role played by consensus at the time States accept the jurisdiction of the Court is not examined in this study: see Affaire de l’or monétaire pris à Rome en 1943 (question préliminaire), Arrêt du 15 juin 1954:  CIJ Recueil 1954, 32; Land, Island and Maritime Frontier Dispute (El Salvador/​Honduras), Application to Intervene, Judgment, ICJ Reports 1990, paras 52–​56 and 73; East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, para 29. 17 North Sea Continental Shelf, Judgment, ICJ Reports 1969, para 77. See Continental Shelf (Tunisia/​Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, paras 34 and 101–​109;

The Notion of Consensus in Public International Law

17

Aréchaga, President of the Court during 1976–​1979, emphasized this idea upon examination18 of its use by the icj when identifying customary rules on the delimitation of maritime spaces19 or the principle of self-​determination of peoples.20 According to this perspective, to successfully invoke a customary rule before the Court, it is not necessary to demonstrate that all States21 have expressly accepted it.22 Such an acceptance is presumed if there is a consensus on its compulsory nature (consensus generalis). It would therefore suffice for the icj to identify an ‘acceptance of a certain practice as a law (or otherwise) by a general consensus of States’.23 Professor Pierre-​Marie Dupuy, who has frequently acted as a counsel before the Court, made it very clear that a ‘vision majoritairement consensualiste de la coutume internationale incite généralement les avocats devant la Cour à s’appuyer en priorité sur les coutumes les plus établies et, donc, les mieux acceptées’.24 A  member of the Court (and President during 2012–​2015), Peter Tomka, also explained this approach as follows: [T]‌he Court has never found it necessary to undertake such an inquiry for every rule claimed to be customary in a particular case and instead Pleadings, Oral Arguments, Documents (Case concerning the Continental Shelf (Tunisia/​ Libyan Arab Jamahiriya)), vol iv, 39; and vol v, 281; Délimitation de la frontière maritime dans la région du golfe du Maine, arrêt, CIJ Recueil 1984, para 94. 18 Eduardo Jiménez de Aréchaga, ‘Balance sobre la actuación de la Corte Internacional de Justicia en los cuarenta años de su funcionamiento’ (1983) 13 Revista de la Facultad de Derecho de la Universidad Complutense 187. 19 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, paras 50–​52. 20 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, paras 52–​53; Sahara occidental, avis consultatif, CIJ Recueil 1975, paras 57–​59. 21 Humphrey Waldock, ‘General Course on Public International Law’ (1962) 106 RCADI 1, 50. 22 The Court examines if the disputing parties consented to the customary rule: see Niels Petersen, ‘The International Court of Justice and the Judicial Politics of Identifying Customary International Law’ (2017) 28 EJIL 357, 368–​370. 23 The Special Rapporteur Michael Wood made this comment in his ‘Second report on identification of customary international law’: see A/​C N.4/​672, of 22 May 2014, para 64. 24 Pierre-​Marie Dupuy, ‘La practique de l’article 38 du Statut de la Cour internationale de justice dans le cadre des plaidoires écrites et orales’ in Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (United Nations Publications 1999) 381–​382 and fns in 389.

18 ­chapter  has made use of the best and most expedient evidence available to determine whether a customary rule of this sort exists. Sometimes this entails a direct review of the material elements of custom on their own, while more often it will be sufficient to look to the considered views expressed by States and bodies like the International Law Commission as to whether a rule of customary law exists and what its content is, or at least to use rules that are clearly formulated in a written expression as a focal point to frame and guide an inquiry into the material elements of custom.25 The consensualist approach facilitates the process of identifying the customary rules applicable to a dispute before the Court, especially regarding the evidence of the subjective element (opinio juris).26 But it does not solve all the methodological problems,27 because the need to prove the material element (the practice of States) makes this identification process more flexible and less predictable. Although this study does not deal with the methodology used by the icj for the identification of customary rules,28 nor does it consider the problems generated by the application of both the inductive and deductive methods in international litigation,29 the acceptance of the customary rule among international subjects is an essential element in this process.

25 26

27

28

29

Peter Tomka, ‘Custom and the International Court of Justice’ (2013) 12 LPICT 195, 197–​198. Chaumont (p 1 ch 1 n 12) 444–​445; Luigi Ferrari Bravo, ‘Méthodes de recherche de la coutume internationale dans la pratique des États’ (1985) 192 RCADI 233, 246; Peter Haggenmacher, ‘La doctrine des deux éléments du droit coutumier dans la pratique de la Cour Internationale’ (1986) 100 RGDIP 5, 105–​118; Christian Tomuschat, ‘Obligations Arising for States Without or Against their Will’ (1993) 241 RCADI 195, 280–​282; Olufemi A Elias, ‘The Nature of the Subjective Element in Customary International Law’ (1995) 44 ICLQ 501; Slim Laghmani, ‘La volonté des États est-​elle encore au fondement du droit international?’ (2007/​2008) xi/​x ii CEBDI 55, 119. Some scholars have criticized how the Court faces the evidence of customary international law. Suffice it to review several of the comments compiled by Special Rapporteur Michael Wood in his ‘First report on formation and evidence of customary international law’: see A/​C N.4/​663, of 17 May 2013, 26. Thus, when studying the way in which the icj is confronted with customary international law, in addition to the mere assertion of the norm, both an inductive and a deductive method are used:  see Stefan Talmon, ‘Determining Customary International Law:  The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26 EJIL 417. Alberto Álvarez-​Jiménez, ‘Methods for the Identification of Customary International Law in the International Court of Justice’s Jurisprudence: 2000–​2009’ (2011) 60 ICLQ 681, 688–​689.

The Notion of Consensus in Public International Law

19

Indeed, the degree of acceptance of the customary rule seems to be one of the factors influencing the methodology adopted by the Court to define its existence and scope. An international custom widely accepted by the majority of the subjects of public international law, such as some of the customary rules declared in the vclt, is determined according to a methodology completely different from a customary rule of regional30 or local31 scope. In these latter cases, evidence of the customary rule requires a much more detailed examination of State practice (material element) and the acceptance of that practice as mandatory (subjective element).32 From a theoretical point of view, a consensus-​based approach exceeds the demands imposed by the most extreme voluntarist doctrines, inasmuch as it does not require specific evidence of the consent of all States to the acceptance of customary rules of a general scope.33 Further, this approach maintains the autonomy between the two elements that make up customary international law.34 It is also compatible with the doctrine of the persistent objector,35 while 30

Affaire colombo-​péruvienne relative au droit d’asile, Arrêt du 20 novembre 1950: CIJ Recueil 1950, 277. 31 Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960: ICJ Reports 1960, 40. 32 On this category of customary international law, the Special Rapporteur working on the identification of customary international law warned that ‘it is necessary to identify clearly which States have participated in the practice and accepted it as law’: see ‘Third report on identification of customary international law’, A/​C N.4/​682, of 27 March 2015, para 83. 33 Eduardo Jiménez de Aréchaga, El Derecho Internacional contemporáneo (Tecnos 1980) 34–​38. 34 A characteristic that the ILC itself endorsed in its work on the identification of customary international law: see A/​C N.4/​S R.3181, of 8 November 2013, 8 (Kittichaisaree); A/​C N.4/​ SR.3182, of 3 September 2013, 7 (Tladi) and 8 (Caflisch); A/​C N.4/​S R.3183, of 10 February 2014, 4 (Murphy), 6 (Sturma), 7 (Hmoud) and 9 (Wisnumurti); A/​C N.4/​S R.3184, of 10 September 2013, 3 (Gómez-​Robledo), 8 (Saboia) and 12 (El-​Murtadi); A/​C N.4/​S R.3185, of 20 November 2013, 4 (Vázquez-​Bermúdez); A/​C N.4/​S R.3186, of 12 September 2013, 5 (Wood). In accordance with this conclusion, the Special Rapporteur examined both elements separately in the ‘Third report on identification of customary international law’: see A/​C N.4/​682, of 27 March 2015, paras 12–​18. However, the distinction between these elements ‘does not exclude the possibility that, in some cases, the same material may be used to ascertain both practice and acceptance as law (opinio juris)’: see ‘Fourth report on identification of customary international law’, A/​C N.4/​695, of 8 March 2016, para 18. 35 For further discussion on this topic, although from a different theoretical perspective: see James A Green, The Persistent Objector Rule in International Law (oup 2016) 239–​282.

20 ­chapter  allowing the express opposition of a State to a customary rule at the time of its formation. The following subsections explore some leading cases in which the Court has applied a consensualist approach when determining the application of customary international law. 2.1.2 Evidence of Customary International Law The icj has adopted a consensualist approach to define the content of some customary international rules that enshrine the fundamental principles of general international law. Regarding the scope of the customary rule that recognizes the principle of the prohibition of the threat or use of force, in Military and Paramilitary Activities in and against Nicaragua the icj required that the practice or conduct followed by States be general. This practice does not have to be developed with absolute rigor and uniformity: It is not to be expected that in the practice of States the application of the rules in question should have been perfect, in the sense that States should have refrained, with complete consistency, from the use of force or from intervention in each other’s internal affairs. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.36 By affirming that the practice does not have to be absolutely consistent, but rather general, the Court admitted a consensualist approach and distanced itself from strict voluntarism. In its advisory opinion on Kosovo a similar criterion was used to concisely acknowledge a practice within the UN, namely to declare the non-​conformity with general international law of the declarations of independence made through the use of force or violations of jus cogens rules.37 36 37

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, para 186 (emphasis added). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, para 81. All this in the context of an advisory opinion which conceived the question put forward by the General Assembly of the UN very narrowly, with some legal short-​sightedness and which, accordingly, did not

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21

The icj has also used this approach to delimit the content of certain norms that develop the principle of sovereign equality of States. In this context, in Différend frontalier, the Court concluded that the principle of uti possideti juris is an international rule of general application for the delimitation of borders.38 In Mandat d’arrêt du 11 avril 2000, it stated that the customary rule according to which foreign ministers enjoy immunity from criminal jurisdiction and inviolability cannot be exempted39 when domestic courts intend to prosecute high officials of another State who have been accused of committing war crimes or crimes against humanity:40

38

39 40

pay attention to a number of key issues such as the legality of unilateral declarations of independence, the role played by the so-​called ‘remedial secession’ in the principle of self-​determination of peoples or the legal status of the authors of the unilateral declaration of independence:  see paras 22–​34 of the Declaration by then Vice-​President Tomka and paras 19–​20 of the Dissenting Opinion of Judge Koroma. In this context, it is worth recalling the declaration made by Judge Simma, who voted with the majority but highlighted the weaknesses of some aspects of the reasoning followed by the icj. For further analysis: see Bjorn Arp, ‘The ICJ Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo and the International Protection of Minorities’ (2010) 8 GerLJ 1; Antonello Tancredi, ‘Il parere della Corte Internazionale di Giustizia sulla dichiarazione d’independenza del Kosovo’ (2010) xciii RDI 994; James Summers (ed), Kosovo: A Precedent? The Declaration of Indepence, the Advisory Opinion and Implications for Statehood, Self-​Determination and Minority Rights (Martinus Nijhoff 2011); Peter Hilpold (ed), Kosovo and International Law (Martinus Nijhoff 2012). Différend frontalier, arrêt, CIJ Recueil 1986, paras 20–​23. See Luis I Sánchez Rodríguez, ‘L’uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers’ (1997) 263 RCADI 151; Ahmed Abou-​el-​Wafa, ‘Les différendes internationaux concernant les frontières terrestres dans la jurisprudence de la Cour Internationale de Justice’ (2009) 343 RCADI 9, 136–​146. For a different approach to this principle:  cf Steven R Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 AJIL 590. CR 2001/​5, 34 and 43 (Chemillier-​Gendreau); CR 2001/​6, 13 (D’Argent); CR 2001/​7, 58–​ 59 (Bethlehem); CR 2001/​8, 10 (David). It is interesting to contrast the opinions expressed by several scholars in the dossier prepared by Olivier Corten in (2002) 35 RBDI. In particular, see the contributions by Jean Salmon (512–​517); Maurice Kamto (518–​530); Joe Verhoeven (531–​536); Philippe Sands (537–​545); Jean-​Pierre Cot (546–​553); Malcom N Shaw (554–​559). See also the contributions by Robert Y Jennings (99–​103); Brigitte Stern (104–​116) in (2002) 4 International Law Forum du droit international. For further analysis: see Annalisa Ciampi, ‘The International Court of Justice between “Reason of State” and Demands for Justice by Victims of Serious International Crimes’ (2012) xcv RDI 374; Marco Sassoli, ‘L’arrêt Yerodia: quelques remarques sur une affaire au point de collision entre les deus couches du droit international’ (2002) 106 RGDIP 791; Santiago Torres Bernárdez, ‘Acerca de las

22 ­chapter  La Cour a examiné avec soin la pratique des Etats, y compris les législations nationales et les quelques décisions rendues par de hautes juridictions nationales, telle la Chambre des lords ou la Cour de cassation française. Elle n’est pas parvenue à déduire de cette pratique l’existence, en droit international coutumier, d’une exception quelconque à la règle consacrant l’immunité de juridiction pénale et l’inviolabilité des ministres des affaires étrangères en exercice, lorsqu’ils sont soupçonnés d’avoir commis des crimes de guerre ou des crimes contre l’humanité.41 In Immunités juridictionnelles de l’État it was pointed out that the immunity of the State by jure imperii acts extends to civil proceedings instituted as a result of acts committed by the armed forces and other organs of a State causing death, personal injury or damages to property. In this decision, the Court overlooked the legal arguments presented by Italy on the scope of jus cogens rules and on the need to ensure effective judicial protection to victims of serious human rights violations:42

41 42

inmunidades del Jefe de Estado o de Gobierno en Derecho Internacional y de sus límites’ in Fernando Mariño Menéndez (ed), El Derecho internacional en los albores del siglo XXI. Homenaje al Profesor Juan Manuel Castro-​Rial Canosa (Trotta 2002)  639–​685; Steffen Wirth, ‘Immunity for Core Crimes? The ICJ’s Jugdment in the Congo v.  Belgium Case’ (2002) 13 EJIL 877. Mandat d’arrêt du 11 avril 2000 (République démocratique du Congo c Belgique), arrêt, CIJ Recueil 2002, para 58. Benedetto Conforti, ‘The Judgment of the International Court of Justice in the Immunity of Foreign States: A Missed Opportunity’ (2011) xxi IYbIL 135; Carlos Espósito Massicci, ‘Ius cogens and Jurisdictional Immunities of States at the International Court of Justice. “A conflict does exists”’ (2011) xxi IYbIL 161; Francesco Francioni, ‘From Utopia to Disenchantment:  The Ill Fate of “Moderate Monism” in the ICJ judgment on the Jurisdictional Immunities of the State’ (2012) 23 EJIL 1125, 1127–​1132; Jaume Ferrer Lloret, ‘La insoportable levedad del Derecho internacional consuetudinario en la jurisprudencia de la Corte Internacional de Justicia:  El caso de las inmunidades jurisdiccionales del Estado’ (2012) 24 REEI 1, 25–​28; Pierre-​François Laval, ‘L’Arrêt de la Cour international de justice sur les immunités juridictionnelles de l’État (Allemagne c. Italie; Grèce (intervenant)’ (2012) lviii AFDI 147; Alexander Orakhelashvili, ‘International Decisions: Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening)’ (2012) 106 ajil 609; Joe Verhoeven, ‘Sur les relations entre immunités et jus cogens, à la lumière de l’arrêt Allemagne-​Italie du 3 février 2012’ in Denis Alland and others (eds), Unity and Diversity of International Law. Essays in Honour of Professor Pierre-​Marie Dupuy (Martinus Nijhoff 2014) 527–​538.

The Notion of Consensus in Public International Law

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De l’avis de la Cour, la pratique étatique qui ressort des décisions judiciaires atteste qu’un Etat continue de jouir, dans le cadre d’instances civiles, de l’immunité à raison d’actes jure imperii lorsque sont en cause des actes ayant entraîné la mort, un préjudice corporel ou un préjudice matériel commis par ses forces armées et autres organes dans le cadre d’un conflit armé, même lorsque les actes en question ont eu lieu sur le territoire de l’Etat du for. Cette pratique est assortie de l’opinio juris, ainsi que l’attestent les positions de divers Etats et la jurisprudence d’un certain nombre de juridictions nationales, qui ont clairement indiqué qu’elles considéraient que le droit international coutumier exigeait de reconnaître l’immunité.43 Regarding customary rules on the international responsibility of the State, the icj recognized the principle that a party to an armed conflict should be responsible for acts carried out by members of its armed forces in Armed Activities on the Territory of the Congo.44 Whereas in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court recalled the need to prove effective State control over military or paramilitary forces in order to attribute international responsibility to the State. In the latter case, following the practice of other international courts and tribunals, the Court expeditiously settled the discussion on the existence of the material element of the customary rule. The icj invoked the Articles on State Responsibility for internationally wrongful acts codified by the ilc: The Court is however of the view that the particular characteristics of genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) […]. The rules for attributing alleged internationally wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. 43 44

Immunités juridictionnelles de l’État (Allemagne c Italie; Grèce (intervenant)), ârret, CIJ Recueil 2012, paras 77–​78. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, para 214.

24 ­chapter  This is the state of customary international law, as reflected in the ilc Articles on State Responsibility.45 The Court found in line with its own case law, which had been settled in the Nicaragua case. Hence, it disregarded the criterion of ‘overall control’46 that the icty had admitted in the context of international responsibility of the individual.47 On a more specific basis, the icj has also adopted a consensualist approach in examining some customary rules regarding the international protection of human rights and ihl.48 2.1.3

Customary Rules of International Human Rights Law and International Humanitarian Law Taking a closer look to the application of customary international law in connection with the matters examined in this study, it is worth recalling that the icj was able to affirm (through an obiter dicta) the existence of certain obligations of a State in relation to ‘the international community as a whole’49 using this consensualist approach. In the context of international human rights law,

45

46 47 48

49

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ Reports 2007, para 401. See Olivier Corten, ‘L’arrêt rendu pour la CIJ dans l’affaire du crime de génocide (Bosnie-​ Herzégovine c. Serbie): vers un assouplissement des conditions permetant d’engager la responsabilité d’un État pour génocide?’ (2007) liii AFDI 249, 263–​268; Mario Prost, The Concept of Unity in Public International Law (Hart 2012) 194–​201. Prosecutor v Duško Tadić, No IT-​94-​1-​A, Judgment of 15 July 1999, para 145. Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18 EJIL 649, 652–​654. A general examination of the relationship between the case law of the icj and customary international law can be found in Rudolf H Geiger, ‘Customary International Law in the Jurisprudence of the International Court of Justice:  A Critical Appraisal’ in Ulrich Fastenrath and others (eds), From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma (oup 2011) 673–​694. Barcelona Traction, Light and Power Company, Limited, arrêt, CIJ Recueil 1970, para 33. However, the Court noted that ‘Ces obligations découlent par exemple, dans le droit international contemporain, de la mise hors la loi des actes d’agression et du génocide mais aussi des principes et des règles concernant les droits fondamentaux de la personne humaine, y compris la protection contre la pratique de l’esclavage et la discrimination raciale. Certains droits de protection correspondants se sont intégrés au droit international général […]; d’autres sont conférés par des instruments internationaux de caractère universel ou quasi universel’: ibid para 34.

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the icj recognized that the prohibition of torture constitutes a customary rule of an imperative nature.50 Nonetheless, recent practice shows how even the application of some jus cogens rules may be controversial.51 This is the case of the right to access to a court, which has been admitted as part of jus cogens by the IACtHR,52 but not by the ECtHR.53 The obligation aut dedere aut iudicare has not been recognized as a general customary rule,54 precisely because of an insufficient consensus generalis among States. In this sense, the decision by the icj in Questions concernant l’obligation de poursuivre o d’extrader conforms to contemporary international practice. This is evidenced by the extreme care with which the ilc closed the Working Group created to study the obligation aut dedere aut iudicare in 2014.55 Such an outcome, confirms the interaction between the jurisprudence of the icj and the works of the ilc. While it is true that the latter exercises a certain ‘authority’56 in the decisions of the Court, and can be used to identify the existence of customary international law,57 the ilc 50 51

52 53 54 55

56

57

Questions concernant l’obligation de poursuivre ou d’extrader (Belgique c Sénégal), ârret, CIJ Recueil 2012, para 99. In the context of the debates on jus cogens undertaken by the ilc since 2016, the Special Rapporteur Dire Tladi stated that it is worth studying whether regional jus cogens may exist and whether the rule of the persistent objector may apply to this category of rules: see ‘First Report on jus cogens’, A/​C N.4/​693, of 8 March 2016, para 68. On this proposal (A/​ CN.4/​S R.3323, of 17 August 2016, 11–​12), the Special Rapporteur was supported by other members of the ilc: see A/​C N.4/​S R.3314, of 18 September 2016, 15 (Wood); A/​ CN.4/​S R.3317, of 11 August 2016, 14 (Forteau); A/​C N.4/​S R.3322, of 18 September 2016, 5 (Petric); and 16 (Hmoud). Case of Goiburú et al v Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006 Series C No 153, para 131. Al-​Dulimi and Montana Management Inc v Switzerland [GC], No 5809/​08, para 136, ECtHR 2016. Andrea Gattini, ‘Le Rôle du juge international et du juge national et la coutume internationale’ in Alland and others (p 1 ch 1 n 42) 259. Report of the International Law Commission on the work of its Sixty-​sixth session (5 May to 6 June and 7 July to 8 August 2014), General Assembly, Official Records, Sixty-​ninth Session, Supplement No 10 (A/​69/​10) 160–​161. Fernando Lusa Bordin, ‘Reflections of Customary International Law:  The Authority of Codification Conventions and ILC Draft Articles in International Law’ (2014) 63 ICLQ 535. It is of interest to reproduce the words by the then President of the icj, Peter Tomka, on the occasion of the annual visit to the ilc, where, in reference to the Questions concernant l’obligation de poursuivre ou d’extrader case he highlighted that ‘the Court’s recent case law confirmed the existence of a well-​established trend towards interaction between

26 ­chapter  also pays great respect to the limitations set by the Court when examining the scope of international obligations under codification and progressive development.58 In the same vein, regarding ihl, the consensualist approach has emerged in some precedents. After assessing international practice,59 in 1996 the icj concluded that it lacked sufficient elements to assert that the use of nuclear weapons was contrary to the principles and rules governing the international law of armed conflict in conditions of extreme danger for the survival of the State. In paragraph 96 of its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the icj stated that it could not:

58

59

the two institutions, and demonstrated the influence of the Commission’s work on the Court’s reasoning’: see A/​C N.4/​S R.3148, of 17 August 2012, 12. The decisions of international courts and tribunals, in particular those of the icj, have been considered subsidiary means of evidence by the Special Rapporteur in the ‘Third report on identification of customary international law’:  see A/​C N.4/​682, of 27 March 2015, para 60. In this sense: see ‘Memorandum by the Secretariat: Formation and evidence of customary international law’, A/​C N.4/​659, of 14 March 2013, paras 30–​31; ‘Second report on identification of customary international law’, A/​C N.4/​672, of 22 May 2014, para 46. The oral arguments presented by the intervening parties highlighted the absense of consensus on this matter:  see CR 1995/​22, paras 25–​28 and 45–​46 (Evans); CR 1995/​23, paras 25–​38 (Perrin de Brichambaut); CR 1995/​24, paras 39–​59 (Perrin de Brichambaut); CR 1995/​24, para 20 (Hillgenberg); CR 1995/​26, para 71 (Zarif); CR 1995/​28, 42 (Bracegirdle); CR 1995/​29, paras 1–​3 (Khodakov); CR 1995/​31, 50–​52 (Clark); CR 1995/​ 32, paras 39–​40 (Salmon); CR 1995/​32, paras 14–​21 (Crawford); CR 1995/​34, 34 (Lyell); CR 1995/​34, 59–​60 (Harper). Raymond Ranjeva, then a member of the icj, on ocassion of the Cursos Euromediterráneos Bancaja de Derecho Internacional confessed that ‘L’attitude de la Cour aurait été simplifiée si un consensus existait entre les Etats; ainsi aucun Etat n’a soutenu l’existence de règles autorisant explicitement l’usage des armes nucléaires’: see Raymond Ranjeva, ‘L’avis consultatif sur la licéite de la menace ou de l’emploi d’armes nucléaires et le probléme de la guerre juste’ (1998) ii CEBDI 21, 28. Mohammed Bedjaoui, then President of the Court, in an effort to explain the answer given to the request for an advisory opinion, indicated in a Declaration that the Court could not go beyond the existing positive law at the time and pointed out that ‘While not finding either in favour of or against the legality of the threat or use of nuclear weapons, the Court takes note, in its Opinion, of the existence of a very advanced process of change in the relevant international law or, in other words, of a current trend towards the replacement of one rule of international law by another, where the first is already defunct and its successor does not yet exist’: see the Declaration of President Bedjaoui in ICJ Reports 1996, 268–​274, para 16.

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[L]‌ose sight of the fundamental right of every State to survival, and thus its right to resort to self-​defence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as “policy of deterrence”, to which an appreciable section of the international community adhered for many years. The Court also notes the reservations which certain nuclear-​weapon States have appended to the undertakings they have given, notably under the Protocols to the Treaties of Tlatelolco and Rarotonga, and also under the declarations made by them in connection with the extension of the Treaty on the Non-​Proliferation of Nuclear Weapons, not to resort to such weapons.60 Furthermore, in its advisory opinion on the Conséquences juridiques de l’édification d’un mur dans le territoire palestinien, the icj examined the relational and institutional practice61 so as to affirm the autonomous existence (as part of customary international law) of some obligations enshrined in the Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, done in The Hague on 18 October 1907 (The Hague No iv Convention),62 of which Israel was not a party: [E]‌lle-​même a abouti à la même conclusión en examinant les droits et devoirs des belligérants dans la conduite des opérations militaires […]. La Cour estime que les dispositions du règlement de La Haye de 1907 ont acquis un caractère coutumier, comme d’ailleurs tous les participants à la procédure devant la Cour le réconnaissent.63 In light of this case law, it can be concluded that the icj often adopts a consensualist approach to identify customary international law applicable to disputes

60

61 62 63

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, paras 94–​97. Twenty years later, the absence of consensus still marked part of the legal debate held by the parties in the three cases presented before the icj by the Marshall Islands against India, Pakistan and the United Kingdom on 24 April 2014. In particular, with regard to the arguments of India: see CR 2016/​4, para 18 (Chadha); paras 3 and 12 (Gill); and paras 69–​70, 76, 78 and 85 (Salve); CR 2016/​8, para 25 (Salve). CR 2004/​1, 40–​41 (Abi-​Saab); CR 2004/​2, para 60 (Madlanga); CR 2004/​3, 38 (Moreno Fernández); CR 2004/​5, para 11 (Idris); CR 2004/​5, 32 (Bothe). 187 CTS 227. Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, avis consultatif; CIJ Recueil 2004, para 89.

28 ­chapter  submitted to its jurisdiction. This technique has allowed the icj to outline a basic core of general customary obligations applicable to all subjects of public international law. In addition, this case law has served as a model for other international courts and tribunals. 2.2 Regional International Courts and Tribunals A consensualist approach can also be found in the jurisprudence of the regional courts, in particular, those courts and tribunals of the European regional subsystem (ecj and ECtHR). 2.2.1 Court of Justice of the European Union In order to decide upon the validity of EU secondary law, the ecj has used a consensualist approach to invoke certain customary rules related to the legal regime applicable to international treaties and maritime spaces.64 Concerning the suspension or termination of an international treaty due to a fundamental change of circumstances, in Racke the ecj found that the icj had considered these rules were customary in nature.65 Therefore, it was not necessary for the ecj to make any more specific legal analysis on the concurrence of the two elements of customary international law; a reference to the jurisprudence of the icj sufficed: [E]‌ven though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62, reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty. Thus the International Court of Justice held that “[t]his principle, and the conditions and exceptions to which it 64

65

Customary international law has generally served as a parameter for the interpretation of EU law: see Joined Cases 89, 104, 114, 116, 117 and 125 to 129/​85 A Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193, paras 16–​18 (territorial application of international treaties); Case C-​405/​92 Etablissements Armand Mondiet SA v Armement Islais Sarl [1993] ECR I-​6133, paras 13–​15 (law of the sea); Case T-​306/​01 Ahmed Ali Yusuf and Al Barakaat Int’l Foundation v Council and Commission [2005] ECR II-​3533, para 232 (law of treaties); Case C-​63/​09 Axel Walz v Clickair, SA [2010] ECR I-​4239, paras 27–​28 (international responsibility of States); Case C-​154/​11 Ahmed Mahamdia v People’s Democratic Republic of Algeria [2012] OJ C295/​11, paras 54–​56 (immunities of the State); Case C-​364/​10 Hungary v Slovakia [2012] OJ C379/​2, paras 43–​52 (immunities of heads of State). Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, para 36.

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is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances”.66 Despite the traditional silence67 of the EU foundational treaties on the position of customary international law within EU law,68 the ecj considered that the customary rules on the suspension or termination of an international treaty on account of a fundamental change of circumstances were part of the law applicable to the dispute.69 As a result, the ecj went on to assess the validity of EU secondary law in light of these customary rules. As for the rules on the exercise of State sovereignty in maritime spaces, the ecj found in 2011 that the following principles were part of customary international law: the principle that each State has complete and exclusive sovereignty over its airspace, the principle that no State may validly purport to subject any part of the high seas to its sovereignty, and the principle of freedom to fly over the high seas.70 This was partly due to the arguments put forward by the three EU institutions (EP, Council and Commission) and by the eleven Member States intervening in a preliminary ruling referred to the ecj for the purpose of clarifying the validity of EU regulations including aviation activities in the greenhouse gas emission allowance trading.71 66 67

68

69

70

71

Case C-​162/​96 A Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-​3655, para 24. Alessandra Gianelli, ‘Customary International Law in the European Union’ in Enzo Cannizzaro and others (eds), International Law as Law of the European Union (Martinus Nijhoff 2011) 101–​107. However, the traditional silence of the EU foundational treaties would not be so obvious after the reform of Lisbon: see Eleftheria Neframi, ‘Customary International Law and the European Union from the Perspective of Article 3(5) TEU’ in Piet Eeckhout and Manuel López-​Escudero (eds), The European Union’s External Action in Times of Crisis (Hart 2016) 206. Roberto Mastroianni, ‘La rilevanza delle norme consuetudinarie sulla suspensione dei trattatti nell’ordinamento comunitario:  la sentenza Racke’ (1999) lxxxii RDI 86; Francisco Pascual-​Vives, El Derecho de los tratados en la jurisprudencia comunitaria (Tirant 2009) 309–​320. Case C-​366/​10 Air Transport Association of America, American Airlines Inc, Continental Airlines Inc and United Airlines Inc and the Secretary of State for Energy and Climate Change [2011] ECR I-​13755, para 105. Directive 2008/​101/​E C of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/​87/​E C so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L8/​3.

30 ­chapter  The ecj used the same technique of referral to the case law of the pcij72 and the icj73 to conclude that these principles were part of customary international law. The ecj also linked these three principles with a series of international treaties which declare pre-​existing customary rules as follows: the principle that each State has complete and exclusive sovereignty over its airspace had been codified by the Convention on International Civil Aviation, done at Chicago on 24 February 1947;74 the principle that no State may validly purport to subject any part of the high seas to its sovereignty had been codified by the Convention on the High Seas, done at Geneva on 29 April 1958;75 and the principle of freedom to fly over the high seas had been codified by the United Nations Convention on the Law of the Sea, adopted in Montego Bay on 10 December 1982 (unclos).76 Conversely, the ecj did not consider as part of customary international law the principle that aircrafts overflying the high seas are subject to the exclusive jurisdiction of the country in which they are registered, save as expressly provided for in an international treaty, highlighting the absence of uniform State practice.77 A more detailed analysis of the reasons why the ecj decided not to consider it as a customary international law is lacking in the judgment, although its text underpins the absence of a general agreement (consensus generalis) on its legal nature. This was precisely the argument held by the United Kingdom and Germany during the proceedings:78 As regards the fourth principle set out by the referring court, namely the principle that aircraft overflying the high seas are subject to the exclusive jurisdiction of the State in which they are registered, it must be found by contrast that, apart from the fact that the United Kingdom Government

72 73 74 75 76 77

78

Affaire du “Lotus”, Arrêt du 7 septembre 1927, CPJI Recueil, Série A nº 10, 25. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, para 212. United Nations, Treaty Series, vol 15, No 102, 295. United Nations, Treaty Series, vol 450, No 6465, 11. United Nations, Treaty Series, vol 1833, No 31363, 3. Case C-​366/​10 Air Transport Association of America, American Airlines Inc, Continental Airlines Inc and United Airlines Inc and the Secretary of State for Energy and Climate Change [2011] ECR I-​13755, Opinion of AG Kokott paras 129–​131. Jiri Malenovsky, ‘Le juge et la coutume internationale: perspective de l’Union européenne et de la Cour de justice’ (2013) 12 LPICT 217, 234.

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and, to a certain extent, the German Government dispute the existence of such a principle, insufficient evidence exists to establish that the principle of customary international law, recognised as such, that a vessel on the high seas is in principle governed only by the law of its flag […] would apply by analogy to aircraft overflying the high seas.79 In both cases (Racke and Air Transport Association of America), the ecj identified customary international law by reference. That means it examined the most relevant relational and institutional practice, but did not conduct an in-​depth study of the concurrence of the two elements of customary international law. After considering the arguments put forward by the intervening parties, the ecj understood that both elements had been sufficiently developed in international practice and, thus, there was no need for an autonomous examination. In sumary, the ecj has also adopted a consensusualist approach on the acceptance of customary international law in EU law, thus detaching itself from extreme positivism and eventually accepting the doctrine of the persistent objector in the external action of the EU. 2.2.2 European Court of Human Rights As for the ECtHR, customary international law has been at the heart of the debate on the applicable law in several disputes. For example, customary rules on State immunities have often been analyzed in cases where the applicant relies on the right to access to a court (Article 6 of the EConHR). Firstly, in Al-​Adsani v United Kingdom, the applicant claimed a breach of the aforementioned provision to challenge a decision of the British courts granting immunity from jurisdiction to Kuwait in the context of a civil action raised by an individual. The civil action was raised as a result of damages to the individual’s physical and mental health, caused by torture in Kuwait, as well as threats against his life and well-​being after his return to the United Kingdom. The Grand Chamber considered if the British courts had violated Article 6 of the EConHR by granting immunity from civil jurisdiction. To that extent, the ECtHR examined the customary nature of the rules on immunities and found their general acceptance (consensus generalis) by States:

79

Case C-​366/​10 Air Transport Association of America, American Airlines Inc, Continental Airlines Inc and United Airlines Inc and the Secretary of State for Energy and Climate Change [2011] ECR I-​13755, para 106 (emphasis added).

32 ­chapter  [M]‌easures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to a court […]. Just as the right of access to a court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity.80 The ECtHR accepted that the applicant had been tortured and that the prohibition of torture constituted a peremptory norm of general international law (jus cogens). However, basing the analysis, once again, on international practice regarding immunities, the ECtHR found that: [T]‌here is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages for alleged torture committed outside the forum State. The 1978 Act, which grants immunity to States in respect of personal injury claims unless the damage was caused within the United Kingdom, is not inconsistent with those limitations generally accepted by the community of nations as part of the doctrine of State immunity.81 And, secondly, in Cudak v Lithuania, a case concerning an application lodged by a Lithuanian worker who had been dismissed by the Polish Embassy in Vilnius and whose claim for compensation for unlawful dismissal had not been admitted by the Lithuanian courts on grounds of State immunity, the ECtHR examined the evolution of international rules on State immunities, both customary and conventional. In particular, the Grand Chamber analyzed the codification process on State immunities undertaken by the ilc. It concluded that Article 11 of the Articles on Jurisdictional Immunities of States and Their Property,82 adopted by the ilc in 1991, had declared a customary 80 81 82

Al-​Adsani v United Kingdom [GC], No 35763/​97, para 56, ECtHR 2001. ibid para 66. Which establishes that ‘1. Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to a contract of employment between the State and an individual for work performed or to be performed, in whole or in part, in the territory of that other State. 2. Paragraph 1 does not apply if:

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rule favourable to the recognition of relative (not absolute) immunity of States in disputes arising from employment contracts. This relative character of immunity was later included in the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the General Assembly of the United Nations on 2 December 2004 (Convention on Jurisdictional Immunities).83 In this case, the works of the ilc were used to find references to the applicable rules of customary international law, a practice that has sometimes been followed by the icj.84 Although the Convention on Jurisdictional Immunities had not yet entered into force at the time of the dispute, a number of its provisions were declaratory of customary international law, including the provision governing immunities in employment contracts. The Grand Chamber understood that Lithuania was bound by this customary rule since it did not oppose it during the codification process, nor voted against the resolution of the General Assembly where it was formulated.85 The rules on the international criminal responsibility of the individual have also left some cases of particular interest. One of them is Vasiliauskas v Lithuania, a case where a criminal penalty imposed by the commission of an alleged crime of genocide in 1953 was assessed under the principle of legality in criminal matters (Article 7 of the EConHR). The Grand Chamber examined the nature and extent of the crime of genocide recognized in Lithuanian law86 in light of international practice, in particular, using the decisions of the icj



83 84 85 86

(a) the employee has been recruited to perform functions closely related to the exercise of governmental authority; (b) the subject of the proceeding is the recruitment, renewal of employment or reinstatement of an individual; (c) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded; (d) the employee is a national of the employer State at the time when the proceeding is instituted; or (e) the employer State and the employee have otherwise agreed in writing, subject to any considerations of public policy conferring on the courts of the State of the forum exclusive jurisdiction by reason of the subject-​matter of the proceeding’: see Yearbook ILC, 1991, vol ii, Part 2, 41. General Assembly resolution 59/​38, annex, Official Records of the General Assembly, Fifty-​ ninth Session, Supplement No 49 (A/​59/​49). See pt 1 ch 1 sub-​s 2.1.3. Cudak v Lithuania [GC], No 15869/​02, paras 66–​67, ECtHR 2010. Justinas Zilinskas, ‘Broadening the Concept of Genocide in Lithuania’s Criminal Law and the Principle of Nullum Crimen sine Lege’ (2009) 118 Jurisprudencija/​Jurisprudence 333.

34 ­chapter  and other international criminal courts and tribunals. Based on this analysis,87 the ECtHR examined whether the scope of the crime of genocide could be extended to the facts of the case (the murder of two partisans who were part of a ‘political group’). At this point, the Grand Chamber excluded the autonomous and broader interpretation of the crime of genocide endorsed by the Lithuanian courts: Having regard to the factors outlined above, the Court finds that there are some arguments to the effect that political groups were protected by customary international law on genocide in 1953. However, there are equally strong contemporaneous countervailing views. At this juncture the Court reiterates that notwithstanding those views favouring the inclusion of political groups in the definition of genocide, the scope of the codified definition of genocide remained narrower in the 1948 Convention and was retained in all subsequent international law instruments […]. In sum, the Court finds that there is no sufficiently strong basis for finding that customary international law as it stood in 1953 included “political groups” among those falling within the definition of genocide.88 87

88

These findings received some criticisms by scholars and the minority of the members of the Grand Chamber who voted against:  see the Joint Dissenting Opinion of Judges Villiger, Power-​Forde, Pinto de Alburquerque and Kuris as well as the Dissenting Opinion of Judge Ziemele. Vasiliauskas v Lithuania [GC], No 35343/​05, para 175, ECtHR 2015. In order to reach this conclusion, the Grand Chamber examined the applicable treaties and customary international law, in particular, as it had been interpreted by the icj and the international criminal tribunals. Thus it determined that ‘The Court begins by noting that the crime of genocide prohibited by Article ii of the 1948 Convention lists four protected groups of persons: national, ethnical, racial or religious. That provision does not refer to social or political groups. Furthermore, the travaux préparatoires disclose an intention by the drafters not to include political groups in the list of those protected by the 1948 Convention. The icj, when examining the drafting history of Article ii of the 1948 Convention in the Bosnia and Herzegovina v. Serbia and Montenegro case, observed that the drafters of the Convention “gave close attention to the positive identification of groups with specific distinguishing characteristics in deciding which groups they would include and which (such as political groups) they would exclude” […]. The Court finds no convincing arguments for departing from the treaty definition of genocide as established in 1948, including the list of the four protected groups referred to therein. On the contrary, all references to the crime of genocide in subsequent international law instruments –​the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968, the icty Statute of 1993, the ictr Statute of 1994 as well as in the most recent international law instrument –​the icc Statute of 1998 –​describe that crime in similar,

The Notion of Consensus in Public International Law

35

The consensus-​based approach has been widely accepted in the practice of regional courts and tribunals, which are often called upon to apply customary international law. Indeed, as Ineta Ziemele, former member of the ECtHR, explained in connection with Cudak v Lithuania: [T]‌he Court has to know whether there is a rule of customary law and for that purpose, as the Court points out, it is guided by the relevant principles determined by the icj in the North Sea Continental Shelf cases. This is however a delicate exercise. On the one hand, strictly speaking, the European Court of Human Rights does not have a jurisdiction to establish the existence of a rule of customary law in the field of State immunity as such. On the other hand, the Court should pronounce on the question whether access to court were to be violated where the State immunity rule were invoked. The Court cannot refuse to address the question of access to court under Article 6 just because it may not have the direct competence to establish the scope of rules of State immunity. It is in view of these considerations that in the Cudak v.  Lithuania case the Court chose “to affirm” the existence of a rule of customary law having reviewed the ilc debate and the debate in the 6th Committee of the General Assembly rather than to establish such a rule. In the absence of relevant decisions from the icj, these were the authoritative pronouncements that the Court could rely on.89 In other words, the ECtHR may yet determine the existence of customary international law applicable to the dispute by reference to the icj case law and the works of the ilc. 2.3 Sectorial International Courts and Tribunals The consensualist approach has also been invoked in litigation before international sectorial courts and tribunals, such as itlos, investment tribunals, wto panels and international criminal courts and tribunals. In these cases, it

89

if not identical, terms. In particular, genocide is defined as acts committed to destroy a national, ethnical, racial or religious group, without reference to political groups […]. In the Court’s view, the fact that certain States decided later to criminalise genocide of a political group in their domestic laws […] does not, as such, alter the reality that the text of the 1948 Convention did not do so’: see ibid para 170. Ziemele (introduction n 8) 248.

36 ­chapter  is not uncommon for such courts and tribunals to use it, not only to identify the primary rules applicable to the case, but also to apply secondary rules, especially in the context of the international responsibility of the State and the law of treaties. As regards the identification of primary rules, drawing on developments in contemporary international law, itlos recognized that activities in the international seabed area should be subject to an environmental impact assessment in its advisory opinion on Responsibilities and obligations of States with respect to activities in the Area. This obligation was declared by itlos as part of customary international law by reference to what the icj had previously established in Usines de pâte à papier sur le fleuve Uruguay: Although aimed at the specific situation under discussion by the Court, the language used seems broad enough to cover activities in the Area even beyond the scope of the Regulations. The Court’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction; and the Court’s references to “shared resources” may also apply to resources that are the common heritage of mankind. Thus, in light of the customary rule mentioned by the icj, it may be considered that environmental impact assessments should be included in the system of consultations and prior notifications set out in article 142 of the Convention.90 Focusing on the case law of the icj and the Iran-​US Claims Tribunal, an icsid arbitral tribunal recognized in Emmis International Holding that a right provided for in a contract may be considered as an asset capable of engendering reparation.91 For their part, the wto panels have also ruled on the scope of the customary obligation to act in good faith, understood as the requirement 90

91

Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 148 (emphasis added). Though the decision of the icj in Usines de pâte à papier sur le fleuve Uruguay was limited to the ‘industrial activities’, in a subsequent case the icj broadened the scope of this obligation and declared it extends ‘generally to proposed activities which may have a significant adverse impact in a transboundary context’:  see Certaines activités menées par le Nicaragua dans la region frontalière (Costa Rica c Nicaragua) et Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), arrêt, CIJ Recueil 2015, para 104. Emmis International Holding BV, Emmis Radio Operating BV and MEM Magyar Electronic Media Kereskedelmi és Szolgáltató Kft v Hungary (icsid Case No ARB/​12/​2, Award of 16 April 2014, para 164).

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imposed on States parties to a treaty not to frustrate its object and purpose. In Korea –​ Procurement, the wto panel interpreted this obligation by reference to the codification process on the law of treaties undertaken by the ilc.92 The icty has considered that the standards set forth in Articles 57 and 58 of the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (Protocol of Geneva),93 which refer to the protection of civilians in the course of armed attacks against military objectives, have a customary nature: ‘not only because they specify and flesh out general pre-​existing norms, but also because they do not appear to be contested by any State, including those which have not ratified the Protocol’.94 The absence of objections to these rules, especially from States not parties to the Protocol of Geneva, is a key element when it comes to evidencing the existence of such a general practice, and reveals an opinio juris constitutive of the customary rule. A general agreement among States (consensus generalis) may not only outline the content of an international rule, but also determine or condition its application. In this regard, despite the provisions of Article 27(2) of the Statute of the International Criminal Court,95 done in Rome on 17 July 1998 (Statute of Rome)96 concerning the immunity of heads of State, the objections of certain States to arrest and surrender a head of State to the icc in the Omar Al Bashir case97 show the far-​reaching effects of consensus when implementing international obligations.98 92 93 94 95

96 97

98

Korea –​ Procurement (WT/​D S163/​R, of 1 May 2000, paras 7.94–​7.96). United Nations, Treaty Series, vol 1125, No 17513, 609. Prosecutor v Kupreškić et al, No IT-​95-​16-​T, Judgment of 14 January 2000, para 524. Article 27(2) of the Statute of Rome reads as follows ‘Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’ United Nations, Treaty Series, vol 2187, No 38544, 3. The icc issued a couple of warrants of arrest against the sudanese head of State Omar Al Bashir: see Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Warrant of Arrest of 4 March 2009; Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Warrant of Arrest of 12 July 2010. Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting observations from the Republic of Kenya of 25 October 2010; Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting observations about Omar Al-​Bashir’s recent visit to Malawi of 19 October 2011; Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision Requesting Observations on Omar Al Bashir’s Visit to the Democratic Republic of the Congo of 3 March 2014; Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting the Republic of Uganda to provide submissions on its failure to arrest and surrender Omar Al-​Bashir to the Court of 17 May 2016.

38 ­chapter  In the practice of international courts and tribunals the use of secondary rules regarding the international responsibility of the State having a customary nature is common. The application of these rules in different sectors allows both to solve problems of attribution as well as to determine the legal consequences stemming therefrom. The Articles on State Responsibility for internationally wrongful acts have become an ideal tool of normative coordination, together with the vclt. Acts of the judiciary may violate international obligations agreed upon by the State and trigger its international responsibility. This basic principle of the attribution of an internationally wrongful act to the State has been considered as part of customary international law. For instance, in Swisslion, an icsid arbitral tribunal stated that: International courts and arbitral tribunals have often had to consider judgments rendered by national courts to determine what consequences they must draw from such judgments. In this respect, the Tribunal first notes that, under customary international law, every wrongful act of a State entails the international responsibility of that State. This covers the conduct of any State organ, including the judiciary.99 Other arbitral tribunals,100 itlos101 and even some special organs, such as the United Nations Compensation Commission,102 have also invoked secondary rules relating to reparations, recognizing their customary nature by reference to the icj case law and the works of the ilc.

99

Swisslion Doo Skopje v Former Yugoslav Republic of Macedonia (icsid Case No ARB/09/16, Award of 6 July 2012, para 261). 100 Siemens AG v Argentine Republic (icsid Case No ARB/​02/​8, Award of 6 February 2007, paras 352–​353). 101 M/​V “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, paras 170–​171; Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 194; M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment, ITLOS Reports 2014, para 430; Request for Advisory Opinion submitted by the Sub-​Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, paras 143–​144. 102 Category D, Sixth Instalment, S/​A C.26/​2000/​24, of 7 December 2000, 28–​33; Category D, Part Two of the Twelfth Instalment, S/​A C.26/​2003/​1, of 13 March 2003, 9–​12; Category D, Part Two of the Nineteenth Instalment, S/​A C.26/​2004/​6, of 2 July 2004, paras 36–​37. In this vein: see Pierre D’Argent, Les réparations de guerre en droit international public. La responsabilité international des États à l’épreuve de la guerre (Bruylant 2002) 379–​383.

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The practice examined in the previous pages shows how a consensualist approach has permeated international case law at universal, regional and sectorial levels. Parts 2 and 3 of this study elaborate on its application within the Council of Europe and the oas as a tool to either trigger the evolutive interpretation of the EConHR and the AConHR, or to allow a certain margin of discretion to restrict some rights where a higher interest of the State must prevail. Before addressing these issues, the next chapter deals with the phenomena of specialization and sectorialization of contemporary international law. Both circumstances may influence the way in which regional human rights courts and tribunals dvelve with the evolutive or restrictive interpretation of the EConHR and the AConHR.

­c hapter 2

The Challenges Arising from the Specialization and Sectoralization of Public International Law Despite the fact that the individual is assuming an increasingly important role in contemporary international law, international practice shows how this role is still very weak and scarcely homogeneous. It is true that it has developed in certain sectors, apart from EU law, such as human rights and international investment law. However, many of the mechanisms for the settlement of international disputes still retain an inter-​State, decentralized and eminently voluntarist character.1 Although the tendency towards a broader recognition 1 Professor Antônio A Cançado Trindade’s reiterative opinions and declarations to most of the decisions rendered by the icj since 2009 confirm that international practice is still far from incorporating individuals as subjects of international law on a general basis: see Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay), arrêt, CIJ Recueil 2010, 135; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 523; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Preliminary Objections, Judgment, ICJ Reports 2011, 239; Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, ICJ Reports 2012, 51; Immunités juridictionnelles de l’Etat (Allemagne c Italie; Grèce (intervenant)), arrêt, CIJ Recueil 2012, 179; Ahmadou Sadio Diallo (République de Guinée c République démocratique du Congo), fond, arrêt, CIJ Recueil 2010, 729; Ahmadou Sadio Diallo (République de Guinée c République démocratique du Congo), indemnisation, arrêt, CIJ Recueil 2012, 347; Questions concernant l’obligation de poursuivre ou d’extrader (Belgique c Sénégal), arrêt, CIJ Recueil 2012, 487; Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c Nicaragua); Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), ordonnance du 16 juillet 2013, mesures conservatoires, CIJ Recueil 2013, 230; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, Order of 22 November 2013, ICJ Reports 2013, 371; Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-​Leste v Australia), Order of 3 March 2014, ICJ Reports 2014, 167; Application de la convention pour la prévention et la repression du crime de génocide (Croatie c Serbie), arrêt, CIJ Recueil 2015, 202; Activités armées sur le territoire du Congo (République démocratique du Congo c Ouganda), ordonnance du 1er juillet 2015, CIJ Recueil 2015, 585; Certaines activités menées par le Nicaragua dans la region frontalière (Costa Rica c Nicaragua) et Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), arrêt, CIJ Recueil 2015, para 23; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), Preliminary Objections, Judgment, ICJ Reports 2016, paras 28–​41; Application of the International Convention for the Suppression of the Financing of Terrorism and of the

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of the legal role of individuals in public international law seems irreversible, it has been stated in a very illustrative way that contemporary international law is characterized by an ‘extension des domaines’ and a ‘permanence des sujets’.2 Furthermore, the interdependent and complex nature of international society leads most States to intensify their international relations, either by concluding international treaties or by participating in international organizations. Through this process, public international law has been specializing and, consequently, a rapid proliferation of different legal sectors can be witnessed. These specialized sectors have even acquired a certain degree of autonomy, since, in many cases, they are equipped with their own dispute settlement mechanisms, which test the unity of public international law. In this scenario, still scarcely integrated3 and favourable to legal dispersion, multiple challenges arise. For the purposes of our study, we shall only concentrate on two of them. 1

Coordination Tecniques: A Way to Navigate Through the System

Establishing coordination techniques can safeguard the unity of public international law. These techniques allow overcoming the dysfunctions, overlaps and contradictions created by the highly specialized character acquired by the various legal sectors that have flourished. General international law is equipped with some tools that have traditionally facilitated legal coordination, either directly or indirectly. The lex posterior derogat lex priori and lex specialis derogat legi generali rules, as well as Article 103 of the Charter of the United Nations,4 signed at San Francisco on 26 June 1945 (UN Charter),5 which envisages that the obligations under the UN Charter prevail6 over any other treaty concluded by the UN Member

2 3 4 5 6

International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Order of 19 April 2017, ICJ 2017, paras 12–​26 and 56–​67; Jedha case (India v Pakistan), Order of 18 May 2017, ICJ 2017, paras 3–​15. Serge Sur, ‘La créativité de droit international. Cours général de droit international public’ (2012) 363 RCADI 9, 54–​59 Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-​contained Regimes in International Law’ (2006) 17 EJIL 483, 499–​500. This provision states that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ United Nations, Treaty Series, vol 1, xvi. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, paras 39–​42.

42 ­chapter  States,7 establish a basic framework for organizing relations among various legal sectors.8 Also, several provisions of the vclt further include these criteria at the level of secondary rules applicable to international treaties,9 thus consolidating and strengthening the unity of primary rules.10 Being aware of the problems posed by the specialization and sectoralization of public international law, the ilc has introduced elements of coordination and legal systematization in some of its recent works. Article 55 of the Articles on State Responsibility for internationally wrongful acts11 excludes the

7

8

9

10

11

For further discussion: see Jean-​Marc Thouvenin, ‘L’article 103’ in Jean Pierre Cot and others (eds), La Charte des Nations Unies. Commentaire article par article (3rd ed, Economica 2005) 2133–​2147; Christine Chinkin, ‘Jus cogens, Article 103 of the UN Charter and Other Hierarchical Techniques of Conflict Solution’ (2006) 17 FYbIL 63; Rain Liivoja, ‘The Scope of the Supremacy Clause of the United Nations Charter’ (2008) 57 ICLQ 583, 584; Delphine Hayim, ‘L’article 103 de la Charte des Nations Unies: technique juridique ou instrument symbolique?’ (2011) 44 RBDI 125; Andreas Paulus and Johann R Leiss, ‘Article 103’ in Bruno Simma and others (eds), The Charter of the United Nations. A Commentary (vol ii, 3rd ed, oup 2012) 2110–​2137; Robert Kolb, ‘L’article 103 de la Charte des Nations Unies’ (2013) 367 RCADI 9, 240–​246. Regarding the relationship between general international law and other legal sectors: see Isabelle Buffard, ‘Une relecture de la théorie des sous-​systèmes en droit international’ in Isabelle Buffard and others (eds), International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner (Brill 2008) 29–​39. Article 30 of the vclt organizes the legal regime derived from the succesion of treaties dealing with the same subject matter affirming the primacy of the obligations established in the UN Charter, recognizing the principle of autonomy of the will of the parties in a treaty and establishing some criteria to make previous and subsequent treaties compatible. Article 31(3)(c) of the vclt allows a dynamic interpretation of international treaties by recognizing the principle of systemic integration, according to which the provisions of an international treaty may be interpreted in light of ‘any relevant rules of international law applicable in the relations between the parties’. Article 38 of the vclt admits the expansion of obligations established in an international treaty beyond the parties to the treaty in light of the interaction between the treaty and custom. Finally, Article 53 of the vclt establishes the primacy of jus cogens rules by declaring the nullity of all international treaties that contradict them. Jorge Cardona Llorens, ‘Le rôle des traités’ in Rosario Huesa Vinaixa and Karel Wellens (eds), L’influence des sources sur l’unité et la fragmentation du droit international (Bruylant 2006) 31–​34. Yearbook ILC, 2001, vol ii, Part 2, 140–​141. Furthermore, Article 57 unlinks the responsibility of States and international organizations (ibid 141–​142). Article 58 establishes the application of these articles without prejudice to the international responsibility of the individual (ibid 142–​143). And finally, Article 59 establishes another ‘without prejudice clause’ referred to the compatibility between the Articles on State responsibility for intenationally wrongful acts and the UN Charter (ibid 143).

Challenges Arising from the Specialization and Sectoralization

43

application of these articles where international resposibility is governed by a special regime of international law. And Article 17 of the Articles on Diplomatic Protection exempts the application of the rules on diplomatic protection in cases where the international regime for the protection of foreign investments prevails as a lex specialis.12 Although the usefulness of these criteria is indisputable in practice, the degree of specialization that public international law is acquiring requires the development of new and more complex techniques of legal coordination.13 Cross-​fertilization among different sectors through the application of certain legal categories represents an example of this type of advanced coordination technique that could contribute to make the relations among the different legal sectors more permeable.14 However, as discussed in part 3 in relation to the national margin of appreciation, this technique must be adopted with caution, because categories created within a specific legal sector often contain particular features, which can hardly be automatically transfered to other legal sectors of public international law. 2

Inter-​Judicial Deference: An Antidote against Judicial Activism

Nowadays, there is a diversity of legal sectors and complex relationships arising from the activities of the specialized dispute settlement mechanisms that most of those sectors establish. Therefore, it is essential that the exercise of the judicial activity is subject to what has been called ‘inter-​judicial deference’15

12 13

14 15

Report of the International Law Commission on the work of its Fifty-​eighth session, General Assembly Official Records, Sixty-​first session, Supplement No 10 (A/​61/​10) 89–​90. Ángel J Rodrigo Hernández, ‘La integración normativa y la unidad del Derecho internacional público’ in Ángel J Rodrigo Hernández and Caterina García Segura (eds), Unidad y pluralismo en el Derecho internacional público y en la comunidad internacional. Coloquio homenaje a Oriol Casanovas (Tecnos 2011) 321–​355. Vera Gowlland-​Debbas, ‘Reflections on a Decade of International Law:  Dark Ages or Renouveau?’ in Alland and others (p 1 ch 1 n 42) 31–​32. Though it will not always be ‘possible or practicable because cases do not necessarily get to courts in a preferred logical order or in a manner that would permit one court to defer to another’: see Thomas Buergenthal, ‘International Law and the Proliferation of International Courts’ (2001) v CEBDI 29, 40–​41. The Spanish doctrine has also developed this idea using the concept ‘continencia’: see Antonio Remiro Brotóns, ‘La noción de regímenes internacionales en el Derecho internacional público’ in Ángel J Rodrigo Hernández and Caterina García Segura (p 1 ch 2 n 13) 174.

44 ­chapter  or ‘comity,’16 although substantive issues may hinder the practical application of these criteria.17 This is without prejudice to other solutions,18 such as the application of the general principles of procedural law,19 such as res judicata.20 In this context, one of the academic debates that has aroused most interest in recent years cannot be overlooked. It focuses on the risks to the unity of public international law as a result of the proliferation of international courts and tribunals.21 In fact, the multiplication of international 16

17 18

19

20

21

Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (oup 2003)  260–​261; Nikos Lavranos, ‘Regulating Competing Jurisdictions Among International Courts and Tribunals’ (2008) 68 ZaöRV 575, 612–​619. Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 LJIL 553, 575–​579. Laura Zoppo, ‘Considerazioni sui concorso tra le giurisdizioni internazionali: i modelli di conflitto e la modalitá di coordinamento’ (2014) xcvii RDI 88, 120–​131. Some scholars and practitioners have proposed de lege fereda mechanisms of cooperation between the icj and other international courts and tribunals, based on a possible modification of the icj Statute (1978). For example, ‘if any international court or international tribunal were to encounter serious difficulties on a question of public international law, and if it were to consider that a decision on that question was necessary to enable it to render judgment, the International Court [of Justice] could be requested to make a ruling’:  see Gilbert Guillaume, ‘The Future of International Judicial Institutions’ (1995) 44 ICLQ 848, 862. Kaj Hobér, ‘Res Judicata and Lis Pendens in International Arbitration’ (2013) 366 RCADI 99; Laurence Boisson de Chazournes, ‘Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach’ (2017) 28 EJIL 13, 45–​70. Polish Postal Service in Danzig, Advisory Opinion of 16 May 1925, PCIJ Reports, Series B No 11, 28–​30; Case concerning a boundary dispute between Argentina and Chile concerning the frontier line between boundary post 62 and Mount Fitzroy, Decision of 21 October 1994 (UNRIAA, vol xxii, para 122); Waste Management Inc v United Mexican States (ICSID Case No ARB(AF)/​00/​3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings of 26 June 2002, paras 39–​43). After the course given in 1998 at The Hague Academy of International Law by Jonathan I Charney, other scholars have dealt with this issue in this academic forum: see Jonathan I Charney, ‘Is International Law Threatened by Multiple International Tribunals?’ (1998) 271 RCADI 101; Pierre-​Marie Dupuy, ‘L’unité de l’ordre juridique internationale. Cours général de droit international public’ (2002) 297 RCADI 9, 460–​478; Mohammed Bedjaoui, ‘L’humanité en quête de la paix et de dèveloppement (ii). Cours général de droit international public’ (2006) 325 RCADI 9, 101–​106; James Crawford, ‘Change, Order, Chance:  The Course of Public International Law. General Course on Public International Law’ (2013) 365 RCADI 9, 205–​229; Dominicé (introduction n 1)  253–​ 255. It is also worth citing a study in Spanish language by Rosa Riquelme Cortado, ‘Multiplicación de Tribunales Internacionales:  ¿fragmentación del Derecho internacional?’ in Santiago Torres Bernárdez and others (eds), El Derecho Internacional en el

Challenges Arising from the Specialization and Sectoralization

45

treaties,22 the assumption of a certain international subjectivity on the part of the individual, and the progressive sectoralization of public international law, have enabled that the same facts can be submitted before different international dispute settlement mechanisms.23 Despite the inherent risks associated with this phenomenom of parallel litigation, it is also true that this complex scenario also favours cross-​fertilization and promotes the emergence of new techniques of intersystemic coordination. The following lines serve to illustrate the consequences that can be derived from the possibility of initiating parallel litigation for the settlement of international disputes.24

22

23

24

mundo multipolar del siglo XXI. Obra Homenaje al Profesor Luis Ignacio Sánchez Rodríguez (Iprolex 2013) 555–​583. In what has illustratively been qualified as ‘l’ère de l’abondance’: see Georges Abi-​Saab, ‘La métamorphose de la fonction juridictionnelle internationale’ in Alland and others (p 1 ch 1 n 42) 383. For a discussion on this legal scenario: see Vaughan Lowe, ‘Overlapping Jurisdiction in International Tribunals’ (1999) 20 Aus Yb IL 191; Patrizia Vigni, ‘The Overlapping of Dispute Settlement Regimes: An Emerging Issue of International Law’ (2001) xi IYbIL 139; Shany (p 1 ch 2 n 16) 29–​74. Although the list of precedents is varied and not exhaustive: cf The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-​16/​99 of 1 October 1999 Series A  No 16 and Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, ICJ Reports 2004, 12; Prince Hans-​Adam II of Liechtenstein v Germany, No 42527/​98, ECtHR 2001 and Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment, ICJ Reports 2005, 6; Uruguay v Argentina (Mercosul ad hoc tribunal, Award of 6 September 2006) and Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay), arrêt, CIJ Recueil 2010, 14; Matthews v United Kingdom [GC], No 24833/​94, ECtHR 1999 and Case C-​145/​04 Kingdom of Spain v United Kingdom [2006] ECR I-​7917; Case C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-​3953 and Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [GC], No 45036/​98, ECtHR 2004; Bankovic and Others v Belgium and Others (dec) [GC], No 52207/​99, ECtHR 2001 and Licéité de l’emploi de la force (Yougoslavie c Espagne), mesures conservatoires, ordonnance du 2 juin 1999, CIJ Recueil 1999, 761; Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Belgique), exceptions préliminaires, arrêt, CIJ Recueil 2004, 279; Licéité de l’emploi de la force (Serbie-​et-​Monténégro c France), exceptions préliminaires, arrêt, CIJ Recueil 2004, 575; Legality of Use of Force (Serbia and Montenegro v Germany), Preliminary Objections, Judgment, ICJ Reports 2004, 720; Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Italie), exceptions préliminaires, arrêt, CIJ Recueil 2004, 865; Legality of Use of Force (Serbia and Montenegro v Netherlands), Preliminary Objections, Judgment, ICJ Reports 2004, 1011; Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Portugal), exceptions préliminaires, arrêt, CIJ Recueil 2004, 1160; Legality of Use of Force

46 ­chapter  The conflict in the former Yugoslavia received specific attention by the icty, although it was also submitted before the icj in The Hague.25 In Application de la convention pour la prévention et la répression du crime de génocide, the icj resorted to the case law of the icty regarding the consideration of the existence of genocide in Croatia. The conclusion was that ‘the acts constituting the actus reus of genocide within the meaning of Article ii (a) and (b) of the Convention were not committed with the specific intent required for them to be characterized as acts of genocide’.26 The legal impact of the expropriation of the oil giant Yukos by the Russian Federation provides another significant precedent. In this case, the issues related to the expropriation, liquidation and subsequent auction of this company were submitted to several investment arbitration tribunals27 and also before the ECtHR.28 Decisions issued by arbitral tribunals and the ECtHR represent a reasonable example of ‘inter-​judicial deference’ among international courts and tribunals.29

25

26 27

28

29

(Serbia and Montenegro v United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2004, 1307. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ Reports 2007, 43; Application de la convention pour la prévention et la répression du crime de génocide (Croatie c Serbie), arrêt, CIJ Recueil 2015, 3. Application de la convention pour la prévention et la répression du crime de génocide (Croatie c Serbie), arrêt, CIJ Recueil 2015, para 440. RosInvestCo UK Ltd v Russian Federation (SCC Case No V079/​ 2005, Award of 12 September 2010); Quasar de Valors SICAV SA, Orgor de Valores SICAV SA, GBI 9000 SICAV SA v Russian Federation (SCC Case No 24/​2007, Award of 20 July 2012); Hulley Enterprises Limited (Cyprus) v Russian Federation (PCA Case No AA 226, Final Award of 18 July 2014); Yukos Universal Limited (Isle of Man) v Russian Federation (PCA Case No AA 227, Final Award of 18 July 2014); Veteran Petroleum Limited (Cyprus) v Russian Federation (PCA Case No AA 228, Final Award of 18 July 2014). Khodorkovskiy v Russia, No 5829/​04, ECtHR 2011; OAO Neftyanaya Kompaniya Yukos v Russia, No 14902/​04, ECtHR 2011; Khodorkovskiy and Lebedev v Russia, No 11082/​06 and No 13772/​05, ECtHR 2013; OAO Neftyanaya Kompaniya Yukos v Russia, No 14902/​04, ECtHR 2014. Although to a lesser extent, the growing interactions among these legal sectors have also appeared at inter-​American (Case of the Sawhoyamaxa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 29 March 2006 Series C No 146, para 140; Case of the Kaliña and Lokono Peoples v Suriname, Merits, Reparations and Costs, Judgment of 25 November 2015 Series C No 309, para 201) and African regional levels (Mike Campbell (Pvt) Ltd and Others v Zimbabwe, SADC (T) Case No 2/​2007, Judgment of 28 November 2008). For further discussion: see Christian Tomuschat, ‘The European Court of Human Rights and Investment Treaties’ in Christina Binder and others (eds), International Investment

Challenges Arising from the Specialization and Sectoralization

47

‘Inter-​judicial deference’ becomes an essential tool to balance the inevitable overlap among different legal sectors. The multiplication of jurisdictional organs is not harmful in itself, but only when international courts and tribunals intend to expand the legal impact of their decisions outside the legal sector where they operate.30 In short, it is crucial to avoid the inconsistencies and contradictions to which public international law is exposed as a result of its sectoralization and specialization. On some occasions, advocating for ‘inter-​judicial deference’ or ‘comity’ may lead international courts and tribunals to decline their jurisdiction. The M/​ V “Louisa” case is very illustrative. In this dispute, itlos made a literal interpretation of Article 300 of the unclos in light of its travaux préparatoires.31 It was a decision that disrupted the claims of Saint Vincent and the Grenadines,32 which tempted the members of itlos to perform an eccentric reading of Article 300 of the unclos. According to the claimants, this provision could be invoked on its own so as to give itlos jurisdiction over any alleged abuse of rights. Had this argument been accepted, itlos would have become a

30

31

32

Law for the 21st Century. Essays in Honnour of Christoph Schreuer (oup 2009) 636–​656; Pierre-​Marie Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment Law and Human Rights Law’ in Pierre-​Marie Dupuy and others (eds), Human Rights in International Investment Law and Arbitration (oup 2009) 45–​62; Bruno Simma, ‘Foreign Investment Arbitration: A Place for Human Rights?’ (2011) 60 ICLQ 573; Andreas Kulick, Global Public Interest in International Investment Law (cup 2012) 269–​306; Moshe Hirsch, ‘Investment Tribunals and Human Rights Treaties: A Sociological Perspective’ in Freya Baetens (ed), Investment Law within International Law. Integrationist Perspectives (cup 2013)  85–​105; Francisco Pascual-​ Vives, ‘Developing Coordination Techniques Between Public Interests and International Investment Law’ (2014) 3 OIDU 500; Alain Pellet, ‘Notes sur la ‘Fragmentation’ du droit international: Droit des investissements internationaux et droits de l’homme’ in Alland and others (p 1 ch 1 n 42) 757–​784. In fact, as has been indicated ‘the risk of fragmentation of International Law does not derive from the multiplicity of international judicial organs, which is only a consequence, but rather from the development of international material regimes, which is the cause’: see Casanovas i la Rosa (p 1 ch 1 n 9) 245. M/​V “Louisa” (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, para 137. Article 300 of the UNCLOS states that ‘States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.’ ITLOS/​P V.12/​C18/​1, 14–​17 (Weiland); ITLOS/​P V.12/​C18/​2, 1–​8; ITLOS/​P V.12/​C18/​4, 12–​18 (Nordquist); ITLOS/​P V.12/​C18/​6, 2–​3 (Escobar Hernández); ITLOS/​P V.12/​C18/​ 11, 10 (Jiménez Piernas).

48 ­chapter  universal human rights tribunal with specialized jurisdiction.33 In an exercise of judicial self-​restraint, both itlos34 and an arbitral tribunal created under Annex vii of the unclos35 have further maintained a literal interpretation of Article 300 of the unclos in subsequent cases. Adopting a stance both particularist and devoid of an overall view of public international law, may be a risky decision for the credibility of a judicial body. In this context, the subsystems of European and Central American integration offer several significant precedents. It is worth noting the complex balances that the ecj has had to make, firstly, to admit recourse to international arbitration among EU Member States when issues related to the application and interpretation of EU law36 were not directly addressed; and, at the same time, to make its jurisdiction prevail over arbitral tribunals37 in matters exclusively affecting the European integration process.38 Likewise, with more than a few criticisms,39 the ecj faced in Kadi 33 34 35 36

37 38

39

Rosario Ojinaga Ruiz, ‘The M/​V “Louisa” Case: Spain and the International Tribunal for the Law of the Sea’ (2013–​2014) 18 SYbIL 199, 216–​217. M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment, ITLOS Reports 2014, paras 395–​401. Duzgit Integrity Arbitration (Malta v São Tomé and Principe), PCA Case No 2014–​07, Award of 5 September 2016, paras 216–​218. Case concerning the audit of accounts between the Netherlands and France in application of the Protocol of 25 September 1991 Additional to the Convention for the Protection of the Rhine from Pollution by Chlorides of 3 December 1976, Decision of 12 March 2004 (UNRIAA, vol xxv, 267); Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005 (UNRIAA, vol xxvii, 35); Arbitration between the Republic of Croatia and the Republic of Slovenia, PCA Case, Final Award of 29 June 2017. The most notable precedent being the Mox Plant case: see Case C-​459/​03 Commission v Ireland [2006] ECR I-​4635, paras 150–​154. Article 344 of the tfeu states that ‘Member States undertake not to submit a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for therein.’ The General Court and the ecj decisions on the implementation of sanctions imposed by the UN Security Council generated extensive academic discussion: see Dinah Shelton, ‘Normative Hierarchy in International Law’, (2006) 100 AJIL 291, 311–​312; Nigel D White, ‘The Ties that Bind:  The EU, the UN and International Law’ (2006) xxxvii NYIL 57, 83–​85; Jean D’Aspremont and Frédéric Dopage, ‘Two Constitutionalisms in Europe: Pursuing an Articulation of the European and International Legal Orders’ (2008) 68 ZaöRV 939; Jan W Van Rossem, ‘Interaction between EU Law and International Law in the Light of Intertanko and Kadi: The Dilemma of Norms Binding the Member States but not the Community’ (2009) xl NYIL 183; Gráinne de Búrca, ‘The European Court of Justice and the International Legal Order After Kadi’ (2010) 51 HarILJ 1; Jaume Ferrer Lloret, ‘El control judicial de la política exterior de la Unión Europea’ (2011) Cursos

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the challenge of making the provisions of Article 103 of the UN Charter compatible with the fundamental principles of the EU,40 in light of the sanctions imposed to individuals by the Sanctions Committee of the United Nations Security Council. These judgments may pose problems not only of normative hierarchy between general and regional international law, but also of substantive compatibility among different international regimes.41 The relationship between the ecj and the ECtHR is particularly interesting, as these courts concentrate the jurisdictional control of the European subsystem and both can be called upon to settle disputes regarding violations of human rights. In Bosphorus v Ireland, the ECtHR adopted an important decision to organize relations between the two jurisdictions.42 The ECtHR

de Derecho Internacional de Vitoria-​Gastéiz 97, 126–​133; Andrea Gattini, ‘Effects of Decisions of the UN Security Council in the EU Legal Order’ in Cannizzaro and others (pt 1 ch 1 n 67) 218–​227; Paolo Palchetti, ‘Judicial Review of the International Validity of UN Security Council Resolutions by the European Court of Justice’ in Cannizzaro and others (p 1 ch 1 n 67) 379–​393; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Hart 2012) 361; Asier Garrido-​Muñoz, Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant 2013) 335–​385; Veronika Fikfak, ‘Kadi and the Role of the CJEU in the International Legal Order’ (2014) 24 University of Cambridge Legal Studies Research Paper Series 1; Joris Larik, ‘The Kadi Saga as a Tale of “Strict Observance” of International Law: Obligations under the UN Charter, Targeted Sanctions and Judicial Review in the European Union’ (2014) lxi NILR 23, 32–​39. 40 Case T-​306/​01 Ahmed Ali Yusuf and Ali Barakaat Int’l Foundation v Council and Commission [2005] ECR II-​3533; Case T-​315/​01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-​3649; Joined Cases C-​402/​05 P and C-​415/​05 P Yassin Abdullah Kadi and Ahmed Ali Yusuf and Ali Barakaat Int’l Foundation v Council and Commission [2008] ECR I-​6351; Case T-​85/​09 Yassin Abdullah Kadi v Commission [2010] ECR II-​5177; Joined Cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P Commission and others v Yassin Abdullah Kadi [2013] OJ C260/​2. 41 This legal issue has also been analyzed by the ECtHR (Nada v Switzerland [GC], No 10593/​08, para 197, ECtHR 2013), and the Human Rights Committee (Sayadi and Vinck v Belgium, CCPR/​C/​94/​D/​1472/​2006). 42 Cathryn Costello, ‘The Bosphorus Ruling of the European Court of Human Rights:  Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 HRLR 87; Frank Hoffmeister, ‘Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. Ireland. App. No. 45036/​98’ (2006) 100 AJIL 442; Carl Lebeck, ‘The European Court of Human Rights on the Relation between ECHR and EC-​law: the Limits of Constitutionalisation of Public International Law’ (2007) 62 ZÖR 195; Cedric Ryngaert, ‘Oscillating between Embracing and Avoiding Bosphorus: the European Court of Human Rights on Member State Responsibility for Acts of International Organisations and the Case of the European Union’ (2014) ELR 176.

50 ­chapter  had to decide whether the embargo measures taken by Ireland, which had been endorsed by the ecj,43 were contrary to the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Paris on 20 March 1952 (Protocol No 1).44 The Grand Chamber developed a standard of deference between the two European jurisdictions. In the end, this standard seeks to make its jurisdiction over the possible violations of the EConHR compatible with the fulfillment of the commitments assumed by Member States in the context of the European integration process.45 The ecj has also applied deferential solutions in relation to the ECtHR. For example, it dismissed an action for damages lodged by an individual who had requested the opening of an inquiry by the EP into the alleged irregularities in the proceedings before the ECtHR.46 In the context of the Central American integration process, two Nicaraguan environmental associations brought a claim before the cacj against Costa Rica. The claim concerned the construction of a road in Costa Rican territory along the southern shore of the San Juan River, which serves as border between the two nations. This litigation was later resumed by

43 44 45

46

Case C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-​3953. Council of Europe, Treaty Series, No 9. An objective that the ECtHR considered ‘a legitimate general-​interest objective within the meaning of Article 1 of Protocol No. 1’: see Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [GC], No 45036/​98, para 150, ECtHR 2004. Any conduct of the State implemented to fulfill these commitments would be justified: ‘as long as the relevant organisation is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance, in a manner which can be considered at least equivalent to that for which the Convention provides […]. By “equivalent” the Court means “comparable”; any requirement that the organisation’s protection be “identical” could run counter to the interest of international cooperation pursued […]. However, any such finding of equivalence could not be final and would be susceptible to review in the light of any relevant change in fundamental rights protection. If such equivalent protection is considered to be provided by the organisation, the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organisation’: see ibid paras 155–​156, and the analysis on the presumption of compatibility by the ECtHR in paras 161–​165 of this decision. Case T-​168/​11 AJ AQ v Parliament [2014] Order [2015] OJ C56/​16.

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Nicaragua at an inter-​State level before the icj. Following the icj order of 13 December 2013, which rejected the provisional measures requested by Nicaragua,47 and the subsequent judgment of 16 December 2015, where the Court confirmed that Costa Rica had not violated any environmental substantive obligation,48 it is very difficult for an impartial observer to explain the basis of the judgment issued by the cacj on 21 June 2012. In this judgment, which Nicaragua unsuccesfully tried to use as a supporting argument before the icj,49 the responsibility of Costa Rica for irreparable environmental damages was found.50 When a regional judicial organ rules out the use of ‘inter-​judicial deference’ and dictates a ‘self-​contained decision,’ it risks that another international court or tribunal of a universal scope can later issue a contradictory decision when dealing with the same dispute,51 which may hinder the effective compliance of the former. If two international tribunals of regional and/​or sectorial scope have adopted contradictory decisions based on the same facts, the consequences can be far-​reaching for international law. For example, in case of a decision by an investment tribunal declaring the international responsibility of an EU Member State for breaching the obligations laid down in a bit, and a subsequent decision of the ecj determining a violation of the European State aid system when that Member State proceeds to honour the arbitration award by giving effect to 47

48

49 50

51

Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica); Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c Nicaragua), mesures conservatoires, ordonnance du 13 décembre 2013, CIJ Recueil 2013, 398. Certaines activités menées par le Nicaragua dans la region frontalière (Costa Rica c Nicaragua) et Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), arrêt, CIJ Recueil 2015, paras 192–​196, 203–​207, 211–​213 and 216. CR 2015/​16, 12–​13, paras 8–​9 and 16 (Argüello); CR 2015/​17, 33, paras 2–​3 (Kohen). Asociación Foro Nacional de Reciclaje (FONARE) and Fundación Nicaragüense para el Desarrollo Sostenible v Costa Rica (cacj, Case No 12-​06-​12-​2011, Judgment of 21 June 2012). A similar situation can be replicated in connection with Colombia’s request for an advisory opinion before the IACtHR, in which it seeks for the IACtHR to rule on issues that are in part related to some of the decisions taken by the icj in a litigation which involved Nicaragua and Colombia (Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, ICJ Reports 2012, 624), and which is the subject of discussion in another litigation between both States still pending before the icj. An advisory opinion of the IACtHR in line with the Colombian claims might be used by Colombia as a supporting argument before the icj.

52 ­chapter  the compensation provided therein. In these situations, maintaining the overall coherence of the system becomes more complex, given the impossibility of making a decision prevail beyond the legal sector (regional or sectorial) in which it extends its effects.52 In conclusion, specialization and sectoralization influence the evolution of contemporary international law. Both phenomena should not be viewed with suspicion or rejection. They are a sign of the good health of public international law,53 which in recent decades has been significantly expanding its material and subjective scope of application, developing increasingly complex formulas of cooperation between States and opening to the participation of individuals. A cooperation that at the formal level has given rise to an emerging legal pluralism that responds to the international society’s complexity and heterogeneity. For the purposes of this study, the analysis of the case law of the regional human rights courts and tribunals constitutes an excellent starting point for evaluating both the impact of the aforementioned specialization and sectoralization phenomena on the evolution of international law, as well as the cooperation and coordination techniques used by international courts and tribunals to mitigate the risks of fragmentation of public international law.

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This would be the case, for instance, of the legal problems arising between the institutions and EU Member States with regard to some investment arbitration awards. The most notable case so far is Micula, an investment arbitration resolved in favour of the foreign investor where the European Commission argues that any attempt by the host State of the investment to pay the compensation provided for in the award will be considered as a State aid incompatible with EU law. In fact, in view of Romania’s refusal to pay compensation, the foreign investor initiated proceedings before the General Court requesting the annulment of the decision of the European Commission which considers the award to be an incompatible State aid, while trying to enforce the award outside the territory of EU Member States: see Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Award of 11 December 2013); Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Decision on Annulment of 26 February 2016); Case T-​704/​15 Action brought on 28 November 2015, Micula ea v Commission [2015] OJ C68/​30. Thomas Buergenthal, ‘The Proliferation of Disputes, Dispute Settlement Procedures and Respect for the Rule of Law’ (2006) 22 Arb Int’l 495, 497; Benedetto Conforti, ‘Unité et fragmentation du droit international: «Glissez, mortels, n’appuyez pas!»‘ (2007) 111 RGDIP 5, 11; Jacob K Cogan, ‘Competition and Control in International Adjudication’ (2008) 48 Va J Int’l L 411; Ahmed Mahiou, ‘Quelques réflexions sur la fragmentation du droit international’ (2007/​2008) xi/​x ii CEBDI 1049, 1057.

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Finally, in ­chapter  3 we address how the principle of subsidiarity is conceived in the practice of the regional human rights courts and tribunals. In examining this principle, we outline another crosscutting argument within this study: the consideration of these judicial organs as international courts and tribunals.

­c hapter 3

Subsidiarity as a General Principle in International Human Rights Law The principle of subsidiarity is one of the keys to the vault on which the international law of human rights is built.1 The following lines examine some of the main manifestations of this principle from a substantive perspective. This study does not examine the principle of formal subsidiarity, which entails the possibility of turning to international dispute settlement mechanisms for the protection of human rights only when the individual has unsuccessfully exhausted all local remedies in the State where the damage has occurred.2 From a substantive perspective, we study the principle of subsidiarity at three different moments in the life of regional human rights treaties:  firstly, during their conclusion; secondly, when some of their obligations are partially suspended; and, thirdly, while enforcing the judgments handed down by the regional human rights courts and tribunals.

1 Paolo G Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 AJIL 38; José A Pastor Ridruejo, ‘La subsidiariedad, principio estructural del Derecho internacional de los derechos humanos’ (2004/​2005) viii/​i x CEBDI 29, 39–​40; Herbert Petzold, ‘The Convention and the Principle of Subsidiarity’ in Ronald St J Macdonald and others (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) 55–​59. 2 Such subsidiarity can be conceived as a manifestation of the classic principle of exhaustion of local remedies. Article 35(1) of the EConHR and Article 46(1) of the AConHR recognize the latter principle as a necessary requirement to accept the admissibility of a claim before the ECtHR or a complaint to the IAComHR, respectively. As was indicated by the icj in Interhandel ‘La règle selon laquelle les recours internes doivent être épuisés avant qu’une procédure internationale puisse être engagée est une règle bien établie du droit international coutumier; elle a été généralement observée dans les cas où un Etat prend fait et cause pour son ressortissant dont les droits auraient été lésés dans un autre Etat en violation du droit international. Avant de recourir à la juridiction internationale, il a été considéré en pareil cas nécessaire que l’Etat où la lésion a été commise puisse y remédier par ses propres moyens, dans le cadre de son ordre juridique interne’: see Affaire de l’Interhandel, Arrêt du 21 mars 1959: CIJ Recueil 1959, 27. In this context: see Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, para 53; Ahmadou Sadio Diallo (République de Guinée c République démocratique du Congo), exceptions préliminaires, arrêt, CIJ Recueil 2007, paras 42–​44.

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Conclusion of Regional Human Rights Treaties

The importance of the principle of subsidiarity is revealed at various points during the conclusion of regional human rights treaties. Firstly, it must be understood in light of the system of accessions to the various additional protocols that have been completing and developing both regional human rights treaties. Greece is not a party to Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, done in Strasbourg on 16 September 1963 (Protocol No 4).3 Germany and the Netherlands have not ratified Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Strasbourg on 22 November 1984.4 Several States have neither signed5 nor expressed their consent6 to Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Rome on 4 November 2000.7 Likewise, the Russian Federation is neither a party to Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, done in Strasbourg on 28 April 1983 (Protocol No 6),8 nor to Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, done in Vilnius on 3 May 2002 (Protocol No 13).9 The accession of Member States of the Council of Europe to these protocols has not been uniform. In the case of Member States of the EConHR that are also members of the EU, this differentiated participation could lead to situations of legal asymmetry following the eventual accession of the EU to the EConHR, provided for in Article 6(2) of the EU Treaty and in its annexed Protocol No 8.10 3 4 5 6 7 8 9 10

Council of Europe, Treaty Series, No 46. Council of Europe, Treaty Series, No 117. As of 11 May 2018, Member States of the EU, such as Bulgaria, Denmark, France, Lithuania, Poland, Sweden and the United Kingdom, are not parties to it. As of 11 May 2018, Member States of the EU, such as Austria, Belgium, Czech Republic, Estonia, Germany, Greece, Hungary, Ireland, Italy, Latvia, and Slovak Republic are not parties to it. Council of Europe, Treaty Series, No 177. Council of Europe, Treaty Series, No 114. Council of Europe, Treaty Series, No 187. See contributions by Antonio Tizzano, Clemens Ladenburger and Françoise Tulkens to the dossier prepared by the RTDE [(2011) 7–​40]; Catherine Van de Heyning and Rick

56 ­chapter  At the inter-​American level, this situation of legal asymmetry is reproduced if we consider that Venezuela and Trinidad and Tobago withdrew from the AConHR and that Canada, Guyana, and the usa never ratified it. Chile, the Dominican Republic, Haiti, Jamaica and Venezuela have not ratified the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted in San Salvador on 17 November 1988 (Protocol of San Salvador).11 Neither does the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, done in Asunción on 8 June 1990 (Protocol of Asunción),12 count with the participation of all States that have ratified the AConHR.13 Secondly, subsidiarity is also present at the stage of ratification of regional human rights treaties, as States parties can make reservations to them.14 Indeed, Article 57 of the EConHR15 and Article 75 of the AConHR16 allow for the formulation of reservations in accordance with the parameters established by the vclt. It should be understood that this power is subject to the conditions laid down in Article 19 of the vclt and, in particular, that these reservations are not prohibited. For example, Article 4 of Protocol No 6 to the EConHR states that ‘no reservation may be made under Article 57 of the Convention in respect of the provisions of this Protocol.’ This provision envisages a general

11 12 13

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Lawson, ‘The EU as a Party to the European Convention on Human Rights’ in Patricia Popelier and others (eds), Human Rights Protection in the European Legal Order:  The Interaction between the European and the National Courts (Intersentia 2011) 35–​64. Organization of American States, Treaty Series, No 69. Organization of American States, Treaty Series, No 73. It has been ratified only by the following States parties to the AConHR: Argentina, Brasil, Chile, Costa Rica, Dominican Republic, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela. On the asymmetrical nature of the international commitments engaged within the Council of Europe: see Sia Spiliopoulou-​Akermark, ‘Reservation Clauses in Treaties concluded within the Council of Europe’ (1993) 48 ICLQ 479, 491–​499. This provision states that ‘1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. 2. Any reservation made under this Article shall contain a brief statement of the law concerned.’ This provision envisages that ‘This Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969.’

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prohibition on the formulation of reservations to that Protocol which, in short, limits the exercise of the principle of sovereign equality in line with the general provisions established by the vclt.17 In addition, those reservations cannot be incompatible with the object and purpose of the treaty;18 a requirement noted by the icj in its advisory opinion on the Réserves à la Convention sur le Génocide,19 and later confirmed by the IACtHR in its advisory opinion on The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75).20 According to what was established in Belilos v Switzerland,21 regional human rights courts and tribunals have jurisdiction to examine whether a declaration 17

18 19

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This example demonstrates the deference these regional subsystems maintain with respect to the law of treaties:  see José A  Pastor Ridruejo, ‘Droit international et droit international des droits de l’homme –​Unité ou fragmentation?’ in Stephen Breitenmoser and others (eds), Human Rights, Democracy and the Rule of Law. Liber Amicorum Luzius Wildhaber (Nomos 2007) 543–​544. However, it has been argued that the shortcomings of the regime established by the vclt in respect of reservations, in particular as regards the important role played by the principle of reciprocity, call for the establishment of special rules in international human rights law: see Ronald St J Macdonald, ‘Reservations under the European Convention on Human Rights’ (1982) xxi RBDI 429, 434–​435. Alain Pellet, ‘Article 19-​Formulation of Reservations’ in Olivier Corten and Pierre Klein (eds), The Vienna Convention on the Law of Treaties. A Commentary (oup 2011) 455. The icj stated that ‘L’objet et le but de la Convention sur le génocide impliquent chez l’Assemblée générale et chez les Etats qui l’ont adoptée l’intention d’y voir participer le plus grand nombre possible d’Etats. L’exclusion complète de la Convention d’un ou de plusieurs Etats, outre qu’elle restreindrait le cercle de son application, serait une atteinte à l’autorité des principes de morale et d’humanité qui sont à sa base. On ne conçoit pas que les contractants aient pu facilement admettre qu’une objection à une réserve mineure puisse produire un tel résultat. Mais on pourrait moins encore prêter aux contractants la pensée d’avoir sacrifié à la vaine recherche du nombre des participants les fins mêmes de la Convention. L’objet et le but de celle-​ci assignent ainsi des limites tant à la liberté d’apporter des réserves qu’à celle d’y objecter. Il en résulte que c’est la compatibilité de la réserve avec l’objet et le but de la Convention qui doit fournir le critère de l’attitude de l’Etat qui joint une réserve à son adhésion et de l’Etat qui estime devoir y faire une objection. Telle est la norme de conduite qui doit guider chaque Etat dans l’appréciation qu’il lui appartient de faire individuellement et pour son propre compte de la régularité d’une réserve’: see Réserves à la Convention sur le Génocide, Avis consultatif: CIJ Recueil 1951, 23. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75), Advisory Opinion OC-​2/​82 of 24 September 1982 Series A No 2, paras 35–​36. Belilos v Switzerland, 29 April 1988, paras 54–​55 and 58–​59, Series A  No 132. The EComHR had already reached a similar solution in Temeltasch v Switzerland, No 9116/​80, Commission decision of 12 October 1981, Decisions and Reports 26, 237.

58 ­chapter  made by a State party to the human rights treaty when expressing its consent to be bound by it has the legal nature of a reservation. This power allows them to assess whether reservations or interpretative declarations with such effects may be contrary to the object and purpose of those treaties. In the same fashion, the IACtHR concluded that the reservation made by Guatemala to Article 4(4) of the AConHR was not compatible with the object and purpose of this treaty, stating that: Article 27 of the Convention allows the States Parties to suspend, in time of war, public danger, or other emergency that threatens their independence or security, the obligations they assumed by ratifying the Convention, provided that in doing so they do not suspend or derogate from certain basic or essential rights, among them the right to life guaranteed by Article 4. It would follow therefrom that a reservation which was designed to enable a State to suspend any of the non-​derogable fundamental rights must be deemed to be incompatible with the object and purpose of the Convention and, consequently, not permitted by it.22 Irrespective of the position maintained by the parties to the treaty, the ECtHR and the IACtHR have established23 an institutional24 and more objective25 mechanism26 that allows for the interpretation of the object and purpose of

22 23

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Restrictions to the Death Penalty (Arts 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-​3/​83 of 8 September 1983 Series A No 3, para 61. Report of the International Law Commission on the work of its Sixty-​third Session (26 April to 3 June and 4 July to 12 August 2011), General Assembly, Official Records, Sixty-​sixth Session, Supplement No 10, (A/​66/​10/​Add.1) 399–​403. Jochen A Frowein, ‘Reservations to the European Convention on Human Rights’ in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: The European Dimension. Studies in Honour of Gérard J. Wiarda (2nd ed, Carl Heymanns Verlag 1990) 198–​200. De lege ferenda some scholars have advocated for fully institutionalizing the mechanisms for controlling reservations to human rights treaties: see Antônio A Cançado Trindade, ‘International Law for Humankind: Towards a New Ius Gentium. General Course on Public International Law (II)’ (2005) 317 RCADI 9, 74–​77. In fact, Articles 19 and 20 of the vclt establish a subjective regime, based on the principle of reciprocity: see José M Ruda, ‘Reservations to Treaties’ (1975) 146 RCADI 95, 182–​ 183; and Gérard Cohen-​Jonathan, ‘Les réserves à la convention européenne des droits de l’homme’ (1989) 93 RGDIP 273, 293–​297 and 313. On the legal problems posed by reaching an objective solution to this topic: see Edward T Swaine, ‘Reserving’ (2006) 31 Yale JIL 307, 321–​323.

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the treaty27 and the identification of which reservations can be considered contrary to it. In Loizidou v Turkey, the ECtHR concluded that the clause by which Turkey had accepted its jurisdiction was contrary to Article 57(2) of the EConHR,28 which prohibits the formulation of general reservations.29 Likewise, in Hilarie v Trinidad and Tobago, the IACtHR stated that Trinidad and Tobago could not take advantage of the limitations formulated in its instrument accepting the jurisdiction of the IACtHR and that ‘this limitation [was] incompatible with the object and purpose of the Convention’.30 In this case, the reservation made by Trinidad and Tobago to the jurisdiction of the IACtHR jeopardized the effective application of the AConHR by giving primacy to its constitution.31

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However, the object and purpose of the treaty still remains a vague concept: see Antonio Remiro Brotóns, Derecho internacional público 2.  Derecho de los tratados (Tecnos 1987)  222–​223; Isabelle Buffard and Karl Zemanek, ‘The “Object and Purpose” of a Treaty: An Enigma?’ (1988) 3 ARevIEL 311, 322; David S Jonas and Thomas N Saunders, ‘The Object and Purpose of a Treaty:  Three Interpretive Methods’ (2010) 43 Vand J Transnat’l L 565, 571–​577. A reservation ‘of a general character’ is also a complex concept: see Iain Cameron and Frank Horn, ‘Reservations to the European Convention on Human Rights:  The Belilos Case’ (1990) 33 GYIL 69, 97–​115. Regarding the possibility of limiting its jurisdiction through interpretative declarations, the ECtHR has declared that ‘the existence of such a restrictive clause governing reservations suggests that States could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their “jurisdiction” from supervision by the Convention institutions. The inequality between Contracting States which the permissibility of such qualified acceptances might create would, moreover, run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights’: see Loizidou v Turkey (preliminary objections), 23 March 1995, para 77, Series A No 310. This possition was later confirmed by the ECtHR in Ilie Ilaşcu and Others v Moldova and the Russian Federation (dec) [GC], No 48787/​99, ECtHR 2001. The IACtHR stated that if it were to accept ‘the said declaration in the manner proposed by the State would lead to a situation in which the Court would have the State’s Constitution as its first point of reference, and the American Convention only as a subsidiary parameter, a situation which would cause a fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention’: see Case of Hilaire v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 80, para 93. In the same sense: see Case of Benjamin et al v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 81, para 84; Case of Constantine et al v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 82, para 84.

60 ­chapter  The principle of subsidiarity is not only present when regional human rights treaties are concluded, but also when the ECtHR and the IACtHR interpret those treaties and, in particular, when they rule on the partial suspension of their provisions. 2

Partial Suspension of Regional Human Rights Treaties

Subsidiarity can also be conceived as the possibility of partially suspending the implementation of regional human rights treaties.32 This is provided both in Article 15 of the EConHR and Article 27 of the AConHR. The ECtHR33 and the IACtHR34 have interpreted these provisions in a restrictive manner, in view of the non-​derogable character of some of the rules that make up the hard core of

32

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On the legal basis for exceptions to the application of regional human rights treaties: see Fausto Pocar, ‘Considerazioni sulla garanzia internazionale della protezione dei diritti dell’uomo’ in Elisa Pérez Vera and José A Rodríguez Carrión (eds), Soberanía del Estado y Derecho Internacional. Homenaje al Profesor Juan Antonio Carrillo Salcedo (Secretariado de Publicaciones de la Universidad de Sevilla 2005) 1089. Article 15 of the EConHR indicates that ‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’ Article 27 of the AConHR reads as follows ‘1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin. 2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights. 3. Any State Party availing itself of

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international human rights law.35 The exceptional nature of these provisions was emphasized in the advisory opinion delivered by the IACtHR on the Habeas corpus in Emergency Situations: This does not mean, however, that the suspension of guarantees implies a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect under normal conditions. These restraints may not be considered to be non-​existent, however, nor can the government be deemed thereby to have acquired absolute powers that go beyond the circumstances justifying the grant of such exceptional legal measures.36 It is a necessary condition to activate this partial suspension of treaty obligations that the measures adopted by the State respond to a situation of armed conflict or emergency that threatens its own integrity as a sovereign entity. In Lawless v Ireland, a case raised in the context of the measures taken by Ireland to fight against terrorism in 1957, the ECtHR noted that these measures can be taken when ‘they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed’.37 In addition, the EComHR

35 36 37

the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension.’ Rosalyn Higgins, ‘Derogations under Human Rights Treaties’ (1976–​1977) 48 BYIL 281, 282. Habeas corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-​8/​87 of 30 January 1987 Series A No 8, para 24. Lawless v Ireland (No 3), 1 July 1961, para 28, Series A No 3. In this sense, the IACtHR indicated that ‘It is the obligation of the State to determine the reasons that lead the domestic authorities to declare a state of emergency and it is up to these authorities to exercise appropriate and effective control over this situation and to ensure that the suspension decreed is limited “to the extent and for the period of time strictly required by the exigencies of the situation”, in accordance with the Convention. States do not enjoy an unlimited discretion; it is up to the Inter-​American system’s organs to exercise this control in a subsidiary and complementary manner, within the framework of their respective competence’: see Case of Zambrano Vélez et al v Ecuador, Merits, Reparations and Costs, Judgment of 4 July 2007 Series C No 166, para 47.

62 ­chapter  stated in Greece v United Kingdom that recourse to these measures must in itself be necessary to avoid the situation of national emergency: The suspension of the rights protected under Article 15 presupposes either that there are no other means of averting the danger or that, within the general framework of such means, it is this very derogation measures which will prove decisive.38 The ECtHR has taken the view that State authorities are better placed to find the necessary measures to deal with these situations, and gives them a margin of appreciation to define the content and scope of the measures to be adopted,39 limiting its competence to judicial scrutiny of such measures. Regarding the restrictions on Article 5 of the EConHR (right to liberty and security)40 introduced by the Anti-​terrorism, Crime and Security Act41 in the United Kingdom after the terrorist attacks of 11 September 2001 in the usa, the ECtHR admitted that States enjoy the competence to ‘make their own assessment on the basis of the facts known to them’.42 In its advisory opinion on Judicial Guarantees in States of Emergency, the IACtHR noted that there must be an adequacy between the measures taken by 38 39 40

41

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Greece v United Kingdom, No 176/​56, vol ii, Report of 26 September 1958, 330. Ireland v United Kingdom, 18 January 1978, para 207, Series A No 25. This provision states in paragraph 1(f) that ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.’ Ed Bates, ‘A Public Emergency Threatening the Life of the Nation? The United Kingdom’s Derogation from the European Convention on Human Rights of 18 December 2001 and the A Case’ (2005) 76 BYIL 245. Though the ECtHR declared that the measures taken by the United Kingdom against the majority of the complainants were not in conformity with Article 5 of the EConHR, in ruling on the capacity of the State to generally establish such restrictions stated that ‘it is striking that the United Kingdom was the only Convention State to have lodged a derogation in response to the danger from al’Qaeda, although other States were also the subject of threats, the Court accepts that it was for each Government, as the guardian of their own people’s safety, to make their own assessment on the basis of the facts known to them. Weight must, therefore, attach to the judgment of the United Kingdom’s executive and Parliament on this question. In addition, significant weight must be accorded to the views of the national courts, who were better placed to assess the evidence relating to the existence of an emergency’: see A and Others v United Kingdom [GC], No 3455/​05, para 180, ECtHR 2009.

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the State and the needs of the emergency situation,43 which cannot be established or applied on issues outside the scope of the emergency situation.44 In this regard, as was highlighted by the ECtHR in Brannigan and McBride v United Kingdom, in order to consider whether the measures exceed the scope of the emergency situation, it is appropriate to take into account both the nature of the rights affected by the suspension and the special circumstances of the case.45 For example, in Aksoy v Turkey, the ECtHR stated that Turkey had violated Article 5(3) of the EConHR by detaining and keeping the applicant incommunicated for a period of fourteen days without bringing him before a court: Although the Court is of the view […] that the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days 43 44

45

Judicial Guarantees in States of Emergency (Arts 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-​9/​87 of 6 October 1987 Series A No 9, para 21. As was indicated by the EComHR when referring to legislative measures established by the United Kingdom to curb illegal immigration, without having made use of Article 15 of the EConHR, these ‘limitations of the judicial review are very similar to those applied by the courts in relation to detention under the Northern Ireland emergency legislation which was also imposed for considerations of national security. In relation to the latter the Court found in its judgment of 18 January 1978 in the Irish State case that the judicial review was not sufficiently wide in scope and would as such have violated Article 5(4) of the Convention if the derogation from the obligations of the Convention had not been justified under Article 15 of the Convention […]. In the present case there is no derogation under Article 15, and the Commission considers that the detention of an alien in view of his deportation for reasons of national security can in a certain way be compared to the internment of nationals effected for the same reasons both measures aiming at removing the person concerned from society mainly because he is considered to constitute a risk to the preservation of peace and maintenance of order in the country’: see Franco Caprino v United Kingdom, No 6871/​75, Commission decision of 3 March 1978, Decisions and Reports 14, 22. A contrario sensu: see X, Y and Z v United Kingdom, No 5727/​72, No 5155/​71, No 5744/​72 and No 5857/​72, Commission decision of 12 July 1978, Decisions and Reports 14, 7–​8. The ECtHR indicated that ‘Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the “extent strictly required by the exigencies” of the crisis […]. At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation’: see Brannigan and McBride v United Kingdom, 26 May 1993, para 43, Series A  No 258-​B. In the same sense:  see Gary Marshall v United Kingdom (dec), No 41571/​98, ECtHR 2001.

64 ­chapter  without judicial intervention. This period is exceptionally long, and left the applicant vulnerable not only to arbitrary interference with his right to liberty but also to torture.46 Finally, this power conferred on the State under the principle of subsidiarity is subject to a series of substantive and formal limits. With regard to the former, as set out in the second paragraph of both Article 15 of the EConHR and Article 27 of the AConHR, the temporary suspension of obligations under both treaties does not affect the enjoyment of certain fundamental (non-​derogable) rights. The ECtHR considered there had been a violation of Article 3 of the EConHR, finding that the measures taken by Turkey to prevent and combat terrorist acts in the province of Kurdistan constituted a violation of the obligation not to subject to torture or to inhuman or degrading treatment, which is not a derogable mandate under Article 15 of the EConHR: Article 3 […] enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 […], Article 3 […] makes no provision for exceptions and no derogation from it is permissible under Article 15 […] even in the event of a public emergency threatening the life of the nation […].47 Concerning the formal limits, in line with the provisions of the last paragraph of both Article 15 of the EConHR and Article 27 of the AConHR, States can only adopt such extraordinary measures as long as the partial suspension of the treaties remains in force according to the notification to that effect. This notification must be sent to the General Secretariat either of the Council of Europe or of the 46

47

Aksoy v Turkey, No 21987/​93, para 78, ECtHR 1996. In the same sense: see Demir and Others v Turkey, No 21380/​93, No 21381/​93 and No 21383/​93, paras 53–​57, ECtHR 1998; Nuray Şen v Turkey, No 41478/​98, para 27, ECtHR 2003; Elci and Others v Turkey, No 23145/​93 and No 25091/​94, paras 671 and 684, ECtHR 2003; Ahmet Özkan and Others v Turkey, No 21689/​93, paras 379–​382, ECtHR 2004; Bilen c Turquie, No 34482/​97, paras 52–​53, ECtHR 2006. Aksoy v Turkey, No 21987/​93, para 62, ECtHR 1996. In the same sense: see Selçuk and Asker v Turkey, No 23184/​94 and No 23185/​94, paras 75–​76, ECtHR 1998; Dikme v Turkey, No 20869/​92, para 89, ECtHR 2000.

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oas. Those measures cannot extend beyond that date,48 nor outside the territory delimited by the State itself in said notification: It should be noted, however, that Article 15 authorises derogations from the obligations arising from the Convention only “to the extent strictly required by the exigencies of the situation”. In the present case the Court would be working against the object and purpose of that provision if, when assessing the territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory not explicitly named in the notice of derogation. It follows that the derogation in question is inapplicable ratione loci to the facts of the case.49 The principle of subsidiarity makes it possible to exceptionally, temporarily and partially derogate from the application of regional human rights treaties. It also plays an essential role in the enforcement of judgments handed down by the regional human rights courts and tribunals. 3

Enforcement of Judgments of Regional Human Rights Courts and Tribunals

The substantive dimension of the principle of subsidiarity is also highlighted when regional human rights courts and tribunals recognize the obligation of the State to provide reparation in favour of the victim. Article 46 of the EConHR50

48 49

50

Brogan and Others v United Kingdom, 29 November 1988, para 48, Series A No 145. Sakik and Others v Turkey, No 23878/​94, No 23879/​94, No 23880/​94, No 23881/​94, No 23882/​94 and No 23883/​94, para 39, ECtHR 1997. In the same sense: see Sadak c Turquie, No 25142/​94 and No 27099/​95, para 56, ECtHR 2004; Abdülsamet Yaman v Turkey, No 32446/​96, para 69, ECtHR 2005. This provision states that ‘1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. 3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee. 4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds

66 ­chapter  and Article 68 of the AConHR51 provide for institutional mechanisms to monitor the implementation and enforcement of judgments rendered by the ECtHR and the IACtHR, respectively.52 Apart from awarding compensation to satisfy the various damages caused (moral damages, legal expenses and accrued interest), the decisions of the ECtHR and the IACtHR may have a direct impact on the legal systems of States.53 They sometimes urge them to adopt legislative and jurisdictional measures,54 without prejudice to the fact that domestic courts can also use this case law as a yardstick on which to interpret fundamental rights. It

51

52

53 54

of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. 5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.’ This provision reads as follows ‘1. The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties. 2. That part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state’. Article 69 of the Rules of Procedure of the IACtHR determines the procedure for the supervision of compliance with the decisions of the IACtHR. It states that ‘1. The procedure for monitoring compliance with the judgments and other decisions of the Court shall be carried out through the submission of reports by the State and observations to those reports by the victims or their legal representatives. The Commission shall present observations to the State’s reports and to the observations of the victims or their representatives. 2. The Court may require from other sources of information relevant data regarding the case in order to evaluate compliance therewith. To that end, the Tribunal may also request the expert opinions or reports that it considers appropriate. 3. When it deems it appropriate, the Tribunal may convene the State and the victims’ representatives to a hearing in order to monitor compliance with its decisions; the Court shall hear the opinion of the Commission at that hearing. 4. Once the Tribunal has obtained all relevant information, it shall determine the state of compliance with its decisions and issue the relevant orders. 5. These rules also apply to cases that have not been submitted by the Commission.’ In this section we leave aside the role played by the political bodies of the Council of Europe and the oas in the enforcement phase: see Andrew Drzemczewski, ‘Art. 46. Forza vincolante ed esecuzione delle sentenze’ in Sergio Bartole and others (eds), Commentario alla Convenzione Europea per la tutela dei diritti dell’uomo e delle libertà fondamentali (Cedam 2001) 685–​694. Leo Zwaak, ‘The Supervisory Task of the Committee of Ministers’ in Van Dijk and others (introduction n 14) 299–​301. Jochen A  Frowein, ‘The Binding Force of the ECHR Judgments and its Limits’ in Breitenmoser and others (p 1 ch 3 n 17) 261–​269.

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is genuinely an institutional enforcement system,55 although technically not as sophisticated as the one developed in the field of European integration. The ECtHR, referring to measures to be taken to eliminate the situation of non-​compliance by the State, noted in Marckx v Belgium that: The Court confines itself to noting that it is required to rule only on certain aspects of the maternal affiliation of “illegitimate” children under Belgian law. It does not exclude that a judgment finding a breach of the Convention on one of those aspects might render desirable or necessary a reform of the law on other matters not submitted for examination in the present proceedings. It is for the respondent State, and the respondent State alone, to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent.56 In some cases, reparation measures are confined to altering the legal situation of the applicant, for instance, by reopening a criminal procedure that had been carried out without sufficient procedural guarantees, where a breach of the right to effective judicial guarantees had been declared.57 In other cases, they entail the adoption of legislative reforms, as pointed out by the IACtHR in Dacosta Cadogan v Barbados.58 The IACtHR is lavish on the recommendation of general measures that States parties to the AConHR should adopt in complying with the judgment.59 On the other hand, the ECtHR has not applied this technique in such a general way,60 and leaves it to the Member States of the Council of Europe to determine the most effective and appropriate procedures 55

56 57 58 59

60

A system which has been described as a ‘soft version of strong review’: see Richard Bellamy, ‘The Democratic Legitimacy of International Human Rights Conventions:  Political Constitutionalism and the European Convention on Human Rights’ (2004) 25 EJIL 1019, 1037. Marckx v Belgium, 13 June 1979, para 42, Series A No 31. Barberá, Messegué and Jabardo v Spain (Article 50), 13 June 1994, para 5, Series A No 285-​C. Case of Dacosta Cadogan v Barbados, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 24 September 2009 Series C No 204, paras 104–​105. James L Cavallaro and Stephanie E Brewer, ‘Revaluating Regional Human Rights Litigation in the Twenty-​First Century: The Case of the Inter-​American Court’ (2008) 102 AJIL 768, 785–​788; Helene Tigroudja, ‘L’obligation d’exécution dans le système interaméricain des droits de l’homme: vers l’affirmation d’un droit subjectif international à l’exécution des decisions de la Cour interaméricaine’ (2017) 121 RGDIP 683. In this sense, the ECtHR has indicated that ‘The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment

68 ­chapter  for compliance in each situation.61 In fact, there is a very heterogeneous practice amongst them, distinguishing between those States that have their own ad hoc enforcement mechanism and those that have not established it yet.62 In order to strengthen legal certainty and the degree of compliance, it has been proposed to establish a homogeneous procedure for implementing ECtHR decisions in all Member States of the Council of Europe, which should be envisaged in an additional protocol to the EConHR.63 In the inter-​American subsystem, Goiburú and Others v Paraguay provides an excellent precedent for the extent to which regional human rights courts and tribunals weigh the principle of subsidiarity when adopting measures to remedy an internationally wrongful act. In this judgment, the IACtHR acknowledged the violation of several provisions of the AConHR. It also declared

61

62

63

in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed’: see Brumarescu v Romania (Article 41) [GC], No 28342/​95, para 20, ECtHR 2001; Procaccini Giuseppina and Orestina v Italy [GC], No 65075/​01, para 123, ECtHR 2006; Kuric and Others v Slovenia [GC], No 26828/​06, paras 141–​142, ECtHR 2012. Regarding the measures of reparation in Assanidze v Georgia, the ECtHR found that ‘As regards the measures which the Georgian State must take […], subject to supervision by the Committee of Ministers, in order to put an end to the violation that has been found, the Court reiterates that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment […]. This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed […]. However, by its very nature, the violation found in the instant case does not leave any real choice as to the measures required to remedy it […] having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Article 5 § 1 and Article 6 § 1 of the Convention […], the Court considers that the respondent State must secure the applicant’s release at the earliest possible date’:  see Assanidze v Georgia [GC], No 71503/​01, paras 202–​203, ECtHR 2004. Pablo A Fernández Sánchez, ‘L’esecuzione delle sentence della Corte europea de diritti dell’uomo nel sistema giuridico spagnolo’ (2015) OIDU 799; Pierre-​François Laval, ‘Les limites constitutionnelles à l’exécution des arrêts de la Cour européenne des droits de l’homme à la lumière de la jurisprudence nationale comparée’ (2017) 121 RGDIP 661. Santiago Ripol Carulla, ‘La recepción de los actos normativos del Consejo de Europa y de las sentencias del TEDH en el Derecho español’ (2008) 28 REDE 475, 493.

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the international responsibility of Paraguay for not having taken measures to properly investigate the crimes committed within the framework of the ‘Condor Operation,’ thus favouring the impunity of those individuals responsible for the commission of these crimes. Despite declaring the international responsibility of Paraguay, the IACtHR chose not to accept one of the reparation measures requested by the victims, proposing the State to adopt legislative reforms that would allow in absentia prosecution and conviction of those presumed criminally responsible. The IACtHR justified its decision by stating that there was not sufficiently uniform legislative practice among the States regarding the application of this criminal procedure. The Court also found that, in any case, its possible inclusion among the list of reparation measures prescribed to the State did not ensure that those responsible would effectively be detained and prosecuted by national authorities: [T]‌here is no clear consensus, in either the legal doctrine or the national laws of the States in the region concerning the regulation of this procedural constraint. In addition, there have been cases in which convictions in absentia or “in contempt of court” have not been executed, because the arrest warrants issued against those convicted have not been implemented; this then becomes a factor of impunity and benefits the latter, owing to the action of the justice system that convicts them but fails to execute the sentence. Accordingly, the Court will not rule in this regard.64 In the enforcement phase of the judgments issued by these regional human rights courts and tribunals, it has been rightly argued that the more intrusive a decision is in the sovereignty of the State (the less deferent the decision is to the principle of subsidiarity), the more likely it is that a State seeks to defer or circumvent its compliance,65 thus relying mainly on its sovereign power to apply and develop the particular or general measures recommended in the judgment.66

64 65

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Case of Goiburú et al v Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006 Series C No 153, para 168 (emphasis added). It has been stated very illustratively that ‘expansive rulings create easy targets for political rebuke’: see Karen J Alter, James T Gathii and Laurence R Helfer, ‘Backlash against International Courts in West, East and Southern Africa:  Causes and Consequences’ (2016) 27 EJIL 293, 327. Yuval Shany, ‘Assessing the Effectiveness of International Courts: A Goal-​Based Approach’ (2012) 106 AJIL 225, 263–​265.

70 ­chapter  In summary, the principle of subsidiarity is one of the fundamental backbones of the regional human rights subsystems, and it brings forward a clear tension between the fundamental principles of intergovernmental cooperation and sovereign equality. The notion of consensus used by the ECtHR and the IACtHR provides these subsystems with a flexible tool to modulate this tension through either an evolutive interpretation of regional human rights treaties (part 2), or the recognition of certain deference to States by invoking the notion of the national margin of appreciation (part 3).

pa rt 2 Consensus and Evolutive Interpretation

∵

Introduction to Part 2

The notion of consensus sometimes triggers an evolutive interpretation of the regional human rights treaties, in accordance with the social circumstances present at the time of interpretation. This method of interpretation favours the adaptation of those treaties to the contemporary social reality and allows the enlargement of the rights recognized to individuals. Prior to studying the case law of the ECtHR and the IACtHR, we delve into the methods of interpretation of international treaties provided by the vclt and examine how the temporal factor can be taken into consideration by international courts and tribunals when interpreting a treaty.

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­c hapter 4

Evolutive Interpretation as a Method of Interpretation in Public International Law Chapter 4 studies the application of the method of evolutive interpretation in international practice. Firstly, we examine the codification process of the law of treaties that lead to the signature of the vclt with the purpose of identifying in which circumstances this method of interpretation was then contemplated. Subsequently, we study how international courts and tribunals have used evolutive interpretation. In ­chapter 5 we analyze how the regional human rights courts and tribunals have developed an evolutive interpretation of the EConHR and AConHR based on the notion of consensus. 1

The Temporal Element and the Law of Treaties

During the codification of the law of treaties, the ilc discussed the role of the temporal element, since, at that time, international courts and tribunals had already ruled on this issue in a very uneven manner. 1.1 The Works of the International Law Commission Treaty interpretation is articulated through the methods traditionally recognized by international practice.1 These methods, such as textual, systematic or teleological interpretation, are part of customary international law and were codified in Articles 31 to 33 of the vclt. However, evolutive interpretation is not included in these provisions, at least expressly. Neither the ilc nor the Vienna Conference were enthusiastic to incorporate this method of interpretation into the final text of the vclt. Conversely, the ilc initial proposal enshrined the principle of contemporaneity inspired

1 Ludwik Ehrlich, ‘L’interprétation des traités’ (1928) 24 RCADI 1, 95–​139; Arnold D McNair, Law of the Treaties (Clarendon Press 1961) 364–​435; Georges Berlia, ‘Contribution a l’interprétation des traités’ (1965) 114 RCADI 283, 295–​311; Mustafa K Yassen, ‘L’interprétation des traités après la Convention de Vienne sur le droit des traités’ (1976) 151 RCADI 1, 65–​67; Maarten Bos, ‘Theory and Practice of Treaty Interpretation’ (1980) xxvii NILR 135, 136–​142; Denis Alland, ‘L’interprétation du droit international public’ (2012) 362 RCADI 41, 143.

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74 ­chapter  by some precedents, such as the Island of Palmas case.2 This judicial practice had been compiled by the third Special Rapporteur on the topic of the law of treaties (Gerald Fitzmaurice), who even provided for a definition of the principle of contemporaneity stating that the ‘terms of a treaty must be interpreted according to the meaning which they possessed, or which would have been attributed to them, and in the light of current linguistic usage, at the time when the treaty was originally concluded’.3 Taking this definition and international case law as its starting point,4 Draft Article 56 proposed by the fourth Special Rapporteur (Humphrey Waldock) was discussed by the ilc at its sixteenth session in 1964. Draft Article 56 was included under the section ‘application and effects of treaties’ and under the heading ‘the inter-​temporal law.’ It read as follows: 1. A treaty is to be interpreted in the light of the law in force at the time when the treaty was drawn up. 2. Subject to paragraph 1, the application of a treaty shall be governed by the rules of international law in force at the time when the treaty is applied.5 Draft Article 56, which distinguished the interpretation of the treaty from its application, was the subject of interesting discussions in the Plenary of the ilc. Some members considered that the two proposed paragraphs dealt with separate issues and should not be included in the same Draft Article.6 Other members understood that it was more appropriate to include this Draft Article in the part concerning treaty interpretation.7 As a result of these discussions, 2 In that dispute between the Netherlands and the usa, the sole arbitrator Max Huber indicated that ‘A juridical fact must be appreciated in the light of the law contemporary with it, and not in of the law in force at the time when a dispute in regard to it arises or falls to be settled’: see Decision of 4 April 1928 (UNRIAA, vol ii, 845). This method of interpretation was also used in: Affaire des Grisbadarna, Decision of 23 October 1909 (UNRIAA, vol xi, 159–​160); The North Atlantic Coast Fisheries Case, Decision of 7 September 1910 (UNRIAA, vol xi, 196–​ 200). In the pcij case law and later in the icj: see Affaire de l’interprétation du paragraphe 4 de l’annexe suivant l’article 179 du Traité de Neuilly, Arrêt du 12 septembre 1925, CPJI Recueil, Série A nº 3, 7–​9; Admission d’un État aux Nations unies (Charte, art 4), avis consultatif: CIJ Recueil 1948, 57 (Opinion dissidente de MM Basdevant et Winiarski, Sir Arnold D McNair et M Read, para 12). 3 Gerald G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–​ 4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 203, 212. See also Yearbook ILC, 1964, vol ii, 55–​56. 4 Yearbook ILC, 1964, vol i, 275, para 2. 5 Yearbook ILC, 1964, vol ii, 8–​9 (emphasis added). 6 Yearbook ILC, 1964, vol i: 33 (Jiménez de Aréchaga, para 8); 34 (Paredes, para 13); 35 (Castrén, para 2); 35 (Pal, para 5). 7 ibid 36 (Elias, para 19); 39 (Ago, para 50).

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the Special Rapporteur included the principle of contemporaneity into Draft Article 70,8 which was devoted to methods of interpretation of international treaties: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to each term: (a)  In the context of the treaty and in the light of its objects and purposes; and (b)  In the light of the rules of general international law in force at the time of its conclusion.9 However, as a result of the views expressed by the States, the Special Rapporteur revised his proposal again in 1966 and merged several Draft Articles of his previous project, devoted to the methods of interpretation, into a new Draft Article 69 entitled ‘general rule of interpretation’: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in the light of: (a)  the context of the treaty and its objects and purposes; (b)  the rules of international law; (c)  any agreement between the parties regarding the interpretation of the treaty; (d)  any subsequent practice in the application of the treaty which establishes the common understanding of the meaning of the terms as between the parties generally. 2. Nevertheless, a meaning other than its ordinary meaning shall be given to a term if it is established that the parties intended the term to have that special meaning. 3. The context of the treaty, for the purposes of its interpretation, shall be understood as comprising, in addition to the treaty, any agreement or instrument related to the treaty which has either been made by the parties or has been made by some of them and assented to by the others as an instrument related to the treaty.10 In this proposal, which was significantly revised and subjected to the classic toilettage by the Drafting Committee11 and which is the origin of Article 31 of 8 9 10 11

ibid 39 (Waldock, paras 56–​61). Yearbook ILC, 1964, vol ii, 199 (emphasis added). Yearbook ILC, 1966, vol i, Part 2, 184, para 59. Article 69 of the Draft Articles revised in 1966 (Yearbook ILC, 1966, vol ii, 118) indicated that ‘1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

76 ­chapter  the vclt,12 the reference to the principle of contemporaneity disappeared after an intense debate in the Plenary, where several members presented arguments for13 and against14 its maintenance. Conscious of the lack of consensus, the Special Rapporteur chose to exclude the reference to the principle of contemporaneity, claiming to have had the impression that ‘the Commission was





12





13 14

2.  The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.  There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty; (b) Any subsequent practice in the application of the treaty which establishes the understanding of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4.  A special meaning shall be given to a term if it is established that the parties so intended.’ Article 31 of the vclt reads as follows ‘1.  A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.  The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.  There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4.  A special meaning shall be given to a term if it is established that the parties so intended.’ Yearbook ILC, 1966, vol i, Part  2:  187 (Briggs, para 33); 189 (Ago, paras 58–​59); 197 (Yasseen, para 53). ibid 185 (De Luna, para 10); 186 (Rosenne, para 21); 188 (Reuter, para 43); 188 (Castrén, para 50); 190 (Jiménez de Aréchaga, para 71); 194 (De Luna, para 13); 195 (Reuter, para 23); 196 (El-​Erian, para 31).

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generally disinclined to deal with the problem of intertemporal law in the draft Articles’.15 1.2 International Case Law Supporting the Principle of Contemporaneity In addition to those cited above,16 some decisions of international courts and tribunals have applied the principle of contemporaneity when interpreting international treaties. In the Case concerning rights of nationals of the United States of America in Morocco, the icj invoked it to interpret whether the concept of ‘dispute’ provided for in a bilateral treaty, concluded between Morocco and the usa in 1936, referred to civil and/​or criminal litigation: The Treaty of 1836 replaced an earlier treaty between the United States and Morocco which was concluded in 1787. The two treaties were substantially identical in terms and Articles 20 and 21 are the same in both. Accordingly, in construing the provisions of Article 20 -​and, in particular, the expression “shall have any dispute with each other”-​it is necessary to take into account the meaning of the word “dispute” at the times when the two treaties were concluded. For this purpose it is possible to look at -​the way in which the word “dispute” or its French counterpart was used in the different treaties concluded by Morocco: e.g., with France in 1631 and 1682, with Great Britain in 1721, 1750, 1751, 1760 and 1801. It is clear that in these instances the word was used to cover both civil and criminal disputes.17 In Kasikili/​Sedudu Island, the icj interpreted the terms ‘center of the watercourse’ and ‘thalweg’ as synonyms, although this conclusion could not be reached in light of the international law in force at the time of settling the dispute, considering that: [A]‌t the time of the conclusion of the 1890 Treaty, it may be that the terms “centre of the [main] channel” and “Thalweg” des Hauptlaufes were used interchangeably. In this respect, it is of interest to note that, some three years before the conclusion of the 1890 Treaty, the Institut de droit international stated the following in Article 3, paragraph 2, of the “Draft concerning the international regulation of fluvial navigation”, adopted at 15 16 17

ibid 199 (Waldock, para 9). See pt 2 ch 4 n 2. Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952: ICJ Reports 1952, 189.

78 ­chapter  Heidelberg on 9 September 1887: “The boundary of States separated by a river is indicated by the thalweg, that is to say, the median line of the channel” (Annuaire de l’Institut de droit international, 1887–​1888, p. 182), the term “channel” being understood to refer to the passage open to navigation in the bed of the river, as is clear from the title of the draft. Indeed, the parties to the 1890 Treaty themselves used the terms “centre of the channel” and “thalweg” as synonyms, one being understood as the translation of the other.18 This principle was also invoked in the context of a border delimitation between Cameroon and Nigeria in Frontiére terrestre et maritime entre le Cameroun et le Nigéria in order to interpret the term ‘mouth’ of the river in accordance with the intention expressed by France and United Kingdom after World War i, in spite of the natural changes that had occurred in the course of the river.19 In arbitral practice,20 the principle of contemporaneity was also used in the Delimitation of the Border between Eritrea and Ethiopia, another dispute on border delimitation: By this the Commission understands that a treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded. This involves giving expressions (including names) used in the treaty the meaning that they would have possessed at that time. The Commission agrees with this approach and has borne it in mind in construing the Treaties.21

18 19 20

21

Kasikili/​Sedudu Island (Botswana/​Namibia), Judgment, ICJ Reports 1999, para 25. Frontiére terrestre et maritime entre le Cameroun et le Nigéria (Cameroun c Nigéria; Guinée équatoriale (intervenant)), arrêt, CIJ Recueil 2002, para 59. A more remote precedent in international arbitration is found in Petroleum Development Ltd v Sheikh of Abu Dhabi, where the umpire used the international law in force in 1939 to elucidate the scope of the substantive obligations that the parties had assumed, stating that ‘I should certainly in 1939 have read the expression “the sea waters which belong to that area” not only as including, but as limited to, the territorial belt and its subsoil. At that time neither contracting party had ever heard of the doctrine of the Continental Shelf, which as a legal doctrine did not then exist. No thought of it entered their heads. None such entered that of the most sophisticated jurisconsult, let alone the “understanding” perhaps strong, but “simple and unschooled” of Trucial Sheiks’: see Petroleum Development Ltd v Sheikh of Abu Dhabi, Decision of September 1951 (ILR, vol 18, 1951, 152). Delimitation of the Border between Eritrea and Ethiopia, Decision of 13 April 2002 (UNRIAA, vol xxv, ch 3, para 3.5).

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However, it is equally true that in this dispute the commission also used the subsequent practice of the States to interpret certain controversial issues.22 Notwithstanding these cases, a number of precedents confirm the surging use of evolutive interpretation in contemporary international practice. 2

Evolutive Interpretation and the Law of Treaties

The silence of the vclt regarding the principle of contemporaneity and evolutive interpretation is a consequence of a pair of circumstances that arose during the codification of the law of treaties. In the first place, the members of the ilc were very cautious in differentiating between interpretation and modification of international treaties, thereby preventing that the former should activate mechanisms that would lead to the amendment or modification of treaties. As evolutive interpretation was placed in the red line that separates the interpretation and the modification of treaties, the deletion of the reference to the principle of contemporaneity in Draft Article 69 proposed by the Special Rapporteur did not raise excessive problems within the ilc. Rather, it was an intelligent transaction designed to facilitate the approval of Draft Articles. Secondly, although the ilc waived any reference to the temporal element in the interpretation of international treaties in its Draft Articles, a stance later endorsed by the Vienna Conference, it cannot be forgotten that this question is latent and to a certain extent is dealt with indirectly in Article 31 of the vclt.23 This provision establishes both the power to interpret a treaty in light of its object and purpose (paragraph 1),24 and the possibility of interpreting it by reference to other rules of international law applicable between the parties (paragraph 3(c)).25

22 23

24 25

ibid paras 3.9–​3.13. In fact, it has been argued that evolutive interpretation derives from the general rule of interpretation enshrined by the VCLT see Eirik Bjorge, The Evolutionary Interpretation of Treaties (oup 2014) 140–​141. Malgosia Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties, Part I’ (2008) Hague YbIL 101, 115–​117. Vassilis P Tzevelekos, ‘The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR:  An Effective Anti-​Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology? Between Evolution and Systemic Integration’ (2010) MJIL 621.

80 ­chapter  In practice, both methods of interpretation may trigger an evolutive interpretation. In fact, there is a relationship between the teleological interpretation and evolutive interpretation,26 inasmuch as the former can serve as a limit for the latter, since the interpreter cannot go beyond the object and purpose of the treaty when undertaking an evolutive interpretation. By virtue of the principle of good faith, enshrined in Article 31(1) of the vclt, an evolutive interpretation of an international treaty could not change the content of the treaty, and thus exceed the limits imposed by its object and purpose. Likewise, if a provision is to be interpreted according to the object and purpose of the treaty, this interpretative approach may bring the treaty into line with contemporary social reality. Furthermore, when interpreting a treaty by reference to other rules of international law applicable between the parties, international courts and tribunals may take into consideration international rules created after the treaty entered into force. This might lead to an evolutive interpretation of its provisions. Apart from Article 31 of the vclt, Article 32 also winks at the temporal element in the interpretation of international treaties by regulating the role played by subsequent agreements and subsequent practice.27 Thus, it cannot be said that evolutive interpretation was completely excluded from the vclt. Once the vclt was signed, the Institut de droit international dealt with the principle of contemporaneity and inter-​temporal law in its Resolution on ‘The Intertemporal Problem in Public International Law’28 adopted in the 1975 session in Wiesbaden. In this resolution, a more flexible and dynamic approach to the interpretation of international treaties was proposed: Lorsqu’une disposition conventionnelle se réfère à une notion juridique ou autre sans la définir, il convient de recourir aux méthodes habituelles d’interprétation pour déterminer si cette notion doit être comprise dans son acception au moment de l’établissement de la disposition ou dans son acception au moment de l’application. Toute interprétation d’un traité doit prendre en considération l’ensemble des règles pertinentes de droit international applicables entre les parties au moment de l’application.29 26

27 28 29

Daniel Rietiker, ‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court of Human Rights: Its Different Dimensions and Its Consistency with Public International Law –​No Need for the Concept of Treaty Sui Generis’ (2010) Nor JIL 245, 260–​267. Julian Arato, ‘Subsequent Practice and Evolutive Interpretation:  Techniques of Treaty Interpretation Over Time and Their Diverse Consequences’ (2010) 9 LPICT 443. Résolution adoptée par l’Institut de Droit International sur ‘Le problème intertemporel en droit international public’ (1975) Annuaire IDI, Session de Wiesbaden, para 4. The French language version of the resolution is the authentic one.

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From the wording of this resolution, it can be concluded that the interpretation of international treaties could be made dependent on the rules of international law in force at the time of their application, provided that the provision submitted for interpretation is generic or has not been sufficiently specified. This assertion is consistent with international practice, especially if we consider that, by then (1975), the icj had already issued an advisory opinion in the case concerning the Legal Consequences for the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), a precedent where the Court admitted the evolutive interpretation of international treaties in certain cases.30 More recently, the ilc has reemphasized the role of evolutive interpretation. Firstly, in the course of its work on the fragmentation of international law, it pointed out that, by using the principle of systemic integration provided for in Article 31(3)(c) of the vclt, an interpreter may use the rules of international law in force at the time of the interpretation when the international treaty contains concepts that by their very nature are not ‘static but evolutionary’.31 And, secondly, the ilc has examined the role of subsequent agreements and subsequent practice in relation to the interpretation of treaties.32 Following the discussions resulting from the first report presented by the Special Rapporteur Georg Nolte,33 the ilc adopted a Draft Conclusion that reads as follows: Subsequent agreements and subsequent practice under articles 31 and 32 may assist in determining whether or not the presumed intention of the parties upon the conclusion of the treaty was to give a term used a meaning which is capable of evolving over time.34 In fact, recourse to subsequent agreements and subsequent practice can be a very useful tool to determine the intention of the parties. In this context, it may

30 31 32

33 34

See pt 2 ch 4 n 39. A/​C N.4/​L.682, of 13 April 2006, para 478. In fact, the study of treaties over time had been included in the long-​term programme of work of the ilc in 2008: see Report of the International Law Commission on the work of its Sixtieth session (5 May to 6 June and 7 July to 8 August 2008), General Assembly, Official Records, Sixty-​third session, Supplement No 10 (A/​63/​10) Annex i. A/​C N.4/​660, of 19 March 2013, paras 29–​64. Report of the International Law Commission on the work of its Sixty-​fifth session (6 May to 7 June and 8 July to 9 August 2013), General Assembly, Official Records, Sixty-​eighth session, Supplement No 10 (A/​68/​10) 24–​30. This Draft Conclusion was adopted by the Drafting Committee of the ILC in second reading in 2018: see A/​C N.4/​L.907, of 11 May 2018, 3.

82 ­chapter  also confirm that they have agreed to give a treaty provision a certain meaning that is capable of evolving over time. Although this method of interpretation is autonomous and distinct from evolutive interpretation, international practice shows that both of them may be complementary. In Öcalan v Turkey the Grand Chamber of the ECtHR stated that: It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3.35 At this juncture, it is necessary to analyze the relevant international case law admitting the evolutive interpretation of international treaties. Following the same structure proposed in part 1, we first study the case law of the icj. Subsequently, we examine the decisions of other international courts and tribunals. Finally, we reflect on how regional human rights courts and tribunals have used this method of interpretation. 3

Evolutive Interpretation in International Case Law

This section studies the case law of several international courts and tribunals in which evolutive interpretation has been used to govern the interpretation of international treaties. 3.1 International Court of Justice Before examining the cases where the icj has applied evolutive interpretation, it should be noted that its predecessor, the pcij, had already resorted to this method of interpretation in Interprétation de la convention de 1919 concernant le travail de nuit des femmes. In this advisory opinion, it had to decide if the Convention on the Employment of Women during the night, adopted in Washington on 28 November 1919 (ilo Convention No 4),36 applied to other

35 36

Öcalan v Turkey [GC], No 46221/​99, para 163, ECtHR 2005. United Nations, Treaty Series, vol 38, No 587, 67.

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categories of women who were not those employed in manual work. The pcij noted that the broad character of the terms used by that convention favoured its evolutive interpretation: On a fait valoir qu’en 1919, lorsque la convention fut adoptée à Washington, il n’y avait en fait qu’un très petit nombre de femmes occupant des postes de surveillance ou de direction dans les établissements industriels et que l’application de la convention à des femmes occupant ces postes ne fut jamais envisagée. A supposer qu’il en fût ainsi, cependant, cet argument ne fournit pas, par lui-​même, un motif suffisant pour permettre d’ignorer les termes de la convention. Le seul fait qu’au moment où la Convention concernant le travail de nuit des femmes avait été conclue on n’aurait pas pensé à certains faits ou situations que les termes de la convention, selon leur sens normal, sont assez larges pour inclure, ne permet pas d’interpréter, autrement que d’une manière conforme à leurs termes, les dispositions de cette convention qui ont une portée générale.37 Almost forty years later, the icj resorted to this method to interpret the legal regime that was established under Article 22 of the Covenant of the League of Nations,38 adopted on 29 April 1919. This provision was related to the colonies and territories that, as a consequence of the war, had ceased to be under the sovereignty of the States which formerly ruled them and which were inhabited by peoples not yet able to stand by themselves under the ‘strenuous conditions of the modern world’. In its advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the icj had to examine the substance of the principle established by the first paragraph of Article 22, which affirmed that to these territories ‘there should be applied the principle that the well-​being and development of such peoples form a sacred trust of civilisation.’ The Court was faced with the interpretation of an international multilateral treaty adopted in the legal framework of the League of Nations. In this context, it considered that the expressions ‘the strenuous conditions of the modern world,’ ‘the well-​being and development’ and ‘sacred trust’ had a dynamic or evolutive character and, therefore, had to be interpreted in light of the international legal regime set forth under the UN Charter and effective in 1971. In

37 38

Interprétation de la convention de 1919 concernant le travail de nuit des femmes, Avis consultatif du 15 novembre 1932, CPJI Recueil, Série A/​B nº 50, 377–​378. United States Multilateral Treaties, vol 2 (1918–​1930) 43.

84 ­chapter  particular, attention had to be paid to Resolution 1514 (xxv) on the Granting of Independence to Colonial Countries and Peoples on 14 December 1960, adopted by the UN General Assembly: That is why, viewing the institutions of 1919, the Court must take into consideration the changes which have occurred in the supervening half-​ century, and its interpretation cannot remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law. Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation. In the domain to which the present proceedings relate, the last fifty years, as indicated above, have brought important developments. These developments leave little doubt that the ultimate objective of the sacred trust was the self-​determination and independence of the peoples concerned. In this domain; as elsewhere, the corpus iuris gentium has been considerably enriched, and this the Court, if it is faithfully to discharge its functions, may not ignore.39 Having in mind that this interpretation departed fom the principle of contemporaneity, the icj thoroughly explained the theoretical grounds of its reasoning. Firstly, the Court based the evolutive interpretation upon the need to interpret a provision in the context of any relevant rule of international law applicable in the relations between the parties (Article 31(3)(c) of the vclt). And, secondly, the Court followed the object and purpose of the provision (Article 31(1) of the vclt). Such reasoning confirms the relation among evolutive interpretation and other methods of interpretation envisaged in the vCLt. Further, these findings are of the utmost importance if we consider that the Court was interpreting an international treaty concluded within the institutional framework. This is precisely the task entrusted to regional human rights courts and tribunals. The icj has also used an evolutive interpretation when examining the content of some bilateral treaties. While deciding upon its jurisdiction in the Aegean Sea Continental Shelf case, the Court found that in light of the important developments in the law of the sea, the reservation made by Greece to an international treaty should be interpreted according to international rules in force at the time of the dispute, and not when the reservation had been formulated: 39

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, para 53.

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[I]‌n interpreting and applying reservation (b) with respect to the present dispute the Court has to take account of the evolution which has occurred in the rules of international law concerning a coastal State’s rights of exploration and exploitation over the continental shelf.40 When interpreting international treaties of a bilateral nature, it is essential for the Court that the parties to the treaty have provided for a possible evolutive interpretation of its provisions by agreeing on very general primary obligations that may be supplemented and subsequently clarified. This was the case in Gabcíkovo-​Nagymaros Project regarding several of the provisions of the international treaty under interpretation, which were designed to ensure the maintenance of water quality in the Danube River.41 These provisions were not static and could be modulated and enriched over time as new environmental standards were introduced into public international law.42 In Dispute regarding Navigational and Related Rights, where another bilateral treaty was being interpreted, the icj noted that, by including a generic term in an international treaty with a vocation of permanence, the parties should have presumed that its meaning would vary over time. In this connection, the Court interpreted the concept ‘commerce’ provided for in a bilateral treaty between Nicaragua and Costa Rica concluded in 1858, adjusting its meaning at the time the dispute occurred: [W]‌here the parties have used generic terms in a treaty, the parties neccessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is “of continuing duration”, the parties must be pressumed [...] to have intended those terms to have a evolving meaning.43 It follows from the foregoing precedents that the generic nature of the concept subject to interpretation can have a decisive influence on how it is interpreted and on which methods of interpretation are applied by international courts and tribunals. Indeed, there may be room for the evolutive interpretation 40 41 42

43

Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, para 80. Gabcíkovo-​Nagymaros Project (Hungary/​Slovakia), Judgment, ICJ Reports 1997, para 112. See the position of itlos with regard to the rules of State responsibility in Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 117. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, ICJ Reports 2009, para 66.

86 ­chapter  precisely in a legal scenario marked by the existence of generic international obligations, such as those relating to the protection of human rights or the environment.44 In relation to the latter, this assertion was again confirmed in Usines de pâte à papier sur le fleuve Uruguay, where the parties discussed the scope of some environmental clauses contained in the Statute of the River Uruguay, signed at Salto on 26 February 1975.45 The Court found that: [L]‌’obligation de protéger et de préserver, énoncée à l’alinéa a) de l’article 41 du statut, doit être interprétée conformément à une pratique acceptée si largement par les Etats ces dernières années que l’on peut désormais considérer qu’il existe, en droit international général, une obligation de procéder à une évaluation de l’impact sur l’environnement lorsque l’activité industrielle projetée risque d’avoir un impact préjudiciable important dans un cadre transfrontière, et en particulier sur une ressource partagée.46 However, the existence of a generic obligation does not automatically trigger its evolutive interpretation. As previously discussed, the icj had ruled out invoking an evolutive interpretation when examining generic concepts such as ‘dispute,’ ‘thalweg’ or ‘mouth.’ The study of the case law of other international courts and tribunals gives us further indications on how evolutive interpretation operates in public international law. 3.2 Other International Courts and Tribunals In addition to being recognized by the main judicial organ of the UN, evolutive interpretation has also been used in inter-​State arbitrations. It is interesting to analyze this practice by distinguishing whether the dispute arises from the interpretation of bilateral or multilateral treaties. As for bilateral treaties, in the arbitration regarding the Iron Rhine Railway, the tribunal was called upon to interpret Article xii of the Treaty between Belgium and the Netherlands relative to the Separation of their Respective Territories, concluded on 1839.47 It stated that: In the present case it is not a conceptual or generic term that is in issue, but rather new technical developments relating to the operation and 44 45 46 47

In the context of international environmental law: see Yoshifumi Tanaka, ‘Reflections on Time Elements in the International Law of the Environment’ (2013) 73 ZaöRV 139. United Nations, Treaty Series, vol 1295, No 21425, 331. Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay), arrêt, CIJ Recueil 2010, para 204. 88 CTS 427.

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capacity of the railway. But here, too, it seems that an evolutive interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred to a strict application of the intertemporal rule.48 In this dispute, there was no question of the existence of a generic concept that could be updated with the passage of time, but a need to interpret the treaty evolutionarily according to its object and purpose. For its part, in the arbitration concerning the Indus Waters Kishenganga, the arbitral tribunal stated that the principles of international environmental law ‘must be taken into account even when […] interpreting treaties concluded before the development of that body of law’. Following the same line of reasoning envisaged by the icj for the interpretation of environmental obligations, in the same paragraph the tribunal decided ‘to interpret and apply this 1960 Treaty in light of the customary international principles for the protection of the environment in force today’.49 Arbitral tribunals dealing with investment claims have also weighed the application of the evolutive interpretation. In Daimler, an icsid arbitral tribunal examined whether to apply an evolutive interpretation of the most-​favoured-​ nation clause provided for in the Treaty between the Federal Republic of Germany and the Argentine Republic on the encouragement and reciprocal protection of investments, signed at Bonn on 9 April 1991.50 The tribunal warned that it would only invoke it if this interpretation could be understood as accepted by States, especially by the signatories of the treaty (Germany and Argentina): Such an interpretation would only be permissible in the face of convincing evidence, reflected by state practice, doctrinal analysis and international case law, that a coherent and generally accepted new meaning of the phrase has since been accepted by states, and in particular by Argentina and Germany.51 48

49 50 51

Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005 (UNRIAA, vol xxvii, para 80). Arbitration regarding the Indus Waters Kishenganga between the Islamic Republic of Pakistan and the Republic of India, pca Case, Partial Award of 18 February 2013, para 452. United Nations, Treaty Series, vol 1910, No 32538, 198. After an examination of the practice of States, the arbitral tribunal did not support this method of interpretation and indicated that ‘none of the treaty materials which the Tribunal has been able to examine in any way suggests that the Contracting State Parties to the German-​Argentine bit intended to include international dispute resolution within

88 ­chapter  Concerning the interpretation of multilateral treaties, such as those relating to the law of the sea, itlos stated that scientific advances might cause changes over time in what are considered to be sufficiently diligent measures.52 Accordingly, with regard to the consideration of the precautionary principle as part of customary international law, itlos noted that the intention of States expressed in practice through the adoption of higher standards was fundamental to activate this evolutive interpretation: The adoption of higher standards […] would seem to indicate that […] member States of the Authority have become convinced of the need for sponsoring States to apply “best environmental practices” in general terms so that they may be seen to have become enshrined in the sponsoring States’ obligation of due diligence.53 Concerning the determination of the international criminal responsibility of the individual, in the absence of a definition of the crime of rape in international criminal law, the icty examined the scope of this crime in light of principles common to the tradition of the main legal systems. This approach allowed the tribunal to observe a trend for enriching and expanding the concept of rape in order to protect the individual: [A]‌trend can be discerned in the national legislation of a number of States of broadening the definition of rape so that it now embraces acts that were previously classified as comparatively less serious offences […]. This trend shows that at the national level States tend to take a stricter attitude towards serious forms of sexual assault.54 As a result of this, and in the heat of a consensus manifested in several national legal systems, the icty was able to infer that, today, forced oral sex constitutes

52 53 54

the purview of the mfn clauses’ references to the Host State’s treatment of investments within its territory. Nor do these materials authorize the Tribunal to interpret the mfn clauses of the German-​Argentine bit in an evolutive way so as to achieve the enlarged meaning desired by the Claimant. On the contrary, all of the relevant supplementary materials confirm the conclusion reached by the Tribunal on the basis of the Treaty’s text’: see Daimler v Argentina (icsid Case No ARB/​05/​1, Award of 22 August 2012, paras 267 and 278). Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 117. ibid para 136. Prosecutor v Anto Furundžija, No IT-​95-​17/​1, Judgment of 10 December 1998, para 179.

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conduct that can be subsumed in the crime of rape and sanctioned from the perspective of international criminal law. Trade disputes have also given rise to a consideration of the evolving character of the provisions envisaged in the wto agreements. In China –​ Publications and Audiovisual Products, the Appellate Body endorsed this method of interpretation while assessing whether the term ‘sound recording distribution services,’ included in the gats Schedule that China made when it acceded to this multilateral agreement in 2001, refered to physical distribution or could also be extended to electronic distribution via the Internet: [W]‌e consider that the terms used in China’s gats Schedule (“sound recording” and “distribution”) are sufficiently generic that what they apply to may change over time […] We further note that interpreting the terms of gats specific commitments based on the notion that the ordinary meaning to be attributed to those terms can only be the meaning that they had at the time the Schedule was concluded would mean that very similar or identically worded commitments could be given different meanings, content, and coverage depending on the date of their adoption or the date of a Member’s accession to the treaty. Such interpretation would undermine the predictability, security, and clarity of gats specific commitments, which are undertaken through successive rounds of negotiations, and which must be interpreted in accordance with customary rules of interpretation of public international law.55 In the field of European integration, the ecj has also applied this method to interpret the notion of domestic court envisaged in Article 267(3) of the tfeu56, which regulates the submission of references for a preliminary ruling before the ecj:

55 56

China –​Publications and Audiovisual Products (WT/​D S363/​A B/​R, of 21 December 2009, paras 395–​396) (emphasis added and footnotes omitted). This provision establishes that ‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court

90 ­chapter  Every provision of Community law must be placed in its context and interpreted in the light of the provisions of community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.57 Thus, it can be said that it is not uncommon to use evolutive interpretation in international treaties of bilateral or multilateral nature. In the case of the former, international courts and tribunals use evolutive interpretation to update the commitments agreed upon by the parties, provided that this intention can be inferred from their practice. While in the case of the latter, evolutive interpretation is especially important when it is developed in institutionalized frameworks.58 In international integration organizations, such as the EU, interpreting the EU foundational treaties in light of their object and purpose may favour the invocation by the ecj of an evolutive interpretation. While in international cooperation organizations, which have concluded international treaties to promote and protect human rights (such as the EConHR or the AConHR), the object and purpose of the treaty is also relevant, together with the intention of the parties to the treaty. 3.3 Regional Human Rights Courts and Tribunals Regional human rights treaties have a special dimension. In addition to incorporating a set of rights granted to all individuals, they have an absolute character.59 As noted in one of the earliest precedents set by the ECtHR, Ireland v United Kingdom,60 these agreements establish obligations that States parties may not derogate from or set exceptions to, only in cases expressly provided for

57 58

59 60

or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regards to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.’ Case 283/​81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, para 20 (emphasis added). With regard to evolutive interpretation, it is worth differentiating between ‘value driven evolving terms’ and ‘non-​value driven evolving terms’ inasmuch as it relates to the distinction done in this study as to its application in the context of bilateral and multilateral treaties:  see Sondre T Helmersen, ‘Evolutive Treaty Interpretation:  Legality, Semantics and Distinctions’ (2013) 6 EJLS 161, 176–​177. Pastor Ridruejo (pt 1 ch 3 n 17) 541. The ECtHR specifically indicated that ‘Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective

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and in accordance with the principle of subsidiarity.61 Although these international treaties are subject to general international law,62 their special legal nature leads us to consider whether it is necessary to use the methods established by the vclt in some particular way when interpreting them.63 The analysis of institutional practice highlights how, from the outset, the ECtHR has admitted its preference for the application of interpretative methods that do not restrict the obligations of States,64 whilst ensuring the achievement of the object and purpose of the treaty for the benefit of individuals:65 Given that it is a law-​making treaty, it is also necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties.66 The IACtHR has endorsed a similar approach both in contentious67 and advisory proceedings.68 In order to enhance the object and purpose of the EConHR

61 62 63

64 65

66

67 68

obligations which, in the words of the Preamble, benefit from a “collective enforcement” ’: see Ireland v United Kingdom, 18 January 1978, para 239, Series A No 25. See pt 1 ch 3 s 2. Lucius Caflisch, ‘L’application du droit international général par la Cour européenne des droits de l’homme’ in Buffard and others (pt 1 ch 2 n 8) 628–​638. It has been stated, for example, that substantive rules of the EConHR tend to be extensively interpreted while those of a procedural nature are interpreted more restrictively: see Heribert Golsong, ‘Interpreting the European Convention on Human Rights Beyond the Confines of the Vienna Convention on the Law of Treaties’ in St J Macdonald and others (pt 1 ch 3 n 1) 150. Rudolf Bernhardt, ‘Thoughts on the Interpretation of Human-​Rights Treaties’ in Matscher and Petzold (pt 1 ch 3 n 24) 70. However, some limits to the rights granted to individuals have also been envisaged. For example, the ECtHR has recognized the power of the States to justifiably interfere in the individual’s right to property under specific circumstances: see Franz Matscher, ‘Quarante ans d’activités de la Cour européenne des droits de l’homme’ (1997) 270 RCADI 237, 283. Wemhoff v Germany, 27 June 1968, para 8, Series A No 7. In the same sense, the ECtHR has declared that ‘the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective […]. In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention” ’: see Soering v United Kingdom, 7 July 1989, para 87, Series A No 161. Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and Costs, Judgment of 31 August 2001 Series C No 79, paras 146–​149. The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-​16/​99 of 1 October 1999 Series A No 16, para 76.

92 ­chapter  and the AConHR,69 the ECtHR and the IACtHR have resorted to evolutive interpretation. As previously noted when examining the icj advisory opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), evolutive interpretation complements and gives meaning to the teleological interpretation of international treaties concluded within the institutional framework. This approach does not only generate a progressive updating of these treaties in line with the most recent normative developments at international and domestic level, but it also provides a corrective mechanism for possible contradictions or overlaps between the different international instruments devoted to the protection of human rights.70 Both the ECtHR and the IACtHR have recognized that the EConHR and the AConHR, respectively, should be interpreted in an evolutive way. Also, they should be sensitive to the changes taking place in the legislative systems of their States parties and, in general, they must have regard to developments in international human rights law, since both treaties constitute ‘living instrument[s]‌ which […] must be interpreted in the light of present-​day conditions’.71 It is striking that much of the interpretation of the regional human rights treaties is entrusted to a method of interpretation that (although it enjoys considerable acceptance in contemporary international law) is not expressly provided for in the vclt.72 The limit to this evolutive interpretation lies, as noted by the ECtHR in Johnston and Others v Ireland,73 on the impossibility of changing the wording of 69

70

71

72 73

Matthew Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’ (2000) 11 EJIL 489, 500–​513; Michel Melchior, ‘Notions “vagues” ou “indéterminées” et “lacunes” dans la Convention européenne des Droits de l’Homme’ in Matscher and Petzold (pt 1 ch 3 n 24)  411–​419; Luzius Wildhaber, ‘The European Convention on Human Rights and International Law’ (2007) 56 ICLQ 217, 221. Giorgio Gaja, ‘Nouveaux instruments et institutions de renforcement de la protection des droits de l’homme en Europe’ in Philip Alston (ed), L’Union Européenne et les Droits de l’Homme (Bruylant 2001) 815–​816. Tyrer v United Kingdom, 25 April 1978, para 31, Series A No 26; Marckx v Belgium, 13 June 1979, para 41, Series A No 31; The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-​16/​99 of 1 October 1999 Series A No 16, para 114. Christina Binder, ‘El Tribunal Europeo de Derechos Humanos y el Derecho de los Tratados: ¿Fragmentación o Unidad?’ (2015) 31 AEDI 297, 307–​312. This ECtHR decision concluded that ‘the Court cannot, by means of an evolutive interpretation, derive from these instruments a right that was not included therein at the outset.

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the treaty by incorporating a right not initially provided by the States parties.74 Indeed, evolutive interpretation cannot be triggered to develop a legal concept that is foreign to the will expressed by States in the corresponding treaty.75 At this point, evolutive interpretation and consensus find a common ground that explains the intimate relationship they both hold. It is highly unlikely that regional human rights courts and tribunals will endorse an evolutive interpretation that lacks the necessary support (consensus generalis) of the Member States of that regional subsystem.76 In other words, the intention of the parties plays a relevant role in the evolutive interpretation of regional human rights treaties. This role is not so decisive in regional organizations of integration because the principles governing the functioning of the latter tend to make the objectives pursued by the integration process prevail. By their very nature,77 regional human rights treaties need to be adapted at all times to the reality of the social group where they are applied, using an evolutive interpretation that respects the objectives pursued by the international organization of cooperation.78 The next chapter examines the role of the notion of consensus when the ECtHR and the IACtHR interpret regional human rights treaties. It is actually a question of how this consensus, or its absence, conditions the interpretation of the obligations envisaged by the

74

75 76 77

78

This is particularly so here, where the omission was deliberate’: see Johnston and Others v Ireland, 18 December 1986, para 53, Series A No 112. A minority of judges had already made statements along these lines in Feldbrugge v The Netherlands, 29 May 1986, Series A No 99: see Joint Dissenting Opinion of Judges Ryssdal, Bindschedler-​Robert, Lagergren, Matscher, Sir Vincent Evans, Bernhardt and Gersing, paras 23–​24. François Rigaux, ‘Interprétation consensuelle et interprétation evolutive’ in Frédéric Sudre (ed), L’interprétation de la Convention européenne des droits de l’homme. Actes du colloque des 13 et 14 mars 1998 organisé par l’Institut de droit européen des droits de l’homme (Bruylant 1998) 42. Sébastien Touzé, ‘Les techniques interprétatives des organs de protection des droits de l’homme’ (2011) 115 RGDIP 517, 526. Laurence R Helfer and Anne-​Marie Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale LJ 273, 317. Rudolf Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the European Convention of Human Rights’ (1999) 42 GYIL 11, 23; Giovanni Distefano, ‘L’interprétation evolutive de la norme internationale’ (2011) 115 RGDIP 373, 381. However, there have also been criticisms to this method of interpretation: see Alland (pt 2 ch 4 n 1) 212–​214. It has been illustratively stated that evolutive interpretation ‘permet une mutation «en douceur» de la norme dans le temps’: see Théodore Georgopoulos, ‘Le droit intertemporel et les dispositions conventionnelles évolutives –​quelle thérapie contre la vieillesse des traités?’ (2004) 108 RGDIP 123, 145.

94 ­chapter  EConHR and the AConHR,79 whilst making it an appropriate and necessary tool to adapt these treaties to the contemporary social reality, maintaining and enriching the already established legal heritage in both regional human rights subsystems within the substantive limits accepted by States.80 79

80

In this sense, a former member of the ECtHR has indicated that ‘the difficulty that the European Court of Human Rights has is that it has to have some idea about the minimum common values of 47 societies and that, of course, makes a difference as compared to national constitutional courts. However, this difficulty is not unique to the European Court of Human Rights. In many ways the establishment of European consensus on any given matter is similar to the process through which other international tribunals look for the existence of a customary rule’: see Ineta Ziemele, ‘Other Rules of International Law and the European Court of Human Rights: A Question of a Simple Collateral Benefit?’ in Dean Spielmann and others (eds), The European Convention on Human Rights, a Living Instrument. Essays in Honour of Christos L. Rozakis (Bruylant 2011) 751 (emphasis added). Cf Anthea Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States’ (2010) 104 AJIL 179, 205.

­c hapter 5

The Evolution of Regional Human Rights Treaties through the Notion of Consensus The second chapter of part 2 examines how, through a consensualist approach, the ECtHR and the IACtHR ensure that regional human rights treaties are interpreted evolutively, in accordance with the convictions generally recognized by the States parties to the EConHR and the AConHR. However, when adopting this method of interpretation important tensions emerge in the case law of these judicial organs: firstly, the tension between sovereignty and cooperation; secondly, the tension between universalism and regionalism; and, thirdly, the tension between international and constitutional jurisdictions. In the following lines, each of these three topics is analyzed separately. 1

Tension between Sovereignty and Cooperation

The evolutive interpretation of regional human rights treaties can be subsumed, first, in the context of the dialectic between the fundamental principles of sovereignty and cooperation, which is at the heart of the European and inter-​American human rights subsystems. 1.1 The Role of the Principle of Sovereignty In their capacity as international courts and tribunals, the ECtHR and the IACtHR are cautious when undertaking an evolutive interpretation of regional human rights treaties. Particular attention must be drawn to several precedents that show the extent to which this care vis-​à-​vis the principle of sovereign equality is exercised. In Soering v United Kingdom, the reasoning followed by the ECtHR to declare a violation of Article 3 of the EConHR by the United Kingdom, should it approve the extradition of an individual sentenced to capital punishment to the usa, was in part based on the existence of a general, though non-​unanimous, consensus or agreement among the Member States of the Council of Europe on the need to abolish the death penalty and, in any case, not to apply it to minors or persons suffering from psychological incapacity at the time of the

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004375512_​0 09

96 ­chapter  commission of the crime.1 This consensus was embodied at European level in Protocol No 6, concerning the abolition of the death penalty. However, this line of reasoning had to overcome a legal inconvenience of a certain political magnitude, as the United Kingdom had not ratified Protocol No 6. Therefore, the ECtHR admitted that it could not legally sanction the United Kingdom’s conduct with regard to the abolition of death penalty, despite the existence of a general practice in most Member States of the Council of Europe. That practice was developed through a common expression of will, manifested in a subsequent agreement (Protocol No 6). The argumentative efforts developed by the ECtHR to declare the international responsibility of the United Kingdom and, at the same time, to accept its non-​participation in Protocol No 6 as a normal expression of the principles of sovereignty and subsidiarity are evident: Protocol No. 6 […], as a subsequent written agreement, shows that the intention of the Contracting Parties as recently as 1983 was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and, what is more, to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. In these conditions, notwithstanding the special character of the Convention […], Article 3 […] cannot be interpreted as generally prohibiting the death penalty.2 A subsequent agreement where the respondent State does not participate, following the ECtHR’s argument, cannot set the basis for an evolutive interpretation, imposing new obligations on that State. The legal problems arising from the application of the death penalty were reproduced in other precedents where the ECtHR has always been sensitive to the rates set by the States parties to the Council of Europe regarding the abolition of this penalty. In Öcalan v Turkey the Grand Chamber found that the still (at that time) small number of accessions to Protocol No 13: [M]‌ay prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the 1 Soren C Prebensen, ‘Evolutive Interpretation of the European Convention of Human Rights’ in Paul Mahoney and others (eds), Protection des droits de l’homme: la perspective européenne –​Mélanges à la mémoire de Rolv Ryssdal (Carl Heymanns Verlag 2000) 1132. 2 Soering v United Kingdom, 7 July 1989, para 103, Series A No 161.

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Convention, since no derogation may be made from that provision, even in times of war.3 However, in Al-​Saadoon and Mufdhi v United Kingdom, the ECtHR modified its stance in view of the increasing number of ratifications to Protocol No 13, including that of the respondent State: All but two of the member States have now signed Protocol No. 13 and all but three of the States which have signed it have ratified it. These figures, together with consistent State practice in observing the moratorium on capital punishment, are strongly indicative that Article 2 has been amended so as to prohibit the death penalty in all circumstances.4 The consensus generalis of the Member States of the Council of Europe, understood as a general yet not unanimous agreement, could justify these changes in the case law of the Grand Chamber with respect to the content of a certain right. In this context, the judicial organ responsible for conducting the evolutive interpretation must weigh the surrounding circumstances. In particular, it must examine the stance expressed by the States parties to the regional human rights subsystem, especially that of the State appearing as respondent in the dispute. To that end, both subsequent practice and subsequent agreements may serve as evidence in identifying the existence of a general evolution of the convictions of the States (consensus generalis) that may lead to an evolutive interpretation of the regional human rights treaties. At the inter-​American level, a deferential approach is also observed with State sovereignty, for example, in the advisory opinion on the Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights. Therein, the IACtHR decided to exercise its advisory jurisdiction to interpret the American Declaration of the Rights and Duties of Man, adopted in Bogotá on 1948 (Declaration of Bogotá),5 pursuant to Article 64 of the AConHR. This provision expressly confers on the IACtHR advisory jurisdiction over ‘other treaties concerning the protection of human rights in the American states.’ However, the IACtHR first examined the legal status accorded to the provisions of the Declaration of Bogotá by the Member States of the oas:

3 Öcalan v Turkey [GC], No 46221/​99, para 165, ECtHR 2005. 4 Al-​Saadoon and Mufdhi v United Kingdom, No 61498/​08, para 120, ECtHR 2010. 5 OAS/​Ser.L.V/​II.82 doc.6 rev.1 (1992) 17.

98 ­chapter  [T]‌he member states of the Organization have signaled their agreement that the Declaration contains and defines the fundamental human rights referred to in the Charter. Thus the Charter of the Organization cannot be interpreted and applied as far as human rights are concerned without relating its norms, consistent with the practice of the organs of the oas, to the corresponding provisions of the Declaration.6 Consequently, it confirmed the binding nature of the obligations set forth in the Declaration of Bogotá after identifying a general consensus among States, expressed both in the resolutions of the General Assembly of the oas and in the Preamble of the Interamerican Convention to Prevent And Punish Torture, adopted in Cartagena de Indias on 12 September 1985.7 Therefore, the evolutive interpretation of regional human rights treaties is largely dependent on the existence of a prior consensus among the States. As it is reflected in the case law of the ECtHR examined in this subsection, the determination of this consensus is subject to qualitative and quantitative criteria. While the latter are difficult to predict because of the uniqueness of the rights recognized in regional human rights treaties, some scholars have pointed out that, in relation to the EConHR, the ECtHR ‘frequently, but not consistently, opts against the existence of consensus, as long as some 6 to 10 States adhere to solutions which differ from the majority view’.8 This is particularly the case when the respondent State is a member of the minority. As it is studied in the following subsections, judicial practice offers precedents that do not abide by this purely arithmetical argument. In any case, this is a statement that shows how the consensus required by the regional human rights courts and tribunals is a majority, though not unanimous, agreement in line with the substantive dimension of consensus existing in public international law. As a result of the important role still played by the principle of sovereign equality, the absence of a general agreement allows for more deferential reactions through the notion of the national margin of appreciation; particularly

6 Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-​10/​89 of 14 July 1989 Series A No 10, para 43. 7 Organization of American States, Treaty Series, No 67. 8 Luzius Wildhaber, Arnaldur Hjartarson and Stephen Donnelly, ‘No Consensus on Consensus? The Practice of the European Court of Human Rights’ (2013) 33 HRLJ 248, 259 (emphasis added).

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when the respondent State objects to this general agreement. Contrary to evolutive interpretation, the national margin of appreciation is grounded, as it is examined in part 3,9 from the absence of a general agreement (consensus generalis).10 Thus, it can be concluded that reaching a consensus facilitates the adoption of an evolutive interpretation of regional human rights treaties and, where appropriate, the declaration of the international responsibility of the State. Conversely, the lack of consensus allows for invoking the notion of the national margin of appreciation and the consideration, where appropriate, that the measures imposed by the State do not violate the fundamental rights and freedoms recognized by regional human rights treaties. However, both statements fail to provide answers to situations located in a grey area (hard cases), such as those where consensus can be identified by reference to other international instruments and when the respondent State does not participate in the consensus or has even objected to it. The study of certain cases in the following subsections allows us to illustrate the particularities presented by the consensualist approach in matters concerning the interpretation of regional human rights treaties. Rather, the ECtHR and the IACtHR, using a technique often implemented by other international courts and tribunals, face this task in light of the particular circumstances of each case. 1.2 The Erosion of the Principle of Sovereignty International responsibility has sometimes been found even after human rights courts and tribunals have concluded that there is insufficient evidence to indicate the existence of a consensus amongst the States. Such a consensus would favour an evolutive interpretation of regional human rights treaties and, consequently, would widen the scope of the rights conferred upon individuals. Likewise, in other cases, international responsibility is established after it has been found that the respondent State objects to an existing consensus. These are special situations because they reinforce the principle of cooperation at the expense of relegating the principles of subsidiarity and State sovereignty. The practice of the regional human rights courts and tribunals allows for the systematization of these assumptions into three categories.

9 10

See pt 3 ch 8 s 1. Arai-​Takahashi (introduction n 6) 203–​204.

100 ­chapter  1.2.1

Searching for Consensus beyond Regional Human Rights Subsystems In a first category, the cases where regional human rights courts and tribunals are unable to find a consensus within the regional human rights subsystem. However, they end up ruling out the application of the national margin of appreciation, thus declaring the international responsibility of the State by importing consensus by reference. To examine this topic, the claims made against the United Kingdom by transsexuals calling for the recognition of certain rights under Articles 8, 12 and 14 of the EConHR are very illustrative. In particular, the right to modify the birth registration,11 the right to marry after having undergone a sex change operation,12 and the right to be registered as the parent of a minor.13 While recognizing the growing social acceptance of transsexualism, the ECtHR had maintained a deferential position with the principle of sovereignty in a number of decisions. By invoking the national margin of appreciation, the ECtHR did not consider that the national measures laid down by the United Kingdom to regulate this phenomenon were contrary to EConHR. Indeed, in Sheffield and Horsham v United Kingdom, the ECtHR stated that: [I]‌t is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-​operative transsexuals encounter. Even if it finds no breach of Article 8 in this case, the Court reiterates that this area needs to be kept under review by Contracting States.14 In Christine Goodwin v United Kingdom, the ECtHR modified its case law. In that judgment, while expressly acknowledging the absence of a ‘common European approach’ among the Member States of the Council of Europe, the Grand Chamber chose not to apply the national margin of appreciation, and declared the international responsibility of the United Kingdom: [I]‌n the case of Rees in 1986 it had noted that little common ground existed between States, some of which did permit change of gender and some of which did not and that generally speaking the law seemed to be 11 12 13 14

Rees v United Kingdom, 17 October 1986, paras 37 and 44, Series A No 106. Cossey v United Kingdom, 27 September 1990, paras 37, 40 and 46, Series A No 184. X, Y and Z v United Kingdom [GC], No 21830/​93, paras 47–​48, ECtHR 1997. Sheffield and Horsham v United Kingdom, No 22985/​93 and No 23390/​94, para 60, ECtHR 1998 (emphasis added).

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in a state of transition […]. In the later case of Sheffield and Horsham, the Court’s judgment laid emphasis on the lack of a common European approach as to how to address the repercussions which the legal recognition of a change of sex may entail for other areas of law such as marriage, filiation, privacy or data protection. While this would appear to remain the case, the lack of such a common approach among forty-​three Contracting States with widely diverse legal systems and traditions is hardly surprising. In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-​operative gender status, the Contracting States must enjoy a wide margin of appreciation. The Court accordingly attaches less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-​operative transsexuals.15 This decision had a significant impact on the legal treatment of transsexuals in that State, since it laid the groundwork for recognition of the right to modify both registration of birth and marriage.16 A  more detailed reference should be made to the arguments used by the ECtHR to accept both rights because, although the judgment recognized the absence of a ‘common approach,’ the reasoning used by ECtHR to implement an evolutive interpretation of EConHR is inspired by a consensualist approach. Regarding the right to modify gender in birth registration, the ECtHR found in the process of European integration an adequate spring to declare the violation of Article 8 of the EConHR in conjunction with the principle of non-​discrimination enshrined in Article 14 of the EConHR.17 The restrictions 15 16

17

Christine Goodwin v United Kingdom [GC], No 28957/​95, para 85, ECtHR 2002 (emphasis added). On the date in which this decision was made public, on 11 July 2002, the ECtHR issued another decision against the United Kingdom that had very similar content: see I v United Kingdom [GC], No 25680/​94, paras 65 and 80–​83, ECtHR 2002. Article 14 of the EConHR indicates that ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’

102 ­chapter  maintained by the United Kingdom were not only a disputed topic from the perspective of the European human rights subsystem, but also an interference with the compliance of a fundamental principle of EU law: the principle of non-​discrimination. Among other damages, the rules that prevented changes in birth registration made it impossible to benefit from the social security and pension system established for women in the United Kingdom.18 This resulted in a discriminatory situation from the EU law perspective.19 In that context, the ECtHR imported by reference the ecj’s interpretation of the principle of non-​discrimination on the basis of gender.20 As for the right to marry, the ECtHR stated that Article 9 of the Charter of Fundamental Rights of the European Union, solemnly proclaimed in Nice on 7 December 2000 and later in Strasbourg on 12 December 2007 (Charter of Nice),21 had introduced an evolution in the concept of marriage. Instead of the traditional reference to men and women established by the EConHR, the Charter of Nice provides a more generic and aseptic statement in Article 9: the ‘right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’ This wording enabled the ECtHR to conclude that, while States retained their competence to regulate issues regarding the status of transsexuals and the conditions for concluding or declaring marriage void, there was no justification (from the perspective of Article 12 of the EConHR) to generally limit the right of this group to marry. The Grand Chamber was: [N]‌ot persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria […]. The Court would also note that Article 9 of the recently adopted Charter of Fundamental Rights of the European Union departs, no doubt deliberately, from the wording of Article 12 of the Convention in removing the reference to men and women.22 The interactions between the different legal subsystems that coexist in Europe are fundamental to understand the stance of the ECtHR in Christine Goodwin 18

19 20 21 22

Council Directive 76/​207/​E EC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [1976] OJ L39/​40. Christine Goodwin v United Kingdom [GC], No 28957/​95, paras 91–​93, ECtHR 2002. Case C-​13/​94 P v S and Cornwall County Council [1996] ECR I-​2143, para 20. [2012] OJ C326/​389. Christine Goodwin v United Kingdom [GC], No 28957/​95, paras 100 and 103, ECtHR 2002.

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v United Kingdom. In the absence of a ‘common European approach’ within the framework of the Council of Europe, the ECtHR imported a solution based on EU law.23 In addition, the Grand Chamber also found the existence of a ‘continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-​operative transsexuals’.24 A standard that goes beyond the boundaries of the Council of Europe, but which follows the same idea and pursues a similar objective: to identify a consensus generalis that would trigger an evolutive interpretation of EConHR. The ECtHR found that consensus generalis both in EU law and by referring to the most favourable treatment of transgender persons in other Member States of the Commonwealth. In order to give substance to this ‘international trend,’ the ECtHR examined the practice followed by several States of the common law tradition such as Australia and New Zealand.25 It also highlighted the developments on the subject proposed by the Parliamentary Assembly of the Council of Europe through, inter alia, Recomendation 1117 (1989) on the conditions of transsexuals, adopted on 29 September 1989.26 All these instruments channelled this ‘international trend’ and allowed the Grand Chamber to modify its doctrine as a result of the existence of a consensus generalis. This precedent highlights the argumentative difficulties presented to the ECtHR when it cannot identify a ‘common approach’ among the Member States of the Council of Europe. At this juncture, it may ‘import’ this consensus generalis from the European integration process. In fact, the decision of the ECtHR in Christine Goodwin v United Kingdom evidences how the practice of the regional human rights courts and tribunals may foster the development of coordination techniques among different legal sectors and formulas 23

24 25

26

Pierre Lambert, ‘Marge nationale d’appreciation et contrôle de proportionnalité’ in Sudre (pt 2 ch 4 n 74) 63–​89; James A Sweeney, ‘Margin of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-​Cold War Era’ (2005) 54 ICLQ 459, 467–​474. Christine Goodwin v United Kingdom [GC], No 28957/​95, para 85, ECtHR 2002. ibid para 84. For further discussion: see Richard Clayton and Hugh Tomlinson (eds), The Law of Human Rights (vol i, 2nd ed, oup 2009) 1191–​1192 and 1230–​1231; Alexander Morawa, ‘The “Common European Approach,” “International Trends,” and the Evolution of Human Rights Law. A  Comment on Goodwin and I v. the United Kingdom’ (2002) 3 GerLJ para 33. The recomendation of the Parliamentary Assembly of the Council of Europe promoting the adoption of measures for the recognition of transsexuality amongst Member States, was not even mentioned in this decision by the Grand Chamber: cf Cossey v United Kingdom, 27 September 1990, para 40, Series A No 184.

104 ­chapter  for judicial dialogue based on a consensualist approach. Among other effects, those solutions may erode the principle of sovereign equality in the framework of intergovernmental cooperation and extend the catalog of rights recognized to individuals in light of the changes experienced over time by the social group. 1.2.2 Searching for Consensus within Regional Human Rights Subsystems Regional human rights courts and tribunals also search for consensus within the limits of their respective subsystem, although in these cases, two different approaches can be noted: a constitutionalist and a consensualist approach. 1.2.2.1 A Constitutionalist Approach In some cases, regional human rights courts and tribunals move away from the notion of consensus, as it is conceived in public international law, in order to trigger an evolutive interpretation of treaties. Consenquently, they relegate the application of the notion of the national margin of appreciation. Artavia Murillo and Others v Costa Rica, a case on the prohibition of in vitro fertilization established by Costa Rican legislation, constitutes a precedent of this category. Among the matters at issue in this case, there was a general agreement among the States parties to the AConHR on the need to regulate this technique of assisted reproduction. Costa Rica had objected to it, singularly and traditionally, in order to grant full protection to the embryo in its domestic legislation. With a view to define the scope of the right to life, which Costa Rica interpreted in absolute terms, the IACtHR highlighted the existence of a consensus manifested through a ‘generalized practice’ of the majority of States within the inter-​American subsystem. Such majority of States protected prenatal life gradually (and not in absolute terms), allowing for regulated access to certain techniques of assisted reproduction: [E]‌ven though there are few specific legal regulations on ivf, most of the States of the region allow ivf to be practiced within their territory. This means that, in the context of the practice of most States Parties to the Convention, it has been interpreted that the Convention allows ivf to be performed. The Court considers that this practice by the States is related to the way in which they interpret the scope of Article 4 of the Convention, because none of the said States has considered that the protection of the embryo should be so great that it does not permit assisted reproduction techniques and, in particular, ivf.27 27

Case of Artavia Murillo et  al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257, para 256.

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In light of this general agreement, the IACtHR considered that the legislation at issue constituted arbitrary, excessive and disproportionate interference with the right to private and family life and, therefore, gave rise to discrimination contrary to Article 1(1) of the AConHR.28 In its decision, the IACtHR ordered Costa Rica to adopt legislative changes to lift the prohibition on the use of in vitro fertilization and to allow the use of this assisted reproduction technique in a non-​discriminatory manner. The IACtHR based its judgment on a regional inter-​American consensus that, in any case, deserves a more detailed analysis. Indeed, to justify the existence of this consensus, the IACtHR noted that Costa Rica was the only State party to the AConHR that still prohibited in vitro fertilization. But, from the perspective of public international law, this argument is not wholly persuasive. On the contrary, a comparative study of the inter-​American practice at that time showed a much less uniform scenario, as the IACtHR seemed to admit: [F]‌rom the evidence provided by the parties to the case file, the Court observes that, although ivf is performed in many countries, this does not necessarily mean that it is regulated by law. In this regard, the Court notes that the comparative legislation on assisted reproduction techniques submitted by the parties (Brazil, Chile, Colombia, Guatemala, Mexico, Peru and Uruguay) reveals that there are norms that regulate some practices in this area.29 Eduardo Vio Grossi, member of the IACtHR, noted this apparent contradiction in his dissenting opinion, emphasizing the elements that actually characterized that inter-​American consensus that the IACtHR had detected: [I]‌n order to determine the status of the embryo are judgments of other judicial bodies, and consequently are unrelated to agreements and practices of States parties to the Convention and to rules of international (law) applicable. Other background material referring to the laws of

28

29

Article 1(1) of the AConHR reads as follows ‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.’ Case of Artavia Murillo et  al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257, para 255.

106 ­chapter  States parties to the Convention is insufficient, as it shall be illustrated below. It only demonstrates that assisted reproduction (of which in vitro fertilization is only one among several techniques) is used in eleven out of twenty-​four Member States.30 In short, while it is true that Costa Rica was the only State that maintained restrictions on the exercise of this fertilization technique, the fact remains that it was only regulated in a few Member States of the inter-​American subsystem. The consensus generalis that the IACtHR advocated for in this judgment, in light of State practice, was not so blunt. The IACtHR gave more value to the fact that only Costa Rica prohibited this type of fertilization techniques, conceiving this fact as discriminatory in the context of the inter-​American subsystem. However, in invoking the notion of consensus, the IACtHR did not properly follow any reasoning based on public international law, but rather dictated a decision more in semblance of a constitutional court. Following the judgment in Artavia Murillo and Others v Costa Rica, Costa Rica reacted by hindering the enactment of laws recognizing the general right to in vitro fertilization. In any event, this right was later confirmed by the IACtHR in a subsequent order,31 issued when monitoring the compliance of the judgment of 28 November 2012. This resolution, rendered on 26 February 2016, shows the effects that can lead to an activist drift by international courts and tribunals. As we noted above, the principle of sovereign equality can still play an important role while enforcing decisions of regional human rights courts and tribunals, should these bodies ‘overstep’ their competences. 1.2.2.2 A Consensualist Approach Contrary to what happened in Artavia Murillo and Others v Costa Rica, where the IACtHR invoked the notion of consensus using techniques alien to public international law and more closely related to constitutional law, the ECtHR was more sensitive to the notion of consensus in Kiyutin v Russia and Novruk and Others v Russia (two cases dealing with the legality of the legislative measures ordering the deportation from Russia of individuals who were carriers of hiv). Two different Chambers of the ECtHR understood that these restrictions exceeded the limits of the national margin of appreciation afforded to 30 31

ibid (Dissenting Opinion of Judge Vio Grossi) 20. Case of Artavia Murillo et  al (in vitro fertilization) v Costa Rica, Monitoring Compliance with Judgments, Order of the Inter-​American Court of Human Rights of 26 February 2016, paras 24–​37.

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national authorities, while imposing on a ‘particularly vulnerable group in society that has suffered significant discrimination in the past’.32 In the context of Article 14 of the EConHR, the ECtHR considered that being a part of one of these vulnerable groups, traditionally exposed to different treatment on grounds of sexual orientation, disability, race or ethnicity, among other factors, reduces the State’s deference to the objective of favouring the integration of individuals.33 Although both Chambers concluded that there was a breach of Article 8 in conjunction with Article 14 of the EConHR, the five-​year span between Kiyutin v Russia (2011) and Novruk and Others v Russia (2016) allowed the ECtHR in the latter case to find that there had been a substantial change regarding the disputed legal restrictions imposed on this vulnerable group on issues regarding residence. In fact, as of 2015, among the members of the Council of Europe, only Russia maintained such severe restrictive measures: Russia is the only member State of the Council of Europe and one of sixteen States world-​wide that enforces deportation of hiv-​positive non-​ nationals […]. Since the expulsion of hiv-​positive individuals does not reflect an established European consensus, and has no support in other member States, the respondent State is under an obligation to provide a particularly compelling justification for the differential treatment of which the applicants complained that they had been victims.34 The public health rationale of the respondent State to justify the adoption of this kind of measures did not meet the rigid and ‘compelling’ standard set by the Chamber. It stated that Russia had violated Article 14 of the EConHR, read together with Article 8 of the EConHR. In this case, unlike in Artavia Murillo and Others v Costa Rica, the respondent State did remain isolated, apart from the consensus generalis on which the ECtHR based its judgment. These precedents confirm, from a substantive perspective, the relative value that the objection expressed by a State presents in regional human rights

32 33

34

Kiyutin v Russia, No 2700/​10, para 64, ECtHR 2011; Novruk and Others v Russia, No 31039/​ 11, No 48511/​11, No 76810/​12, No 14618/​13 and No 13817/​14, para 100, ECtHR 2016. See also Schalk and Kopf v Austria, No 30141/​04, para 97, ECtHR 2010; Alajos Kiss v Hungary, No 38832/​06, para 42, ECtHR 2010; Glor v Switzerland, No 13444/​04, para 84, ECtHR 2009. Novruk and Others v Russia, No 31039/​11, No 48511/​11, No 76810/​12, No 14618/​13 and No 13817/​14, para 101, ECtHR 2016.

108 ­chapter  subsystems.35 Even if a State objects to the existing consensus, if this consensus can be established, regional human rights courts and tribunals may declare the international responsibility of the opposing State. In these cases there is a significant erosion of the principle of sovereign equality, reinforcing the principle of cooperation on which these regional subsystems are based. However, it is a situation that regional human rights courts and tribunals must handle with caution, restraint and prudence in order to avoid ‘overstepping’ and ‘overflows.’ Firstly, because the boundaries of the notion of consensus are well established in public international law, as already discussed in part 1. These judicial organs, as international courts and tribunals, should not identify consensus according to techniques and procedures foreign to public international law. Secondly, because as happened in Artavia Murillo and Others v Costa Rica, the respondent State could invoke the principle of sovereignty during the enforcement of the judgment, in order to defer, elude or circumvent compliance with the reparations imposed.36 And, thirdly, because nothing would prevent such State from reconsidering its participation in the corresponding regional human rights treaty and, therefore, invoking again the principles of sovereignty and subsidiarity to withdraw from the treaty, such as Venezuela did on 10 September 2012 with regard to the AConHR. It is also worth noting the criticism from the United Kingdom towards the European human rights subsystem, following several unfavourable judgments handed down in Strasbourg. These judgments generated a debate within the British public opinion as to whether the United Kingdom should remain under the jurisdictional supervision of the Council of Europe.37 This debate also arose in France, albeit with a much lower intensity.38 Regional human rights courts and tribunals are faced with the delicate task of protecting human rights, whilst preventing judicial activism from hindering

35

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The ECtHR also endorsed this argument from a formal perspective, by restrictively interpreting the States’ competences to formulate reservations to the EConHR: see Loizidou v Turkey (preliminary objections), 23 March 1995, paras 76–​78, Serie A No 310. See pt 1 ch 3 s 3. ‘Cameron s’attaque à la Cour des droits de l’homme’, Le Figaro, of 25 January 2012; ‘Britain should stay inside the ECHR’, Financial Times, of 17 July 2014; ‘Cameron refuses to rule out leaving European convention on human rights’, The Guardian, of 3 June 2015; ‘Cameron’s plan to leave ECHR encourages Putin, says EU chief’, The Telegraph, of 3 September 2015. ‘La Cour européenne des droits de l’Homme constitue-​t-​elle une menace pour la démocratie?’, Question d’Europe (2015) 342  accessed 10 May 2018.

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the cooperation regime created by regional human rights treaties. A paradox that is not alien to the activity of most of the international courts and tribunals created in the framework of intergovernmental cooperation. 2

Tension between Universalism and Regionalism

As emphasized in the previous section, the identification of a general agreement constitutes a complex operation that requires analyzing the practice of States not only in their respective regional subsystems, but also in general. Regional human rights courts and tribunals frequently refer to general and regional international instruments to establish the existence of a consensus underlying an evolutive interpretation. Nevertheless, it is not always easy to determine how much weight this inquiry has in the deliberations because, at times, it is not clearly stated in the text of the decision.39 2.1 Evidence of Consensus by Reference to Universal Practice Member States of the Council of Europe and the oas are themselves parties to multiple international treaties designed to protect human rights. The ECtHR and IACtHR often resort to these universal instruments to contrast the scope granted by States parties to human rights obligations. In addition, since human rights are a common and widely accepted value in international society, by resorting to these universal treaties, they can very easily identify a general agreement (consensus generalis). This general agreement would enable them to undertake an evolutive interpretation of regional human rights treaties. 2.1.1

Participation in International Treaties as Evidence of a General Agreement Among the international treaties concluded within the UN framework used by the ECtHR and the IACtHR, the following multilateral treaties stand out:  the Convention relating to the Status of Refugees,40 done in Geneva on 28 July 1951;41 the International Covenant on Civil and Political 39 40

41

Maija Dahlberg, ‘The Lack of Such Common Approach –​Comparative Argumentation by the European Convention of Human Rights’ (2012–​2013) 23 FYbIL 73. Case of Pacheco Tineo Family v Bolivia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 25 November 2013 Series C No 272, paras 158–​159; Rights and Guarantees of Children in the Context of Migration and/​or in Need of International Protection, Advisory Opinion OC-​21/​14 of 19 August 2014 Series A No 21, para 77. United Nations, Treaty Series, Vol 189, No 2545, 137.

110 ­chapter  Rights,42 adopted in New York on 19 December 1966 (Covenant of New York);43 the Convention on the Elimination of All Forms of Discrimination against Women,44 adopted in New York on 18 December 1979;45 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,46 adopted in New  York on 10 December 1984;47 the Convention on the Rights of the Child,48 adopted in New  York on 20 November 1989 (Convention of New York);49 the Convention on the Rights of Persons with Disabilities (Convention on the Rights of Persons with Disabilities),50 adopted in New York on 13 December 2006;51 or the International Convention for the Protection of All Persons from Enforced Disappearance,52 adopted in New York on 20 December 2006.53 Furthermore, other international treaties have been used to outline the content of fundamental rights and freedoms, such as those codifying ihl;54 the

42

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47 48

49 50 51 52

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Soering v United Kingdom, 7 July 1989, paras 88 and 108, Series A No 161; The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-​16/​99 of 1 October 1999 Series A No 16, paras 116–​121; Bayatyan v Armenia [GC], No 23459/​03, para 105, ECtHR 2011; Sitaropoulos and Giakoumopoulos v Greece [GC], No 42202/​07, paras 72–​75, ECtHR 2012. United Nations, Treaty Series, vol 999, No 14668, 171. Ünal Tekeli v Turkey, No 29865/​96, paras 30–​31, ECtHR 2004. United Nations, Treaty Series, vol 1249, No 20378, 13. Soering v United Kingdom, 7 July 1989, paras 87–​88, Series A  No 161; Case of Caesar v Trinidad and Tobago, Merits, Reparations and Costs, Judgment of 11 March 2005 Series C No 123, paras 61–​62. United Nations, Treaty Series, vol 1465, No 24841, 112. T v United Kingdom, No 24724/​94, paras 74–​75, ECtHR 1999; V v United Kingdom, No 24724/​94, paras 76–​77, ECtHR 1999; Case of the “Street Children” (Villagrán-​Morales et al) v Guatemala, Merits, Judgment of 19 November 1999 Series C No 63, para 193; S and Marper v United Kingdom [GC], No 30562/​04 and No 30566/​04, para 124, ECtHR 2008; Rights and Guarantees of Children in the Context of Migration and/​or in Need of International Protection, Advisory Opinion OC-​21/​14 of 19 August 2014 Series A No 21, para 57. United Nations, Treaty Series, vol 1577, No 27531, 3. Glor v Switzerland, No 13444/​04, para 53, ECtHR 2009; Alajos Kiss v Hungary, No 38832/​ 06, paras 14 and 44, ECtHR 2010. United Nations, Treaty Series, vol 2515, No 44910, 3. Varnava and Others v Turkey [GC], No 16064/​90, No 16065/​90, No 16066/​90, No 16068/​ 90, No 16069/​90, No 16070/​90, No 16071/​90, No 16072/​90 and No 16073/​90, para 163, ECtHR 2009. United Nations, Treaty Series, vol 2716, No 48088, 3. Kononov v Latvia [GC], No 36376/​04, ECtHR 2010. This case refers to The Hague No iv Convention; the Convention (iv) relative to the Protection of Civilian Persons in Time

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Statute of Rome;55 the Convention concerning Freedom of Association and Protection of the Right to Organise,56 adopted in San Francisco on 9 July 1948 (ilo Convention No 87);57 or the Convention on the Civil Aspects of International Child Abduction,58 done in The Hague on 25 October 1980.59 As a result of the universal nature of these treaties, regional human rights courts and tribunals have resorted to them to develop by reference the content of certain rights and freedoms. In particular, they search for manifestations of consensus generalis that would allow them to justify the use of an evolutive interpretation of regional human rights treaties. This approach seeks to develop the rights recognized by the regional human rights subsystems from their conception in other international treaties of a more general nature, which were concluded after the EConHR and the AConHR entered into force. For instance, in its advisory opinion on the Juridical Condition and Human Rights of the Child, the IACtHR invoked the Convention of New York to respond to the questions raised by using the ‘broad international consensus (opinio juris comunis) in favour of the principles and institutions set forth in that instrument’.60 As a result of the above, it was able to identify the principle of the best interest of the child.61 At European level, Scoppola v Italy (No 2),62 which shows a notable development of the principle of legality in criminal matters (Article 7 of the EConHR),

55 56

57 58 59 60 61 62

of War, of 12 August 1949 (United Nations, Treaty Series, vol 75, No 973, 287); and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (United Nations, Treaty Series, vol 1125, No 17513, 609). In the inter-​American subsystem:  see Case of the Santo Domingo Massacre v Colombia, Preliminary Objections, Merits and Reparations, Judgment of 30 November 2012 Series C No 259, paras 24, 187, 211–​216 and 234. Scoppola v Italy (No 2) [GC], No 10249/​03, para 105, ECtHR 2009; Vinter and Others v United Kingdom [GC], No 66069/​09, No 130/​10 and No 3896/​10, para 118, ECtHR 2013. Case of Baena Ricardo et  al v Panama, Merits, Reparations and Costs, Judgment of 2 February 2001 Series C No 72, para 157; Demir and Baykara v Turkey [GC], No 34503/​ 97, para 154, ECtHR 2008; The National Union of Rail, Maritime and Transport Workers v United Kingdom, No 31045/​10, para 76, ECtHR 2014. United Nations, Treaty Series, vol 68, No 881, 17. Neulinger and Shuruk v Switzerland [GC], No 41615/​07, paras 135–​137, ECtHR 2010. United Nations, Treaty Series, vol 1343, No 22514, 89. Juridical Condition and Human Rights of the Child, Advisory Opinion OC-​17/​02 of 28 August 2002 Series A No 17, para 29. ibid para 59. A case where the applicant had a prison sentence imposed on the same day in which Italy had made effective new rules with more severe penalties. Upon the request of the Italian

112 ­chapter  also serves as a precedent. The Grand Chamber understood that, in applying an existing but more serious penalty on an inmate, Italy had violated that principle.63 To reach this conclusion, the ECtHR considered that the application of the most favourable criminal law had gradually been consolidated as a principle at the international and European levels, to the extent that several international treaties, including the Statute of Rome, had expressly enshrined it: [A]‌long time has elapsed since the Commission gave the above-​mentioned X v. Germany decision and that during that time there have been important developments internationally. In particular, apart from the entry into force of the American Convention on Human Rights, Article 9 of which guarantees the retrospective effect of a law providing for a more lenient penalty enacted after the commission of the relevant offence […], mention should be made of the proclamation of the European Union’s Charter of Fundamental Rights […]. Lastly, the applicability of the more lenient criminal law was set forth in the statute of the International Criminal Court […]. The Court therefore concludes that since the X v. Germany decision a consensus has gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, has become a fundamental principle of criminal law. It is also significant that the legislation of the respondent State had recognised that principle since 1930 […].64 The interpretation of Article 7 of the EConHR was limited both by the EComHR65 in 1978, and subsequently, by the ECtHR,66 in the sense that it did not imply a right of the accused to benefit from a more favourable criminal law.

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64 65 66

authorities, the domestic courts determined that under the application of the tempus regit actum principle, the penalty imposed should be that which was effective at the time of sentencing, in this case, the more severe one. The first paragraph of Article 7 of the EConHR states that ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’ Scoppola v Italy (No 2) [GC], No 10249/​03, paras 105–​106, ECtHR 2009 (emphasis added). X v Federal Republic of Germany, No 7900/​77, Commission decision of 6 May 1978, Decisions and Reports 13, 72. Le Petit v United Kingdom (dec), No 35574/​97, ECtHR 2000; Zaprianov v Bulgaria (dec), No 41171/​98, ECtHR 2003.

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However, in Scoppola v Italy (No 2) the Grand Chamber understood that, by prohibiting the imposition of a more severe penalty, Article 7(1) of the EConHR did not preclude the possibility of granting to the offender the benefit of a more favourable penalty provided for by the domestic legal system after the commission of the offence.67 This judgment was based on an evolutive interpretation of Article 7 of the EConHR by reference to a network of international treaties (such as the Statute of Rome and the Charter of Nice). Those treaties evidenced a general agreement concerning the application of the most favourable penalty to the offender. It is also worth noting how regional human rights courts and tribunals react when the respondent State is not a party to the international treaty to which they have referred in order to carry out an evolutive interpretation. 2.1.2

Non-​Participation in International Treaties and the Principle of Systemic Integration The non-​participation of a Member State of the Council of Europe or the oas in an international treaty can constitute a relevant element to identify or to discard the existence of a general agreement on the content of a certain right recognized by the EConHR or the AConHR. Although it is a case settled by a Chamber judgment, the ECtHR invoked the existence of a broad European and international consensus on the need to protect the rights of persons with disabilities, embodied among other instruments in the Convention on the Rights of Persons with Disabilities, to accept the admissibility of an application brought against Switzerland, when that State was not yet a party to that international treaty.68 Should regional human rights courts and tribunals identify that consensus beyond the corresponding regional subsystem, they could therefore ‘import’ it by reference. However, this solution must be handled with care because it poses problems not only related to the ultra vires application of the interpretation methods commonly accepted in public international law,69 but also because it 67 68 69

Scoppola v Italy (No 2) [GC], No 10249/​03, paras 107–​113, ECtHR 2009. Glor v Switzerland, No 13444/​04, para 53, ECtHR 2009. It is interesting to confront a critical reading of the final part of paragraph 76 of the judgment delivered by the Grand Chamber in Demir and Baykara v Turkey, where the ECtHR appealed to the need for an evolutive interpretation when a ‘set of rules and principles that are accepted by the vast majority of States, the common international or domestic law standards of European States reflect a reality that the Court cannot disregard when it is called upon to clarify the scope of a Convention provision that more conventional means of interpretation have not enabled it to establish with a sufficient degree of

114 ­chapter  implies an erosion of the principle of relativity of international treaties70 that may give rise to situations similar to the one discussed in the previous section in Artavia Murillo and Others v Costa Rica. Pro homine interpretations by regional human rights courts and tribunals in these hard cases may imply ‘overstepping’ or ‘overflows’ in the use of the notion of consensus as it is conceived in public international law. Therefore, it can trigger abrupt reactions by the respondent State. In the same way that this consensualist approach strengthens the interaction between different legal sectors and reinforces, in theory, the unity of international law, it can also generate diametrically opposite results when it is not handled with care by regional human rights courts and tribunals.71 A clear example of these problems, where an evolutive interpretation of regional treaties is sought drawing consensus from international practice, appears when the respondent State does not participate in that consensus. Within the inter-​American subsystem, Saramaka People v Suriname stands out. In this case the parties disputed over the application to Suriname of a doctrine already established by the IACtHR to favour indigenous peoples72 on the basis of the implementation of the Convention Concerning Indigenous and Tribal Peoples in Independent Countries, adopted in Geneva on 27 June 1989 (ilo Convention No 169).73 The particular feature of this precedent was that the respondent State had not ratified the ilo Convention No 169, the international

70

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certainty’: see Cesare Pitea, ‘Interpreting the ECHR in the Light of “Other” International Instruments:  Systemic Integration or Fragmentation of Rules on Treaty Interpretation’ in Nerina Boschiero and others (eds), International Courts and the Development of International Law: Essays in Honour of Tullio Treves (Asser Press 2013) 556 and 558–​559; Wildhaber, Hjartarson and Donnelly (pt 2 ch 5 n 8) 254. In fact, some scholars have expressed certain criticism of the way in which the ECtHR applies those methods of interpretation: see Samantha Besson and Anne-​Laurence Graf-​ Brugère, ‘Le droit de vote des expatriés, le consensus européen et la marge d’appréciation des États’ (2014) 100 RTDH 937, 948. Adamantia Rachovitsa, ‘Fragmentation of International Law Revisited:  Insights, Good Practices, and Lessons to Be Learned from the Case Law of the European Court of Human Rights’ (2015) 28 LJIL 863, 868–​870. Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and Costs, Judgment of 31 August 2001 Series C No 79, paras 150–​153; Case of the Sawhoyamaxa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 29 March 2006 Series C No 146, paras 122–​123; Case of the Yakye Axa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 17 June 2005 Series C No 125, paras 138–​139. United Nations, Treaty Series, vol 1650, No 28383, 383.

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treaty on which the IACtHR had made dependent its evolutive interpretation of the AConHR. The IACtHR stressed that non-​ratification of the aforementioned treaty did not leave Suriname outside an international consensus on the right of indigenous peoples to communal ownership over their lands: Nevertheless, Suriname has ratified both the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social, and Cultural Rights. The Committee on Economic, Social, and Cultural Rights, which is the body of independent experts that supervises State parties’ implementation of the icescr, has interpreted common Article 1 of said instruments as being applicable to indigenous peoples. Accordingly, by virtue of the right of indigenous peoples to selfdetermination recognized under said Article 1, they may “freely pursue their economic, social and cultural development”, and may “freely dispose of their natural wealth and resources” so as not to be “deprived of [their] own means of subsistence”. Pursuant to Article 29(b) of the American Convention, this Court may not interpret the provisions of Article 21 of the American Convention in a manner that restricts its enjoyment and exercise to a lesser degree than what is recognized in said covenants. This Court considers that the same rationale applies to tribal peoples due to the similar social, cultural, and economic characteristics they share with indigenous peoples […]. Similarly, the Human Rights Committee has analyzed the obligations of State Parties to the iccpr under Article 27 of such instrument, including Suriname, and observed that “minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture [, which] may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.” The above analysis supports an interpretation of Article 21 of the American Convention to the effect of calling for the right of members of indigenous and tribal communities to freely determine and enjoy their own social, cultural and economic development, which includes the right to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied. Thus, in the present case, the right to property protected under Article 21 of the American Convention, interpreted in light of the rights recognized under common Article 1 and Article 27 of the iccpr, which may not be restricted when interpreting

116 ­chapter  the American Convention, grants to the members of the Saramaka community the right to enjoy property in accordance with their comunal tradition.74 Since Suriname was not party to the ilo Convention No 169, the IACtHR did not base its decision solely on this international treaty, but also on other more general international treaties to which Suriname was a party, such as the Covenant of New York. In the same vein, as it developed its case law on the scope of the right to peaceful assembly and freedom of association,75 the ECtHR made an interesting decision in Demir and Baykara v Turkey. It stated that the right to collective bargaining of public employees could be integrated into that right, acknowledged by Article 11 of the EConHR. The Grand Chamber reached this conclusion after assessing the evolution of labour relations76 both internationally (at the ilo level) and at the European level. On the other hand, Turkey based part of its defense arguments on the fact that, when it ratified the European Social Charter, done in Torino on 18 October 1961 (European Social Charter),77 it had not expressed its consent to be bound by its Articles 5 (right to organise) and 6 (right to bargain collectively). The ECtHR pointed out that, in order to deny the existence of an obligation amongst the Member States of the Council of Europe, it was insufficient to claim that a State had not ratified the international treaty where that mandate was provided.78 On the contrary, it considered that the finding of a general agreement (consensus generalis) revealing an evolution in the content of the rules accepted by the majority of States, could suffice to determine the existence of this obligation, even if the respondent State did not directly participate in this general agreement:

74 75

76 77 78

Case of the Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 28 November 2007 Series C No 172, paras 93–​95. National Union of Belgian Police v Belgium, 27 October 1975, Series A  No 19; Swedish Engine Drivers’ Union v Sweden, 6 February 1976, Series A No 20; Schmidt and Dahlström v Sweden, 6 February 1976, Series A No 21; Wilson, National Union of Journalists and Others v United Kingdom, No 30668/​96, No 30671/​96 and No 30678/​96, ECtHR 2002; Sorensen and Rasmussen v Denmark, No 52562/​99 and No 52620/​99, ECtHR 2006. Demir and Baykara v Turkey [GC], No 34503/​97, paras 146–​150, ECtHR 2008. Council of Europe, Treaty Series, No 35. A similar approach was taken by the ECtHR in relation to the European Convention on the Legal Status of Children Born out of Wedlock:  see Christian Djeffal, Static and Evolutive Treaty Interpretation (cup 2016) 318–​320.

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[I]‌n searching for common ground among the norms of international law it has never distinguished between sources of law according to whether or not they have been signed or ratified by the respondent State. […] [I]n defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of Contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases. […] [I]t is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies […].79 In this context, the Grand Chamber emphasized that Turkey had ratified two international treaties concluded within the ilo framework on the trade union rights of public servants: the ilo Convention No 87 and the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, adopted on 1 July 1949 (ilo Convention No 98).80 Therefore, although Turkey was not bound by the trade union obligations set out in the European Social Charter, it could not be said that it was completely alien to them under other international commitments and that it did not participate in the consensus generalis on its existence and compulsory nature.81 The decisions issued by the IACtHR in Saramaka People v Suriname and the ECtHR Grand Chamber in Demir and Baykara v Turkey are notable precedents for two reasons. From the perspective of the regional human rights subsystems, they show how a well-​founded consensus generalis can prevail over a State that tries to remain oblivious to it. They overcome the resistance imposed by the principle of sovereign equality in a way that is consistent with public international law whilst avoiding any ‘overstepping.’ At the public international 79 80 81

Demir and Baykara v Turkey [GC], No 34503/​97, paras 78 and 85–​86, ECtHR 2008. United Nations, Treaty Series, vol 96, No 1341, 257. Demir and Baykara v Turkey [GC], No 34503/​97, paras 100–​101, 123–​125, 151–​152 and 166, ECtHR 2008.

118 ­chapter  law level, they represent an example of integration and normative cross-​ fertilization. In both cases, the ECtHR and the IACtHR used the principle of systemic integration embodied in Article 31(3)(c) of the vclt to find the legal basis of its decision outside the regional subsystem itself.82 It is worth noting that in this kind of hard cases, where the respondent State adopts restrictive measures that exceed the limits of a regional human rights treaty, the judicial organ makes an overall analysis of its conduct: an examination seeking to find evidence to show that there is no general objection from that State to the compliance with the contested obligation, but rather a mere breach of the rule in the particular case. In addition to using international treaties of a universal nature, in order to set the grounds for undertaking an evolutive interpretation, the ECtHR and IACtHR also pay attention to other more specific instruments created within the regional subsystem where each one exercises its jurisdiction. 2.2 Evidence of Consensus by Reference to Regional Practice The practice developed in Europe (whether in the context of the Council of Europe or the EU) and in the inter-​American subsystem (oas), has also served the regional human rights courts and tribunals to interpret the EConHR and AConHR in an evolutive way. 2.2.1 Practice of the Council of Europe In the case law of the ECtHR, a number of regional instruments created within the Council of Europe have been invoked, including the European Convention on the Legal Status of Children Born out of Wedlock,83 done in Strasbourg on 82

83

In this connection, regarding the measures taken by Turkey to impose the husband’s family name upon women after marriage, the ECtHR declared a violation of the principle of equality based on gender, arguing that the measures did not indicate that the State was outside the existing consensus generalis on the need to recognize discrimination based on gender. To the contrary, the Chamber warned that ‘Turkey does not position itself outside the general trend towards placing men and women on an equal footing in the family. Prior to the relevant legislative amendments, particularly those of 22 November 2001, the man’s position in the family was the dominant one. […] The aim of the reforms of November 2001 was to place married women on an equal footing with their husband in representing the couple, in economic activities and in the decisions to be taken affecting the family and children. Among other things the husband’s role as head of the family has been abolished. Both married partners have acquired the power to represent the family’: see Ünal Tekeli v Turkey, No 29865/​96, para 62, ECtHR 2004 (emphasis added). Marckx v Belgium, 13 June 1979, paras 41 and 58, Series A  No 31; Inze v Austria, 28 October 1987, para 41, Series A No 126.

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15 October 1975;84 or the Framework Convention for the Protection of National Minorities,85 done in Strasbourg on 1 February 1995 (Framework Convention of Strasbourg).86 The Framework Convention of Strasbourg has been instrumental in the consolidation of a European regional law on the protection of national minorities. It embodies a general consensus accepted by the Member States of the Council of Europe that has enabled the ECtHR to develop an evolutive interpretation of the EConHR.87 The ECtHR has dealt with a number of cases on the protection of the Roma minority against school segregation measures,88 in addition to recognizing several social rights and benefits.89 Relations between the EConHR and the Framework Convention of Strasbourg represent an excellent example of interaction between different regional human rights treaties. The former (more general) has been enriched and developed by the latter (more specific). The date of entry into force of the treaty and the number of ratifications received by the Member States of the Council of Europe, as highlighted by the ECtHR in X and Others v Austria, are two essential elements in concluding whether the more specific regional treaty reflects a ‘common ground among European States at present’.90 In this case, the interpretation of the European

84 85

86 87 88

89 90

Council of Europe, Treaty Series, No 85. Coster v United Kingdom [GC], No 24876/​94, paras 107–​108, ECtHR 2001; Beard v United Kingdom [GC], No 24882/​94, paras 104–​105, ECtHR 2001; Jane Smith v United Kingdom [GC], No 25154/​94, paras 100–​101, ECtHR 2001; Lee v United Kingdom [GC], No 25289/​ 94, paras 95–​96, ECtHR 2001; Chapman v United Kingdom [GC], No 27238/​95, paras 93–​94, ECtHR 2001. Council of Europe, Treaty Series, No 157. Bjorn Arp, Las minorías nacionales y su protección en Europa (Centro de Estudios Políticos y Constitucionales 2008) 76–​88, 364–​378 and 406–​408. The ECtHR has indicated that ‘there could be said to be an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community’: see DH and Others v Czech Republic [GC], No 57325/​00, para 181, ECtHR 2007. In the same sense:  Sampanis et autres c Grèce, No 32526/​05, paras 78–​80 and 85, ECtHR 2008; Orsus and Others v Croatia [GC], No 15766/​03, para 152, ECtHR 2010; Horváth and Kiss v Hungary, No 11146/​11, paras 120–​127, ECtHR 2013. Muñoz Díaz v Spain, No 49151/​07, paras 60 and 64, ECtHR 2009. However, see also Serife Yigit v Turkey [GC], No 3976/​05, paras 85–​86, ECtHR 2010. X and Others v Austria [GC], No 19010/​07, para 150, ECtHR 2013.

120 ­chapter  Convention on the Adoption of Children (Revised),91 done in Strasbourg on 27 November 2008 was at hand. When the State party to the dispute has not ratified the specific treaty, the emphasis given to it by the ECtHR is not definitive,92 unless the ECtHR can appreciate that the State participates in that consensus in some way. At this juncture, the ECtHR may be ready to invoke other international instruments through the principle of systemic integration (Demir and Baykara v Turkey).93 In addition to specific treaties concluded within the European human rights subsystem, the ECtHR has on other occasions resorted to non-​binding decisions taken by the political institutions of the Council of Europe. This is the case of the Recommendations of the Committee of Ministers on the European Prison Rules,94 invoked in Dickson v United Kingdom to assess whether an inmate was entitled to conceive a child through artificial insemination. The Grand Chamber ruled in favour of the applicant,95 after identifying a development in European prison policy ‘towards the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence’.96 While in Meier v Switzerland, the Recommendations on the European Prison Rules were used to assess whether Member States had an obligation not to impose certain work on convicts who had passed the statutory retirement age. In this case, the Chamber ruled in favour of the State after noting an absence of consensus amongst Member States and concluding that these recommendations envisaged this specific issue in a very broad and deferential way towards State sovereignty.97 2.2.2 Practice of the European Union On the other hand, to support an evolutive interpretation of the EConHR, the ECtHR has sometimes resorted to the European integration process. Though not an exhaustive list, several provisions of the Charter of Nice have been invoked in: Christine Goodwin v United Kingdom (Article 9),98 Demir and Baykara 91 92 93 94

95 96 97 98

Council of Europe, Treaty Series, No 202. Rohlena v Czech Republic [GC], No 59552/​08, paras 38–​39 and 72, ECtHR 2015. See pt 2 ch 5 sub-​s 2.1.2. Recommendation CM/​Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies. See pt 3 ch 7 sub-​s 2.2. Dickson v United Kingdom [GC], No 44362/​04, para 75, ECtHR 2007. Meier v Switzerland, No 10109/​14, paras 78–​80, ECtHR 2016. Christine Goodwin v United Kingdom [GC], No 28957/​95, para 100, ECtHR 2002.

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v Turkey (Article 12(1)),99 Scoppola v Italy (No 2) (Article 49(1)),100 Neulinger and Shuruk v Switzerland (Article 24(2))101 and Bayatyan v Armenia (Article 10).102 The interactions between the EConHR and the Charter of Nice will be intensified and enriched as a result of the eventual accession of the EU to the EConHR. As previously noted when discussing Christine Goodwin v United Kingdom, the case law of the ecj has been used to define the scope of the obligations imposed by the EConHR. The ECtHR, showing its deference to State sovereignty, has sought inspiration in the ecj in disputes initiated against EU Member States,103 but has avoided it in disputes taking place against non-​EU Member States of the Council of Europe. In Konstantin Markin v Russia, a number of ecj decisions are included in the ‘relevant international and comparative material’ section of the judgment, but are not amongst the evidence used to find the violation of Articles 8 and 14 of the EConHR.104 Stec and Others v United Kingdom also serves as a precedent. The Grand Chamber had to decide whether the social benefits scheme, granted to workers who had suffered a labour accident or occupational disease, was contrary to Article 14 of the EConHR due to differentiations in the age of access for men and women. This case is of particular interest because, prior to challenging this legal regime before the ECtHR, the ecj had issued a number of preliminary rulings.105 Those rulings stated that such a legal regime was not incompatible with European legislation guaranteeing equal treatment in the field of social security.106 The ECtHR took into account this case law to conclude that the measures taken by the United Kingdom did not breach the EConHR:

99 100 101 102 103

104 105

106

Demir and Baykara v Turkey [GC], No 34503/​97, para 105, ECtHR 2008. Scoppola v Italy (No 2) [GC], No 10249/​03, para 105, ECtHR 2009. Neulinger and Shuruk v Switzerland [GC], No 41615/​07, para 135, ECtHR 2010. Bayatyan v Armenia [GC], No 23459/​03, para 106, ECtHR 2011. I v United Kingdom [GC], No 25680/​94, para 72, ECtHR 2002; Micallef v Malta [GC], No 17056/​06, para 78, ECtHR 2009; Granos orgánicos nacionales SA v Germany, No 19508/​ 07, para 25, ECtHR 2012. Konstantin Markin v Russia [GC], No 30078/​06, paras 65–​70, ECtHR 2012. Case C-​9/​91 The Queen v Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR I-​4297; Case C-​328/​91 Secretary of State for Social Security v Evelyn Thomas and others [1993] ECR I-​1247; Case C-​196/​98 Regina Virginia Hepple v Adjudication Officer and Adjudication Officer v Anna Stec [2000] ECR I-​3701. Council Directive 79/​7/​E EC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security [1979] OJ L6/​24.

122 ­chapter  [I]‌t finds it significant that, in the present applicants’ case, the ecj found that since rea was intended to compensate people of working age for loss of earning capacity due to an accident at work or occupational disease, it was necessary, in order to preserve coherence with the old-​age pension scheme, to link the age-​limits […]. While it is true that Article 7(1)(a) of the Directive provides an express exception to the general prohibition on discrimination in social security […], the ecj was called upon, in deciding whether the case fell within the Article 7 exception, to make a judgment as to whether the discrimination in the rea scheme arising from the link to differential pensionable ages was objectively necessary in order to ensure consistency with the pension scheme. In reaching a conclusion on this issue which, while not determinative of the issue under Article 14 of the Convention, is nonetheless of central importance, particular regard should be had to the strong persuasive value of the ecj’s finding on this point.107 On other occasions, the ECtHR has used some legislative (directives) and political (EP resolutions) acts issued by the EU institutions. The Directive laying down minimum standards for the reception of asylum seekers in Member States108 was invoked in MSS v Belgium and Greece in order to determine whether the obligations laid down therein constituted obligations in the context of Article 3 of the EConHR, as regards the treatment to be granted to asylum seekers by the authorities of the host State.109 While in Biao v Denmark, the Grand Chamber examined Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.110 Under this Directive, an individual could apply for spousal residence in Denmark.111 Furthermore, two EP resolutions on respect for human rights in the EU, done on 8 April 1997112 and 17 February 1998,113 were used by the ECtHR in L and V v Austria as evidence of a general agreement among 107 108 109 110

111 112 113

Stec and Others v United Kingdom [GC], No 65731/​01 and No 65900/​01, para 58, ECtHR 2006 (emphasis added). Council Directive 2003/​9/​E C of 27 January 2003 laying down minimum standards for the reception of asylum seekers [2003] OJ L31/​18. MSS v Belgium and Greece [GC], No 30696/​09, paras 84 and 250–​251, ECtHR 2011. Directive 2004/​38/​E C of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States [2004] OJ L158/​77. Biao v Denmark [GC], No 38590/​10, para 135, ECtHR 2016. [1997] OJ C132/​31. [1998] OJ C80/​43.

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EU Member States. The agreement was on the appropriateness of setting the legal minimum age for maintaining homosexual relations at fourteen years, the same as for heterosexuals.114 The legal developments promoted through the European integration process do not always activate an evolutive interpretation of the EConHR. In Hristozov and Others v Bulgaria, while accepting that the use of officially unauthorized medicinal products in certain exceptional circumstances had been permitted by the EU, the ECtHR endorsed the competence of the State to impose restrictions based on the protection of public health,115 thus establishing the prevailance of the State’s discretion to organize its health policy and to protect the interests of its citizens. In conclusion, the use of instruments developed within the European integration process, together with other instruments of a universal scope, can trigger an evolutive interpretation. They could not be given more prominence, as not all EU Member States are members of the Council of Europe, and as some of the instruments mentioned, such as ecj judgments or EP resolutions, do not really express the position of EU Member States, but rather the opinion of the EU institutions. 2.2.3 Practice of the Organization of American States For its part, the IACtHR has also invoked the resolutions issued by the General Assembly of the oas as a manifestation of the general agreement reached among the States parties to the inter-​American subsystem. In the advisory opinion on the Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, several States presented conflicting arguments regarding the jurisdiction of the IACtHR to interpret the Declaration of Bogotá. The USA, Costa Rica and Venezuela argued that the Declaration of Bogotá did not have a binding legal nature and therefore could not be interpreted by the IACtHR. Conversely, Peru and Uruguay considered that the Declaration of Bogotá should fall under the advisory jurisdiction of the IACtHR. Among other arguments, the IACtHR affirmed its jurisdiction by recalling that the Declaration of Bogotá had been conceived by the Member States of the oas as a source of international legal obligations through a resolution of its General Assembly adopted by consensus.116 114 115 116

L and V v Austria, No 39392/​98 and No 39829/​98, para 39, ECtHR 2003. Hristozov and Others v Bulgaria, No 47039/​11 and No 358/​12, paras 123–​124, ECtHR 2012. Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-​10/​89 of 14 July 1989 Series A No 10, paras 41–​43.

124 ­chapter  In Claude Reyes and Others v Chile, turning to its contentious jurisdicion, the IACtHR noted that there was a ‘regional consensus among the States that are members of the Organization of American States’ on the importance of access to public information and the need for its protection. In particular, such a consensus had been the ‘subject of specific resolutions issued by the oas General Assembly’.117 Furthermore, in Atala Riffo and daughters v Chile, the IACtHR referred again to the resolutions of the General Assembly of the oas on the protection of persons against discriminatory treatment based on sexual orientation118 in order to declare a violation of the AConHR. These resolutions of the General Assembly of the oas, provided that they amount to acts of an international organization adopted by consensus, can reveal the existence of a general agreement. However, it is interesting to note that in Atala Riffo and daughters v Chile, the IACtHR made an extensive reading of those resolutions to declare a violation of the right to family life.119 The evolutive interpretation undertaken in this precedent, as discussed later in this chapter,120 does not fully reconcile with a consensualist approach to public international law. At this point it suffices to note that in the General Assembly of the oas the Member States had reached consensus on the need to avoid discrimination on grounds of sexual orientation, but not on the scope of the concept of family. By recognizing a violation of the right to family life, after the Chilean authorities had removed custody of her minor children from a lesbian who lived with another woman,121 the IACtHR made an evolutive interpretation of the right to family life based on the resolutions adopted by the General Assembly of the oas, in the absence of a general consensus in the inter-​American subsystem on the concept of family. Such an interpretation introduces an ‘overstepping’ in the use of the notion of consensus as it is conceived in public international law, in particular since this case could have been decided in favour of the applicant on different grounds. 117

Case of Claude Reyes et al v Chile, Merits, Reparations and Costs, Judgment of 19 September 2006 Series C No 151, para 78. 118 RES 2435 (XXXVIII-​O/​08), adopted on 3 June 2008; RES 2504 (XXXIX-​O/​09), adopted on 4 June 2009; RES 2600 (XL-​O/​10), adopted on 8 June 2010; RES 2653 (XLI-​O/​11), adopted on 7 June 2011; RES 2721 (XLII-​O/​12), adopted on 4 June 2012; RES 2807 (XLIII-​O/​13), adopted on 6 June 2013. 119 See pt 3 ch 8 s 2. 1 20 See pt 2 ch 5 sub-​s 3.2.2. 121 Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239, para 86.

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Tension between International and Constitutional Jurisdictions

The evolutive interpretation of regional human rights treaties takes place in a context of tension between the international character of the ECtHR and the IACtHR, and the constitutional dimension of the rights and freedoms protected by the EConHR and the AConHR. It is common in some quarters to conceive regional human rights courts and tribunals as courts of fourth instance or cassation. The purpose of this study is precisely to demonstrate that these bodies act as international courts and tribunals that rely on international categories to settle the disputes submitted to their jurisdiction. Reinforcing the International Character of Regional Human Rights Courts and Tribunals The Grand Chamber has used the notion of consensus not only to interpret the EConHR in an evolutive manner, but also to reinforce the international character of the ECtHR and to promote the consistency of its case law. Kononov v Latvia provides an illustrative precedent of the role of consensus in the European regional subsystem as an instrument for bringing together, on the one hand, the necessary evolution of the rights granted to individuals, and, on the other hand, the necessary coherence of the ECtHR case law. In this dispute the applicant had been prosecuted and convicted in Latvia for war crimes committed during World War ii based on the principles established by The Hague No iv Convention; the Convention (iv) relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (iv Geneva Convention);122 and the Protocol of Geneva. At the time of the commission of those criminal acts (in 1944) there was no specific provision in Latvian criminal law of such offences. The Latvian judges convicted the applicant by resorting to customary ihl. Already in Strasbourg, a Chamber of the ECtHR strongly rebutted the conclusion reached by the Latvian courts, while the last two international treaties cited above could not apply retroactively to acts committed in 1944 nor could their rules be integrated (in the Chamber’s opinion) as part of customary international law.123 With regard to The Hague No iv Convention, the Chamber found that its provisions were not applicable after a very critical examination of the manner in which international law had been invoked by the domestic courts to determine 3.1

122 123

United Nations, Treaty Series, vol 75, No 973, 287. Kononov v Latvia, No 36376/​04, para 131, ECtHR 2008.

126 ­chapter  the criminal responsibility of the individual. The Chamber found a violation of Article 7 of the EConHR by developing a line of reasoning similar to that followed by a court of cassation. In short, the Chamber was more concerned with highlighting the defective arguments of the Latvian courts, than by assessing whether ihl might be applicable.124 Conversely, the Grand Chamber took a different approach, closer to the status of the ECtHR as an international court and tribunal. Its judgment cleared all doubts that the Chamber had expressed about the questions related to the existence of customary international law concerning the criminal responsibility of the individual when the offences took place (1944).125 The Grand Chamber stated that the Hague No iv Convention contained customary rules126 which had in turn been integrated into the principles of the International Military Tribunal at Nuremberg127 and accepted in the judicial practice of several States: 124 See paragraphs 8–​11 of the Joint Dissenting Opinion of Judges Fura-​Sandström, Thór-​ Björgvinsson and Ziemele to the Chamber’s judgment. 125 More particularly, as regards, first of all, the legal status of victims of criminal offences attributed to the applicant, a comprehensive study of international practice was undertaken in order to emphasize that they enjoyed protection under the customary ihl in 1944, whether as combatants or as civilians. The Chamber, on the basis of the findings of the domestic courts, had regarded the victims as ‘collaborators of the German Army’ and, by virtue of that finding, had ruled out the application of The Hague No iv Convention: cf Kononov v Latvia, No 36376/​04, para 129, ECtHR 2008; Kononov v Latvia [GC], No 36376/​ 04, paras 201–​204, ECtHR 2010. Secondly, it analyzed in detail the crimes that the Latvian judicial authorities had attributed to the applicant and confirmed their existence in light of customary international law applicable in 1944 (Kononov v Latvia [GC], No 36376/​ 04, paras 215–​221, ECtHR 2010). Thirdly, making use of the icty case law (Prosecutor v Zdravko Mucić et al, No IT-​96-​21-​T, Judgment of 16 November 1998, para 333; Prosecutor v Tihomir Blaskic, No IT-​95-​14-​T, Judgment of 3 March 2000, para 290) and that of the ictr (Prosecutor v Clément Kayishema and Obed Ruzindana, No ICTR-​95-​1-​T, Judgment of 21 May 1999, para 209) it affirmed the validity of the principle of individual responsibility of superiors over the acts performed by their subordinates as part of customary international law in force in 1944 (Kononov v Latvia [GC], No 36376/​04, para 211, ECtHR 2010). Fourthly, it found a general agreement among States in favour of the existence of a rule of customary international law relating to the criminal responsibility of the individual and, therefore, did not consider that there was a violation of Article 7 of the EConHR (ibid, para 238). 126 Hugh Thirlway, ‘Human Rights in Customary Law:  An Attempt to Define Some of the Issues’ (2015) 28 LJIL 495. 127 The ECtHR indicated that ‘The impact on the civilian population of the First World War prompted provisions in the Treaties of Versailles and Sèvres on the responsibility, trial and

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[T]‌he international liability of the State based on treaties and conventions did not preclude the customary responsibility of States to prosecute and punish individuals, via their criminal courts or military tribunals, for violations of the laws and customs of war. International and national law (the latter including transposition of international norms) served as a basis for domestic prosecutions and liability. In particular, where national law did not provide for the specific characteristics of a war crime, the domestic court could rely on international law as a basis for its reasoning, without infringing the principles of nullum crimen and nulla poena sine lege.128 In other words, according to the Grand Chamber, in 1944 the The Hague No iv Convention was accepted as customary international law by virtue of a consensus generalis. This general agreement on its customary nature was key for the ECtHR to assert that there was no breach of Article 7 of the EConHR, since there was a criminal law at the time of committing the acts for which the applicant had been convicted. Unlike other disputes129 that have reached the ECtHR on the criminal measures taken by some States against those responsible for serious human rights

punishment of alleged war criminals. The work of the International Commission 1919 […] and of the unwcc […] made significant contributions to the principle of individual criminal liability in international law. “Geneva law” […] protected the victims of war and provided safeguards for disabled armed forces personnel and persons not taking part in hostilities. Both the “Hague” and “Geneva” branches of law were closely interrelated, the latter supplementing the former […]. The Charter of the imt Nuremberg provided a non-​exhaustive definition of war crimes for which individual criminal responsibility was retained and the judgment of the imt Nuremberg opined that the humanitarian rules in the Hague Convention and Regulations 1907 were “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” by 1939 and that violations of those provisions constituted crimes for which individuals were punishable. There was agreement in contemporary doctrine that international law had already defined war crimes and required individuals to be prosecuted. In consequence, the Charter of the imt Nuremberg was not ex post facto criminal legislation. The later Nuremberg principles, drawn from the Nuremberg Charter and judgment, reiterated the definition of war crimes set out in the Charter and that anyone committing a crime under international law was responsible and liable to punishment’: see Kononov v Latvia [GC], No 36376/​04, para 207, ECtHR 2010. 128 ibid para 208. 129 Eva-​Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice in the Baltic States (cup 2015) 275–​284.

128 ­chapter  violations during World War ii, such as Vasiliauskas v Lithuania,130 Kononov v Latvia addressed the commission of war crimes and not genocide. As these crimes had been developed differently in international criminal law, the response of the ECtHR was also different when examining both cases under Article 7 of the EConHR. Although it should be noted that Kononov v Latvia is a ‘hard case’ regarding the guarantees that should govern the criminal process, it shows how the ECtHR can assume a double role. Firstly, it plays a role as an international court and tribunal in charge of applying international law. Secondly, it promotes a healthy judicial dialogue with the Member States of the Council of Europe that sheds some light on those domestic administrative, legislative and judicial practices that need to be corrected and improved. In this case, the Chamber penalized the insufficient legal arguments offered by the Latvian courts regarding the application of customary international law, approaching this case more as a court of ‘fourth instance.’ On the other hand, by using consensualist techniques to identify the law applicable to the dispute, the Grand Chamber acted as an international judicial body. Guaranteeing the Unity of Public International Law and the Risks Posed by Judicial Activism Both the ECtHR and the IACtHR are international courts and tribunals and not constitutional courts. However, by undertaking an eccentric (and activist) evolutive interpretation of regional human rights treaties they sometimes act as constitutional courts. As we already argued, judicial activism runs counter to the rule of law and may hinder the unity of public international law. In order to develop this idea it is worth examining some precedents of the ECtHR (Bayatyan v Armenia) and the IACtHR (Atala Riffo and daughters v Chile and Duque v Colombia). 3.2

3.2.1

The Double Instance as a Formula to Strengthen the Unity of Public International Law In the first place we analyze Bayatyan v Armenia, where the Chamber did not consider the criminal measures adopted by Armenia against an individual who had not joined military service on grounds of conscientious objection due to his belonging to Jehovah’s Witnesses, a violation of the right to freedom of thought, conscience and religion recognized in Article 9 of the EConHR. In order to reach this conclusion, the Chamber automatically applied the case 130 See pt 1 ch 1 sub-​s 2.2.2.

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law that the EComHR131 and ECtHR132 had settled about conscientious objection, according to which this right was not included in the scope of protection offered by Article 9 of the EConHR. The applicant had demonstrated the existence of a consensus concerning the decriminalization of this type of conscientious objection amongst the Member States of the Council of Europe, to which the respondent State itself had also adhered precisely after the filing of this case in Strasbourg. However, the Chamber conferred a secondary role to the notion of consensus, or at least not relevant enough to be imposed on the case law that EComHR and ECtHR had previously settled, thus ruling out an evolutive interpretation and not declaring the international responsibility of the State for non-​compliance with Article 9 of the EConHR: [S]‌ince this Article clearly left the choice of recognising conscientious objectors to each Contracting Party, the fact that the majority of the Contracting Parties have recognised this right cannot be relied upon to hold a Contracting Party which has not done so to be in violation of its Convention obligations. Consequently […] this factor cannot serve a useful purpose for the evolutive interpretation of the Convention.133 Nevertheless, the Grand Chamber made a teleological interpretation of Article 4(3)(b) of the EConHR in light of the preparatory works carried out during its negotiations. It noted that the last decision on which the EComHR had ruled on this matter dated back to 1995. Since that date, according to the Grand Chamber, there had been a general evolution of the treatment of conscientious objection,134 which was also fully shared by the majority of the Member States of the Council of Europe in their domestic legal systems. In fact, all its Member States, except Azerbaijan and Turkey, had taken

131

132 133 134

Grandrath v Federal Republic of Germany, No 2299/​ 64, Commission report of 12 December 1966, Yearbook vol 10, 626; GZ v Austria, No 5591/​72, Commission decision of 2 April 1973, Collection 43, 161; Conscientious objectors v Denmark, No 7565/​ 76, Commission decision of 7 March 1977, Decisions and Reports 9, 117; N v Sweden, No 10410/​83, Commission decision of 11 October 1984, Decisions and Reports 40, 203; Autio v Finland, No 17086/​90, Commission decision of 6 December 1991, Decisions and Reports 72, 245; Heudens v Belgium, Commission decision of 22 May 1995. Thlimmenos v Greece [GC], No 34369/​97, para 43, ECtHR 2000; Ülke v Turkey [GC], No 39437/​98, paras 53–​54, ECtHR 2006. Bayatyan v Armenia, No 23459/​03, para 63, ECtHR 2009. Bayatyan v Armenia [GC], No 23459/​03, paras 105–​107, ECtHR 2011.

130 ­chapter  constitutional, legislative or administrative measures to recognize the right to conscientious objection to military service. Even Armenia itself had adopted legal measures: [I]‌n the late 1980s and the 1990s there was an obvious trend among European countries, both existing Council of Europe member States and those which joined the organisation later, to recognise the right to conscientious objection […]. All in all, nineteen of those States which had not yet recognised the right to conscientious objection introduced such a right into their domestic legal systems around the time when the Commission took its last decisions on the matter. Hence, at the time when the alleged interference with the applicant’s rights under Article 9 occurred, namely in 2002–​2003, only four other member States, in addition to Armenia, did not provide for the possibility of claiming conscientious objector status, although three of those had already incorporated that right into their Constitutions but had not yet introduced implementing laws […]. Thus, already at the material time there was nearly a consensus among all Council of Europe member States, the overwhelming majority of which had already recognised in their law and practice the right to conscientious objection. […] subsequent to the facts of the present case, two more member States passed laws fully implementing the right to conscientious objection, thereby leaving Azerbaijan and Turkey as the only two member States not to have done so yet. Furthermore, the Court notes that Armenia itself also recognised that right after the applicant’s release from prison and the introduction of the present application.135 The Grand Chamber amended the decision of the Chamber by finding an ‘overwhelming majority’ of States that had recognized the right to conscientious objection. It also recalled that one of the commitments made by Armenia in acceding to the Council of Europe was precisely the introduction of measures to recognize this right. Aware of the need to be deferent to the principle of sovereignty, as was also the case in Demir and Baykara v Turkey, the ECtHR further emphasized that the respondent State was not outside the general agreement (consensus generalis) accepted by the majority of the Member States of the Council of Europe.136

1 35 ibid paras 103–​104 (emphasis added). 136 ibid paras 108 and 110. See pt 2 ch 5 sub-​s 2.1.2 (the approach endorsed by the ECtHR in Demir and Baykara v Turkey as well as by the IACtHR in Saramaka People v Suriname).

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In Bayatyan v Armenia, the double instance system allowed for the maintainance of a fair balance between the need to respect the previous case law (position adopted by the Chamber) and the need to interpret the EConHR evolutionarily, taking into account the developments in State practice (position adopted by the Grand Chamber). From this perspective, it is understandable that the Chamber was relunctant to use the consensualist approach and chose to narrow its decision within the precedents hitherto established by the ECtHR, leaving the Grand Chamber with the responsibility of modifying the case law through an interpretation based on a consensus-​based approach. In this regard, it should be recalled that the ECtHR has strictly limited the role of the Chambers in modifying its case law. In Jones and Others v United Kingdom it stated that when: [T]‌he precedent in question is a relatively recent and comprehensive judgment of the Grand Chamber, […] a Chamber which is not prepared to follow the established precedent should propose relinquishment of the case before it to the Grand Chamber.137 Recourse to the notion of consensus would therefore serve not only to undertake an evolutive interpretation of the EConHR, but also to activate changes in the ECtHR case law.138 This solution provides more certainty in the judicial functions undertaken by the ECtHR and, as noted in the previous subsection, encourages a more fluid dialogue with the domestic courts of the Member States, reducing the chances of ambiguous or contradictory case law that could undermine the legal heritage already granted to individuals by the EConHR. It is important to underline how a solution originating from domestic law, such as the double instance system, can perform a remarkable service in certain highly specialized sectors of public international law. In particular, as is clear from Bayatyan v Armenia, this mechanism offers the ECtHR an interesting solution to develop progressive changes in its case law in line with the contemporary social reality and, ultimately, the consensus expressed by the Member States of the Council of Europe. The following lines analyze the risks to the unity of public international law stemming from judicial activism, either when regional human rights courts and tribunals 137 138

Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, para 194, ECtHR 2014. Hanneke Senden, Interpretation of Fundamental Rights in a Multilevel Legal System. An Analysis of the European Court of Human Rights and the Court of Justice of the European Union (Intersentia 2011) 278.

132 ­chapter  interpret the scope of a right, or when they confirm their jurisdiction to entertain a dispute.139 3.2.2

A First Risk of Fragmentation: Judicial Activism and Evolutive Interpretation In Atala Riffo and daughters v Chile the IACtHR included discrimination on grounds of sexual orientation within the categories protected by Article 1(1) of the AConHR,140 which enshrines the general principle of non-​discrimination. At the time of this decision, the ECtHR had already stated that the coexistence of same-​sex couples constitutes a manifestation not only of ‘private life’ but also of ‘family life’ protected under Article 8 of the EConHR.141 Although the IACtHR admitted in its judgment that there was no consensus on the content of the concept of family in the inter-​American regional subsystem,142 it eventually interpreted Article 1(1) of the AConHR in line with the position 139 It is important to mention that, just before submitting the final version of the work to the publishers, the IACtHR issued a very controversial advisory opinion in which the notion of consensus was completely and erroneously relegated. In fact, the Government of Costa Rica had submitted the request for the advisory opinion, after having been unable to find a majority in the national Parliament (consensus ad intra) favourable to amend the domestic civil legislation regarding same-​sex marriage. In other words, the Government of Costa Rica sought the assistance of the IACtHR to promote changes in its domestic legislation, requesting the IACtHR to act as a legislative, rather than an international judicial organ: see Gender identity, and equality and non-​discrimination with regard to same-​sex couples. State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-​sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-​24/​17 of 24 November 2017 Series A No 24. 140 See pt 2 ch 5 sub-​s 2.2.3. 141 Schalk and Kopf v Austria, No 30141/​04, paras 93–​95, ECtHR 2010. 142 The IACtHR affirmed that ‘With regard to the State’s argument that, on the date on which the Supreme Court issued its ruling there was a lack of consensus regarding sexual orientation as a prohibited category for discrimination, the Court points out that the alleged lack of consensus in some countries regarding full respect for the rights of sexual minorities cannot be considered a valid argument to deny or restrict their human rights or to perpetuate and reproduce the historical and structural discrimination that these minorities have suffered. The fact that this is a controversial issue in some sectors and countries, and that it is not necessarily a matter of consensus, cannot lead this Court to abstain from issuing a decision, since in doing so it must refer solely and exclusively to the stipulations of the international obligations arising from a sovereign decision by the States to adhere to the American Convention’: see Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239, para 92 (emphasis added).

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maintained not only by the ECtHR and other international mechanisms for the protection of human rights,143 but also by the General Assembly of the oas,144 which had been requesting its Member States to adopt legislative measures to prevent discrimination on grounds of sexual orientation since 2008. In light of all these arguments, displacing the absence of a consensus regarding the concept of family within the Member States of the oas and emphasizing the discriminatory nature of the disputed measure, the IACtHR concluded that the Chilean judicial authorities had violated, among others, the right to family life upon having taken custody of the minor children from a lesbian who lived with another woman. It is worth noting the partial dissenting opinion issued by Judge Alberto Pérez Pérez on this part of the judgment, which is based on the non-​existence, at the time of rendering the decision, of a consensus generalis among the States parties to the AConHR on the inclusion of homosexuals in the concept of family recognized by Article 17.145 It is an opinion based on a consensualist approach, which conceives the role of the IACtHR as an international judicial body. Indeed, after conducting a comparative study of constitutional law of the parties to the Pact of San José, he concluded that: I agree with the notion of an evolving interpretation that considers the American Convention as a living instrument to be understood according to present-​day circumstances, but on the understanding that in order to make progress in that area it is necessary to reach a consensus, or common ground or a convergence of standards among the States Party […]. This is the case as regards the recognition that discrimination based on sexual orientation should be understood as prohibited […], since a clear concept exists in this respect, not only among the States Party to the American Convention, but also among all Member States of the oas, expressed in the resolutions of the General Assembly cited […]. The same cannot be said with respect to the evolution of the notion of the family and its status 143 Amongst these, the following decisions of the Human Rights Committee: see Toonen v Australia, CCPR/​C/​50/​D/​488/​1992; Edward Young v Australia, CCPR/​C/​78/​D/​941/​2000. 144 Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239, para 86. 145 This provision establishes in its first two paragraphs that ‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. 2. The right of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention.’

134 ­chapter  as the foundation or basic or natural element of society, which continues to be present in the Constitutions of many States […]. The irrefutable fact that there are currently many different concepts of family […] does not necessarily mean that each and every one of these must correspond to what the American Convention understands by family -​even with an evolving interpretation according to the parameters mentioned […]-​as the “natural and fundamental element of society,” or to what the States Party with similar provisions understand as such. Nor does it mean to say that all States Party must recognize all the concepts or models of family.146 .

The IACtHR itself had admitted the absence of this consensus in paragraph 92 of its judgment, but finally gave preference to an evolutive interpretation of the treaty that extended the concept of ‘family life.’ The fact is that the IACtHR could have declared Chile responsible for the non-​compliance of the AConHR (acknowledging a violation of the right to respect for private life and the principle of non-​discrimination) without resorting to a hasty interpretation of the concept of family, which was lacking the sufficient support in the practice of the Member States of the inter-​American subsystem. As explained by the dissenting opinion cited above, the examination of the different constitutions of the States parties to the AConHR did not seem to give rise to a common agreement on the concept of family. Further, unlike in Christine Goodwin v United Kingdom, the AConHR did not have legal grounds similar to those provided by the European integration process to ‘import’ such a conclusion. The absence of a well-​articulated and consolidated supranational integration system on the American continent, capable of exerting direct influence on the scope of the fundamental rights recognized by the AConHR, constitutes a notable difference between the European and inter-​American subsystems. This difference could lead to the adoption of divergent approaches in the way the ECtHR and the IACtHR recognize certain rights. Whereas the ECtHR can sometimes resort to evolutive interpretation by just ‘importing’ the solutions already taken at EU level, the IACtHR may need to take a more activist stance in the absence of such possibility. Needless to mention, Atala Riffo and daughters v Chile constitutes an important cornerstone in the recognition of the principle of non-​discrimination on the basis of gender in the inter-​American subsystem. Despite its remarkable

146

Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239 (Dissenting Opinion of Judge Pérez Pérez) paras 20–​21 (emphasis added).

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contribution to the protection and recognition of the rights of homosexuals, it is necessary to stress that the IACtHR departed from the categories of public international law and acted as a constitutional court in rendering this ­judgment.147 Also, this approach is sometimes observed when the IACtHR determines its jurisdiction to hear a case. Duque v Colombia provides a good precedent. 3.2.3

A Second Risk of Fragmentation: Judicial Activism and the Jurisdiction of Regional Human Rights Courts and Tribunals In Duque v Colombia the discrimination based on sexual orientation suffered by a homosexual, who had not been granted a survivor’s pension after the death of his partner in 2002, was addressed. The particularity of Duque v Colombia is that, while the petition filed with the IAComHR was investigated and this body decided to refer the case to the IACtHR, the Colombian judicial authorities had issued several judgments. In such decisions they had already recognized, firstly, the right of homosexuals living in de facto union to receive survivors’ pensions if one of them dies (by a judgment issued in 2008) and, secondly, the possibility of exercising that right retroactively (by a decision handed down in 2010). In short, while the international litigation before the IAComHR and later the IACtHR was underway, Colombia had implemented measures to provide the applicant with an effective remedy in the domestic forum. It is not surprising that Colombia presented preliminary objections to the jurisdiction of the IACtHR. In Colombia’s view, the applicant had administrative and jurisdictional means at his disposal to give effect to that right and, consequently, he had not exhausted domestic remedies. The IACtHR did not admit this objection, arguing that the IAComHR had not examined all legal changes made by Colombia before issuing its admissibility report,148 despite the fact that these changes demonstrated that Colombia had taken sufficient measures to guarantee the controversial right in this litigation. As the objections to jurisdiction did not succeed, the IACtHR examined the merits of the case and concluded that Colombia had violated Articles 24 and 1(1) of the Pact of San José. This decision constitutes another important precedent 147 It is true that international courts and tribunals can sometimes ‘make the difference’ and have a ‘catalytic’ effect:  see Philippe Sands, ‘Reflections of International Judicilization’ (2016) 27 EJIL 885, 890. However, attention should be paid as to the concepts and categories deployed in order to reach those decisions and judgments. In particular, when they may affect the unity of public international law. 148 Case of Duque v Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 February 2016 Series C No 310, paras 38–​40.

136 ­chapter  for an expansive interpretation of the principle of non-​discrimination on the basis of gender in the inter-​American subsystem, an interpretation that was developed in Atala Riffo and daughters v Chile149 and that the IACtHR seems ready to consolidate. However, from the perspective of public international law, we are not entirely persuaded by the arguments offered by the IACtHR in Duque v Colombia, regarding the objections to the jurisdiction. The decision to accept its jurisdiction and to continue with the proceedings, despite the fact that Colombia had already taken reparation measures, conflicts with the subsidiary nature of the jurisdiction granted to the IACtHR and promotes an unnecessary ‘overflow.’ Two members of the IACtHR pointed out this issue in their dissenting opinions (Manuel Ventura Robles and Eduardo Vio Grossi).150 Although Colombia had taken several years to grant access of homosexuals to survivor’s pension, it finally adopted general measures that could allow the applicant to exercise this right. In this context, the fact that the IACtHR delved into the merits of the dispute, after Colombia had remedied the internationally wrongful act, is inconsistent with the IACtHR acting as an international judicial body in accordance with the principle of subsidiarity. In light of the three precedents studied in this section, it can be observed that Bayatyan v Armenia is in line with an adequate conception of the international nature of the regional human rights courts and tribunals, respectful of particularities, open to dialogue between different jurisdictions, and at the same time guarantor of the unity of public international law. However in Atala Riffo and daughters v Chile and in Duque v Colombia, the consensualist approach was applied in a fragmentary manner that brings the judicial activity of the IACtHR closer to that of constitutional courts. 1 49 ibid paras 104 and 123. 150 ibid (Dissenting Opinion of Judge Ventura Robles) 3–​4; ibid (Dissenting Opinion of Judge Vio Grossi) 2–​4.

pa rt 3 Consensus and the National Margin of Appreciation

∵

Introduction to Part 3

The interpretation of regional human rights treaties sometimes requires the ECtHR and the IACtHR to make decisions that defer to the sovereignty of States. It was the ECtHR case law that first developed the notion of the national margin of appreciation, a legal category closely tied to the principles of sovereignty and subsidiarity. Part 3 examines how the ECtHR and later the IACtHR have invoked this indeterminate legal concept and how the notion of consensus can be conceived as an integral part of the national margin of appreciation.

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­c hapter 6

Scope of the National Margin of Appreciation

This chapter studies the national margin of appreciation by first considering its legal nature. Secondly, it analyzes its application by several international courts and tribunals.1 And, thirdly, it examines its use by the regional human rights courts and tribunals. Notwithstanding that this concept was first designed within the framework of Article 15 of the EConHR and Article 27 of the AConHR,2 regional human rights courts and tribunals have expanded its application towards other provisions. 1

The National Margin of Appreciation: An Indeterminate Concept

The national margin of appreciation was created by the case law of the ECtHR and has never been codified. Accordingly, it is important to systematize the areas in which the ECtHR, and subsequently the IACtHR, have used it. 1.1 The Praetorian Origins of the National Margin of Appreciation The EComHR resorted to the national margin of appreciation for the first time in 1958 in an inter-​State litigation, Greece v United Kingdom, in order to examine the compatibility with Article 15 of the EConHR of certain measures restricting fundamental rights adopted in Cyprus: 1 Higgins (pt 1 ch 3 n 35) 281–​320; Bates (introduction n 14) 245–​335; Pablo A Fernández Sánchez, ‘La suspensión de las garantías establecidas en el Convenio (Art. 15 CEDH)’ in Javier García Roca and Pablo Santolaya Machetti (eds), La Europa de los Derechos. El Convenio Europeo de Derechos Humanos (Centro de Estudios Políticos y Constitucionales 2005) 697–​716. In the European and inter-​American case law: see Lawless v Ireland (No 3), 1 July 1961, para 28, Series A No 3; The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75), Advisory Opinion OC-​2/​82 of 24 September 1982 Series A No 2, para 61; Habeas corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-​8/​87 of 30 January 1987 Series A No 8, para 24; Judicial Guarantees in States of Emergency (Arts 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-​9/​87 of 6 October 1987 Series A No 9, para 21. 2 See pt 1 ch 3 s 2.

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140 ­chapter  It was a matter of course that the Government concerned was in a better position than the Commission to know all relevant facts and to weight in each case the different possible lines of action for the purpose of countering an existing threat to the life of the nation. Without going as far as to recognise a presumption in favour of the necessity of measures taken by the Government, the Commission was of the opinion, nevertheless, that a certain margin of appreciation must be conceded to the Government. […] Nevertheless, having regard to the very serious situation which prevailed in Cyprus, the Commission considered that those doubts were not sufficient to negative its general conclusion that the Government of the United Kingdom in introducing and applying the Detention of Persons Law had not gone beyond the proper limits of a government’s appreciation of what was strictly required by the exigences of a situation.3 Already in the 1970s, outside the framework of Article 15 of the EConHR, the ECtHR used the national margin of appreciation again in Wilde, Ooms and Versyp v Belgium, when examining Belgian legislation aimed at combating and suppressing begging in the context of the right to privacy enshrined in Article 8 of the EConHR.4 The disputed measures imposed restrictions on freedom of communications by allowing the national authorities to supervise postal communications during the detention period. In Handyside v United Kingdom, in assessing the restrictive measures imposed on a publication in light of Article 10 (freedom of expression) of the EConHR, the ECtHR noted that as a consequence of: [D]‌irect and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them. The Court notes at this juncture that, whilst the adjective “necessary”, within the meaning of Article 10 para. 2 […], is not synonymous with “indispensable” […], neither has it the flexibility of such expressions as “admissible”, “ordinary” […], “useful” […], “reasonable” […] or “desirable”. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of 3 Greece v United Kingdom, No 176/​56, vol ii, Report of 26 September 1958, para 318 (emphasis added). 4 This case used the concept ‘power of appreciation’ and not ‘margin of appreciation’: see Wilde, Ooms and Versyp (Vagrancy) v Belgium, 18 June 1971, para 93, Series A No 12.

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“necessity” in this context. Consequently, Article 10 para. 2 […] leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force […].5 Also in the context of another inter-​State litigation, Ireland v United Kingdom, where the application of Article 15 of the EConHR was examined, the ECtHR highlighted that: It falls in the first place to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter Article 15 para. 1 […] leaves those authorities a wide margin of appreciation.6 In the inter-​American subsystem, this concept was admitted in 1984, when the IACtHR ruled on the constitutional reforms established by Costa Rica regarding the acquisition of nationality by naturalization: [O]‌ne is here dealing with values which take on concrete dimensions in the face of those real situations in which they have to be applied and which permit in each case a certain margin of appreciation in giving expression to them. [T]he Court repeats its prior observation that as far as the granting of naturalization is concerned, it is for the granting state to determine whether and to what extent applicants for naturalization have complied with the conditions deemed to ensure an effective link between them and the value system and interests of the society to which they wish to belong.7

5 Handyside v United Kingdom, 7 December 1976, para 48, Series A No 24 (emphasis added). 6 Ireland v United Kingdom, 18 January 1978, para 207, Series A No 25 (emphasis added). 7 Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-​4/​84 of 19 January 1984 Series A No 4, paras 58–​59 (emphasis added).

142 ­chapter  However, its development in inter-​American case law has been less prolific, since the first cases brought before the IACtHR mainly raised situations related to the right to life, personal integrity, prohibition of torture and the exercise of personal freedom; and these rights orbit outside the scope of application of the national margin of appreciation.8 Despite having been criticized by scholars9 and even by some members of the ECtHR,10 the national margin of appreciation has progressively expanded 8

9

10

María A Benavides Casals, ‘El consenso y el margen de apreciación nacional en la protección de los derechos humanos’ (2009) 15 Ius et Praxis 295; Francisco R Barbosa Delgado, ‘Los límites a la doctrina del margen nacional de apreciación en el Tribunal Europeo y la Corte Interamericana de Derechos Humanos: intervención judicial en torno a ciertos derechos de las minorías étnicas y culturales’ (2011) 26 Revista Derecho del Estado 107, 118; Andrew Legg, The Margin of Appreciation in International Human Rights Law. Deference and Proportionality (oup 2012) 4–​5. Benvenisti (introduction n 13)  843; Michael R Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ (1999) 48 ICLQ 638, 649; Jeffrey A Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights’ (2004–​2005) 11 CJEL 113, 125; Frédéric Sudre, Droit européen et international des droits de l’homme (8th ed, Presses Universitaires de France 2006) 217ff; Sonja C Grover, The European Court of Human Rights as a Pathway to Impunity for International Crimes (Springer 2010) 63–​90. In his Dissenting Opinion in Z v Finland, Judge De Meyer asserted that ‘the Court once again relies on the national authorities’ “margin of appreciation”. I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies. It is possible to envisage a margin of appreciation in certain domains. […] But where human rights are concerned, there is no room for a margin of appreciation, which would enable the States to decide what is acceptable and what is not. On that subject the boundary not to be overstepped must be as clear and precise as possible. It is for the Court, not each State individually, to decide that issue, and the Court’s views must apply to everyone within the jurisdiction of each State. The empty phrases concerning the State’s margin of appreciation –​repeated in the Court’s judgments for too long already –​are unnecessary circumlocutions, serving only to indicate abstrusely that the States may do anything the Court does not consider incompatible with human rights. Such terminology, as wrong in principle as it is pointless in practice, should be abandoned without delay’:  see Z v Finland, No 22009/​93, ECtHR 1997. Two decades later, there are still criticisms amongst the members of the ECtHR as is evidenced by the Concurring Opinion of Judge Pinto de Alburquerque in Parrillo v Italy, where he stated that ‘The lack of clarity in the majority’s reasoning is also reflected in the definition of the applicable margin-​of-​appreciation theory. In paragraph 169 they acknowledge that the margin allowed to States is “restricted” in issues related to “the individual’s existence or identity”, but they also accept that “where the case raises sensitive moral or ethical issues”, the margin will be wider. Again, this makes no sense to me. Issues related to the individual’s existence or identity, namely to the beginning and end of human life, are per se heavily influenced by ethical and moral

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within the European human rights subsystem.11 Indeed, as was stated by a former member of the ECtHR, it is ‘at the heart of virtually all major cases that come before the Court’.12 At the outset, in light of the case law of the ECtHR and the IACtHR, it can be concluded that the preservation of the principle of subsidiarity represents one of the essential objectives upon invoking this concept: [T]‌he Court cannot disregard those legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention.13 However, regional human rights courts and tribunals have resorted to this notion using formulas that reveal its indeterminate character. They sometimes use the expression ‘a certain margin of appreciation’;14 while in others it is

11

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14

considerations. I would even go so far as to say that most of the human rights contained in the Convention and its Protocols are intrinsically attached to ethical and moral questions that have been the subject of debate for many years. Thus, the intrinsically moral or ethical nature of a legal issue under the scrutiny of the Court should not be a factor limiting the latter’s competence or determining the margin of appreciation to be afforded to States. The argument regarding the sensitive ethical or moral nature of the issue at stake is hence irrelevant in establishing the width of the margin of appreciation’: see Parrillo v Italy [GC], No 46470/​11, ECtHR 2015. Cora S Feingold, ‘The Doctrine of the Margin of Appreciation and the European Convention on Human Rights’ (1977–​1978) 53 NDLR 90; Howard C Yourrow, ‘The Margin of Appreciation Doctrine in the Dynamics of the European Human Rights Jurisprudence’ (1987) 3 Conn JIL 111; Ronald St J Macdonald, ‘The Margin of Appreciation’ in St J Macdonald and others (pt 1 ch 3 n 1) 83–​124. Ronald St J Macdonald, ‘The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights’ in Lamberti Zanardi and others (p 1 ch 1 n 1) 208. Certain aspects of the laws on the use of languages in education v Belgium, 23 July 1968, para 10, Series A No 8 (emphasis added). In the same sense, but within an inter-​American context: see Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-​4/​84 of 19 January 1984 Series A No 4, paras 58–​59. Palomo Sánchez and Others v Spain [GC], No 28955/​06, No 28957/​06, No 28959/​06 and No 28964/​06, para 50; ECtHR 2011; Mouvement Raëlien Suisse v Switzerland [GC], No 16354/​06, para 50, ECtHR 2012; Aksu v Turkey [GC], No 4149/​04 and No 41029/​04, para 65, ECtHR 2012; Fabris v France [GC], No 16574/​08, para 56, ECtHR 2013.

144 ­chapter  simply ‘a margin of appreciation’.15 In this context, it has even been asserted that there is some inflation in its use, that is, there are more than a few cases where it is mentioned simply as a supporting argument, without having played a decisive role in the motivation of the judgment.16 The Complex Systematization of the National Margin of Appreciation This study systematizes the areas where the regional human rights courts and tribunals apply the notion of the national margin of appreciation. However, it is much more difficult to identify its legal nature as a result of its multifaceted character17 and the absence of any definition given by these judicial organs.18 The national margin of appreciation is a complex and indeterminate legal category that applies to different rights recognized in regional human rights treaties. Since these rights have their own legal nature and scope, regional human rights courts and tribunals are capable of modulating the application of the national margin of appreciation in a particular way. That makes it more difficult to provide a general overview of such notion. From this perspective, it should be noted that regional human rights treaties envisage rights that are deployed in public or private spheres and contain mandates of a positive or negative nature for States. In addition, it is also possible that the violation of several rights is cumulatively claimed, as is sometimes the case with the principle of non-​discrimination, while, in other cases, individuals claim violations of a single treaty provision. Further, there are many cases in which this notion is applied to settle a dispute where two conflicting rights converge (for instance, respect for family life and freedom of expression). Therefore, this study refrains from any attempt of developing a general theory of the national margin of appreciation. We will rather concentrate on identifying those elements that condition its application and, in particular, the role of consensus. 1.2

15

16 17 18

Brosset-​Triboulet and Others v France, No 34078/​02, para 86, ECtHR 2010; Tanase v Moldova [GC], No 7/​08, para 161, ECtHR 2010; Paksas v Lithuania [GC], No 34932/​04, para 96, ECtHR 2011; Creanga v Romania [GC], No 29226/​03, para 81, ECtHR 2012. Jan Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29 NQHR 324, 339. Jonas Christoffersen, Fair Balance:  Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Martinus Nijhoff 2009) 236–​240. However, scholars have frequently attempted to define this notion: see Françoise Tulkens and Luc Donnay, ‘L’usage de la marge d’appréciation pour la Cour europénne des droits de l’homme: Paravent juridique superflu ou mécanisme indispensable par nature?’ (2006) 1 RSCDPC 3, 5–​6.

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By making use of the national margin of appreciation, the ECtHR and the IACtHR are ultimately in agreement with the position held by the respondent State with regard to the limits that may be imposed on a fundamental right under certain circumstances, in light of the more direct contact that the national authorities have with civil society. Although this study does not attempt to establish a definition of the national margin of appreciation, it is worth recalling the formula used by Humphrey Waldock, then President of EComHR,19 in the oral hearings before ECtHR on the occasion of Lawless v Ireland: The concept of the margin of appreciation is that a government’s discharge of these responsibilities is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest; and that, once the Commission or the Court is satisfied that the Government’s appreciation is at least on the margin of the powers conferred by Article 15, then the interest which the public itself has in effective government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government’s appreciation.20 This formula may be used as a ‘working definition’ that allows us to frame this notion in the proper context. It can be supplemented by a statement also made by Humphrey Waldock in a subsequent academic paper, where he asserted that the national margin of appreciation: [I]‌s one of the more important safeguards developed by the Commission and the Court to reconcile the effective operation of the Convention with the sovereign powers and responsibilities of Governments in a democracy. With the doctrine, moreover, goes the principle applied by the Commission and the Court in certain cases that a balance must be sought between the exercise by the individual of the rights guaranteed to him and the protection of the public interest.21

19

20 21

Apart from President of the EComHR, Humphrey Waldock was a member of the ECtHR (1966–​1974) and its President (1971–​1974), member of the ilc (1961–​1972) and member of the icj (1973–​1981) and its President (1979–​1981). Lawless v Ireland (No 3), 1 July 1961, Series A No 3. Humphrey Waldock, ‘The Effectiveness of the System Set Up by the European Convention on Human Rights’ (1980) 1 HRLJ 1, 9.

146 ­chapter  The national margin of appreciation is nothing but an indeterminate legal concept that has undergone an extraordinary development in the European human rights subsystem.22 It cannot be considered a true doctrine, as the regional human rights courts and tribunals have not covered it with the necessary theoretical basis.23 On the contrary, as discussed in the following pages, the national margin of appreciation bursts in regional human rights case law in an asymmetric and heterogeneous way. One of the biggest criticisms is that it is imprecise, ambiguous and variable.24 The application of the national margin of appreciation is in fact carried out on a case-​by-​case basis and taking into account a series of intrinsic and extrinsic circumstances. This case-​by-​case approach is not strange in the practice of other international courts and tribunals, although we can understand that it could mislead those foreign to public international law approaching this topic from other legal disciplines.25 Not even Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, done in Strasbourg on 24 June 2013 (Protocol No 15),26 has systematized this notion. Protocol No 15, amongst other changes, adds a new section to the EConHR preamble that reads as follows: Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the

22 23 24

25

26

Rosario Sapienza, ‘Sul Margine d’apprezzamento statale nel sistema della Convenzione Europea dei Diritti dell’Uomo’ (1991) lxxiv RDI 571, 598–​606. Brems (introduction n 6)  241; Nicholas Lavender, ‘The Problem of the Margin of Appreciation’ (1997) 4 EHRLR 380, 384. Mireille Delmas-​Marty and Marie-​Laure Izorche, ‘Marge nationale d’appréciation et internationalisation du droit: Réflexions sur la validité formelle d’un droit commun pluraliste’ (2000–​2001) 46 McGill LJ 923, 935–​937 and 953; Dean Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’ (2011–​2012) 14 CYbELS 381, 384 and 417. The weighing of these circumstances by regional human rights courts and tribunals has even led to the argument that, by invoking the national margin of appreciation, they would be using equity:  see Javier García Roca, El margen de apreciación nacional en la interpretación del Convenio Europeo de Derechos Humanos: soberanía e integración (Civitas/​Thomson Reuters 2010) 377–​379. Council of Europe, Treaty Series, No 213.

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supervisory jurisdiction of the European Court of Human Rights established by this Convention. This new paragraph states the obvious: the close relationship between the principle of subsidiarity and the national margin of appreciation. Apart from the above, the statement of the Explanatory Report to Protocol No 15 makes a very general and incomplete synthesis of the content that the ECtHR has given the national margin of appreciation by stating that: The jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions. The margin of appreciation goes hand in hand with supervision under the Convention system. In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.27

27

Explanatory Report to Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, para 9. The ECtHR indicated in its Opinion on Draft Protocol No 15 that ‘This provision contains a new paragraph intended to become the final recital in the Preamble to the Convention. This same wording was the subject of a comment that the Court sent to the CDDH in November 2012, in which it expressed reservations at the proposal. The Court’s principal concern was that the phrasing used, which it found to be incomplete, could give rise to uncertainty as to its intended meaning. While the text has not been revised, the drafters’ intentions have been clarified. The explanatory report now states that “[i]‌t is intended … to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law”. That stated intention coincides with the suggestion that the Court made at the end of its comment to develop the text further. The intended meaning can therefore be said to be in line with the relevant terms of the Brighton Declaration (in particular paragraph 12b, read along with paragraphs 10, 11 and 12a). As the Court indicated in its comment to the CDDH, there clearly was no common intention of the High Contracting Parties to alter either the substance of the Convention or its system of international, collective enforcement. Although the Court’s preference is still for a more developed text, it is aware that the current wording represents a compromise among States in order to reach agreement over the Protocol as a whole. In any event, both the explanation given and the context in which the text was drafted are themselves legally significant, as illustrated by the Court’s references

148 ­chapter  It is clear that States chose not to develop this notion in Protocol No 15 aware of the substantive and formal problems that its codification would pose. The national margin of appreciation continues to be a mainly praetorian notion developed on a flexible case-​by-​case basis. It may be concluded from the foregoing that it constitutes a legal concept that is ‘difficult to control’28 in the context of international human rights law. It is therefore necessary, firstly, to delve deeper into its substantive scope of application to better understand its nature and functioning in the case law of regional human rights courts and tribunals (­chapter 7), and, secondly, to weigh the role of consensus as an extrinsic factor capable of modulating its application (­chapter 8). Before carrying out this analysis, the following pages examine the case law of international courts and tribunals in which this category has been invoked (sometimes unsuccessfully) to accommodate a criterion of deference in favour of States. 2

The National Margin of Appreciation in International Case Law

Although the national margin of appreciation has fundamentally developed in international human rights law, it is equally true that it has been argued before other international courts and tribunals of a universal, regional and sectorial nature.29 The following lines analyze how these judicial bodies have examined this notion directly or indirectly. 2.1 International Court of Justice In deciding on the merits of a dispute,30 the icj has examined the notion of the national margin of appreciation associated with the exercise of discretionary powers arising from the fundamental principle of sovereign equality of States.

28 29

30

to the Explanatory Report to Protocol No. 14 and to the Interlaken Action Plan in Korolev v. Russia (dec.), no. 25551/​05, ECHR 2010. Moreover, the report of the relevant meeting of the CDDH –​an extract of which the Committee of Ministers appended to its request for the present opinion –​forms part of the travaux préparatoires of the Protocol and thus is relevant to its interpretation’: see Opinion of the ECtHR on Draft Protocol No 15 to the European Convention on Human Rights, adopted on 6 February 2013, para 4. Higgins (pt 1 ch 3 n 35) 315. In fact, this notion was also invoked by the PCIJ and even by some arbitral tribunals constituted at the dawn of the 20th century:  see Eirik Bjorge, Domestic Application of the ECHR. Courts as Faithful Trustees (oup 2015) 195–​197. Other precedents can be highlighted in the icj case law where, in connection with the enforcement of its judgments, there is an interaction between the principles of

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In Oil Platforms, the icj had to assess whether the attacks by the usa on certain Iranian oil platforms in the Persian Gulf were necessary measures to protect their essential security interests under Article xx(1) of the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, signed in Teheran on 15 August 1955 (Treaty of 1955).31 To justify the adoption of these measures, the usa appealed to the concept of the margin of appreciation both in the written and oral phases, arguing that States parties to that bilateral treaty had to have a ‘wide area of discretion’ in applying the measures of protection prescribed by that provision: [U]‌n pouvoir discrétionnaire étendu, mais non pas un pouvoir discrétionnaire illimité, devant lequel la Cour n’aurait d’autre choix que de s’incliner. Les Etats-​Unis ont précisé dans leurs écritures qu’ils ne revendiquent pas un pouvoir totalement discrétionnaire à cet égard mais qu’ils se réfèrent plutôt à la doctrine européenne de la «marge d’appréciation».32 This argument was based on the reading of a part of paragraph 282 of the judgment delivered in the Nicaragua case. When interpreting Article xxi of the Treaty of Amity, Commerce and Navigation between the United States of America and Nicaragua, signed in Managua on 21 January 1956,33 under which the usa had imposed a trade embargo on Nicaragua, the icj had pointed out

31 32

33

subsidiarity and sovereign equality, very similar to that of the regional human rights courts and tribunals (pt 1 ch 3 s 3). Thus, in accordance with the principle of sovereign equality, the icj has allowed States to exercise some discretion in selecting appropriate measures to comply with a judgment, as highlighted in those disputes related to the application of the Vienna Convention on Consular Relations, done at Vienna on 24 April 1963 (United Nations, Treaty Series, vol 596, No 8638, 261): see LaGrand (Germany v United States of America), Judgment, ICJ Reports 2001, paras 125–​126; Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, ICJ Reports 2004, paras 122 and 141. In this context:  see Mandat d’ârrêt du 11 avril 2000 (République démocratique du Congo c Belgique), arrêt, CIJ Recueil 2002, para 76; Certaines questions concernant l’entraide judiciaire en matière pénale (Djibouti c France), arrêt, CIJ Recueil 2008, para 146; Questions concernant l’obligation de poursuivre ou d’extrader (Belgique c Sénégal), arrêt, CIJ Recueil 2012, paras 112–​117. United Nations, Treaty Series, vol 284, No 4132, 93. CR 2003/​12, 21, para 17.48 (Weil) (emphasis added). A similar line of reasoning can be found in the written pleadings, on pages 134–​135 of the rejoinder submitted by the usa on 23 March 2001, citing paragraph 207 of Ireland v United Kingdom (Ireland v United Kingdom, 18 January 1978, Series A No 25). United Nations, Treaty Series, vol 367, No 5224, 3.

150 ­chapter  that ‘whether a measure is necessary to protect the essential security interest of a party is not, as the Court has emphasized […] purely a question for the subjective judgment of the party’.34 The usa sought to assert this last statement, which shows a certain capacity of the States parties to subjectively assess the degree of necessity of the measures adopted under a treaty. Their objective was that the icj validated the necessary character of the armed attacks on oil platforms in light of the Treaty of 195535 and did not apply general international law regulating self-​defence, as Iran intended. On the other hand, the argument put forward by Iran was based on the full reading of paragraph 282 of the judgment handed down in the Nicaragua case, where in relation to attacks on Nicaraguan ports and facilities, the icj: [S]‌imply made the categorical global finding that these attacks “cannot possibly be regarded as “necessary” to protect the essential security interests of the United States”. The emphasis in the phrase “cannot possibly” is significant; there was no question here of any margin of appreciation, any “measure of discretion”, as argued by the United States. No doubt there are issues of judgment and appreciation in applying the law of self-​ defence, for example in the assessment of proportionality. But once the scope of self-​defence is exhausted, the idea that under a treaty of amity a State still has a broad measure of discretion to engage in military measures, in the use of force against another State in contradiction of the substantive provisions of the treaty “cannot possibly” be right. Such an idea flies in the face of developments in international law according to which the use of force is no longer –​as it was in the nineteenth century –​a matter of sovereign discretion. […] [I]t would tend to contradict the very purposes of the treaty of amity to reserve such a measure of discretion.36 In other words, the usa sought to install the legal debate on the necessity and proportionality of the use of force exclusively on a bilateral, ad hoc and reciprocal level. The respondent State aimed at bypassing the general standards of necessity and proportionality that, in accordance with the fundamental principle of the prohibition of the threat and use of force, limit the right to self-​defence 34 35 36

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, para 282 (emphasis added). CR 2003/​12, 34, para 18.5; 44, para 18.35; and 54, para 18.64 (Matheson); CR 2003/​13, 46–​47, para 22.5 (Taft); CR 2003/​18, 22, para 27.11 (Weil). CR 2003/​8, 13, para 22 (Crawford).

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both under customary international law and under the legal framework of the UN Charter. It is interesting to cite part of the arguments presented by Iran during the oral hearings, since they raise questions that will be dealt with below when examining the scope of the notion of the national margin of appreciation in the case law of regional human rights courts and tribunals. Counsel for Iran asserted that: But there are further problems in relying on the margin of appreciation, quite apart from the language and context of Article xx of the Treaty of Amity. […] in international forums […] such as […] the European Court of Human Rights, whether and how the margin of appreciation is applied depends on the context. It is one thing to apply the margin of appreciation when dealing with government provisions for minority language schooling or age pensions, and quite another to apply it to violations of fundamental rules of public policy, for example concerning racial and sexual discrimination or torture. The more peremptory the norm, the less room there is for the margin of appreciation.37 Therefore, Iran argued that it was not possible to automatically apply the notion of the national margin of appreciation without a prior examination of the legal nature of the international norm on which it was intended to be applied, as this character was essential in triggering its invocation. The icj accepted these arguments38 and examined the attacks on oil platforms from the standpoint of the right to self-​defence and the prohibition of the threat and use of armed force. It stated that the notion of the national margin of appreciation was not applicable and found that the attacks by the usa constituted a violation of international law.39 As a consequence, the Court did not apply the national margin of appreciation in Oil Platforms, but it had the opportunity to retake this discussion in 37 38

39

CR 2003/​16, 16, para 14 (Crawford) (emphasis added). By virtue of Article 31(3)(c) of the vclt, the icj did not admit that ‘Article xx, paragraph 1 (d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article xxi, paragraph 2, of the 1955 Treaty’: see Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, para 41. ibid paras 73–​77.

152 ­chapter  Whaling in the Antarctic, although this notion was not expressly mentioned in the latter case. In this litigation it was discussed whether Japan had used the discretionary power under Article viii(1) of the International Convention for the Regulation of Whaling,40 adopted in Washington on 2 December 1946 (icrw)41 for purposes other than scientific research in connection with the authorizations granted within the framework of jarpa ii. The approach to this dispute was unique in view of the ambitious legal claims of Australia and New Zealand (as applicant and intervener, respectively), and of the various interests at stake in an area where the icj was: [A]‌ware that members of the international community hold divergent views about the appropriate policy towards whales and whaling, but it is not for the Court to settle these differences. The Court’s task is only to ascertain whether the special permits granted in relation to jarpa ii fall within the scope of Article viii, paragraph 1, of the icrw.42 During the hearings Australia, Japan and New Zealand placed particular emphasis on identifying those aspects in which there was consensus within the iwc and its Scientific Committee.43 However, in relation to the use of lethal methods of investigation, no consensus could be identified. Accordingly, in order to assess the compliance of jarpa ii with the icrw, the icj established an objective standard of review to examine whether jarpa ii 40

41 42 43

This provision indicates that ‘Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.’ United Nations, Treaty Series, vol 161, No 2124, 72. Whaling in the Antarctic (Australia v Japan:  New Zealand intervening), Judgment, ICJ Reports 2014, para 69. CR 2013/​8, para 45 (Burmester); CR 2013/​8, paras 41–​43 and 51 (Crawford); CR 2013/​ 12, paras 12–​13 and 53–​54 (Tsuruoka); CR 2013/​15, para 40 (Takashiba); CR 2013/​15, paras 36, 38 and 101 (Boyle); CR 2013/​16, para 22 (Iwasawa); CR 2013/​16, paras 12, 14, 45 and 58 (Pellet); CR 2013/​17, para 50 (Finlayson); CR 2013/​18, para 4 (Crawford); CR 2013/​19, para 35 (Sands); CR 2013/​21, paras 17 and 25 (Akhavan); CR 2013/​21, para 23 (Takashiba); CR 2013/​23, para 9 (Pellet).

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was a scientific research program, and whether, in light of the data submitted by the parties, the use of lethal methods provided by jarpa ii could be deemed reasonable. If jarpa ii did not pass the test of reasonableness, then a breach of Article viii(1) of the icrw could be inferred. Being aware of the lack of consensus within the iwc, the Court understood that this approach was less intrusive on the general implementation aspects of the icrw, which should be left to its Member States. However, this approach required an analysis focused on the scientific materials presented by the parties that, to a certain extent, encroached on the competences of the Scientific Committee, the technical body established by the iwc to develop such functions.44 When assessing the conduct of Japan, the icj opted for a standard of review inspired in the one used by other international courts and tribunals when monitoring the discretion of the measures taken by States.45 Although the Court did not expressly refer to the national margin of appreciation, the methodology used in the judgment revolves around the control of the exercise of sovereignty by the respondent State. To sum up, the icj examined the conduct of the respondent State according to a standard of reasonableness

44

45

It is worth noting paragraphs 12–​17 of the Dissenting Opinion of Judge Yusuf, who warned that ‘[T]‌he Court should have focused its analysis on the lawful use by Japan of its discretionary power under Article viii, in light of the object and purpose of the Convention, in issuing a special permit for jarpa ii and whether or not Japan has violated or is violating its obligations under the icrw in authorizing and implementing jarpa ii, instead of reviewing the design and implementation of a scientific research programme, which is the task of the Scientific Committee of the iwc. The reasonableness of the design and implementation of jarpa ii in relation to achieving its stated objectives is a debatable matter the assessment of which may give rise to genuine differences of opinion among scientists who have to deal with the design and implementation of research plans. This is confirmed by the work of the Scientific Committee of the iwc, where the divergences of opinion on jarpa and jarpa ii are often reflected in its reports. It is also confirmed by the views expressed by the experts presented by the Parties during the oral proceedings.’ Furthermore, it has also been pointed out that this standard has some resemblance to that used by the wto panels:  see Brendan Gogarty and Peter Lawrence, ‘The ICJ Whaling Case: science, transparency and the rule of law’ (2014–​2015) 23 Journal of Law, Information and Science 1, 21–​22; Guillaume Gros, ‘The ICJ’s Handling of Science in the Whaling in the Antarctic Case: A Whale of a Case?’ (2015) 6 JIDS 578. During the oral hearings, counsel for Australia recalled that the national margin of appreciation had been unsuccessfully argued before the Court in Oil Platforms: see CR 2013/​8, 44–​45, paras 61–​ 65 (Crawford).

154 ­chapter  that, notwithstanding the lack of consensus within the iwc, still resulted in a judgment contrary to the interests of Japan.46 2.2 International Tribunal for the Law of the Sea As it has already been noted, itlos maintains a literal interpretation of Article 300 of the unclos,47 according to which this provision cannot be invoked on its own to claim that a State has incurred an abuse of rights. It can only be invoked in the context of other rights conferred on States by the unclos. This approach does not prevent that any possible violations of the rights conferred by the unclos are discussed in the disputes submitted to this specialized tribunal. In fact, in order to determine the rights and obligations corresponding to States in the maritime spaces under their sovereignty and jurisdiction, an objective standard of reasonableness has been used to evaluate the conduct of the respondent State. This standard was established in M/​V “saiga” (No 2), a leading case where itlos was called upon to decide if the hot pursuit and subsequent capture of a ship by the authorities of the Republic of Guinea contravened the provisions of the unclos. The flag State of the ship (Saint Vincent and the Grenadines) also argued that the Guinean authorities had made excessive use of force during the capture of the vessel. Precisely to settle this question and declare the international responsibility of the Republic of Guinea, itlos established the content of the standard of reasonableness: In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take into account the circumstances of the arrest in the context of the applicable rules of international law. Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.48

46 47 48

Whaling in the Antarctic (Australia v Japan:  New Zealand intervening), Judgment, ICJ Reports 2014, paras 193–​198 and 224–​227. See pt 1 ch 2 s 2. M/​V “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, para 155.

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In subsequent cases, itlos has resorted to this standard of reasonableness either to decide on the amount of bonds imposed by the coastal States in cases of prompt release,49 or to evaluate the conduct of the coastal State on maritime spaces subject to its sovereignty or jurisdiction in light of the obligations established by the unclos. In the latter situation, the M/​V “Virginia G” case50 stands out. In this dispute, the parties discussed the legality of the police measures adopted by Guinea-​ Bissau on a Panamanian flagged vessel under Article 73 of the unclos, which regulates coastal State rights in the Exclusive Economic Zone.51 In particular, itlos had to determine whether the seizure and confiscation of both the ship and its cargo was a necessary measure in response to the failure of its owners to obtain a written authorization to engage in bunkering activities and the non-​ payment of the corresponding administrative fee. itlos resorted to the principle of reasonableness to weigh the legality of these measures and examined them on the basis of the particular circumstances of the case. It concluded that they were disproportionate and constituted a violation of Article 73 of the unclos: [T]‌he principle of reasonableness applies generally to enforcement measures under article 73 of the Convention. It takes the position that in applying enforcement measures due regard has to be paid to the particular circumstances of the case and the gravity of the violation. For these reasons, the enforcement measure against the M/​V Virginia G was, in the view of the Tribunal, not reasonable in light of the particular circumstances of this case.52 From this case law, it can be concluded that itlos has set a standard based on reasonableness, necessity and proportionality in order to review the conformity with the unclos of domestic measures. The conduct of the coastal State is examined weighing these elements as well as the particular circumstances 49 50 51

52

“Hoshinmaru” ( Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–​2007, paras 91–​94. M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment, ITLOS Reports 2014, 4. This provision reads as follows ‘The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention.’ M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment, ITLOS Reports 2014, para 270.

156 ­chapter  surrounding each case. This analysis bears some resemblance to that of the regional human rights courts and tribunals when examining the exceptions to the rights recognized by the EConHR and the AConHR. 2.3 Inter-​State Arbitration In arbitral practice, the notion of the national margin of appreciation can be traced back to the beginning of the 20th century.53 This subsection only examines a couple of recent inter-​State arbitrations constituted under Annex vii of the unclos, where arbitral tribunals have examined the conformity with the unclos of the police measures adopted in the Exclusive Economic Zone and in archipelagic waters by Russia and São Tomé and Principe, respectively. In Arctic Sunrise Arbitration,54 on 19 September 2013, Russia seized a Dutch flagged vessel carrying out protest activities on behalf of the non-​governmental organization Greenpeace around a Russian oil platform located in its Exclusive Economic Zone. The Russian authorities considered that the activities carried out by the crew of the Arctic Sunrise constituted offences under the Russian criminal code. Indeed, they were first accused of piracy, and later of hooliganism. They were kept under arrest in Russia until 29 December 2013, the date on which they were released after the Netherlands posted a bank guarantee as required by itlos in its order on provisional measures.55 Apart from the fact that these individuals filed applications against Russia before the ECtHR,56 the Netherlands initiated an inter-​State arbitration against Russia. They requested the tribunal to declare that Russia had violated several provisions of the unclos by seizing the vessel in its Exclusive Economic Zone and failing to comply with certain parts of the dispositif of the order on provisional measures issued by itlos on 22 November 2013. The conduct of Russia regarding the treatment of the ship and its crew was examined by the tribunal 53 54 55

56

See pt 3 ch 6 n 29. The Arctic Sunrise Arbitration (Netherlands v Russia), pca Case No 2014-​02, Award of 14 August 2015. itlos concluded that ‘Considering that the issuer of the bank guarantee undertakes and guarantees to pay the Russian Federation such sum up to 3,600,000 euros as may be determined by a decision of the Annex vii arbitral tribunal or by agreement of the Parties, as the case may be, and that payment under the guarantee will be made promptly after receipt by the issuer of a written demand by the competent authority of the Russian Federation accompanied by a certified copy of the decision or agreement’:  see “Arctic Sunrise” (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, para 97. accessed 10 May 2018.

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taking as reference the standard of reasonableness that itlos had used in M/​ V “saiga” (No 2) and in M/​V “Virginia G”: To assess the lawfulness of measures taken by a coastal State in response to protest actions within its eez, the Tribunal considers it necessary to determine whether: (i) the measures had a basis in international law; and (ii) the measures were carried out in accordance with international law, including with the principle of reasonableness. Where such measures involve enforcement measures they are subject to the general principles of necessity and proportionality.57 However, since the tribunal found that the measures taken by Russia violated the unclos, it did not have to assess the application of the principles of necessity and proportionality to the specific case. The whole analysis of the three elements was done in a subsequent inter-​State arbitration also dealing with the application of the unclos. In Duzgit Integrity Arbitration,58 it was discussed whether the police measures taken by São Tomé and Principe regarding the Maltese flagship Duzgit Integrity, which developed ship-​to-​ship transfer operations in the archipelagic waters of São Tomé and Principe, were in conformity with Articles 49(3) and 300 of the unclos.59 The arbitral tribunal again resorted to the previously discussed standard, stating that it should be used to weigh the respondent’s compliance with its police powers in relation to the unclos, and not to assess whether there had been human rights violations dans le cas d’espèce: The exercise of enforcement powers by a (coastal) State in situations where the State derives these powers from provisions of the Convention is also governed by certain rules and principles of general international law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and proportionality. These principles 57 58 59

The Arctic Sunrise Arbitration (Netherlands v Russia), pca Case No 2014-​02, Award of 14 August 2015, para 222. Duzgit Integrity Arbitration (Malta v São Tomé and Principe), pca Case No 2014-​07, Award of 5 September 2016. Article 49 of the unclos focuses on the legal regime applicable to archipelagic States stating that the ‘1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. […] 3. This sovereignty is exercised subject to this Part.’

158 ­chapter  do not only apply in cases where States resort to force, but to all measures of law enforcement. Article 293(1) requires the application of these principles. They are not incompatible with the Convention. The Tribunal is not competent to determine if fundamental human rights obligations were violated by São Tomé, or if São Tomé applied its own laws correctly; the Tribunal cannot act as an appeals court. The Tribunal can only determine if the measures actually taken by São Tomé on and subsequent to 15 March 2013 breached its international law obligations resulting from the principle of reasonableness as applied to law enforcement measures by a coastal State. The criterion of proportionality is relevant to a determination of whether the measures taken by São Tomé were reasonable.60 Nevertheless, starting off from an examination based on this standard, the arbitrators examined the cumulative effects of these measures. This included the imposition of several administrative fines for breaches of customs legislation which added up to eur 28,875 and eur 1 million, respectively; a sentence of three years imprisonment against the captain of the ship; and a fine for liability amounting to eur 5 million. These measures were subsequently mitigated, the captain of the vessel was pardoned and released after three months of captivity, and the only pecuniary penalty paid was the one corresponding to the breach of the customs legislation, amounting to eur 28,875.61 The ‘cumulative effect’ of all these measures led the majority of the tribunal to find a violation of the legal regime established by the unclos. Despite the fact that the award does not use the notion of the national margin of appreciation, but that of ‘deference’,62 the tribunal concluded that São Tomé and Principe had exceeded the deference to exercise jurisdiction over its archipelagic waters: In the Tribunal’s view, when considered together, the prolonged detention of the Master and the vessel, the monetary sanctions, and the confiscation of the entire cargo, cannot be regarded as proportional to the original offence or the interest of ensuring respect for São Tomé’s sovereignty (including São Tomé’s interest in demonstrating that such conduct will not be tolerated in future cases). 60 61 62

Duzgit Integrity Arbitration (Malta v São Tomé and Principe), pca Case No 2014-​07, Award of 5 September 2016, paras 209–​210. ibid (Dissenting Opinion of Arbitrator Kateka) para 19. ibid Award of 5 September 2016, para 255.

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The disproportionality is such that it renders the cumulative effect of these sanctions incompatible with the responsibilities of a State exercising sovereignty on the basis of Article 49 of the Convention.63 This decision, to which a member of the tribunal appended an interesting dissenting opinion, deserves some comments. Firstly, it is worth noting how international courts and tribunals rely on the principles of necessity and proportionality to weigh the conduct of States. These elements appear to be consolidated in international case law, albeit not uniformly in accordance with the precedents discussed above in relation to itlos and some arbitral tribunals constituted under the unclos. Secondly, the determination of the international responsibility of the State based on an assessment of the ‘cumulative effect’ of its conduct leads directly to the arguments already developed by arbitral tribunals settling investment disputes.64 This argument, for example, was developed in RosInvestCo and Quasar de Valors (two investment arbitrations belonging to the ‘Yukos saga’)65 to conclude the international responsibility of the Russian Federation. Thirdly, and as a consequence of the above, it is of interest to follow the future interpretation given to Article 300 of the unclos very closely. It is undisputed that this is a provision on which the jurisdiction of international courts and tribunals cannot be solely based.66 However, the M/​V “Virginia G” and Duzgit Integrity Arbitration67 cases highlight how it may have some relevance when deciding on the international responsibility of the coastal State.

63 64

65

66

67

ibid paras 260–​261. Azurix Corp v Argentine Republic (icsid Case No ARB/​01/​12, Award of 14 July 2006, para 313); Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (icsid Case No ARB/​05/​22, Award of 24 July 2008, para 455); El Paso Energy International Company v Argentine Republic (icsid Case No ARB/​03/​15, Award of 31 October 2011, para 511); Abengoa SA and COFIDES SA v United Mexican States (icsid Case No ARB(AF)/​09/​2, Award of 18 April 2013, para 610); The Rompetrol Group NV v Romania (icsid Case No ARB/​06/​3, Award of 6 May 2013, paras 278–​279). RosInvestCo UK Ltd v Russian Federation (scc Case No V079/​2005, Award of 12 September 2010, paras 112 and 621); Quasar de Valors SICAV SA, Orgor de Valores SICAV SA, GBI 9000 SICAV SA v Russian Federation (scc Case No 24/​2007, Award of 20 July 2012, paras 184–​186). M/​V “Louisa” (Saint Vincent and the Grenadines v Spain), Judgment, ITLOS Reports 2013, para 137; Duzgit Integrity Arbitration (Malta v São Tomé and Principe), pca Case No 2014–​ 07, Award of 5 September 2016, para 218. It is no coincidence that in both cases Panama and Malta used the same legal counsel.

160 ­chapter  2.4 Court of Justice of the European Union The ecj has generally resorted to the notion of the national margin of appreciation when examining the transposition of the EU secondary law by EU Member States.68 In particular, the ecj has used it when assessing the conformity of secondary law with the fundamental principles of EU law as well as to determine the conformity with EU law of the restrictions imposed by EU Member States on fundamental freedoms. Firstly, in European Parliament v Council, the ecj examined the conformity with the protection of the right to respect for family life of certain provisions of Directive 2003/​86/​EC, on the right to family reunification.69 The ecj ruled on the compatibility with that fundamental right of the powers conferred to the Member States by the directive. By virtue of those powers, they are allowed to examine if a child over the age of twelve who arrives in a Member State independently from the rest of his or her family complies with a condition for integration provided for in the national legislation, prior to authorizing his or her entry and residence under Directive 2003/​86/​EC. A national margin of appreciation in favour of EU Member States was justified for two reasons in this case. From the point of view of EU law, because Directive 2003/​86/​EC contained clear, precise and unconditional obligations for Member States capable of engendering rights in favour of individuals. Therefore, it was also necessary to specify the situations where the Member States could limit such rights.70 And, from the perspective of relations between the European human rights subsystem and EU law, it was justified because the measures envisaged by Directive 2003/​86/​EC were compatible with the conception of the right to family life, which: [P]‌reserves a limited margin of appreciation for those States which is no different from that accorded to them by the European Court of Human Rights, in its case-​law relating to that right, for weighing, in each factual situation, the competing interests.71 68

69 70 71

For instance: see Case C-​168/​13 PPU Jeremy F and Premier ministre [2013] OJ C225/​38, para 52; Case C-​521/​11 Amazon.com International Sales Inc, Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH and Austro-​Mechana Gesellschaft zur Wahrnehmung mechanisch-​musikalischer Urheberrechte Gesellschaft mbH [2013] OJ C252/​10, para 40. Council Directive of 22 September 2003 on the right to family reunification [2003] OJ L251/​12. Case C-​540/​03 European Parliament v Council [2006] ECR I-​5769, paras 60–​61. ibid para 62.

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Secondly, as regards the compatibility with EU law of the restrictions on fundamental freedoms, Member States may enjoy a wide margin of appreciation when implementing social policies. However, in Caves Krier Frères, the ecj found that ‘the discretion which the Member States enjoy in matters of social policy may not have the effect of undermining the rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined’.72 According to that line of reasoning, the ecj concluded that the residence requirement in Luxembourg imposed on a frontier worker residing in Germany, who had spent her entire working life and who was fully integrated into the Luxembourg labour market, could not rely on the national margin of appreciation and was contrary to the principles of EU law. In other cases, the ecj has allowed some restrictions on the free movement of goods and freedom of establishment through the national margin of appreciation, based on the existence of a fundamental right that deserves special protection. In Schmidberger, which discussed the conformity of the restrictions on the free movement of goods established by Austria by authorizing a demonstration that led to the closure of the main roadway between the Tyrol and Italy, the ecj examined the necessity and proportionality of this measure. After finding that the conduct followed by the Austrian authorities was commensurate with the aim pursued, it held that the restriction imposed on the free movement of goods in light of the national margin of appreciation was in conformity with EU law, as well as in accordance with the higher interest of safeguarding the freedom of expression and public assembly: An action of that type usually entails inconvenience for non-​participants, in particular as regards free movement, but the inconvenience may in principle be tolerated provided that the objective pursued is essentially the public and lawful demonstration of an opinion. In that regard, the Republic of Austria submits, without being contradicted on that point, that in any event, all the alternative solutions which could be countenanced would have risked reactions which would have been difficult to control and would have been liable to cause much more serious disruption to intra-​Community trade and public order, such as unauthorised demonstrations, confrontation between supporters and opponents of the group organising the demonstration or acts of violence

72

Case C-​379/​11 Caves Krier Frères Sàrl and Directeur de l’Administration de l’emploi [2012] [2013] OJ C38/​7, para 52.

162 ­chapter  on the part of the demonstrators who considered that the exercise of their fundamental rights had been infringed. Consequently, the national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-​ Community trade.73 On the other hand, in the case of Marja-​Liisa Susisalo, the ecj concluded that the preferential operating system granted to the University of Helsinki Pharmacy was necessary in order to achieve the objectives of public health protection pursued by the Finnish legislation on medicinal products. The ecj found that it did not constitute a restriction on the freedom of establishment incompatible with EU law.74 However, the national margin of appreciation was not accepted by the ecj when examining the compatibility with the free movement of goods of the technical inspection measures imposed by Belgium on the purchase of second-​hand vehicles from other Member States. Indeed, in European Commission v Belgium, the ecj found that the systematic requirement for a mandatory roadworthiness test, in addition to those carried out by other Member States, as a prerequisite for the registration of a vehicle in Belgium, constituted a restriction on imports.75 Although the Belgian authorities had argued that this measure, which was adopted in accordance with the margin of appreciation conferred by Directive 2009/​40/​EC,76 was intended to protect consumers and the environment, the ecj stated that the national authorities had not proven its necessity, in light of the objectives it pursued. In the same fashion, in European Commission v Hellenic Republic, the ecj pointed out that legislation adopted to organize the privatization of certain strategic public companies was disproportionate and contrary to the freedom of establishment recognized in EU law:

73 74 75 76

Case C-​112/​00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republic of Austria [2003] ECR I-​5659, paras 91–​93. Case C-​84/​11 Marja-​Liisa Susisalo, Olli Tuomaala, Merja Ritala [2012] OJ C250/​6, para 42. Case C-​150/​11 Judgment of 6 September 2012, European Commission v Belgium [2012] OJ C335/​5, para 61. Directive 2009/​40/​E C of the European Parliament and the Council of 6 May 2009, on roadworthiness tests for motor vehicles and their trailers [2009] OJ L141/​12.

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Moreover, the provisions fixing the reasons for which the authorities are empowered to refuse an authorisation to purchase a holding in strategic public limited companies are drawn up in general and imprecise terms which do not allow the interested parties to distinguish with certainty the various cases in which that authorisation may be refused. That is particularly the case with the expression “general interest criteria for ensuring the continuity of the services provided and the operation of the networks.” Moreover, the nine evaluation criteria listed in Law 3631/​2008 do not cover cases of real and sufficiently serious threats to the security of supply and cannot, therefore, be considered to be of direct relevance to the intended objective. It follows that such a prior authorisation scheme confers a discretionary power on the administration which is difficult for the courts to control and which includes a risk of discrimination.77 In some of these cases, such as Schmidberger or Marja-​Liisa Susisalo, the decision rendered by the ecj extended the protection of fundamental rights, to the detriment of a freedom recognized by EU law, implying a reinforcement of a fundamental right rather than its erosion. This is an opposite result to that sought through the application of the national margin of appreciation in the regional human rights subsystems. This consequence demonstrates the multipurpose nature of this indeterminate legal concept in public international law. The national margin of appreciation can be used in a particular way in the European integration process, as a result of the more complex mechanisms of judicial control deployed by the ecj, as well as the particular features of EU law. 2.5 Investment Treaty Arbitration The use of the national margin of appreciation by investment tribunals has not been frequent. However, in recent years, there is an emerging trend to incorporate this concept in the discussions held by the parties while examining the treatment provided to the foreign investor by the host State.78 This trend can be explained, at least, through a couple of considerations. 77 78

Case C-​244/​11 European Commission v Hellenic Republic [2012] [2013] OJ C9/​15, paras 78–​79. William Burke-​White and Andreas Von Staden, ‘The Need for Public Law Standards of Review in Investor-​State Arbitration’ in Stephan W Schill (ed), International Investment Law and Comparative Public Law (oup 2010) 689–​720; Stephan W Schill, ‘Public or Private Dispute Settlement? The Culture Clash in Investment Treaty Arbitration and its Impact on the Role of the Arbitrator’ in Todd Weiler and Freya Baetens (eds), New Directions in International Economic Law. In Memoriam Thomas Wälde (Martinus Nijhoff 2011) 23–​43.

164 ­chapter  Firstly, there is an increasing number of investment arbitrations whose object is the exercise of regulatory powers in situations where the host State adopts normative measures that, based on public interests, modify the legal framework under which foreign investments were established, causing an alleged damage to the foreign investor. And, secondly, there are also increasingly frequent cases of parallel litigation, such as the ‘Yukos saga,’ that are initiated before various international courts and tribunals in the field of investment law and human rights law. Parallel litigation implies that multiple judicial bodies will entertain the same facts in different legal sectors. These international courts and tribunals may even discuss the eventual incorporation of concepts or categories borrowed from other legal sectors, especially when the parties to the dispute use previous decisions issued in a different sector as supporting arguments.79 Arbitral tribunals settling investment claims have adopted a very heterogeneous approach to the national margin of appreciation. Indeed, it has been invoked not only to discuss the exercise of regulatory powers by the host State vis-​à-​vis the foreign investor, but also to decide on the adoption of provisional measures,80 the jurisdiction of the arbitral tribunal and the competences of the host State to grant nationality to individuals,81 as well as to determine the amount of compensation82 and distribute the costs of the arbitration.83 A first attempt to invoke the notion of the national appreciation with relation to the conduct of host States took place in the context of nafta. Specifically with regard to the interpretation of Article 1105(1), a provision enshrining the obligation of the host State to provide a fair and equitable treatment to the foreign investor.84 In examining the scope of the term ‘in accordance with international law,’ the arbitral tribunal in Glamis ruled that the fair and equitable 79 80 81 82

83 84

Pascual-​Vives (pt 1 ch 2 n 29) 518–​519. Abaclat and Others v Argentine Republic (icsid Case No ARB/​07/​5, Procedural Order No 11 of 27 June 2012, para 11). Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Decision of Jurisdiction and Admissibility of 24 September 2008, para 94). AIG Capital Partners Inc and CJSC Tema Real Estate Company v Kazakhstan (icsid Case No ARB/​01/​6, Award of 7 October 2003, para 12.1.3); Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador (icsid Case No ARB/​06/​ 11, Award of 5 October 2012, para 670); Yukos Universal Limited (Isle of Man) v Russian Federation (pca Case No AA 227, Final Award of 18 July 2014, paras 1600 and 1678). ST-​A D GmbH v Bulgaria (pca Case No 2011-​06, Award on Jurisdiction of 18 July 2013, para 427). Article 1105(1) of the nafta reads as follows ‘Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.’

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treatment recognized by nafta could not be modulated ex ante by granting a margin of appreciation to the national authorities: Respondent argues below that, in reviewing State agency or departmental decisions and actions, international tribunals as well as domestic judiciaries favour deference to the agency so as not to second guess the primary decision-​makers or become “science courts.” The Tribunal disagrees that domestic deference in national court systems is necessarily applicable to international tribunals. In the present case, the Tribunal finds the standard of deference to already be present in the standard as stated, rather than being additive to that standard. The idea of deference is found in the modifiers “manifest” and “gross” that make this standard a stringent one; it is found in the idea that a breach requires something greater than mere arbitrariness, something that is surprising, shocking, or exhibits a manifest lack of reasoning.85 Conversely, as a couple of arbitral tribunals later declared in Gemplus and Crompton, weighting of the fair and equitable treatment standard implies the need to assess whether the conduct of the host State has been serious enough to violate a primary obligation.86 A margin of deference cannot be conferred ex ante in favour of the State which has adopted the disputed measures, but it is for the tribunal to examine whether the conduct of the host State complies with the obligation to provide the foreign investor with a fair and equitable treatment.87 In carrying out this analysis, the tribunal has to consider whether there is any element that allows a certain degree of deference to the State. Subsequently, although unsuccessfully, this notion has been used beyond the nafta framework, in order to assess the scope of the obligation to provide a fair and equitable treatment to the foreign investor,88 as well as the 85 86

87 88

Glamis Gold Ltd v United States of America (uncitral/​n afta, Award of 8 June 2009, para 617). Gemplus SA, SLP SA and Gemplus Industrial SA de CV v United Mexican States (icsid Case No ARB(AF)/​04/​3 & ARB(AF)/​04/​4, Award of 16 June 2010, para 173); Crompton (Chemtura) Corp v Canada (nafta, Award of 2 August 2010, para 123). Cf SD Myers Inc v Canada (uncitral/​n afta, Award of 13 November 2000, para 263). National Grid PLC v Argentina (uncitral, Award of 3 November 2008); Enron Creditors Recovery Corporation ( formerly Enron Corporation) and Ponderosa Assets LP v Argentine Republic (icsid Case No ARB/​01/​3, Decision on the Application for Annulment of the Argentine Republic of 30 July 2010); EDF International SA, SAUR International SA and León Participaciones Argentinas SA v Argentine Republic (icsid Case No ARB/​03/​23, Award of 11 June 2012); Achmea BV ( formerly Eureko BV ) v Slovak Republic (pca Case No

166 ­chapter  mandate not to expropriate in an unfair or discriminatory manner.89 Among the arbitral tribunals that ruled on the application of this notion, two antagonistic positions can be distinguished, evidencing the scarcely integrated nature of international investment law and the complexity of this concept. On the one hand, those who openly reject the applicability of the national margin of appreciation in investment arbitration argue the impossibility of incorporating this legal category from international human rights law. In Siemens, the arbitral tribunal fostered this approach in studying the modalities of reparation of the internationally wrongful act and ruled that the national margin of appreciation could not be applied because it had not been envisaged in the applicable bit, nor did it form part of customary international law: Argentina has pleaded that, when a State expropriates for social or economic reasons, fair market value does not apply because otherwise this would limit the sovereignty of a country to introduce reforms in particular of poor countries. Argentina has not developed this argument, nor justified on what basis Argentina would be considered a poor country, nor specified the reforms it sought to carry out at the time. Argentina in its allegations has relied on Tecmed as an example to follow in terms of considering the purpose and proportionality of the measures taken. The Tribunal observes that these considerations were part of that tribunal’s determination of whether an expropriation had occurred and not of its determination of compensation. The Tribunal further observes that Article I of the First Protocol to the European Convention on Human Rights permits a margin of appreciation not found in customary international law or the Treaty.90 This argument was revisited in more detail in Quasar de Valors, one of the awards of the ‘Yukos saga,’ where the tribunal openly acknowledged the impossibility of

89

90

2008-​13, Final Award of 7 December 2012); TECO Guatemala Holdings LLC v Guatemala (icsid Case No ARB/​10/​23, Award of 19 December 2013). Hulley Enterprises Limited (Cyprus) v Russian Federation (pca Case No AA 226, Final Award of 18 July 2014); Yukos Universal Limited (Isle of Man) v Russian Federation (pca Case No AA 227, Final Award of 18 July 2014); Veteran Petroleum Limited (Cyprus) v Russian Federation (pca Case No AA 228, Final Award of 18 July 2014). Siemens AG v Argentine Republic (icsid Case No ARB/​02/​8, Award of 6 February 2007, para 354)  (emphasis added). Another arbitral tribunal later reiterated this point:  see Bernhard von Pezold and Others v Republic of Zimbabwe (icsid Case No ARB/​10/​15, Award of 28 July 2015, para 466).

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‘importing’ or ‘borrowing’ from international human rights law the notion of the national margin of appreciation in light of the different objectives pursued by international investment law: [H]‌uman rights conventions establish minimum standards to which all individuals are entitled irrespective of any act of volition on their part, whereas investment-​protection treaties contain undertakings which are explicitly designed to induce foreigners to make investments in reliance upon them. It therefore makes sense that the reliability of an instrument of the latter kind should not be diluted by precisely the same notions of “margins of appreciation” that apply to the former.91 According to this approach, it would be very risky to build ‘gateways’ allowing for the application of the national margin of appreciation in international investment law. The tribunal in Von Pezold, in a paragraph that is worth citing, expressed this statement very illustratively: As to “margin of appreciation” and the Respondent’s argument that it should be given a wide margin when determining what is in the Zimbabwean public interest, the Tribunal is of the opinion that due caution should be exercised in importing concepts from other legal regimes (in this case European human rights law) without a solid basis for doing so. Balancing competing (and non-​absolute) human rights and the need to grant States a margin of appreciation when making those balancing decisions is well established in human rights law, but the Tribunal is not aware that the concept has found much support in international investment law. The Respondent has only referred the Tribunal to European human rights cases in its arguments.92 However, other arbitral tribunals are detached from this approach and have been more receptive towards the notion of the national margin of appreciation. We turn now to examine these cases with the purpose of determining whether, despite the abovementioned cautions, arguments can be made for the construction of ‘gateways’ between international human rights law and international investment law. 91 92

Quasar de Valors SICAV SA, Orgor de Valores SICAV SA, GBI 9000 SICAV SA v Russian Federation (scc Case No 24/​2007, Award of 20 July 2012, para 22). Bernhard von Pezold and Others v Republic of Zimbabwe (icsid Case No ARB/​10/​15, Award of 28 July 2015, para 465).

168 ­chapter  In Continental Casualty, the arbitral tribunal admitted the invocation of the national margin of appreciation with respect to the interpretation and application of Article xi of the Treaty between United States of America and the Argentine Republic Concerning the Reciprocal Encouragement and Protection of Investment, done at Washington on 14 November 1991 (usa-​Argentina bit).93 This bit allows its parties to establish exceptional measures to ensure, inter alia, essential interests of national security.94 The arbitral tribunal understood that this provision allowed Argentina to take some discretionary measures in situations of serious crisis, such as those experienced during 2001–​2003: This intention would not exclude from the protection provided by Art. xi different measures taken by the other Contracting Party in relation to emergency situations affecting essential security interests of a different nature of such other Contracting Party. These interests such as “ensuring internal security in the face of a severe economic crisis with social, political and public order implications” may well raise for such a party, notably for a developing country like Argentina, issues of public order and essential security interest objectively capable of being covered under Art. xi. An interpretation of a bilateral reciprocal treaty that accommodates the different interests and concerns of the parties in conformity with its terms accords with an effective interpretation of the treaty. Moreover, in the Tribunal’s view, this objective assessment must contain a significant margin of appreciation for the State applying the particular measure:  a time of grave crisis is not the time for nice judgments, particularly when examined by others with the disadvantage of hindsight.95 From this statement, as well as from one of the footnotes in the award where a decision of the Iran-​US Claims Tribunal is cited,96 it can be concluded that the arbitral tribunal granted a margin of appreciation in favour of the host State in 93 94

95 96

International Legal Materials, vol 31, No 1 (1992) 124–​137. Article xi of the USA-​Argentina bit establishes that ‘This Treaty shall not preclude the application by either Party of measures necessary for the maintenance of public order, the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the Protection of its own essential security interests.’ Continental Casualty Company v Argentine Republic (icsid Case No ARB/​03/​9, Award of 5 September 2008, para 181) (emphasis added). See fn 269 of the award, which refers to the Sea-​Land Service Inc v The Government of the Islamic Republic of Iran, Ports and Shipping Organization (Case No 135-​33-​1, Award of 20 June 1984). On page 11 of this decision, the Iran-US Claims Tribunal found that ‘The first

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situations of serious crisis, such as those provided for in Article xi of the usa-​ Argentina bit. Although in Continental Casualty the tribunal was deferential with the host State, it is true that this claim focused on a very specific provision that is not present in all bit s: the national security clause. This provision was analyzed by weighing whether the measures taken by Argentina had contributed to attain a legitimate aim and considering whether they had been the least restrictive that could be adopted.97 The arbitral tribunal made no mention to the notion of consensus. Conversely, to weigh the application of Article xi of the usa-​Argentina bit, the tribunal used a reasoning that was closer to that used by the wto panels98 and more remote from that used by the ECtHR. It is now appropriate to study the subsequent arbitral practice to determine, firstly, whether arbitral tribunals have invoked the notion of the national margin of appreciation where the treaty obligation differs from Article xi of the usa-​Argentina bit; and, secondly, if arbitral tribunals use a homogeneous approach when interpreting this notion. Several precedents allow us to explore both issues in cases where the interpretation of the obligations not to expropriate unjustifiably and to provide a fair and equitable treatment is discussed. In Invesmart, the tribunal was called upon to consider the notion of the national margin of appreciation so as to analyze whether the decision of the Czech authorities not to grant State aid to the foreign investor could infringe the obligation not to expropriate unjustifiably. However, in its final decision it sufficed to note the delicate economic situation that the investor was experiencing to conclude that the obligation had not been breached.99 Also when examining the extent of the expropriation measures taken by the Polish authorities against the investor in Laboratoires Servier, the arbitral tribunal acknowledged that this analysis should be carried out by granting ‘due deference’100 to those

97 98 99 100

of these [measures] was the imposition by customs officials of restrictions on the types of cargo which could be unloaded at Bandar Abbas, limiting them to foodstuffs and medicine. The Tribunal considers this to be a reasonable and legitimate measure during a time of civil unrest. There is nothing to suggest that it did not apply equally to other carriers. It is well recognised that in comparable situations of crisis governmental authorities are entitled to have recourse to very broad powers without incurring international responsibility.’ Continental Casualty Company v Argentine Republic (icsid Case No ARB/​03/​9, Award of 5 September 2008, paras 193–​195). Erlend M Leonhardsen, ‘Looking for Legitimacy: Exploring the Proportionality Analysis in Investment Treaty Arbitration’ (2012) 3 JIDS 95, 128–​131. Invesmart BV v Czech Republic (uncitral, Award of 26 June 2009, paras 492–​494). Les Laboratoires Servier, SAS, Biofarma, SAS, Arts et Techniques du Progres SAS v Poland (uncitral, Award of 4 February 2012, para 568).

170 ­chapter  authorities and in light of the criteria governing expropriation. These criteria were established in the Treaty between the French Republic and the Republic of Poland Concerning the Promotion and Protection of Investments, signed in Paris on 14 February 1989.101 Further, in Saluka, the arbitral tribunal found the reasonableness of the measures taken by the host State to assert that the obligation not to expropriate or to adopt measures having equivalent effect had not been violated.102 In light of these cases related to the obligation not to expropriate unjustifiably, it can be concluded that arbitral tribunals have approached the concept of ‘deference’ on a case-​by-​case basis, without expressly invoking the notion of the national margin of appreciation. As regards the obligation to provide a fair and equitable treatment, the notion of the national margin of appreciation did arise in Frontier. In this arbitration, the investor argued that, by not enforcing a foreign judgment on grounds of public policy provided for by Article v(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958,103 the Czech courts had violated said obligation to protect foreign investments. The arbitral tribunal admitted that State organs enjoy a margin of appreciation when interpreting legal categories closely linked to the exercise of State sovereignty (such as the concept of public policy). It also examined whether the disputed measures were reasonable and had been implemented in good faith by the host State: [I]‌t is not necessary for this Tribunal to determine whether the findings of the Czech courts meet the applicable standard of international public policy, or to determine the precise contents of that standard. States enjoy a certain margin of appreciation in determining what their own conception of international public policy is. This Tribunal determines that it is sufficient to examine whether the conclusion reached by the Czech courts applied a plausible interpretation of the public policy ground in Article v(2)(b) of the New York Convention. Put another way, was the decision by the Czech courts reasonably tenable and made in good faith?104

101 102 103 104

JORF 5 April 1990. Saluka Investments BV v Czech Republic (pca Case, Partial Award of 17 March 2006, paras 272–​273). United Nations, Treaty Series, vol 330, No 4739, 3. Frontier Petroleum Services Ltd v Czech Republic (pca Case, Final Award of 12 November 2010, para 527).

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El Paso Energy was another investment arbitration initiated against Argentina under the usa-​Argentina bit. In this case, unlike Continental Casualty, the national margin of appreciation was not invoked in relation to Article xi, but in light of Article ii(2)(a), which governs the standard of fair and equitable treatment.105 It was invoked in order to determine whether the reduction in the fixed prices of electricity established by the Argentinian government (as a consequence of the economic crisis) could be considered a violation of that obligation. The arbitral tribunal admitted that the circumstances of the case called for maintaining some flexibility. This flexibility was expressed in the recognition of a margin of appreciation in favour of the State and by ruling out that the fair and equitable treatment had been violated: A first observation that can be made is that, contrary to the Claimant’s contention, the law does not provide for capacity payments to be stated in dollars. A second observation is that if the parameters for deciding the level of the capacity payments were indeed provided by the law, no amount was fixed in it, again contrary to what the Claimant contends, and the parameters of reference left a margin of appreciation which has been used by the administration. As an indication of this necessary flexibility, it is possible to quote a Selling Memorandum emanating from the Ministry of Economy, Public Works and Utilities of the Republic of Argentina for the privatisation of the generator Hidroeléctrica Norpatagoni­ca presented by the Claimant in its Exhibits and quoted by the Respondent in its Closing Statement: “The Secretary of Energy is Responsable for setting the capacity payment. The value of capacity has been set at US$ 5 per MW per hour for the period from November 1, 1992 to April 30, 1994. It has been decided to increase the value of capacity to US$ 10 per MW per hour from April 30, 1994 and it currently is expected that the value will remain at this level over the medium term.” This language is by no means an indication of an immutable value, written in stone.106 In Electrabel the arbitral tribunal analyzed the measures taken by Hungary in the electricity sector, consisting in the reintroduction of regulated prices. It had to consider whether these measures violated the legitimate expectations 105

106

Article ii(2)(a) of the usa-​Argentina bit establishes that ‘Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law.’ El Paso Energy International Company v Argentine Republic (icsid Case No ARB/​03/​15, Award of 31 October 2011, para 419).

172 ­chapter  of the foreign investor and the obligation to provide fair and equitable treatment or whether, on the contrary, the host State had some flexibility to adopt them. It is necessary to bear in mind, inter alia, that the foreign investor itself had accepted some of these measures, and that the European Commission had initiated an infringement procedure against Hungary that could lead to an action for non-​compliance before the ecj. Following the reasoning in Frontier, the arbitral tribunal found that there had been no breach of that obligation because those measures were lawful, reasonable and had been exercised in good faith by the host State.107 It was not until Phillip Morris that we can find a decision that would assume and apply the notion of the national margin of appreciation aligned, at least in theory, with the case law of the ECtHR. This dispute over compliance with the standard of fair and equitable treatment recognized by the Agreement between Switzerland and Uruguay on the Reciprocal Promotion and Protection of Investments, signed at Berne on 7 October 1988,108 was brought against legal and regulatory measures adopted by Uruguay to restrict the sale of tobacco. The majority of the tribunal109 agreed to examine the conduct of the host State ‘taking into account all relevant circumstances, including the margin of appreciation enjoyed by national regulatory agencies when dealing with public policy determinations’,110 understanding that this notion ‘applies equally to

107

Electrabel SA v Republic of Hungary (icsid Case No ARB/​07/​19, Decision on Jurisdiction, Applicable Law and Liability of 30 November 2012, paras 8.22–​8.35). 108 United Nations, Treaty Series, vol 1976, No 33771, 389. 109 The President of the arbitral tribunal (Piero Bernardini) and one of the arbitrators (James Crawford) voted in support of this decision. Instead, the third member of the arbitral tribunal (Gary Born) questioned the application of the notion of national margin of appreciation by indicating that ‘I cannot agree to the transposition of the doctrine of a margin of appreciation from the echr context to either the Switzerland-​Uruguay bit or international law more generally. Rather, I am persuaded by the conclusions of other international tribunals and courts that a more specific standard of review, focused on the terms and context of the relevant treaty, is mandated. As discussed above, this standard results, in my view, in a substantial degree of deference for sovereign regulatory judgments, but it does not warrant incorporation of the ECtHR’s understanding of the “public interest” in the echr into Article 3(2)’s protections’: see Philip Morris Brands Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v Occidental Republic of Uruguay (icsid Case No ARB/​10/​7, Concurring and Dissenting Opinion of Arbitrator Born of 28 June 2016, para 191). 1 10 Philip Morris Brands Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v Occidental Republic of Uruguay (icsid Case No ARB/​10/​7, Award of 8 July 2016, para 388).

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claims arising under bit s, at least in contexts such as public health’.111 In light of this, the arbitral tribunal concluded that the measures imposed by Uruguay in the exercise of its public policy could not be considered arbitrary or disproportionate, since ‘[i]‌t is sufficient in light of the applicable standard to hold that the spr was an attempt to address a real public health concern, that the measure taken was not disproportionate to that concern and that it was adopted in good faith’.112 In contrast to the previous disputes, the arbitral tribunal in Phillip Morris assessed the proportionality of the national measure, an element that had not been previously considered by other investment tribunals that also examined the scope of the obligation to provide a fair and equitable treatment. In addition, it again relied on the concept of good faith to clarify whether the measure established by Uruguay could violate the international obligations under the bit. Recourse to the concept of good faith has much to do with the breadth of the standard of fair and equitable treatment and with the fact that this standard is understood to be violated when the conduct by the host State is deemed arbitrary (contrary to good faith).113 Based on these precedents, it may be concluded that investment tribunals have not shown much enthusiasm for incorporating the notion of the margin of appreciation in investment arbitration. However, the fact remains that this category is discussed in some cases that examine the conformity of the conduct of the host State with the obligations not to expropriate unjustifiably and to provide a fair and equitable treatment to the foreign investor. In our view, this implies important technical problems that arbitral tribunals must consider. When these bodies invoke the national margin of appreciation, they analyze it on the basis of the categories established by the bit applicable to the dispute. These categories are generally set bilaterally.114 The commitments entered into regarding the protection of foreign investments by

1 11 ibid para 399 (emphasis added). 112 ibid para 409. 113 Alex Genin, Eastern Credit Limited Inc and AS Baltoil v Estonia (icsid Case No ARB/​99/​2, Award of 25 June 2001, para 371). 114 Julian Arato, ‘The Margin of Appreciation in International Investment Law’ (2014) 54 Va J Int’l L 545, 564–​565. It is our understanding that this disparity lies in the different framework of the international system in which these rules operate and not only in the legal nature of the obligations therein contained:  see James Egerton-​Vernon, ‘Is Investment Treaty Arbitration a Mechanism to Second-​Guess Government’s Exercise of Administrative Discretion: Public Law or Lex Investitoria?’ in Ian A Laird and others (eds), Investment Treaty Arbitration and International Law (vol 8, Juris 2015) 220–​221.

174 ­chapter  State A  vis-​à-​vis State B do not have to coincide with those agreed by State A with State C. In practice, cases where they do not coincide are frequent. Each bit, especially those concluded in the late 20th century, contains unique and indeterminate obligations for States parties.115 On the contrary, regional human rights courts and tribunals always operate on the basis of an obligation, the scope of which has been already defined in the corresponding regional human rights treaty. Although it is true that, in their legal reasoning, arbitral tribunals tend to resort to the concepts of necessity, reasonableness and proportionality,116 this analysis is neither stable nor homogeneous and is always made dependent on the wording of the obligation at issue in each bit. In investment arbitration, the notion of the national margin of appreciation is applied in a more case-​by-​case environment and, accordingly, its use poses different challenges from those arising in regional human rights courts and tribunals. In addition, as discussed in the following pages, invoking the notion of the national margin of appreciation in the case law of the regional human rights courts and tribunals involves an analysis of intrinsic (necessity, reasonableness and proportionality of the national measure) and extrinsic (consensus) circumstances of the obligation at hand. However, there is no reference to consensus117 in the investment arbitrations already studied, as all of them were initiated under the bilateral framework provided by the applicable bit. Furthermore, if we compare El Paso Energy with Phillip Morris, there is no uniform approach to the content of the intrinsic circumstances that make up the notion of the margin of appreciation. The reasonableness, necessity and proportionality of the measures may be the elements that allow to evaluate this notion in investment arbitration, although, in each case, arbitral tribunals tend to use them à la carte and regardless of any systematization. International investment law is a highly decentralized legal sector, where the relational framework of international law prevails. The different legal nature between international investment law and international human rights law makes it inadvisable to automatically apply the notion of the national margin of appreciation used in litigation before the regional human rights courts and tribunals in investment treaty arbitration. However, this assertion does not imply that the concept of ‘State deference’ could not be successfully invoked before 115 Campbell McLachlan, Laurence Shore and Matthew Weiniger (eds), International Investment Arbitration (oup 2007) 207–​211. 116 Caroline Henckels, Proportionality and Deference in Investor-​State Arbitration (cup 2015) 82–​125. 117 Anna T Katselas, ‘Do Investment Treaties Prescribe a Deferential Standard of Review?’ (2012) 34 MJIL 87, 137–​139.

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these arbitral bodies, according to parameters more or less similar to those used by regional human rights courts and tribunals. In addition, nothing prevents international investment law to develop its own concept of ‘deference’.118 The trend to incorporate the notion of the national margin of appreciation into investment arbitration is due, not only to a tendency in international courts and tribunals to introduce an element of deference in the interpretation of the international obligations agreed upon by States, but also to factors that are specific to this legal sector.119 The rules of international investment law, particularly those envisaged in first-​generation bit s, were drafted in a way that imposed very broad obligations on States.120 Consequently, States have sought to rebalance this rather unfavourable scenario while renegotiating these international agreements and introducing new clauses that recognize certain exceptions based on the need to guarantee public interests. What does not seem appropriate is that this objective should be attained by invoking, inter alia, the notion of the national margin of appreciation, given the special characteristics entailed thereby in international human rights law. It is up to these arbitral tribunals to interpret bit s as it were conceived, signed and ratified by the States parties, leaving them to decide (as the sole owners of the treaty) whether to amend, denounce or renegotiate these treaties is necessary. Otherwise, by ‘importing’ or ‘borrowing’ foreign categories into international investment law with a view to correct any existing imbalances, there is a risk of both engaging in judicial activism and delving into one of the main scourges that plague investment arbitration:  the absence of a coherent and predictable body of case law. 2.6 World Trade Organization Panels In the context of the wto, panels have recognized certain deference to the Member States when implementing their trade policy decisions. Instead of the notion of the national margin of appreciation, a standard of review is used. In any case, and as we indicated when examining the case law of the icj (Whaling in the Antarctic), this standard of review plays a very similar role.

118 Stephan W Schill, ‘Deference in Investment Treaty Arbitration: Re-​conceptualizing the Standard of Review’ (2012) 3 JIDS 577. 119 Erlend M Leonhardsen, ‘Treaty Change, Arbitral Practice and the Search for a Balance. Standards of Review and the Margin of Appreciation in International Investment Law’ in Gruszczynski and Werner (introduction n 22) 146–​151. 120 The treaty practice of Spain serves as example:  see Isabel García Rodríguez, ‘Spanish Practice on Investment Treaties’ in Jiménez Piernas (pt 1 ch 1 n 13) 574–​576.

176 ­chapter  The standard of review is articulated according to several provisions distributed in the different agreements that form the complex normative matrix of the wto. Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes sets forth: The function of panels is to assist the dsb in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the dsb in making the recommendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution (emphasis added). Specific provisions of other wto agreements121 complement the standard of review.122 The Agreement on Implementation of Article vi of the General Agreement on Tariffs and Trade 1994123 establishes a precise legal framework for the standard of review. Indeed, Article 17 states in paragraphs 5 and 6 that: The dsb shall, at the request of the complaining party, establish a panel to examine the matter based upon: (i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded, and (ii)

121 James Durling, ‘Deference, But Only When Due: WTO Review of Anti‐Dumping Measures’ (2006) 6 JIEL 125; Andrew T Guzman, ‘Determining the Appropriate Standard of Review in WTO Disputes’ (2009) 42 Cornell Int’l L J 45, 48–​52; Michael M Du, ‘Standard of Review under the SPS Agreement after EC –​ Hormones II’ (2010) 59 ICLQ 441. 122 EC  –​ Hormones (WT/​D S26/​A B/​R and WT/​D S48/​A B/​R, of 16 January 1998, paras 114–​ 115); US –​Lead and Bismuth II (WT/​D S138/​A B/​R, of 10 May 2000, paras 49–​51); US –​ Lamb (WT/​D S177/​A B/​R, of 1 May 2001, para 105 and fn 63); US –​ Hot-​Rolled Steel (WT/​ DS184/​A B/​R, of 24 July 2001, paras 55 and 84); Mexico  –​Anti-​Dumping Measures on Rice (WT/​D S295/​R, of 6 June 2005, para 7.5); Korea  –​Certain Paper (WT/​D S312/​R, of 28 October 2005, para 7.4); US –​Stainless Steel (Mexico) (WT/​D S344/​R, of 20 December 2007, paras 7.1–​7.2); US –​Shrimp (Thailand) (WT/​D S343/​R, of 29 February 2008, para 7.18 and fn 63). 123 [1994] OJ L336/​1.

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the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member. In examining the matter referred to in paragraph 5: (i) in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; (ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. Particular attention has to be paid to paragraph 6 of this provision, which introduces an important element of deference in both the determination of the facts and the applicable law when explaining how the objective assessment is to be carried out.124 As to the facts, the panel cannot prioritize a determination of facts other than that made by the State if it was unbiased and objective. As to the determination of the applicable law, this provision recognizes that there may be more than one permissible interpretation. This is sufficient to validate the legality of the national measure at issue if the State has made use of one of these interpretations.125 In other words, the standard of review is broad, generous and deferential with the principle of sovereignty, which, as with the notion of the national margin of appreciation, must be analyzed and weighed according to the particular circumstances of each case.126 The practice before the wto panels has been shaping the

124 In fact, it has been pointed out that ‘the standard of an “adequate and reasoned” explanation for the substantive findings falls short of requiring panels to decide whether the national authority’s determination is “right” or “wrong”. Instead, the notion of an adequate explanation carries with it a margin of discretion for the national authority’: see Claus-​Dieter Ehlermann and Nicolas Lockhart, ‘Standard of Review in WTO Law’ (2004) 7 JIEL 491, 512. 125 On the travaux préparatoires of this provision: see Steven P Croley and John H Jackson, ‘WTO Dispute Procedures, Standards of Review, and Deference to National Governments’ (1996) 90 AJIL 193, 198–​201. 126 US –​ Hot-​Rolled Steel (WT/​D S184/​A B/​R, of 24 July 2001, paras 58 and 61).

178 ­chapter  scope of this standard of review in the context of the Agreement on Implementation of Article vi of the General Agreement on Tariffs and Trade 1994. In US –​Softwood Lumber vi, the Appellate Body considered that the panel should have analyzed how the State had assessed all the relevant facts in detail, respecting a fundamental balance that prevented it from developing both a de novo review and accepting the conduct of the State with total deference: The panel must examine whether the explanations provided demonstrate that the investigating authority took proper account of the complexities of the data before it, and that it explained why it rejected or discounted alternative explanations and interpretations of the record evidence. A panel must be open to the possibility that the explanations given by the authority are not reasoned or adequate in the light of other plausible alternative explanations, and must take care not to assume itself the role of initial trier of facts, nor to be passive by “simply accept[ing] the conclusions of the competent authorities”.127 An assessment of the facts that, as stated in US –​ Shrimp ii, should only consider those that were known when the State adopted the disputed measures, since the panel was unable to weigh new facts: [T]‌he determination being reviewed on the basis of what the investigating authorities knew at the time, and determine whether the investigating authority has provided a reasoned and adequate explanation of its conclusions.128 Regarding the applicable law, although the standard of review offers a deferential approach to the State, panels must ‘not simply defer to the conclusions of the investigating authority,’ but must carry out an ‘in-​depth analysis and critical searching’ in order to determine whether the measure adopted by the State complies with the permissible interpretation proposed by Article 17(6)(ii) of

127

128

US –​Softwood Lumber VI (WT/​D S277/​A B/​R W, of 13 April 2006, para 93). In this context:  see EC  –​Fasteners (China) (WT/​D S397/​R, of 3 December 2010, para 7.4); EU  –​ Footwear (China) (WT/​D S405/​R, of 28 October 2011, para 7.6). US –​ Shrimp II (Viet Nam) (WT/​D S429/​R, of 17 November 2014, para 7.8). In this context:  see EC  –​Tube or Pipe Fittings (WT/​D S219/​R, of 7 March 2003, para 7.308); Argentina –​Poultry Anti-​Dumping Duties (WT/​D S241/​R, of 22 April 2003, paras 7.45 and 7.48–​7.499); China –​Broiler Products (WT/​D S427/​R, of 2 August 2013, para 7.4).

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the Agreement on Implementation of Article vi of the General Agreement on Tariffs and Trade 1994.129 In US –​ Hot-​Rolled Steel the Appellate Body stated that a permissible interpretation: [I]‌s one which is found to be appropriate after application of the pertinent rules of the Vienna Convention. We observe that the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention apply to any treaty, in any field of public international law, and not just to the wto agreements. These rules of treaty interpretation impose certain common disciplines upon treaty interpreters, irrespective of the content of the treaty provision being examined and irrespective of the field of international law concerned.130 In view of the above, it can be concluded that the standard of review has a purpose similar to that of the national margin of appreciation. The former allows for a revision of the conduct of States in an objective manner, granting some flexibility and deference to States in a legal sector where public interests are frequently at stake. The definition of this standard of review in the context of the wto is theoretically less complex than the notion of deference used in investment arbitration. The wto is a multilateral cooperation organization where the dispute settlement panels always interpret the same legal regime. In addition, wto panels are subject to an appeals mechanism that reinforces the coherence and consistency of wto law. This scenario differs from that encountered in international investment law. The institutionalized nature of this legal sector, as is also the case of regional human rights treaties, is essential to ensure a uniform and consistent application of the notion of deference. Preliminary Considerations: The National Margin of Appreciation as a Multifaceted Legal Concept The international case law examined in this section allows us to make five preliminary considerations on the use of the notion of the national margin of appreciation in public international law. This should be a starting point to study this concept in the case law of the ECtHR and the IACtHR. Firstly, it may be concluded that the legal nature of the rule subjected to interpretation is a decisive factor in the application of the national margin of 2.7

129 130

China –​ X-​Ray Equipment (WT/​D S425/​R, of 26 February 2013, para 7.6). US –​ Hot-​Rolled Steel (WT/​D S184/​A B/​R, of 24 July 2001, para 60).

180 ­chapter  appreciation. It is not the same to preach its application regarding positive obligations than regarding negative ones. Nor is it similar when interpreting obligations designed to protect an essential public interest over those that do not have that nature.131 Secondly, in order to invoke this concept, the necessity, legality and proportionality of the national measure taken by the State become the parameters used to distinguish lawful restrictions from those that give rise to the international responsibility of the State. Thirdly, the national margin of appreciation is closely linked to the principle of subsidiarity. When invoking the national margin of appreciation, international courts and tribunals are conferring upon the State the power to adopt regulatory measures that may undermine previously agreed international commitments. In short, the national margin of appreciation constitutes a legal expression of the principle of subsidiarity. Fourthly, the national margin of appreciation cannot be identified with the methods of interpretation established in the vclt,132 although the acceptance of this concept presupposes, on most occasions, a literal (non-​expansive) interpretation of regional human rights treaties. In addition, the national margin of appreciation does not imply immunity in favour of the States,133 but merely represents a manifestation of the principle of subsidiarity. And, fifthly, the use of the national margin of appreciation is not homogeneous, and may assume specific features when applied in different international legal sectors, such as EU law. The degree of integration enjoyed by a legal sector may significantly alter the effects of its application. In this vein, it suffices to compare the different results obtained in the ecj case law (a highly integrated sector) and in investment treaty arbitration (a decentralized sector). The preceding considerations highlight that, when invoking the national margin of appreciation, international courts and tribunals rely on a set of principles (legality, proportionality or necessity) in order to assess the reasonableness of the State conduct. These principles may be applied either individually 131 Monika Ambrus, ‘The European Court of Human Rights and Standards of Proof. An Evidentiary Approach towards the Margin of Appreciation’ in Gruszczynski and Werner (introduction n 22)  238–​247; Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16 EJIL 907, 912–​917. 132 Walter J Ganshof Van der Meersch, ‘Le “caractère autonome” des termes et la “marge d’appréciation” des gouvernements dans l’interprétation de la Convention européenne des Droits de l’Homme’ in Matscher and Petzold (pt 1 ch 3 n 24) 209. 133 Johan Callewaert, ‘Is There a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?’ (1998) 19 HRLJ 6, 7.

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or cumulatively regarding rules of different legal nature (obligations of means or of result and of a positive or negative nature) and in different legal sectors. When an international court or tribunal examines the reasonableness of any State measure in this fashion, it enters the complex path of the ‘notions à contenu variable’.134 As a result of the above, the national margin of appreciation cannot be conceived as a true legal doctrine.135 Rather, it is a technique used by international courts and tribunals to settle disputes in light of the principle of subsidiarity. The following pages examine how this legal notion works in regional human rights subsystems and to what extent there is a relationship between this multifaceted concept and the notion of consensus. 3

The Expansion of the National Margin of Appreciation in Regional Human Rights Subsystems

As already noted, the national margin of appreciation was originally conceived in the context of Article 15 of the EConHR. It is a provision that allows for the adoption of measures restricting certain fundamental rights in exceptional situations, particularly in ‘time of war or other public emergency threatening the life of the nation.’ However, the ECtHR case law has been progressively expanding its application beyond this provision. It should be recalled again that, due to several reasons, the development of the national margin of appreciation in the inter-​American subsystem has been much more inconspicuous. Indeed, as we have already seen, for many of the early years of its activity, the nature of the cases entertained by the IACtHR did not lead to the application of this concept. These were cases related to the protection of the right to life and to personal integrity (non-​derogable rights). In addition to this endogenous component, another exogenous component has considerably limited its application. It is the paternalist activism sometimes developed by the IACtHR.136 Two examples illustrating this feature are, firstly, 134 Jean Salmon, ‘Les notions à contenu variable en droit international public’ in Chaïm Perelman and Raymond Vander Elst (eds), Les notions à contenu variable en droit (Bruylant 1984) 258–​260. 135 As it has been pointed out, the margin of appreciation ‘is not a question of a size fits all approach’: see Jean Pierre Cot, ‘Margin of Appreciation’ in Wolfrum (pt 1 ch 1 n 3) vol vi, 1014. 136 Pablo Contreras, ‘National Discretion and International Deference in the Restriction of Human Rights: A Comparison Between the Jurisprudence of the European and the Inter-​ American Court of Human Rights’ (2012) 11 NJIHR 28, 57–​66.

182 ­chapter  the disproportionate enthusiasm with which it has declared the existence of norms of jus cogens,137 and, secondly, its opposition to the application of the notion of the national margin of appreciation.138 This approach by the IACtHR sometimes leads to ‘overflows,’ which may even erode the unity of public international law.139 In the following lines we systematize the areas where the notion of the national margin of appreciation has been invoked. Firstly, it is applied for the purpose of interpreting the restrictions established by States to Articles 8 (right to respect for private and family life);140 9 (freedom of thought, conscience

1 37 Cf pt 1 ch 1 nn 52–​53. 138 Professor Antônio A Cançado Trindade, who was a member of the IACtHR during the 1995–​2006 period has argued that this notion is an ‘artifice’: see Antônio A Cançado Trindade, ‘Reflexiones sobre el futuro del sistema interamericano de protección de los derechos humanos’ in Juan Méndez and Francisco Cox (eds), El Futuro del Sistema Interamericano de Protección de los Derechos Humanos (Instituto Interamericano de Derechos Humanos 1998)  593. In this sense, it is worth contrasting this vehement oposition to the notion of the national margin of appreciation with the position put forward by another reputable expert on international litigation before the IACtHR, Professor Héctor Faúndez Ledesma:  see Héctor Faúndez Ledesma, El sistema interamericano de protección de los derechos humanos. Aspectos institucionales y procesales (3rd ed, Instituto Interamericano de Derechos Humanos 2004) 64. For a general discussion:  cf Manuel Núñez Poblete, ‘Sobre la doctrina del margen de apreciación nacional. La experiencia Latinoamericana confrontada y el Thelos constitucional de una técnica de adjudicación del Derecho Internacional de los derechos humanos’ in Paola A Acosta Alvarado and Manuel Núñez Poblete (eds), El margen de apreciación en el sistema interamericano de derechos humanos: proyecciones regionales y nacionales (Instituto de Investigaciones Jurídicas de la Universidad Nacional Autónoma de México 2012) 12. 139 We share the opinion, taking into consideration recent case law of the IACtHR concerning the national margin of appreciation, that the use of this notion in the inter-​American subsystem does not appear to have a bright future: see Eduardo G Chía and Pablo Contreras, ‘Análisis de la sentencia Artavia Murillo y Otros (“Fecundación in vitro”) de la Corte Interamericana de Derechos Humanos v. Costa Rica’ (2014) 12 Estudios Constitucionales 567, 574. 140 This provision indicates that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

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and religion);141 10 (freedom of expression);142 and 11 (freedom of assembly and association)143 of the EConHR.144 These provisions are formulated in two recitals: the first establishes a right and the second sets forth the conditions that allow for the adoption of restrictive measures, provided that they are ‘prescribed by law’ and constitute measures ‘necessary in a democratic society.’ Both requirements have also been expressly provided for in the AConHR as conditions that support the restrictions imposed by States parties on the right of assembly and freedom of association. In addition, Article 30 of the AConHR subjects any restriction of rights to the principle of legality.145

141 This provision states that ‘1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ 142 This provision reads as follows ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’ 143 This provision reads as follows ‘1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.’ 144 In this regard, see also Articles 11 (right to privacy); 12 (freedom of conscience and religion); 13 (freedom of thought and expression); 15 (right of assembly); 16 (freedom of association); and 17 (rights of the family) of the AConHR. 145 This provision envisages that ‘The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not

184 ­chapter  Verifying the conformity of a national measure restricting a right with the principle of legality requires a legal analysis of the particular circumstances and degree of generality with which the provision establishing the limitation has been drafted. This task does not often give rise to major technical problems for regional human rights courts and tribunals.146 The rule must be formally and materially invested with a legal status147 and, as the case law of the ECtHR has noted,148 it must be ‘adequately accessible’ and ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.149 The necessity of the measure is a much more complex condition. As noted by the ECtHR in Handyside v United Kingdom, it involves: firstly, examining the reasons or motivations that led the State to adopt the contested measure as ‘the reality of the pressing social need implied by the notion of “necessity” in this context’; secondly, whether it is ‘proportionate to the legitimate aim pursued’; and, thirdly, whether the justification of measures restricting rights and freedoms by States is ‘relevant and sufficient’.150 These parameters draw a line between the restrictive measures that do not violate international obligations and those that give rise to the international responsibility of the State, among which there are limitations on the exercise of a right that violates its ‘very essence’.151 States, therefore, enjoy a margin of appreciation to establish restrictions on the exercise of rights, provided that the regional human rights courts and tribunals can review both the purposes of the restrictive measure and the suitability of the instruments used to implement it.152

be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.’ 146 Yukata Arai-​Takahashi, ‘The System of Restrictions’ in Van Dijk and others (introduction n 14) 340. 1 47 The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-​6/​86 of 9 May 1986 Series A No 6, paras 27–​32. 148 The IACtHR follows a similar approach: see Case of López Mendoza v Venezuela, Merits, Reparations, and Costs, Judgment of 1 September 2011 Series C No 233, para 199. 1 49 Sunday Times v United Kingdom (No 1), 26 April 1979, paras 48–​49, Series A No 30. 150 Handyside v United Kingdom, 7 December 1976, paras 48–​50, Series A No 24. 151 Case of Barreto Leiva v Venezuela, Merits, Reparations and Costs, Judgment of 17 November 2009 Series C No 206, para 90; Case of Vélez Loor v Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 23 November 2010 Series C No 218, para 179. 152 Enzo Cannizzaro, Il principio della proporzionalità nell’ordinamento internazionale (Giuffrè 2000) 69.

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Secondly, the national margin of appreciation has also been used in the context of Articles 12 (right to marry),153 13 (right to an effective remedy)154 and 14 (prohibition of discrimination)155 of the EConHR.156 These provisions were drafted in a more general manner than those cited above and do not have the same structure. However, the ECtHR has adapted a similar method to determine the compatibility with the international obligations of the restrictions to these rights established by the States, based on the same criteria of necessity and proportionality set out above. The ECtHR concluded in F v Switzerland that the restrictions imposed on the right to marry in order to promote the stability of this institution were disproportionate and affected its very essence.157 While in De Souza Ribeiro v France, a case where the scope of the right to an effective remedy was discussed, the ECtHR recognized that States have discretion to provide for the most adequate system of domestic remedies, provided that it is not ‘ineffective in practice and therefore inaccessible’.158 With regard to Article 14 of the EConHR, in Chassagnou and Others v France, the ECtHR noted that a difference in treatment is discriminatory if it presents ‘no “objective and reasonable justification,” that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realized” ’.159 According to this principle, in Stummer v Austria, the ECtHR considered that the Austrian system of labour relations and social benefits applied to prisoners was not ‘manifestly without reasonable foundation,’ as long as it guaranteed the right to an economic benefit.160 Thirdly, the application of the national margin of appreciation has been extended to other provisions of the EConHR. In A and Others v United Kingdom, 153 This provision reads as follows ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ 154 This provision indicates that ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ 155 See pt 2 ch 5 n 17. 156 In this regard, see also Articles 1 (obligation to respect rights); 8 (right to a fair trial); and 17 (rights of the family) of the AConHR. 157 F v Switzerland, 18 December 1987, para 36, Series A No 128. 158 De Souza Ribeiro v France [GC], No 22689/​07, para 95, ECtHR 2012. 159 Chassagnou and Others v France [GC], No 25088/​94, No 28331/​95 and No 28443/​95, para 91, ECtHR 1999. 160 Stummer v Austria [GC], No 37452/​02, paras 105–​107, ECtHR 2011.

186 ­chapter  certain restrictions imposed following the terrorist attacks on 11 September 2001 were considered disproportionate, and therefore not in conformity with Article 5(1)(f) of the EConHR.161 On the other hand, some restrictions set forth by prison legislation in the United Kingdom have been found in accordance with Article 6 (right to a fair trial)162 of the EConHR.163 It is a provision requiring a review of the proportionality of the national measure restricting the rights,164 which must take into account its reasonableness and objective character.165 The national margin of appreciation has also been used in the context of Article 2 (right to life)166 of EConHR. In Vo v France, the Grand Chamber admitted that the disputed legislation could be regarded as an effective remedy that was available to the applicant. Invoking the national margin of appreciation,167 the Grand Chamber held that there was no positive obligation for the State to amend the criminal legislation on medical malpractice causing abortions.168

161 A and Others v United Kingdom [GC], No 3455/​05, paras 186–​190, ECtHR 2009. 162 Section 1 of this provision envisages that ‘in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’ 163 T v United Kingdom, No 24724/​94, paras 71–​72 and 75, ECtHR 1999; V v United Kingdom, No 24888/​94, paras 73–​74 and 77, ECtHR 1999; Ernst and Others v Belgium, No 33400/​ 96, para 74, ECtHR 2003; Bouloius v Luxemburg [GC], No 37575/​04, para 102, ECtHR 2012; Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, ECtHR 2014. 164 The ECtHR has indicated that a restriction would not be compatible with Article 6(1) of the EConHR ‘if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’: see Sabeh El Leil v France [GC], No 34869/​05, para 47, ECtHR 2011. 165 In the inter-​ American subsystem:  see Case of Apitz Barbera et  al (“First Court of Administrative Disputes”) v Venezuela, Preliminary Objection, Merits, Reparations and Costs, Judgment of 5 August 2008 Series C No 182, para 143. 166 Paragraph one of this article establishes that ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’ 167 Vo v France [GC], No 53924/​00, paras 91–​93, ECtHR 2004. 168 In this regard, see also Articles 7 (right to personal liberty); 8 (right to a fair trial); and 4(1) (right to life) of the AConHR.

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Lastly, some provisions of additional protocols to EConHR may also be subject to the national margin of appreciation. In particular, Article 1 (protection of property)169 of Protocol No 1;170 Article 2 (right to education)171 of Protocol No 1;172 Article 3 (right to free elections)173 of Protocol No 1;174 and Article 2 (freedom of movement)175 of the Protocol 169 This provision envisages that ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’ See also Article 21 (right to property) of the AConHR. 170 Sporrong and Lönnroth v Sweden, 23 September 1982, paras 69 and 73, Series A No 52; Lithgow and Others v United Kingdom, 8 July 1986, para 122, Series A No 102; Perdigao v Portugal [GC], No 24768/​06, para 67, ECtHR 2010; Kotov v Russia [GC], No 54522/​00, paras 110 and 131, ECtHR 2012. 171 This provision states that ‘No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.’ See also Article 12(4) (freedom of conscience and religion) of the AConHR. 172 Leyla Şahin v Turkey [GC], No 44774/​98, para 135, ECtHR 2005; Lausti and Others v Italy [GC], No 30814/​06, paras 68–​69, ECtHR 2011; Catan and Others v Moldova and Russia [GC], No 43370/​04, No 18454/​06 and No 8252/​05, para 140, ECtHR 2012; Horváth and Kiss v Hungary, No 11146/​11, para 103, ECtHR 2013. 173 This provision reads as follows ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ See also Article 23 (right to participate in government) of the AConHR. 174 Zdanoka v Latvia [GC], No 58278/​00, paras 106 and 115, ECtHR 2006; Yumak and Sadak v Turkey [GC], No 10226/​03, para 109, ECtHR 2008; Tanase v Moldova [GC], No 7/​08, paras 156–​157, ECtHR 2010; Paksas v Lithuania [GC], No 34932/​04, para 96, ECtHR 2011; Karimov v Azerbaijan, No 12535/​06, paras 42–​49, ECtHR 2014. 175 This provision establishes that ‘1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.’ See also Article 22 (freedom of movement and residence) of the AConHR.

188 ­chapter  No 4.176 Hirst v United Kingdom (No 2) stands out as a representative precedent. In this case the ban on the right to vote for prisoners imposed by British prison legislation was discussed in light of Article 3 of Protocol No 1. A Chamber of the ECtHR had ruled that the right to vote was indispensable and that any ‘devaluation or weakening of that right threatens to undermine that system and it should not be lightly or casually removed’.177 This assessment of proportionality weighed the aims sought by the disputed measure, the means used by the respondent State to achieve them, as well as the effects on individuals by implementing that measure, which had been indiscriminately conceived by the national legislature. As a result of the above, the Chamber concluded that: [T]‌here is no evidence that the legislature in the United Kingdom has ever sought to weigh the competing interests or to assess the proportionality of the ban as it affects convicted prisoners. It cannot accept however that an absolute bar on voting by any serving prisoner in any circumstances falls within an acceptable margin of appreciation. The applicant in the present case lost his right to vote as the result of the imposition of an automatic and blanket restriction on convicted prisoners’ franchise and may therefore claim to be a victim of the measure.178 The Grand Chamber upheld this approach and rejected the invocation of the national margin of appreciation, stating that the United Kingdom had automatically, indiscriminately179 and disproportionately restricted the prisoners’ right to active suffrage. The Grand Chamber warned that the ban imposed by the United Kingdom: [S]‌trips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling 176

177 178 179

Labita v Italy [GC], No 26772/​95, paras 194–​196, ECtHR 2000; Oliveira v The Netherlands, No 33129/​96, para 64, ECtHR 2002; Landvreugd v The Netherlands, No 37331/​97, para 71, ECtHR 2002; Diamante and Pelliccioni v San Marino, No 32250/​08, para 213, ECtHR 2011. Hirst v United Kingdom (No 2), No 74025/​01, para 41, ECtHR 2004. ibid paras 49–​51. Hirst v United Kingdom (No 2) [GC], No 74025/​01, paras 81–​82, ECtHR 2005.

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outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1.180 Regarding the same right, in Castañeda Gutman v Mexico, the IACtHR noted that in order to assess the proportionality of the contested national measures, it is necessary to examine: [T]‌he existing alternatives to regulate this right, which are equally appropriate to the regulation that is considered to violate the Convention, and must define the greater or lesser harm of the human right that is restricted.181 Following this general overview of the scope of the national margin of appreciation in the regional human rights subsystems, it can be concluded that this notion has spread beyond the boundaries for which it was originally conceived (Articles 15 of the EConHR and 27 of the AConHR).182 The next chapter examines its application in the cases that refer to the violation of civil or political rights, excluding situations generated in the context of Articles 15 of the EConHR and 27 of the AConHR. As a result of the above, although the assessment of the national margin of appreciation is subject to a series of parameters such as the legality, necessity, proportionality or relevance of the national measure at issue, it also depends on various circumstances inherent to the protected rights. These parameters may differ according to the particularities of each case, as the ECtHR itself has recognized by stating that the ‘scope of the margin of appreciation will vary according to the circumstances, the subject-​matter and its background’.183 Chapters 7 and 8 examine these circumstances, depending on their intrinsic or extrinsic nature. Precisely these circumstances make the national margin of appreciation an autonomous category, which can hardly be made to fit into other legal sectors of public international law. 180 Sandra Fredman, ‘From Dialogue to Deliberation:  Human Rights Adjudication and Prisoners Rights to Vote’ (2013) 2 Public Law 292, 306–​308. 181 Case of Castañeda Gutman v Mexico, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 6 August 2008 Series C No 184, para 196. 182 It has even been asserted, with regard to the European subsystem, that ‘there is no inherent reason why the doctrine could not be applied to any article of the Convention’: see Thomas A  O’Donnell, ‘The Margin of Appreciation Doctrine:  Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4 HRQ 474, 477. 183 Rasmussen v Denmark, 28 November 1984, para 40, Series A No 87. In this context: see Petrovic v Austria, No 20458/​92, para 38, ECtHR 1998; Nada v Switzerland [GC], No 10593/​08, para 184, ECtHR 2013.

­c hapter 7

Intrinsic Circumstances Conditioning the National Margin of Appreciation This chapter systematizes the intrinsic circumstances conditioning the application of the national margin of appreciation. To that end, we distinguish two elements:1 the legal nature of the obligation established by the regional human rights treaties and the public or private dimension of the interests at hand. 1

Legal Nature of the International Obligation

Among the catalogue of intrinsic circumstances, it is important to focus on the legal nature of the international obligation provided for in the regional human rights treaties. This analysis allows understanding the heterogeneous and multifaceted features of the national margin of appreciation. 1.1 Peremptory or Dispositive Nature of the International Obligation A first matter to be considered is the different legal nature of the international obligations recognized by regional human rights treaties. Indeed, Articles 3 and 11 of the EConHR and Article 1 of Protocol No 1, along with their counterparts in the AConHR, exemplify this diversity. The prohibition of torture enshrined in Article 3(1) of the EConHR and Article 5 of the AConHR has been recognized as a non-​derogable rule of jus cogens.2 On the other hand, the freedoms of assembly and association constitute two essential pillars of democratic systems, which guarantee the exercise of the rights of political participation in contemporary societies and undoubtedly have a public dimension. The protection of the right to property is an essential element

1 The existence of a number of internal (or intrinsic) features has been already outlined: see Paul Mahoney, ‘Marvellous Richness of Diversity or Individous Cultural Relativism?’ (1998) 19 HRLJ 1, 5. 2 Article 3(1) of the EConHR establishes that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ In the same fashion, Article 5(2) of the AConHR indicates that ‘No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.’

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in market economies, but it is subject to the regulatory power of the States, which may establish limitations on its use and enjoyment at the private level in accordance with general interests. In view of the foregoing, the national margin of appreciation is unlikely to be successfully applied in relation to the rule that prohibits torture. As the Grand Chamber stated in Saadi v Italy, the non-​derogable character of this obligation should prevail.3 This does not prevent States from invoking the national margin of appreciation in order to advocate for measures whose legal effects may be contrary to this provision. In this sense, it is worth recalling the applications made before the ECtHR in Vinter and Others v United Kingdom, concerning compliance of British legislation providing for life imprisonment subject to review by the prison authorities with Article 3 of the EConHR. Notwithstanding that the national margin of appreciation was invoked by the respondent State, the ECtHR criticized the system hitherto in force in the United Kingdom. It argued that it was insufficient to ensure the review of life sentences as well as contradictory,4 declaring it incompatible with Article 3 of the EConHR.5 As for Article 11 of the EConHR and Article 1 of Protocol No 1, the national margin of appreciation may be invoked more frenquently, albeit with a different intensity. Given the important public dimension of the protected interests, limitations to Article 11 of the EConHR are usually conceived and interpreted restrictively by the ECtHR. In addition, this provision is drafted in the negative sense, which further complicates the scope of the exceptions that may be established by Member States: [H]‌aving regard to the essential role of political parties in the proper functioning of democracy […], the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the 3 Saadi v Italy [GC], No 37201/​06, para 127, ECtHR 2008. In this context: see Chahal v United Kingdom [GC], No 22414/​93, para 79, ECtHR 1996; Selmouni v France [GC], No 25803/​94, para 95, ECtHR 1999; Al-​Adsani v United Kingdom [GC], No 35763/​97, para 59, ECtHR 2001; Shamayed and Others v Georgia and Russia, No 36378/​02, para 335, ECtHR 2005. 4 Vinter and Others v United Kingdom [GC], No 66069/​09, No 130/​10 and No 3896/​10, para 129, ECtHR 2013. 5 Hutchison v United Kingdom is an interesting development of this case law. A Chamber of the ECtHR endorsed the legal reforms introduced by the United Kingdom as a result of the decision in Vinter and Others v United Kingdom, declaring them compatible with Article 3 of the EConHR: see Hutchison v United Kingdom, No 57592/​08, paras 22–​25, ECtHR 2015.

192 ­chapter  meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts […].6 The national margin of appreciation, on the contrary, may operate with more flexibility upon interpreting the restrictions to Article 1 of Protocol No 1, as public and private interest converge in this provision. The second paragraph is drafted in a positive sense, allowing for the imposition of restrictions to the right to property by States and, consequently, enabling for a broader use of this concept.7 In Carson and Others v United Kingdom, the ECtHR found that ‘a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy’.8 After the analysis of these provisions, we can conclude that the peremptory or dispositive nature of the international obligation may decisively influence the successful invocation of the national margin of appreciation before regional human rights courts and tribunals.9 1.2 Positive or Negative Nature of the International Obligation The positive or negative nature of the international obligation may also affect the application of the national margin of appreciation. As it is sometimes complex distinguishing between the mandates of action or omission imposed upon States by regional human rights treaties,10 the ECtHR case law has found that in both cases the criteria to be applied to determine the scope of the national margin of appreciation are similar:

6

7 8 9 10

United Communist Party of Turkey and Others v Turkey [GC], No 19392/​92, para 46, ECtHR 1998. In the same vein: see Socialist Party and Others v Turkey [GC], No 21237/​93, para 50, ECtHR 1998; Freedom and Democracy Party (ÖZDEP) v Turkey [GC], No 23885/​ 94, para 45, ECtHR 1999; Refah Partisi (The Welfare Party) and Others v Turkey [GC], No 41340/​98, No 41342/​98, No 41343/​98 and No 41344/​98, para 100, ECtHR 2003; Parti Nationaliste Basque –​Organisation Regionale D’Iparralde v France, No 71251/​01, para 46, ECtHR 2007. Jahn and Others v Germany [GC], No 46720/​99, No 72203/​01 and No 72552/​01, paras 113–​ 117, ECtHR 2005; Case of Salvador Chiriboga v Ecuador, Preliminary Objections and Merits, Judgment of 6 May 2008 Series C No 179, paras 126–​129. Carson and Others v United Kingdom [GC], No 42184/​05, para 61, ECtHR 2010. Alexander Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’ (2003) 14 EJIL 529, 533. Matthias Klatt, ‘Positive Obligations under the European Convention on Human Rights’ (2011) 71 ZaöRV 691.

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[T]‌he boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.11 However, there appears to be more deference to States with regard to positive obligations. In fact, the ECtHR resorted to the national margin of appreciation in the context of the right to private life.12 The conclusion was as follows: there is no obligation imposed upon States to adopt measures that allow for assisted suicide, particularly if it can be concluded that ‘the State Parties to the Convention are far from reaching a consensus in this respect’,13 but it allowed for this issue to be re-​examined in the future.14 The national margin of appreciation can be narrowed, recognizing the breach of a positive obligation when regional human rights courts and tribunals find that the measures adopted by States encumber15 or are insufficient16 to guarantee the full enjoyment of a right or differ from a generally accepted State practice.

11 12

13

14

15 16

Keegan v Ireland, 26 May 1994, para 49, Series A No 290 (emphasis added). Regarding the obligation to hold free elections, the ECtHR invoked the national margin of appreciation to recognize the right of the State to regulate the right to suffrage (passively and actively) within its territory with certain flexibility: see Matthews v United Kingdom [GC], No 24833/​94, para 63, ECtHR 1999; Sitaropoulos and Giakoumopoulos v Greece [GC], No 42202/​07, paras 72–​75, ECtHR 2012. Hass v Switzerland, No 31322/​07, para 55, ECtHR 2011; Koch v Germany, No 497/​09, para 70, ECtHR 2012; Lambert and Others v France [GC], No 46043/​14, paras 144–​148, ECtHR 2015. A Chamber of the ECtHR indicated that ‘Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity’: see Pretty v United Kingdom, No 2346/​02, para 65, ECtHR 2002. Airey v Ireland, 9 October 1979, paras 32–​33, Series A No 32. López Ostra v Spain, 9 December 1994, paras 54–​57, Series A No 303-​C; Guerra and Others v Italy [GC], No 14967/​89, para 59, ECtHR 1998; Hutton and Others v United Kingdom [GC], No 36022/​97, paras 124–​126, ECtHR 2003; Murray v The Netherlands [GC], No 10511/​10, paras 124–​125, ECtHR 2016.

194 ­chapter  In this context, the IACtHR held in Artavia Murillo and Others v Costa Rica that the State could not continue maintaining an absolute protection to prenatal life. In accordance with a generalized practice within the inter-​American subsystem,17 it ordered Costa Rica to adopt legislative measures lifting the ban on in vitro fertilization and allowing for the non-​discriminatory access to this assisted reproduction technique: [E]‌ven though there are few specific legal regulations on ivf, most of the States of the Region allow ivf to be practiced within their territory. This means that, in the context of the practice of most States Parties to the Convention, it has been interpreted that the Convention allows ivf to be performed. The Court considers that this practice by the States is related to the way in which they interpret the scope of Article 4 of the Convention, because none of the said States has considered that the protection of the embryo should be so great that it does not permit assisted reproduction techniques and, in particular, ivf.18 Moreover, by invoking a growing European consensus to strengthen the protection of children, the ECtHR stated that a rule setting an absolute and rigid time limit of the right to determine judicial recognition of paternity was contrary to the right to private and family life, after affirming in Phinikaridou v Cyprus that: [A]‌significant number of States do not set a limitation period for children to bring an action aimed at having paternity established and that there is a tendency towards a greater protection of the right of the child to have his paternal affiliation established.19 Regional human rights courts and tribunals will be more likely to recognize a breach of an international obligation if they can conclude that there is some consensus on the matter, prevailing over any manifest objections from the respondent State. These cases allow us to anticipate that the application of the national margin of appreciation depends on a case-​by-​case weighing of the legal nature of the obligation invoked (intrinsic element) and the general 17 18 19

See pt 2 ch 5 sub-​s 1.2.2.1. Case of Artavia Murillo et  al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257, para 256. Phinikaridou v Cyprus, No 23890/​02, para 58, ECtHR 2007; Roman v Finland, No 13072/​ 05, para 57, ECtHR 2013.

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consensus existing in the corresponding regional human rights subsystem (extrinsic element). Both elements are closely related and cannot be conceived separately. However, this relationship only serves to partially explain the application of the national margin of appreciation. In fact, another intrinsic element to the international obligation can work as an additional variable in modulating its invocation: the public or private dimension of the interests at hand. 2

Public or Private Dimension of the Interests at Hand

In order to understand how the national margin of appreciation works, it is essential to acknowledge the possibility that the same obligation can be subject to a different margin of appreciation, according to the public or private interests protected in a particular case. 2.1 Enhancing the Protection of Public Interests An analysis of the European20 and inter-​American case law confirms this assertion. In Ricardo Canese v Paraguay, the IACtHR concluded that the restrictions imposed to freedom of expression on matters related to public interests should be limited, with the purpose of facilitating democratic control and encouraging public debate: Democratic control exercised by society through public opinion encourages the transparency of State activities and promotes the accountability of public officials in public administration, for which there should be a reduced margin for any restriction on political debates or on debates on matters of public interest.21 In the same fashion, in Ivcher Brownstein v Peru, the IACtHR confirmed the international responsibility after examining the compatibility of freedom of expression with the measures taken by Peru. In this case, the respondent State had revoked the nationality of a person with the purpose of removing

20 21

Baka v Hungary [GC], No 20261/​12, para 171, ECtHR 2016. Case of Ricardo Canese v Paraguay, Merits, Reparations and Costs, Judgment of 31 August 2004 Series C No 111, para 97. In the same vein: see Case of Herrera Ulloa v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 2 July 2004 Series C No 107, para 127.

196 ­chapter  editorial control over a television channel.22 And in Kimel v Argentina, the IACtHR found a violation of the AConHR when determining the disproportionality of the criminal measures adopted by Argentina against a news reporter who had been critical of how the legal investigation of the so-​called ‘matanza de San Patricio’ had been conducted.23 A precedent in Europe can be found in Perinçek v Switzerland, where the Grand Chamber analyzed, in light of Article 10 of the EConHR, the criminal measures adopted against a Turkish national who had publicly denied the Armenian genocide during numerous press conferences in Switzerland. The Grand Chamber recognized the need to protect freedom of expression, concluding that the Swiss tribunals had not justified the need to impose the contested criminal sanctions, and had therefore failed to correctly analyze the legal nature of the restrictions upon fundamental rights.24 On the other hand, the national margin of appreciation is wider if the same right, freedom of expression, is used in the private realm. Certain restrictions upon this right with the objective of safeguarding the market25 and morality have been found to be in accordance with the EConHR. Regarding the latter issue, in Wingrove v United Kingdom the ECtHR noted that: [A]‌wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, as in the field of morals, and perhaps to an even greater degree, there is no uniform European conception of the requirements of “the protection of the rights of others” in relation to attacks on their religious convictions. What is likely to cause substantial 22 23

24 25

Case of Ivcher Bronstein v Peru, Merits, Reparations and Costs, Judgment of 6 February 2001 Series C No 74, paras 155–​164. This case dated back to facts occurring on 4 July 1976, where some members of the armed forces of Argentina killed five clergymen: see Case of Kimel v Argentina, Merits, Reparations and Costs, Judgment of 2 May 2008 Series C No 177, paras 89–​94. Perinçek v Switzerland, No 27510/​08, paras 274–​282, ECtHR 2013. The ECtHR found that ‘the States parties to the Convention have a certain margin of appreciation in assessing the necessity of an interference, but this margin is subject to European supervision as regards both the relevant rules and the decisions applying them […]. Such a margin of appreciation is particularly essential in the complex and fluctuating area of unfair competition […]. The same applies to advertising. In the instant case, the Court’s task is therefore confined to ascertaining whether the measures taken at national level are justifiable in principle and proportionate […]’: see Casado Coca v Spain, 24 February 1994, para 50, Series A No 285-​A.

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offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever growing array of faiths and denominations. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the “necessity” of a “restriction” intended to protect from such material those whose deepest feelings and convictions would be seriously offended.26 In Mouvement Raëlien Suisse v Switzerland, the ECtHR found for a broader margin of appreciation in the context of freedom of expression, when the protected interests lack a public dimension. After recognizing a number of precedents where this notion had been invoked, the ECtHR indicated that: [T]‌he type of speech in question is not political because the main aim of the website in question is to draw people to the cause of the applicant association and not to address matters of political debate in Switzerland. Even if the applicant association’s speech falls outside the commercial advertising context –​there is no inducement to buy a particular product  –​it is nevertheless closer to commercial speech than to political speech per se, as it has a certain proselytising function. The State’s margin of appreciation is therefore broader.27 It is therefore frequent that regional human rights courts and tribunals weigh public and private interests upon determining both the necessity and the proportionality of the restrictive measures on freedom of expression imposed by the State. As a result, we could tentatively assert that the responsibility of the State should be declared (and the national margin of appreciation consequently narrowed), when the contested measures affect an essential public interest. However, such a formulation cannot be generally held in practice. The case law of the regional human rights courts and tribunals illustrates the complexity of social and legal sciences and, in particular, it shows how the order of each factor within a legal equation can affect the final result. Indeed,

26

27

Wingrove v United Kingdom, No 17419/​90, para 58, ECtHR 1996. In the same vein: see Handyside v United Kingdom, 7 December 1976, para 48, Series A  No 24; Müller and Others v Switzerland, 24 May 1988, para 35, Series A No 133. Mouvement Raëlien Suisse v Switzerland [GC], No 16354/​06, para 62, ECtHR 2012.

198 ­chapter  conflicting or overlapping interests or rights may also condition the national margin of appreciation. 2.2 Consequences of Conflicting or Overlapping Interests or Rights When conflicting interests converge within the context of Article 10 of the EConHR, as in the case of Stoll v Switzerland, the ECtHR has widely applied the national margin of appreciation to enable the adoption of measures protecting public interests (national security). It has concluded that criminal law measures taken against a news reporter who had revealed official secrets in a news article, were not disproportionate nor in violation of freedom of expression because ‘a consensus appears to exist among the member States of the Council of Europe on the need for appropriate criminal sanctions to prevent the disclosure of certain confidential items of information’.28 In this case, the Grand Chamber had to analyze the conduct of the State in light of a higher public interest: the protection of national security, thereby upholding the restrictions applied by Switzerland to freedom of expression. In short, the ECtHR was more deferent to the balance of interests struck by the State while examining the contrast between two public interests (freedom of expression and the protection of national security). In the same fashion, in Delfi v Estonia the Grand Chamber found that when there are competing private interests, the national margin of appreciation afforded to the State should be wider, as long as its conduct has been held within the parameters of legality, necessity and proportionality.29 Open Door v Ireland discussed the application of Articles 2 and 10 of the EConHR. In particular, the Plenary of the ECtHR had to evaluate if the measures adopted by Ireland to prevent access to information on techniques to facilitate abortion within its territory were disproportionate and contrary to freedom of expression. The ECtHR held that abortion was closely related to morality and, in principle, that the circumstances at hand implied a wider margin of appreciation for the respondent State to establish an adequate regulatory framework. However, it stated that in the context of the particular circumstances of the case, the national measures were disproportionate and had: [C]‌reated a risk to the health of those women who are now seeking abortions at a later stage in their pregnancy, due to lack of proper counselling, and who are not availing themselves of customary medical supervision

28 29

Stoll v Switzerland [GC], No 69698/​01, para 155, ECtHR 2007. Delfi AS v Estonia [GC], No 64569/​09, para 139, ECtHR 2015.

Intrinsic Circumstances

199

after the abortion has taken place […]. Moreover, the injunction may have had more adverse effects on women who were not sufficiently resourceful or had not the necessary level of education to have access to alternative sources of information.30 In the case of the right to respect for private and family life (Article 8 of the EConHR), a number of restrictions in accordance with the EConHR have been admitted by virtue of the national margin of appreciation. They were, for example, measures of vigilance for the prevention of terrorism,31 those penalising incest,32 those regulating in vitro fertilization,33 those regulating certain

30 31 32

33

Open Door and Dublin Well Women v Ireland, 29 October 1992, para 77, Series A No 246-​A. Klass and Others v Germany, 6 September 1978, paras 50–​59, Series A No 28. A Chamber of the ECtHR noted that ‘the Court observes that there is no consensus between the member States as to whether the consensual commitment of sexual acts between adult siblings should be criminally sanctioned […]. Still, a majority of altogether twenty-​four out of the forty-​four States reviewed provide for criminal liability. The Court further notes that all the legal systems, including those that do not impose criminal liability, prohibit siblings from getting married. Thus, a broad consensus transpires that sexual relationships between siblings are neither accepted by the legal order nor by society as a whole. Conversely, there is no sufficient empirical support for the assumption of a general trend towards a decriminalisation of such acts. The Court further considers that the instant case concerns a question about the requirements of morals. It follows from the above principles that the domestic authorities enjoy a wide margin of appreciation in determining how to confront incestuous relationships between consenting adults, notwithstanding the fact that this decision concerns an intimate aspect of an individual’s private life’:  see Stübing v Germany, No 43547/​08, para 61, ECtHR 2012. The Grand Chamber found that ‘Certain States have enacted primary or secondary legislation to control the use of ivf treatment, whereas in others this is a matter left to medical practice and guidelines. While the United Kingdom is not alone in permitting storage of embryos and in providing both gamete providers with the power freely and effectively to withdraw consent up until the moment of implantation, different rules and practices are applied elsewhere in Europe. It cannot be said that there is any consensus as to the stage in ivf treatment when the gamete providers’ consent becomes irrevocable […] since the use of ivf treatment gives rise to sensitive moral and ethical issues against a background of fast-​moving medical and scientific developments, and since the questions raised by the case touch on areas where there is no clear common ground amongst the member States, the Court considers that the margin of appreciation to be afforded to the respondent State must be a wide one’: see Evans v United Kingdom [GC], No 6339/​05, paras 79–​82, ECtHR 2007.

200 ­chapter  aspects of parent-​child relationships,34 those regulating marriage, civil unions and other forms of cohabitation,35 those restricting certain legal ramifications of sex change,36 as well as those establishing the conditions for offering public health services during labour.37

34

35

36

37

X, Y and Z v United Kingdom [GC], No 21830/​93, para 44, ECtHR 1997; Odièvre v France [GC], No 42326/​98, paras 28–​29 and 46–​47, ECtHR 2003; Kautzor v Germany, No 23338/​ 09, paras 72–​78, ECtHR 2012; Ahrens v Germany, No 45071/​09, paras 70–​75, ECtHR 2012; Busch v Switzerland, No 9929/​12, para 55, ECtHR 2014. The Grand Chamber noted that ‘The legislature is entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage confers a special status on those who enter into it; the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences […]. Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and Mr A. renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership […]. The Court would add that, were it to hold otherwise, it would create a need either to assess the nature of unregistered non-​marital relationships in a multitude of individual cases or to define the conditions for assimilating to a formalised union a relationship characterised precisely by the absence of formality’: see Van Der Heijden v The Netherlands [GC], No 42857/​05, para 69, ECtHR 2012. In the same vein: see Burden v United Kingdom [GC], No 13378/​05, para 62, ECtHR 2008. The Grand Chamber indicated that ‘Thus, it cannot be said that there exists any European consensus on allowing same-​sex marriages. Nor is there any consensus in those States which do not allow same-​sex marriages as to how to deal with gender recognition in the case of a pre-​existing marriage. The majority of the member States do not have any kind of legislation on gender recognition in place. In addition to Finland, such legislation appears to exist in only six other States. The exceptions afforded to married transsexuals are even fewer. […] In the absence of a European consensus and taking into account that the case at stake undoubtedly raises sensitive moral or ethical issues, the Court considers that the margin of appreciation to be afforded to the respondent State must still be a wide one […]. This margin must in principle extend both to the State’s decision whether or not to enact legislation concerning legal recognition of the new gender of post-​operative transsexuals and, having intervened, to the rules it lays down in order to achieve a balance between the competing public and private interests’: see Hämäläinen v Finland [GC], No 37359/​09, paras 74–​75, ECtHR 2014. As the Chamber stated, ‘the present case involves a complex matter of healthcare policy requiring an assessment by the national authorities of expert and scientific data concerning the relative risks of hospital and home births. It notes in this connection that besides their physical vulnerability, newborns are fully dependent on decisions made by others,

Intrinsic Circumstances

201

In all of these cases, the invocation of the national margin of appreciation is based on the protection of public morality and the general welfare of society. These are interests that prevail over the private dimension of the right to respect for private and family life. Contrarily to freedom of expression, regarding the right to respect for private and family life, the national margin of appreciation is wider as the protected interest holds a more public and notorious dimension or raises sensitive moral or ethical issues.38 However, the national margin of appreciation can be narrowed when the national measures are disproportionately interfering with the private dimension protected by the right or are discriminatory.39 In Dudgeon v United Kingdom, where the conformity of the regulation criminally sanctioning homosexual relations was analyzed, the ECtHR declared that in 1981 there was no longer a social need that would justify maintaining such sanctions. In order to uphold this argument, which sets aside the objective of protection of morality pursued by the regulation, the ECtHR evidenced the scarce use that the national authorities had been making of the contested regulation, whilst highlighting that the majority of the Member States of the Council of Europe already had a generalized tolerance (consensus generalis) toward homosexual relations.40 In Dickson v United Kingdom, the ECtHR examined the denial of the right to procreation through assisted means to a man who was incarcerated and his wife, discarding the applicability of the national margin of appreciation. In the absence of a consensus amongst the Member States of the Council of Europe,41 the Chamber had initially invoked the national margin of appreciation and concluded that the Secretary of State had taken a proportionate and

38 39 40 41

which justifies a strong involvement on the part of the State. Moreover, the issue of home births touches on areas where there is no clear common ground amongst the member States […] and involves general social and economic policy considerations for the State, including the allocation of financial means, as setting up an adequate emergency system may involve shifting budgetary resources from the general system of maternity hospitals to a new security network for home births. In the light of these considerations, the Court is of the opinion that the margin of appreciation to be afforded to the respondent State must be a wide one’:  see Dubská and Krejzová v Czech Republic, No 28859/​11 and No 28473/​12, para 93, ECtHR 2014. Parrillo v Italy [GC], No 46470/​11, para 169, ECtHR 2015. Barbulescu v Romania [GC], No 61496/​08, paras 113, 119–​120 and 134–​140, ECtHR 2017. Dudgeon v United Kingdom, 22 October 1981, paras 57–​60, Series A No 45. Dickson v United Kingdom, No 44362/​04, paras 31–​39, ECtHR 2006.

202 ­chapter  reasonable decision, considering all public and private interests.42 However, the Grand Chamber reversed this decision arguing that national authorities had not correctly analyzed the interests at hand, ruling out the use of the national margin of appreciation after concluding the lack of proportionality of the contested measures: [T]‌he Policy set the threshold so high against them from the outset that it did not allow a balancing of the competing individual and public interests and a proportionality test by the Secretary of State or by the domestic courts in their case, as required by the Convention.43 In X and Others v Austria the Grand Chamber concluded that the restrictions on second-​parent adoption in a same-​sex couple were discriminatory, after noting than ‘when it comes to issues of discrimination on the grounds of sex or sexual orientation to be examined under Article 14, the State’s margin of appreciation is narrow’.44 The IACtHR had used a similar reasoning in Atala Riffo and daughters v Chile, finding the existence of discrimination contrary to the AConHR upon considering that the restrictive measures imposed by the State collided with the enjoyment of family life.45 Regarding the right to respect for private and family life, as happens with the right to freedom of expression, the margin of appreciation largely depends 42

43 44

45

Dirk Van Zyl Smit and Sonja Snacken, ‘Shaping Penal Policy from Above? The Role of the Grand Chamber of the European Court of Human Rights’ in Adam Crawford (ed), International and Comparative Criminal Justice and Urban Governance. Convergence and Divergence in Global, National and Local Settings (oup 2011) 178–​180. Dickson v United Kingdom [GC], No 44362/​04, paras 81–​82, ECtHR 2007. X and Others v Austria [GC], No 19010/​07, para 148, ECtHR 2013. In Mennesson v France a Chamber of the ECtHR made reference to this balance between the absence of consensus and the interests at hand indicating that the lack of consensus reflects ‘the fact that recourse to a surrogacy arrangement raises sensitive ethical questions. It also confirms that the States must in principle be afforded a wide margin of appreciation, regarding the decision not only whether or not to authorise this method of assisted reproduction but also whether or not to recognise a legal parent-​child relationship between children legally conceived as the result of a surrogacy arrangement abroad and the intended parents. However, regard should also be had to the fact that an essential aspect of the identity of individuals is at stake where the legal parent-​child relationship is concerned. The margin of appreciation afforded to the respondent State in the present case therefore needs to be reduced’: see Mennesson v France, No 65192/​11, paras 79–​80, ECtHR 2014. Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239.

Intrinsic Circumstances

203

on the particular circumstances of the case (interests at hand, nature of the international obligation, concurrence of different rights, amongst others). Fernández Martínez v Spain illustrates the complexities of the invocation of the national margin of appreciation in the context of Article 8 of the EConHR. This case discussed the right to private life of a religion and ethics professor, whose labour contract was not renewed by the Ministry of Education based on the recommendation of Church authorities. The applicant was a former priest who, after obtaining leave from celibacy, had gotten married and had led a secular life as a teacher for many years. The Grand Chamber did not find there had been an infringement of the right to private and family life. Even though it is true that the contested right was private in nature, thus entailing (at least theoretically) a narrower scope of the national margin of appreciation, the fact remains that there were also public interests at hand, which had to be taken into consideration. This is due to the fact that the applicant had published a news article that was highly critical of the situation of priests who have foregone their vow of celibacy: The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of “intimate” or key rights. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider […]. There will also usually be a wide margin if the State is required to strike a balance between competing private and public interests or different Convention rights.46 Turning to freedom of thought, conscience and religion (Article 9 of the EConHR), in the absence of a uniform definition of the religious factor, a more flexible judicial application of the national margin of appreciation is witnessed. As noted by the ECtHR in Preminger v Austria, in these cases it is difficult ‘[to] arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others’.47 The ECtHR considers that each Member State of the Council of Europe is fully empowered to organise the exercise and practice of religious creed within its

46 47

Fernández Martínez v Spain [GC], No 56030/​07, para 125, ECtHR 2014. Otto-​Preminger-​Institut v Austria, 20 September 1994, para 50, Series A No 295-​A.

204 ­chapter  territory48 as long as it guarantees tolerance and mutual respect amongst all religions49 and the neutrality of the State.50 Pursuant to the foregoing, the EComHR ruled that there was no violation of Article 9 of the EConHR when no leave of absence was granted during the working schedule for the exercise of religious practices,51 or when evaluating the requirement of the use of a helmet applied to a Sikh when riding motorcycles.52 The ECtHR has also failed to find a violation of this provision in the requirement that individuals remove their turban in order to pass through airport security checkpoints.53 The security checkpoints set up in other public buildings may also require Muslim women to temporarily remove headscarves and other facial coverings in order to enable their identification.54 The scope of protection afforded by Article 9 of the EConHR aims at striking a balance between sovereignty and cooperation.55 This provision ‘does not protect every act motivated or influenced by a religion or belief’.56 To determine if there has been a violation, it is necessary to examine if the domestic measures are necessary and proportional to guarantee religious pluralism, on the understanding that only restrictions allowing the ‘manifestation of religion and convictions’ can be adopted legitimately. If they do not interfere with this objective, States can invoke the national margin of appreciation and, for instance, prohibit the use of headscarves, in accordance with the case law of

48

49

50

51 52 53 54 55 56

Michele de Salvia, ‘Liberté de religion, esprit de tolérance et laïcité dans la jurisprudence de la Cour Européenne des droits de l’homme’ in Luigi Condorelli and others (eds), Libertés, Justice et Tolérance. Mélanges en hommage au Doyen Gérard Cohen-​Jonathan (Bruylant 2004) 596. United Communist Party of Turkey and Others v Turkey [GC], No 19392/​92, para 57, ECtHR 1998; Serif v Greece, No 38178/​97, para 53, ECtHR 1999; Metropolitan Church of Bessarabia and Others v Moldova, No 45701/​99, para 123, ECtHR 2001. Hasan and Chaush v Bulgaria [GC], No 30985/​96, para 78, ECtHR 2000; Refah Partisi (The Welfare Party) and Others v Turkey [GC], No 41340/​98, No 41342/​98, No 41343/​98 and No 41344/​98, para 91, ECtHR 2003. X v United Kingdom, No 8160/​78, Commission decision of 12 March 1981, Decisions and Reports 22, 34–​35. X v United Kingdom, No 7992/​77, Commission decision of 12 July 1978, Decisions and Reports 14, 234. Phull v France (dec), No 35753/​03, ECtHR 2005. El Morsli v France (dec), No 15585/​06, ECtHR 2008. Malcom N Shaw, ‘Freedom of Thought, Conscience and Religion’ in St J Macdonald and others (pt 1 ch 3 n 1) 449–​450. Kalaç v Turkey, No 20704/​92, para 27, ECtHR 1997.

Intrinsic Circumstances

205

the ECtHR analyzed with more detail in c­ hapter 8.57 Conversely, restrictions on this right are deemed inconsistent with treaty obligations when States adopt unjustified58 and/​or abusive59 measures. Finally, the expanding trend that freedom of assembly and association have experienced,60 given the important public dimension of the protected interests, has not excluded the successful invocation of the national margin of appreciation in some cases.61 In Sindicatul “Pastorul cel Bun” v Romania, the ECtHR confirmed the necessity and proportionality of the restrictions establishing trade unions within a religious community, in attention to the need to safeguard the autonomy of religious confession as well as due to the absence of a uniform model for handling relations between the Church and State amongst the members of the Council of Europe: [T]‌he wide variety of constitutional models governing relations between States and religious denominations in Europe. Having regard to the lack of a European consensus on this matter […], it considers that the State enjoys a wider margin of appreciation in this sphere, encompassing the right to decide whether or not to recognise trade unions that operate within religious communities and pursue aims that might hinder the exercise of such communities’ autonomy.62 The ECtHR also weighed the application of the margin of appreciation based on the impact of the national measure on the ‘core of trade union activity’.63 The greater its impact on public interests, the narrower the national margin of appreciation becomes. In this fashion, it is important to recall that in Demir and Baykara v Turkey,64 the ECtHR issued a decision that stepped away from previous case law and ruled out the application of the national margin of appreciation. It included collective negotiation within the scope of protection of Article 11 of the 57 58 59 60 61 62 63 64

Leyla Şahìn v Turkey [GC], No 44774/​98, para 116, ECtHR 2005. Kokkinakis v Greece, 25 May 1993, paras 48–​49, Series A No 260-​A. Bayatyan v Armenia [GC], No 23459/​03, paras 125–​126, ECtHR 2011; İzzettin Doğan and Others v Turkey [GC], No 62649/​10, paras 132–​133, ECtHR 2016. Young, James and Webster v United Kingdom, 13 August 1981, paras 64–​65, Series A No 40. Schmidt and Dahlström v Sweden, 6 February 1976, para 36, Series A No 21. Sindicatul “Pastorul cel Bun” v Romania [GC], No 2330/​09, para 171, ECtHR 2013. The National Union of Rail, Maritime and Transport Workers v United Kingdom, No 31045/​ 10, para 87, ECtHR 2014; Adefdromil v France, No 32191/​09, para 60, ECtHR 2014. See pt 2 ch 5 sub-​s 2.1.

206 ­chapter  EConHR, appealing to ‘the developments in labour law, both international and national, and to the practice of Contracting States in such matters’.65 Public and private interests at hand represent, in addition to the legal nature of the international obligation, relevant intrinsic factors capable of conditioning the application of the national margin of appreciation. Regional human rights courts and tribunals must weigh the conflicting or overlapping interests or rights when examining the legality, necessity and proportionality of the contested national measures. This examination must always be conducted from the perspective of public international law,66 even though it shares some elements with the supervision performed by constitutional courts at domestic level.67 The consensus of the Member States of the Council of Europe and the oas is a circumstance of an extrinsic character, and eminently international nature that should also be considered upon the evaluation of such a list of intrinsic factors. 65 66 67

Demir and Baykara v Turkey [GC], No 34503/​97, para 154, ECtHR 2008. Franz Matscher, ‘Les contraintes de l’interprétation jurisdictionnelle. Les méthodes d’interprétation de la Convention européenne’ in Sudre (pt 2 ch 4 n 74) 32–​33. Bates (introduction n 14) 355–​356.

­c hapter 8

Consensus as an Extrinsic Circumstance Conditioning the National Margin of Appreciation This chapter examines the role played by the notion of consensus when regional human rights courts and tribunals invoke the national margin of appreciation. In order to carry out this analysis, we distinguish between the substantive and the formal dimensions of consensus, understood from the perspective already explained in part 1.1 1

Substantive Dimension of Consensus: The Backbone of Regional Human Rights Case Law

To consider this topic, several precedents are studied in which the regional human rights courts and tribunals have used the substantive dimension of consensus in the context of the right to respect for private and family life; freedom of thought, conscience and religion; and the right to access to courts. In some of these cases, they decided not to find in favour of the State based on the existing consensus in the regional human rights subsystem, while, in other cases, the absence of this consensus provided the basis for invoking the notion of national margin appreciation. 1.1 National Margin of Appreciation and Consensus Generalis The notion of consensus operates in the European and inter-​American subsystems in a manner similar to the concept of consensus generalis in public international law. Should regional human rights courts and tribunals find a consensus after a careful examination of the State practice, they would usually narrow the scope of the national margin of appreciation, and they would favour an evolutive interpretation of the regional human rights treaties. On the contrary, the absence of consensus may allow Member States to maintain certain restrictions on the exercise of the protected rights. As for the right to private and family life, the IACtHR had the opportunity to express its views on the notion of consensus regarding the application 1 See pt 1 ch 1 s 1.

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208 ­chapter  of in vitro fertilization techniques in Artavia Murillo and Others v Costa Rica. It urged Costa Rica to take legislative measures to implement assisted reproduction techniques in a non-​discriminatory manner, in line with the practice of other States of the inter-​American human rights subsystem.2 In the same vein, regarding the prohibition established by the Italian legislation to access assisted reproduction techniques applicable to couples with certain diseases, the ECtHR emphasized the evolution of the legislation in most of the Member States of the Council of Europe (consensus generalis) in Costa and Pavan v Italy, stating that this restriction had become disproportionate in light of Article 8 of the EConHR.3 In fact, Costa and Pavan v Italy significantly modified the ECtHR case law regarding the use of in vitro fertilization systems. SH and Others v Austria, which dates back to 2011, discussed the conformity with the right to private and family life of the Austrian legal system prohibiting the donation of sperm and eggs in the framework of in vitro fertilization. In accordance with its case law,4 the Grand Chamber had concluded that, when establishing these restrictions, Austria had not exceeded the national margin of appreciation enjoyed to protect public interests. However, since this decision overturned a judgment given by the Chamber a year earlier,5 the ECtHR had no choice but to admit an emerging, yet weak, trend to recognize this practice amongst the Member States of the Council of Europe. A consensus that was not, however, based on settled and long-​standing principles, but rather reflected a stage of development within a particularly dynamic field of law.6

2 Case of Artavia Murillo et al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257, para 256. 3 Costa et Pavan c Italie, No 54270/​10, paras 66–​70, ECtHR 2012. 4 X, Y and Z v United Kingdom [GC], No 21830/​93, para 44, ECtHR 1997; Evans v United Kingdom [GC], No 6339/​05, paras 79–​81, ECtHR 2007. 5 The Chamber had assumed the position maintained in paras 10–​13 of the Joint Dissenting Opinion of Judges Türmen, Tsatsa-​Nikolovska, Spielmann and Ziemele in Evans v United Kingdom: see SH and Others v Austria, No 57813/​00, para 69, ECtHR 2010. 6 The ECtHR determined that ‘Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted […]. Where, however, there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider […]. There will usually be a wide margin of appreciation accorded if the State is required to strike a balance between competing private and public interests or Convention rights […]’: see SH and Others v Austria [GC], No 57813/​00, para 94, ECtHR 2011.

Consensus as an Extrinsic Circumstance

209

In 2012 the ECtHR modified its case law in Costa and Pavan v Italy after having identified a new consensus generalis on the topic. As noted in part 2, the establishment of a consensus generalis paves the way for changes in the case law of the regional human rights courts and tribunals through an evolutive interpretation of regional human rights treaties.7 However, regional human rights courts and tribunals sometimes have to rethink the influence exercised by the notion of consensus, admitting the objections raised by some States to the development of certain fundamental rights. In this regard, the special protection that Ireland has given the foetus and its traditional opposition to abortion, except in very particular circumstances, is well known.8 In A, B and C v Ireland, the respondent State relied on the national margin of appreciation to regulate a tremendously sensitive matter in terms of morality and ethics such as abortion and its relationship with the right to private and family life.9 The ECtHR noted the normative isolation of Ireland, when assessing ‘a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law’.10 At the same time, it stated that this consensus generalis in Europe could not be a decisive factor limiting or preventing the invocation of the national margin of appreciation. In practice, this implied some sort of acceptance of the ‘Irish objection.’ When examining the necessary and proportionate nature of the measures taken by Ireland in respect of each of the three applicants, it found that Article 8 of the EConHR had been infringed only in the case of a pregnant woman suffering from cancer who had undergone an abortion for therapeutic reasons, due to the serious risk to her life if she continued with her pregnancy. In this regard, the ECtHR confirmed the existence of a positive obligation in the context of the right to private and family life. Such obligation consisted in adopting legal measures that allowed fully and effectively to exercise the right to terminate pregnancy for therapeutic reasons in order to overcome the previous legal uncertainty in Ireland. Conversely, in the case of the other two applicants, the doctrine of the national margin of appreciation prevailed.

7 8 9 10

See pt 2 ch 5 sub-​s 3.2. On 25 May 2018 the Irish voted in support of a constitutional amendment by which abortion will be made permissible under certain circumstances, putting to an end the traditional opposition that Ireland had maintained. Elisabeth Wicks, ‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011) 11 HRLR 556, 563–​565. A, B and C v Ireland [GC], No 25579/​05, para 235, ECtHR 2010.

210 ­chapter  A, B and C v Ireland highlights the dilemmas posed by the use of consensus within the context of the national margin of appreciation.11 In short, in the same way that the voluntary and relative character of public international law adopts various manifestations in the formation of international norms, through the rule of the persistent objector (custom) and reservations (treaties), at the institutional framework, regional human rights courts and tribunals have developed a flexible formula for interpreting the international obligations enshrined in human rights treaties through the notion of consensus. This formula allows for striking a balance between the principle of subsidiarity and the effective protection of the fundamental rights according to the particular circumstances of each case and the interests at hand. National Margin of Appreciation and the Absence of Consensus Generalis When the regional human rights courts and tribunals find that there is a general (not unanimous) agreement among the States, they are more likely to adopt an evolutive interpretation, favourable to the interests of individuals. On the contrary, in the absence of this general agreement, they tend to be more deferential with the principle of State sovereignty. The absence of consensus generalis has been discussed in practice with regard to the measures regulating, in particular, the right to access to a court, the freedom to manifest religious beliefs and the right to education.

1.2

1.2.1

Challenges Posed by an Evolutive Consensus: Right to Access to a Court and Jurisdictional Immunities The absence of a consensus generalis laid the foundation for the reasoning followed by ECtHR in Jones and Others v United Kingdom. In this case on the right to access to a court (Article 6 of the EConHR), certain rules on the immunities of the State and its officials were discussed in the framework of a civil liability procedure initiated in the United Kingdom. It arose from the commission of torture on several British nationals by members of the security forces of Saudi Arabia. In particular, the applicants argued that the United Kingdom had violated that provision, since the domestic courts had rejected its jurisdiction to entertain their civil claims, concluding that both Saudi Arabia and its officials enjoyed immunity from jurisdiction.

11

Patricia Londono, ‘Redrafting Abortion Rights under the Convention: A, B and C v. Ireland’ in Eva Brems (ed), Diversity and European Human Rights. Rewriting Judgments of the ECHR (cup 2013) 111–​113.

Consensus as an Extrinsic Circumstance

211

The Chamber made a detailed examination12 of the abundant practice in the field of immunities of the State and its officials, not only in the institutional framework, where the case law of the icj,13 the icty,14 and the works of the ilc15 are very illustrative, but also having regard to the decisions issued by domestic courts. As a result of this examination, the ECtHR confirmed the existence of a rule on the immunities of State officials when they act in that capacity in general international law. Consequently, an exception to this rule allowing for the exercise of civil jurisdiction over State officials when torture has been committed could not be identified in a general and uniform manner. To reach this decision, the Chamber weighed all relational and institutional practice discussed by the parties, concluding that no general consensus supporting an evolutive interpretation of Article 6 of the EConHR could be established. This reasoning is fully in line with the consensualist approach that has been presented throughout this work, and is clear evidence of the status of the ECtHR as an international judicial organ. The ECtHR took full account of the cautious approach to the recognition of exceptions to the immunity of the State and its officials in the context of the international responsibility of the State.16 In addition, the Chamber recalled that the immunity of State officials from foreign criminal jurisdiction17 was being the subject of intense discussion within the ilc.18 While it is clear from some State practice that this issue is ‘beginning to evolve’,19 the ECtHR chose to defer to the national discretion of

12 13

14 15

16 17 18 19

Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, paras 59–​154, ECtHR 2014. Mandat d’arrêt du 11 avril 2000 (République démocratique du Congo c Belgique), arrêt, CIJ Recueil 2002, 3; Certaines questions concernant l’entraide judiciaire en matière pénale (Djibouti c France), arrêt, CIJ Recueil 2008, 177; Immunités juridictionnelles de l’Etat (Allemagne c Italie; Grèce (intervenant)), arrêt, CIJ Recueil 2012, 9. Prosecutor v Tihomir Blaskic, No IT-​95-​14, Appeals Chamber Judgment of 29 October 1997, paras 38–​39. Since 2012, Special Rapporteur Concepción Escobar Hernández has been working on the topic of the ‘Immunity of State officials from foreign criminal jurisdiction’: see A/​C N.4/​ 654, of 31 May 2012; A/​C N.4/​661, of 4 April 2013; A/​C N.4/​673, of 2 June 2014; A/​C N.4/​ 686, of 29 May 2015; A/​C N.4/​701, of 14 June 2016; A/CN.4/722, of 12 June 2018. Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, para 209, ECtHR 2014. ibid para 212. Report of the International Law Commission on the work of its Sixty-​sixth session (5 May to 6 June and 7 July to 8 August 2014), ibid, 229–​237. Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, para 213, ECtHR 2014.

212 ­chapter  the United Kingdom after having been unable to identify a consensus generalis, as a result of a very dispersed and scarcely integrated international practice.20 In Jones and Others v United Kingdom the ECtHR followed its previous case law on State immunities. Starting from Al-​Adsani v United Kingdom, the ECtHR had carried out a systematic analysis of the EConHR and general international law to conclude that the proportionality of the decision taken by the domestic courts should be assessed in light of the international law on State immunities. Only if general international law recognized the existence of an exception to the general rule of immunity from jurisdiction in cases of civil claims resulting from torture, it could be concluded that the conduct of the British authorities had exceeded the proportionality test and could constitute a breach of the EConHR. However, the caution with which the Grand Chamber closed its judgment by stating ‘in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States’,21 shows how immunities of State officials in the civil and criminal spheres are evolving in State practice, in particular as a result of the developments occurring in the field of the international responsibility of the individual. In fact, in view of the specific circumstances of each case, domestic courts may choose not to recognize the immunity from jurisdiction and to accept claims filed by individuals.22 1.2.2

Respecting the Regulatory Power of the State in the Absence of Consensus: the Right to Express Religious Convictions, Neutrality and Secularism With regard to the freedom to manifest religious beliefs, it is important to examine the measures taken by some States, which have prohibited the use of the Islamic headscarf in public places, and particularly, the decisions rendered in Leyla Şahìn v Turkey. The use of the Islamic headscarf has given rise to educational and employment problems among the Muslim community living in several Member States of the Council of Europe, specifically in Turkey. Already in 1993, the EComHR had ruled in Karaduman v Turkey on the inadmissibility of an application 20 21

22

ibid paras 210–​211. ibid para 215. Commenting on the use of this formula by the ECtHR as a ‘therapeutic clause’: see Jaume Ferrer Lloret, ‘La inmunidad de jurisdicción del Estado ante el TEDH: la alargada sombra del Derecho internacional consuetudinario’ (2017) 34 REEI 1, 47–​52. Cedric Ryngaert, ‘Jones v United Kingdom: The European Court of Human Rights Restricts Individual Accountability for Torture’ (2014) 30 UJIEL 47.

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lodged by a university student. Her university degree was not going to be issued until she complied with the regulations in force and submitted a photograph where she did not appear wearing the Islamic headscarf. The Commission took the view that the contested measure was a proportionate restriction on Article 9 of the EConHR, which sought to preserve the secular character of the university, as recognized by Turkish university regulations: Especially in countries where the great majority of the population owe allegiance to one particular religion, manifestation of the observances and symbols of that religion […] may constitute pressure on students who do not practise that religion or those who adhere to another religion. Where secular universities have laid down dress regulations for students, they may ensure that certain fundamentalist religious movements do not disturb public order in higher education or impinge on the beliefs of others.23 On the other hand, Dahlab v Switzerland examined, in light of Article 9 of the EConHR, the dismissal of a Muslim primary school teacher who wore the Islamic headscarf in class. In a decision delivered in 2001, the ECtHR declared this claim inadmissible and, invoking the national margin of appreciation, confirmed the proportionality assessment made by the Swiss courts. They had given preference to the principle of secularism in public education over the teacher’s right to freedom of religion: [I]‌t is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children. The applicant’s pupils were aged between four and eight, an age at which children wonder about many things and are also more easily influenced than older pupils. In those circumstances, it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-​discrimination that all

23

Karaduman v Turkey, No 16278/​90, Commission decision of 3 May 1993, Decisions and Reports 74, 108.

214 ­chapter  teachers in a democratic society must convey to their pupils. Accordingly, weighing the right of a teacher to manifest her religion against the need to protect pupils by preserving religious harmony, the Court considers that, in the circumstances of the case and having regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and that the measure they took was therefore not unreasonable.24 However, the 2005 judgment in Leyla Şahìn v Turkey is perhaps the most important precedent in the use of the Islamic headscarf in a public educational institution. The ECtHR considered whether the Turkish regulation that prevented the use of yihab in university education facilities constituted a restriction proportionate to the exercise of the right recognized by Article 9 of the EConHR, although the applicant had invoked, on a more general basis, Article 2 of Protocol No 1. Both the Chamber and the Grand Chamber offered a uniform response, validating the contested regulation, considering that it was intended to guarantee secularism, safeguard public order and respect the rights of those who did not profess the Muslim religion.25 The prohibition on wearing the Islamic headscarf on campus was justified as a necessary and proportionate restriction, due to the political significance the Islamic headscarf had acquired in Turkey, often associated with Islamic fundamentalist movements: The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts […]. It has previously said that each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience […]. The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.26

24 25 26

Dahlab v Switzerland (dec), No 42393/​98, ECtHR 2001. Leyla Şahìn v Turkey [GC], No 44774/​98, para 116, ECtHR 2005. Leyla Şahìn v Turkey, No 44774/​98, para 109, ECtHR 2004.

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The Grand Chamber recalled that the objective of guaranteeing pluralism and democracy sometimes leads to restrictions27 of the rights recognized by the EConHR to certain individuals: Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society […]. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society”.28 Moreover, the Chamber had emphasized that the decisions taken by the university authorities ensured the exercise of the religious practices of students and extended the prohibition in a generalized manner on any religious dress.29 It is worth noting that this legislation had been endorsed ad intra both by the Supreme Administrative Court and the Constitutional Court,30 the two highest courts in Turkey with jurisdiction in the matter. Following this judgment, the ECtHR consolidated its case law in successive decisions issued on the use of the Islamic headscarf in public schools.31 In Köse and Others v Turkey, the prohibition of the use of the Islamic headscarf in public secondary schools was not declared contrary to Article 2 of Protocol No 1. As the ECtHR noted, the contested legislation was intended to ensure the principles of secularity and neutrality.32 While in Dogru v France, the ECtHR recalled that those Member States of the Council of Europe that have enshrined the principle of secularism in their constitutional systems can restrict the right to religious freedom proportionately, for instance, by imposing disciplinary measures on a public school student that uses the Islamic headscarf during classes:

27

28 29 30 31 32

Tom Lewis, ‘What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 ICLQ 395, 406–​410; Claudia Morini, ‘Secularism and Freedom of Religion: The Approach of the European Court of Human Rights’ (2010) 43 Israel LR 611, 622–​623; Pierre Bosset, ‘Mainstreaming Religious Diversity in a Secular and Egalitarian State: the Road(s) not Taken in Leyla Şahìn v. Turkey’ in Brems (pt 3 ch 8 n 11) 199–​200. Leyla Şahìn v Turkey [GC], No 44774/​98, para 108, ECtHR 2005. Leyla Şahìn v Turkey, No 44774/​98, para 111, ECtHR 2004. Leyla Şahìn v Turkey [GC], No 44774/​98, para 120, ECtHR 2005. Kurtulmus v Turkey (dec), No 65500/​01, ECtHR 2006; Kervanci c France, No 31645/​04, paras 65–​77, ECtHR 2008. Köse and 93 Others v Turkey (dec), No 26625/​02, ECtHR 2006.

216 ­chapter  [I]‌n France, as in Turkey or Switzerland, secularism is a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools. The Court reiterates that an attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention […]. Having regard to the margin of appreciation which must be left to the member States with regard to the establishment of the delicate relations between the Churches and the State, religious freedom thus recognised and restricted by the requirements of secularism appears legitimate in the light of the values underpinning the Convention.33 For the purposes of the present study, the ECtHR case law on the use of religious clothing in public spaces evidences the lack of consensus among the Member States of the Council of Europe. This fact, along with the tendency in some States to establish restrictions on the use of these garments on grounds of national security and public order, has facilitated the invocation of the national margin of appreciation. In this sense, it is convenient to take into account what was noted by the Grand Chamber in sas v France: [T]‌here is little common ground amongst the member States of the Council of Europe […] as to the question of the wearing of the full-​face veil in public. The Court thus observes that […], there is no European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member State of the Council of Europe has, to date, opted for such a measure. It must be observed, however, that the question of the wearing of the full-​face veil in public is or has been a subject of debate in a number of European States. In some it has been decided not to opt for a blanket ban. In others, such a ban is still being considered […]. It should be added that, in all likelihood, the question of the wearing of the full-​face veil in public is simply not an issue at all in a certain number of member States, where this practice is uncommon. It can thus be said that in Europe there is no consensus as to whether or not there should be a blanket ban on the wearing of the full-​face veil in public places.34 33 34

Dogru v France, No 27058/​05, para 72, ECtHR 2008. SAS v France [GC], No 43835/​11, para 156, ECtHR 2014. In the same sense: see Dakir v Belgium, No 4619/​12, paras 54 and 59, ECtHR 2017; Belcacemi and Oussar v Belgium, No 37798/​13, paras 55 and 61, ECtHR 2017.

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In short, the lack of general agreement (consensus generalis) among the States extends their national margin of appreciation. It is worth examining whether this same approach is reproduced when the conduct of the State does not consist in the prohibition of wearing the Islamic headscarf, but rather results in the exhibition of the crucifix. In this sense, the exposition of the crucifix in public places (such as schools) has also generated protests by those who want the secular character of States to prevail in all spheres of public activity and demand the absolute separation between Church and State. In Lautsi and Others v Italy, the Grand Chamber corrected a decision previously issued by the Chamber and declared that the exhibition of the crucifix in Italian public schools did not contravene Article 9 of the EConHR and Article 2 of Protocol No 1. The importance of this precedent as a leading case lies in several factors, such as the decisive amendment (fifteen votes against two) made by the Grand Chamber to the ruling by the Chamber,35 as well as the number of Member States of the Council of Europe36 and organizations or associations37 that submitted arguments in the proceedings before the Grand Chamber. The Italian Council of State had declared the legality of the exhibition of crucifixes in schools and its compatibility with the principle of secularity, interpreting them not only as a religious figure but also as an element that symbolized various values (including ideas of tolerance, mutual respect, autonomy or personal liberty).38 However, in Lautsi v Italy the Chamber stressed the duty 35 36

37

38

The Chamber decided by unanimity in Lautsi v Italy. Ten Member States of the Council of Europe intervened in support of Italy:  Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, Romania, Russian Federation and San Marino. The following organizations intervened:  Greek Helsinki Monitor, Associazione nazionale del libero pensiero, European Centre for Law and Justice, Eurojuris, International Commission of Jurist, Interights, Human Rights Watch, Zentralkomitee der deutschen katholiken, Semaines sociales de France, Associazioni cristiane lavoratori italiani, in addition to a group of thirty three members of the European Parliament. A similar interpretation to that issued by the Consiglio di Stato was taken by the Grand Chamber, which noted that ‘the presence of crucifixes in State-​school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one’s rights, consideration for one’s freedom, the autonomy of one’s moral conscience vis-​à-​vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil –​even in a “secular”

218 ­chapter  of the State to maintain a neutral position vis-​à-​vis all religions regardless of their character. Based on this argument, the Chamber stated that it did not understand how the exhibition of crucifixes ‘could serve the educational pluralism’.39 Conversely, its presence in all schools implied, in the same way as the use of the Islamic headscarf by teachers and students in schools, a religious symbol that exerted an important pressure on the students who did not profess the catholic religion: The presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion. That risk is particularly strong among pupils belonging to religious minorities. Negative freedom of religion is not restricted to the absence of religious services or religious education. It extends to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. That negative right deserves special protection if it is the State which expresses a belief and dissenters are placed in a situation from which they cannot extract themselves if not by making disproportionate efforts and acts of sacrifice.40 The decision of the Chamber was therefore based on an autonomous interpretation of the impact of crucifixes in Italian public schools, contrary to that proposed by the Italian Council of State and in line with the doctrine on religious symbols consolidated in Leyla Şahìn v Turkey. In fact, the position of the Chamber can be summarized as follows: ‘[i]‌n the Court’s opinion, the symbol of the crucifix has a number of meanings among which the religious meaning is predominant’.41 In the judgment issued in 2011 the Grand Chamber confirmed that Member States of the Council of Europe had a wide margin of appreciation to

39 40 41

perspective distinct from the religious perspective to which it specifically referred  –​a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-​mentioned values, the values which defined secularism in the State’s present legal order’: see Lautsi and Others v Italy [GC], No 30814/​06, para 16, ECtHR 2011. Lautsi v Italy, No 30814/​06, para 56, ECtHR 2009. ibid para 55. ibid para 51.

Consensus as an Extrinsic Circumstance

219

implement their obligation to provide education in accordance with their own religious and philosophical convictions,42 in compliance with Article 2 of Protocol No 1. Their discretion ranges from the prohibition of indoctrinating students43 and the legal impossibility of parents to require the State to provide a certain form of education.44 Notwithstanding that the Grand Chamber admitted that the presence of crucifixes in schools meant ‘above all’ a religious symbol,45 the judgment focused on analysing the effects generated by this exhibition. A similar approach had been taken by the ECtHR to find that the restriction of wearing the Islamic headscarf imposed by the Turkish university authorities had the effect of maintaining public order.46 According to this approach, the Grand Chamber was able to verify that, unlike in Leyla Şahìn v Turkey, the presence of the crucifixes did not generate any effect (or pressure,47 following the terms of the Chamber) on students. Consequently, it chose to keep the decision to maintain or eliminate crucifixes from public schools within the national margin of appreciation of the State on two grounds. Firstly, unlike other ‘powerful external symbols,’ such as the yihab, the crucifix was a ‘passive symbol’ whose exposition conferred on the Catholic religion (majority confession in Italy) a preponderant place, but did not generate indoctrinating or discriminatory effects on students.48 In short, the Grand Chamber endorsed the interpretation of the meaning of the crucifix made by the Italian Council of State. However, in our view and in order to fully understand this precedent, attention must be paid to the second argument put forward to invoke the national margin of appreciation. Indeed, the Grand Chamber emphasized the absence of a general consensus among States regarding the presence of religious symbols in public schools. An assertion to be analyzed in light of the interventions of ten Member States of the Council of Europe supporting the respondent State:

42 43 44 45

46 47 48

Lautsi and Others v Italy [GC], No 30814/​06, para 61, ECtHR 2011. Folgerø and Others v Norway [GC], No 15472/​02, para 84, ECtHR 2007. Kjeldsen, Busk Madsen and Pedersen v Denmark, 7 December 1976, para 53, Series A No 23. It is important to note that the expression ‘predominant’ used by the Chamber was no longer used by the Grand Chamber: see Lautsi and Others v Italy [GC], No 30814/​06, para 66, ECtHR 2011. Leyla Şahìn v Turkey [GC], No 44774/​98, paras 108–​109, ECtHR 2005. Lautsi v Italy, No 30814/​06, paras 50 and 54–​55, ECtHR 2009. Lautsi and Others v Italy [GC], No 30814/​06, paras 71–​74, ECtHR 2011.

220 ­chapter  [T]‌he decision whether crucifixes should be present in State-​school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools […] speaks in favour of that approach.49 In addition, the ECtHR found that no agreement had been reached in Italy on the meaning of the crucifix. In this regard, it noted the contradictory decisions issued by the Council of Europe and the Corte di Cassazione, as well as the existence of a case then pending before the Italian Constitutional Court. In this context, it would have been ill advised for the ECtHR, as an international tribunal (not a constitutional court50), to deliver an autonomous opinion on the meaning of the crucifix. This is how the Grand Chamber considered that ‘[i]‌t is nor for this Court to take a position regarding a domestic debate among domestic courts’.51 In other words, the ECtHR understood that it was up to Italy to decide the scope of this issue with full sovereignty and regardless of any constraints coming from Strasbourg. Consequently, the Grand Chamber issued an aseptic decision, respectful of the principle of subsidiarity. Lautsi and Others v Italy, analyzed from a public international law perspective, should not be viewed with dismay as a failure of the ECtHR,52 nor as a judgment contributing to the instability (or fragmentation) of the European human rights subsystem, even though part of the argument developed by the Grand Chamber, specifically the one referring to the effects of the crucifix in public schools,53 is not very persuasive. Conversely, this judgment is adjusted 49 50

51 52

53

ibid para 70. The fact that the ECtHR ‘decided to renounce (at least for the time being) to perform de role of constitutional court’ was criticized by some scholars: see Carlo Panara, ‘Back to the Basics of Fundamental Rights:  An Appraisal of the Grand Chamber’s Judgment in Lautsi in Light of the ECHR and Italian Constitutional Law’ in Jeroen Temperman (ed), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (Martinus Nijhoff 2012) 325. Lautsi and Others v Italy [GC], No 30814/​06, para 68, ECtHR 2011. Some scholars voiced their concern about the fact that the ECtHR had made such an important change in direction in Lautsi and Others v Italy: see Monica Lugato, ‘Simboli religiosi e Corte europea dei diritti dell’uomo:  il caso del crocifisso’ (2010) XCIII RDI 402, 418; Jeroen Temperman, ‘Religious Symbols in the Public School Classroom’ in Temperman (pt 3 ch 8 n 50) 174–​175. Giulio Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case’ (2013) 13 HRLR 287, 291 and 307–​308.

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to the international nature of the ECtHR, and it is consistent with the role of the notion of consensus in public international law, understood from a substantive perspective.54 We are aware that the notion of consensus poses some theoretical problems, especially for those who study the case law of the ECtHR and the IACtHR from the standpoint of constitutional, criminal or administrative law.55 Indeed, the substantive dimension of the consensus and the possible invocation of the national margin of appreciation can give rise, as in Lautsi and Others v Italy, to some unpersuasive legal arguments that are completely deferential to the principle of State sovereignty. But we cannot forget that these arguments

54

55

In this sense, considering the matter dispassionately, the opinions of those trying to explain the decision by the Chamber in Lautsi v Italy based on the fact that the Chamber had been mainly composed by ‘professors’ seem intellectually lacking: see Javier Borrego Borrego, ‘Estrasburgo y el crucifijo en las escuelas’, Diario El Mundo, of 17 December 2009. We consider the distinction between ‘professors’ and ‘non professors’ to be irrelevant. In fact, by conducting a careful examination of the curricula of the members of the Chamber who participated in Lautsi v Italy, although it was true that most of them had carried out university teaching tasks before being appointed as members of the ECtHR, it is no less true that only the judge of Turkish nationality, Isil Karakas, could prove an academic trajectory linked to public international law. Rather, it is precisely the lack of experts in public international law (irrespective of their professional background in academia), which might have actually motivated the decision taken against Italy by the Chamber, subsequently corrected by the Grand Chamber through a consensualist approach. The appointment of judges to international courts and tribunals is usually the product of complex negotiations between States and responds to very different interests. In order to promote coherent and consistent case law, it seems reasonable to strike a reasonable balance between international law experts and legal experts from other legal disciplines (constitutional, administrative, procedural, labour and criminal law) within the regional human rights courts and tribunals: see introduction n 9. In the context of the jurisdictional activities of international courts and tribunals, in any case, it is important that professors reserve their lessons for the classroom and avoid, as far as possible, the temptation to dictate them through dissenting and/​or individual opinions. Likewise, it is necessary that those senior officials who have developed a large part of their professional career by receiving and executing instructions from governments (a category of professionals also present in international courts and tribunals), should, while exercising their jurisdictional functions, rid themselves of strict hierarchical tendencies (located in the antipodes of the principle of independence) that previously characterized their daily work. International judges, once they solemnly swear their position, must exclusively apply independently and impartially the system of general principles and conventional and customary rules, leaving aside queries originating in their previous professional occupations. See introduction n 8.

222 ­chapter  sometimes are not extraneous to the decisions of the domestic courts.56 To be clear, the conclusion reached by the Chamber in Lautsi v Italy is not legally incorrect, but rather follows a legal rationale of a constitutional court, while the Grand Chamber behaved in this case as a true international court. In the decisions analyzed in this subsection, it can be observed how the absence of a consensus would tend to reinforce the national margin of appreciation. Conversely, consensus would favour an evolutive interpretation of regional human rights treaties. As a consequence, the notion of consensus in the regional human rights subsystems operates in a similar way to that of consensus generalis in public international law. It can be said that the ECtHR and the IACtHR often accept and apply a consensualist approach, understood from a substantive dimension. In addition, these regional human rights courts and tribunals may sometimes even resort to the formal dimension of consensus. 2

Formal Dimension of Consensus: An Emerging Coordination Technique in Regional Human Rights Case Law

As noted in part  1, the notion of consensus also has a formal dimension in public international law, linked to the formation of rules in the institutional framework of the international system. From this perspective, there is a certain relationship between the resolutions adopted by the Council of Europe and the oas, and some interesting developments in regional human rights case law regarding the recognition of the 56

By way of example, and even if it falls outside the scope of international human rights law, it is worth reviewing the international and domestic decisions that have hitherto been taken in the framework of the legislative reforms introduced by Spain in the renewable energy sector. The decisions of the Spanish Supreme Court [Judgment of 4 April 2014 (Spanish Supreme Court, Chamber iii, Section 3), Case No 444/​2012] and the Spanish Constitutional Court [Judgment (Plenary of the Constitutional Court) 270/​2015, of 17 December 2015 (BOE No 19, of 22 January 2016, para 7)] that have analyzed the possible violation of the principles of legal certainty and protection of legitimate expectations of Spanish renewable energy producers do not seem to contain, from our perspective, more compelling and persuasive legal arguments than those given by the first international tribunal that settled an investment arbitration dealing with the same facts. This arbitral tribunal considered that there was no such violation, in line with what had been affirmed by the domestic courts in Spain: cf Charanne BV and Construction Investments SARL v Kingdom of Spain (scc Case No 062/​2012, Award of 21 of January 2016, paras 475–​549).

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principle of non-​discrimination on grounds of sexual orientation.57 It is worth noting the significant activity carried out by the regional human rights courts and tribunals in recent years. By invoking resolutions adopted by the assembly organs of both regional subsystems, they have managed to expand the legal protection of individuals. As discussed in part 2, the ECtHR modified its previous case law in Christine Goodwin v United Kingdom and recognized the right of transsexuals both to modify their birth registration and to enter into marriage.58 The influence exercised by the European integration process through the Charter of Nice and the ecj case law, as well as the practice of the institutions of the Council of Europe (in particular the Parliamentary Assembly), facilitated such a significant evolution.59 In this connection, in Vallianatos and Others v Greece, the Grand Chamber invoked both Resolution 1728 (2010) relating to Discrimination on the basis of sexual orientation and gender identity adopted by the Parliamentary Assembly of the Council of Europe on 29 April 2010, and Recommendation CM/​ Rec(2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010. They were invoked to emphasize the existence of an emerging ‘trend […] with regard to the introduction of forms of legal recognition of same-​sex relationships.’ The Grand Chamber found that the legislation passed by Greece recognizing legal effects only to civil unions of heterosexuals was discriminatory in light of Articles 8 and 14 of the EConHR: [A]‌lthough there is no consensus among the legal systems of the Council of Europe member States, a trend is currently emerging with regard to the introduction of forms of legal recognition of same-​sex relationships. Nine member States provide for same-​sex marriage. In addition, seventeen member States authorise some form of civil partnership for same-​sex couples. As to the specific issue raised by the present case […], the Court considers that the trend emerging in the 57

58 59

In addition, in light of Article 3 of the EConHR, it is important to point out the notable role that the Resolutions of the Parliamentary Assembly of the Council of Europe had, amongst other instruments, in the reasoning used by the ECtHR when declaring that the amendments to the United Kingdom penitentiary system, specifically regarding life imprisonment, were not in accordance with that provision: see Vinter and Others v United Kingdom [GC], No 66069/​09, No 130/​10 and No 3896/​10, para 116, ECtHR 2013. Christine Goodwin v United Kingdom [GC], No 28957/​95, para 85, ECtHR 2002. See pt 2 ch 5 sub-​s 1.2.1.

224 ­chapter  legal systems of the Council of Europe member States is clear: of the nineteen States which authorise some form of registered partnership other than marriage, Lithuania and Greece are the only ones to reserve it exclusively to different-​sex couples […]. In other words, with two exceptions, Council of Europe member States, when they opt to enact legislation introducing a new system of registered partnership as an alternative to marriage for unmarried couples, include same-​sex couples in its scope. Moreover, this trend is reflected in the relevant Council of Europe materials. In that regard the Court refers particularly to Resolution 1728(2010) of the Parliamentary Assembly of the Council of Europe and to Committee of Ministers Recommendation CM/​Rec(2010)5 […].60 The formal dimension of consensus can also be found in the inter-​American subsystem. In Atala Riffo and daughters v Chile, a case concerning the exercise of parental rights by homosexuals, the IACtHR declared the violation of the right to family life by the Chilean judicial authorities, after they had removed custody of her minor children from a lesbian who lived with another woman.61 The IACtHR, as discussed above,62 made an evolutive interpretation of the right to family life in light of the principle of non-​discrimination. However, the notion of consensus and, more particularly, its formal dimension, was also present in this case, since the IACtHR ultimately adopted its decision on the basis of several resolutions of the General Assembly of the oas adopted by consensus.63 The ECtHR and the IACtHR have undertaken an evolutive interpretation of the EConHR and the AConHR in several matters relating to the principle of non-​discrimination on grounds of sexual orientation, rights of transsexuals and homosexuals. This evolving trend has sometimes rested entirely on a consensualist approach inspired by the formal dimension of consensus. Put differently, legislative developments at the institutional level, where the principle of non-​discrimination on grounds of sex has been promoted and recognized by consensus, have triggered an evolutive interpretation of regional human rights treaties. 60 61 62 63

Vallianatos and Others v Greece [GC], No 29381/​ 09 and No 32684/​ 09, para 91, ECtHR 2013. Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239, para 86. See pt 2 ch 5 sub-​s 3.2.2. See pt 2 ch 5 n 118.

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At this juncture, it is worth noting that the relationship between the substantive and formal dimensions of consensus is not always peaceful. While at the European level this consensus would seem to be contrasted by the developments in the European integration process, this could not be the case at the inter-​American level. Although it is true that the resolutions of the General Assembly of the oas mentioned in Atala Riffo and daughters v Chile were adopted by consensus, the fact remains that the international treaty that they intended to foster has not been signed by a large number of the Member States of this regional subsystem. Indeed, the Inter-​American Convention Against All Forms of Discrimination and Intolerance, adopted at La Antigua on 6 May 2013 (Convention of La Antigua),64 still has a very small number of State parties.65 Settling cases like Atala Riffo and daughters v Chile solely based on the formal dimension of consensus, regardless of the substantive dimension, can raise some problems in practice. The consensus expressed by the States in adopting resolutions at the institutional level does not always reflect their unconditional acceptance, but sometimes conceals a veiled objection to the norm that is being approved. This is demonstrated by the fact that, despite that the aforementioned resolutions of the General Assembly of the oas were adopted by consensus (and Chile did not object), this formal consensus is taking a much slower translation into the scope of conventional obligations (substantive consensus). Chile signed the Convention of La Antigua on 22 October 2015, but has not ratified it yet. Atala Riffo and daughters v Chile, in short, constitutes an excellent precedent to depict the complex nature of the notion of consensus in public international law. Regional human rights courts and tribunals must be capable of using it properly and devoid of any prejudice based on ‘human rightism.’ 64 65

Organization of American States, Treaty Series, No 69. On the date of closing of this study, this agreement has only been signed by: Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Haiti, Panama, Peru and Uruguay.

Final Considerations

Finally, it is interesting to make several considerations regarding the role of consensus in both the evolutive interpretation of regional human rights treaties and the application of the national margin of appreciation. In addition, based on what has been studied in the previous pages, one can put forward more general considerations dealing with the relationship among the different sectors of public international law. -​I-​ 1. This study advocates for a consensus-​based approach to public international law. The notion of consensus, which is well rooted in public international law, is conceived as a general agreement of the actors involved in the international system that is indicative of their convictions and interests. This notion can help to explain the formation of customary and conventional rules, as well as to provide a plausible theoretical justification for the mandatory nature of public international law. 2. The notion of consensus generalis facilitates the work of international courts and tribunals when it comes to identifying the law applicable to disputes. In particular, the ECtHR and the IACtHR invoke this notion to adopt decisions that extend the legal content of the rights conferred on individuals through an evolutive interpretation of the primary obligations contained in regional human rights treaties. In other cases, where no consensus can be determined, regional human rights courts and tribunals allow for the principle of subsidiarity to be safeguarded through the national margin of appreciation. Consenquently, this notion is also used as a basis for restricting the scope of conventional obligations and not declaring the international responsibility of States. In short, regional human rights courts and tribunals pay attention to the existing consensus at any given time in the regional subsystem. This requires these judicial organs to examine State practice during the performance of their judicial functions.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004375512_​0 14

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-​II-​ 3. The analysis of contemporary international practice highlights how evolutive interpretation has become an interpretative method increasingly used by international courts and tribunals. When they interpret rules belonging to the relational framework (bilateral treaties), evolutive interpretation is made largely dependent on the treaty, providing for sufficiently generic obligations to be adapted. This occurs as long as the examination of the subsequent practice of the parties to the treaty evidences a willingness to adapt and enrich the concept subject to interpretation. When interpreting rules belonging to the institutional framework (multilateral treaties), international courts and tribunals often invoke the object and purpose of the treaty to conduct an evolutive interpretation. The subsequent practice of States also contributes to evolutive interpretation in the case of multilateral treaties concluded within the framework of international organizations of cooperation, such as the Council of Europe or the oas. This applies in a different way to treaties concluded in the context of an international organization of integration, as demonstrated by EU practice, where the ecj enjoys greater autonomy in the application of the teleological method of interpretation. In the latter case, the object and purpose of the treaty may even trigger an evolutive interpretation. 4. The ECtHR and the IACtHR use evolutive interpretation to adapt and update the obligations and rights provided for in the regional human rights treaties to the changes experienced in the social group. The notion of consensus, construed from a substantive standpoint, as the general agreement of a significant group of States regarding the scope of an international rule, constitutes the backbone of the evolutive interpretation. Indeed, the absence of consensus among the States on the scope or content of a right usually prevents regional human courts and tribunals from making an evolutive interpretation and leads them to invoke the notion of the national margin of appreciation. Accordingly, it offers a deferential solution in line with the principle of State sovereignty that, in most cases, results in a judgment that fails to declare the international responsibility of the State. On the other hand, when regional human rights courts and tribunals identify a consensus, evolutive interpretation assumes a preferential role and overshadows the notion of the national margin of appreciation. Evolutive interpretation based on this consensus generalis constitutes an excellent mechanism to adapt the regional human rights treaties to the contemporary social reality, respecting their object and purpose and progressively extending the spectrum of rights recognized to individuals.

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Those disputes in which the respondent State does not participate or openly objects to the contested right present more problems for those judicial organs. In these hard cases, it is impossible to find a uniform approach in regional human rights case law, and they are settled in light of the particular circumstances of each case. Although the consensus generalis does not imply unanimity, on some occasions the regional human rights courts and tribunals opt for an interpretation of treaties that is deferential to the sovereignty of the objecting State. While on other occasions, they decide against that State by invoking the need to apply an evolutive interpretation, which demonstrates the relative value of objections expressed by States in the regional human rights subsystems. In some of these cases, by using a reasoning that is closer to constitutional law than to public international law, regional human rights courts and tribunals may introduce a dangerous drift towards ‘human rightism.’ 5. As a result of the voluntary and relative character of public international law, the fundamental principle of sovereign equality of States continues to influence the interpretation of the legal provisions created within the institutional framework. However, some decisions of the regional human rights courts and tribunals, adopted as a result of a consensualist approach, have slightly eroded this principle of sovereign equality. In fact, they have mitigated the legal effects of the principle of relativity of international treaties enshrined in Article 34 of the vclt and highlighted the benefits generated by the normative autonomy of public international law, in particular through interactions between custom and treaties. This happens when regional human rights courts and tribunals invoke customary rules (eg in ihl) to enhance the content of certain conventionally recognized rights. In order to identify this general consensus, the ECtHR and the IACtHR have also resorted to the position expressed by the States parties to the EConHR and the AConHR in other international treaties in which they participate. This referral constitutes an interesting technique of normative coordination that enhances the interactions between general international law and the different regional subsystems of human rights protection, as well as within the latter. Consequently, the lex specialis derogat legi generali principle may not be applied if an international treaty of general scope introduces new developments in the content of a right previously recognized by the regional human rights treaties, provided that these developments are supported by a general consensus.

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Such a solution can contribute to overcome the risks of fragmentation associated with the sectorialization and regionalization of contemporary international law. However, when human rights courts and tribunals deviate from the original content of the norm when ‘importing’ by reference new legal developments, they occasionally drift towards ‘human rightism’ and are more inclined to develop interpretations that go beyond (‘overstep’) the boundaries of general international law. 6. The interpretation of regional human rights treaties in the European and inter-​American subsystems is carried out not only through a referral to international treaties of universal and general scope concluded by their Member States, but also to other instruments concluded at regional level. The European integration process has exerted a significant influence in the case law of the ECtHR. References to the Charter of Nice to reshape and update the content of certain rights and freedoms have become common in the case law of the EConHR, although its impact in the final judgment is not uniform. In fact, it is made dependent on a whole series of circumstances endogenous to the European integration process itself. If the respondent State before the ECtHR is also a member of the EU, its impact will tend to be greater. Moreover, not all instruments coming from the European integration process can have the same value when interpreting the EConHR. While the Charter of Nice and a rule of secondary law adopted by the European institutions (including the Council of Ministers) may constitute relevant evidence of institutional practice, judgments of the ecj or resolutions of the EP do not determine the position of EU Member States and, therefore, cannot be indicative of a consensus generalis. In the inter-​American subsystem, the resolutions of the General Assembly of the oas adopted by consensus have led to an evolutive interpretation of the provisions of the AConHR, highlighting the close relationship between the formal and substantive dimension of consensus in public international law. Nonetheless, the IACtHR maintains a proactive approach to the recognition of changes in the rights envisaged by the AConHR from the influence exerted by the intense normative activity within the oas. Although this emerging interaction enriches and strengthens the legal heritage of individuals in the Americas, the decisions issued by the oas organs by consensus (formal dimension) may not always be indicative of a consensus generalis (substantive dimension). 7. Regional human rights courts and tribunals should not misuse evolutive interpretation to progressively develop the content of the rights and freedoms granted to individuals when there is not sufficient consensus generalis among

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States. These judicial organs, having an international nature, must be subject to the praxis of consensus when interpreting regional human rights treaties and, consequently, should refrain from drifting towards ‘human rightism.’ Because it is this consensus generalis that ultimately ensures and guarantees the compliance of their judgments, pursuant to the central role still played by the fundamental principle of State sovereignty. The European and inter-​American practice reveals how a number of States have reacted to some decisions of the regional human rights courts and tribunals that disregard this consensus generalis. In some cases this reaction has meant the withdrawal from the subsystem (Venezuela), while some other times it has entailed that the States hinder the full implementation of those decisions (United Kingdom or Costa Rica). -​III-​ 8. The notion of the national margin of appreciation is a praetorian construction created by the ECtHR to modulate the tension among State sovereignty, subsidiarity and the protection of fundamental rights. It is an indeterminate, flexible and multifaceted legal concept that can hardly be systematized in theory. Its application by regional human rights courts and tribunals is not easy to predict. It is based on a number of intrinsic factors, such as the legal nature of the international obligation or the protected public or private interests at hand. In addition, this notion is based on an extrinsic element that can decisively condition its application: the consensus of States parties to the regional subsystem, understood as a general agreement, endorsed by State practice, which expresses a general consensus on the existence and mandatory nature of a rule relating to the protection of human rights. This combination of factors characterizes this notion with a singular originality, and makes it very difficult to extrapolate to other legal sectors of public international law. The analysis of international case law reveals the multifaceted nature of the national margin of appreciation. In regional human rights subsystems, it is an ideal yet imperfect tool to channel the dialectic between State sovereignty and intergovernmental cooperation present in the institutional framework of the international system. Although the ECtHR has extensively used it, neither its case law nor the members of the Council of Europe have succeeded in defining it, as evidenced by the laconic reference made to it in Protocol No 15 and its Explanatory Report. On the other hand, this notion has undergone a lesser development in the inter-​American subsystem due to two factors. Firstly, the subjects of litigation before the IACtHR were initially rights that were far from

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its scope (mainly non-​derogable rights). And, secondly, this judicial organ is hesitant to ‘import’ the notion. In fact, in light of some recent decisions rendered by the IACtHR, it can be concluded that this notion is in a clear regression in the inter-​American regional subsystem. 9. Recourse to the national margin of appreciation by international courts and tribunals can pose challenges in international litigation. Indeed, the extension by analogy of this legal concept outside international human rights law should be considered with caution, as evidenced by the case law of the icj, itlos, arbitration tribunals settling both inter-​State and investor-​State disputes, the ecj, and the wto panels. All these international courts and tribunals have undertaken the task of developing an objective standard under which to review the lawfulness, necessity and proportionality of the State’s conduct, relying on a number of intrinsic circumstances. Some of these circumstances coincide with those that shape the national margin of appreciation (the nature of the obligation at issue, the public or private dimension of the interests at stake or the concurrence of several conflicting rights). The national margin of appreciation, however, works under another extrinsic parameter:  the existing consensus in the regional subsystem. Therefore, although it is possible to explore ways of accommodating a concept of ‘deference’ in other legal sectors outside of international human rights law, we do not consider that the notion of the national margin of appreciation created by the ECtHR is completely subject to extrapolation. Only some elements thereof may be ‘exported’ and used to progressively develop a general standard of deference in public international law. 10. The nature of the international obligation and the public or private dimension of the interests at hand are two intrinsic factors that determine the application of the national margin of appreciation. As regards the legal nature of the international obligation, the ECtHR and the IACtHR have applied this notion depending on the more or less dispositive nature of the obligation and its positive or negative dimension. Thus, although deference to States tends to be extended in the context of positive obligations, it is equally true that regional human rights courts and tribunals have declared a violation of this type of obligations when measures adopted by States obstruct or are insufficient to guarantee the exercise of a right, or are far from a well-​settled consensus generalis. Furthermore, when the rule is less dispositive (or even peremptory), the influence of the notion of the national margin of appreciation tends to decrease, depending also on the positive or negative nature of the obligation on which it is projected. As regards the public or private dimension of the interests at hand, regional human rights courts and tribunals weigh these elements when assessing the

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necessity and proportionality of a national measure in light of the national margin of appreciation. It is impossible to design a formula that allows us to know ex ante how the regional human rights courts and tribunals will weigh both factors. On the contrary, the approach of these judicial organs has a very casuistic component, and the notion of national margin of appreciation can be given more or less importance depending on the different circumstances of the dispute, the nature of the right that is submitted to interpretation, and the possible existence of conflicting or overlapping interests or rights. Both the necessary combination of all these parameters, as well as the case-​by-​case approach followed by the ECtHR and the IACtHR, go beyond the approach generally followed by domestic courts (including constitutional courts), and demonstrate that the working methods of these judicial organs are in line with those of other international courts and tribunals. 11. In addition to the elements of an intrinsic nature, the notion of the national margin of appreciation is based on an extrinsic element: the concept of consensus (consensus generalis). To fully understand the case law of regional human rights courts and tribunals and how these judicial organs develop an evolutive interpretation of regional human rights treaties, it is necessary to examine the impact of the will of States, expressed through their practice. The substantive dimension of consensus, as conceived by public international law, contributes to explain the functioning of the notion of the national margin of appreciation. The absence of consensus triggers a deferential reaction in line with the principle of sovereign equality, while the existence of consensus leads to a different outcome, which is often favourable to the interests of individuals. This does not prevent regional human rights courts and tribunals from making decisions that deviate from this general criterion, particularly in hard cases where an evolving consensus can be perceived, but is yet to crystallize. From a formal standpoint, the notion of consensus can also provide a notable service to regional human rights courts and tribunals when undertaking an evolutive interpretation of human rights treaties. The consensus generalis can sometimes be inferred from the resolutions dictated by the Council of Europe and the oas, adopted by consensus. However, a very cautious approach to this emerging trend should be maintained, because the consensus expressed at this level does not always demonstrates the existence of consensus generalis in practice. -​IV-​ 12. An examination of the case law of the regional human rights courts and tribunals shows how the concept of consensus generalis plays a decisive role in

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interpreting the scope of the rights and obligations enshrined in the regional human rights treaties. However, it should be noted that, in exceptionally complex cases, these judicial organs do not apply this notion in a similar way in which it is usually conceived in public international law. Rather, they adopt some nuances that are closer to constitutional law, resulting in an ‘overflow’ which often leads to a pro homine judgment. Notwithstanding the fact that this approach is fully laudable, these ‘overflows’ (or ‘oversteps’) may involve a dangerous exercise of ‘judicial activism,’ which in practice runs the risk of blurring particular features of some institutions and categories well established in public international law, such as the notion of consensus. ‘Human rightism’ does not blend with the rule of law and often generates results contrary to the commendable purposes it claims to pursue. A prominent factor in understanding why these ‘overflows’ occur and where the phenomenon of ‘human rightism’ comes from lies in the very diverse composition of the regional human rights courts and tribunals, staffed by human rights experts from various legal disciplines, some of whom have not received specific training in public international law. In fact, the presence of experts from constitutional law, procedural law, administrative law, labour law and criminal law in these courts and tribunals is increasingly becoming more frequent. The heterogeneous composition of these judicial organs, which is enriching in essence, presents some risks from an international law perspective. These risks arise when judges invoke concepts and categories of public international law (such as the notion of consensus) giving them a different content, as well as when displaying a militant ‘human rightism’ and attempting to set off (and sometimes to anticipate) legal developments in international human rights law, appealing to formulas, arguments and legal solutions more common for constitutional courts than for international courts and tribunals. 13. Regional human rights courts and tribunals are international in nature. To consider them as a fourth instance or to assimilate them to a high court of constitutional guarantees constitutes a myopic approach and triggers ‘overflows’ as well as activist approaches. Indeed, in some of the case law examined in this study, both the ECtHR and the IACtHR reviewed the decisions adopted by the domestic courts, instead of assessing the conduct of the State in light of the international obligations it undertook. This approach could be legally persuasive, but technically does not conform to the international nature of these judicial organs. International courts and tribunals cannot enter into a constitutionalist drift, as long as they are subject only to public international law. The double instance system established in the European regional subsystem constitutes a remarkable mechanism in the practice of international courts and tribunals. The ECtHR continues to function as an international

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tribunal through the Grand Chamber, while through the Chambers it can establish a more fluid dialogue with the domestic courts of the Member States of the Council of Europe, allowing the exercise of its functions more as a court of constitutional guarantees than as a true international court. Likewise, the double instance system favours a coherent case law, since only the Grand Chamber becomes the organ responsible for introducing new judicial developments, thus avoiding inconsistent and contradictory case law. In the inter-​American subsystem, this tension between the principles of cooperation and State sovereignty is also at the heart of many cases brought before the IACtHR, albeit at a different level, mainly in the relations between the IAComHR and the IACtHR. Being two bodies with a completely different legal nature, these interactions assume divergent dynamics. Indeed, while the Grand Chamber functions as a court of an international nature, we can conclude that the IACtHR appears to have begun an activist drift, both when claiming jurisdiction to hear about disputes, and when making evolutive interpretations of the content of certain rights recognized in the AConHR. We reiterate, as we did in the introduction, that the recent judicial developments that the IACtHR has been endorsing, many of which come to eradicate unjust situations of discrimination, must be highlighted and welcomed. We are however concerned over the form and method employed by the IACtHR to achieve those results. The conduct of some States, showing their reservations to the inter-​American subsystem, justifies our concern. -​V-​ 14. Relations among the various legal sectors of public international law tend to become increasingly complex as a result of the process of quantitative and qualitative expansion experienced by this system. Therefore, it is necessary to establish legal tools that promote inter-systemic cooperation, whilst respecting the singularities that each legal sector presents. As for regional human rights courts and tribunals, there is an emerging dialogue between the ECtHR and the IACtHR. Although both courts extend their jurisdiction over two very different international treaties, they have not refused to share substantive and procedural solutions in their case law. This favours a cross-​fertilization phenomenon in the international protection of human rights that, in addition, could have an expansive effect towards other regional subsystems. The notion of the national margin of appreciation, created by the ECtHR, exemplifies the degree of development that these interactions can achieve. Despite some initial reluctance, this notion expanded from Europe

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to the inter-​American subsystem, although in the latter it does not seem to be thriving. Other legal sectors have also tried to assimilate it using related categories (such as the wto) or by importing some elements embedded in the notion (such as investment arbitration). Both cases demonstrate how the sectorialization of public international law is not at odds with the creation of normative coordination formulas. The sectorialization of contemporary international law implies that, more and more often, different aspects of the same dispute can be submitted to international courts and tribunals operating in different legal sectors (parallel litigation). The decisions of these courts and tribunals must conform to the legal framework in which they operate, although they can be used as a supporting argument to present the interests at hand before other international dispute settlement bodies. Normative coordination between the different legal sectors, from a substantive standpoint, and deference and dialogue between international jurisdictions, from a procedural perspective, constitute some of the main guidelines that should characterize international litigation in the following years.

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Table of Jurisprudence and Case Law

Permanent Court of International Justice

Judgments

Affaire de l’interprétation du paragraphe 4 de l’annexe suivant l’article 179 du Traité de Neuilly, Arrêt du 12 septembre 1925, CPJI Recueil, Série A nº 3: 74 Affaire du “Lotus”, Arrêt du 7 septembre 1927, CPJI Recueil, Série A nº 10: 48



Advisory Opinions



International Court of Justice

Polish Postal Service in Danzig, Advisory Opinion of 16 May 1925, PCIJ Reports, Series B No 11: 44 Interprétation de la convention de 1919 concernant le travail de nuit des femmes, Avis consultatif du 15 novembre 1932, CPJI Recueil, Série A/​B nº 50: 82–83

Judgments

Affaire colombo-​péruvienne relative au droit d’asile, Arrêt du 20 novembre 1950: CIJ Recueil 1950, 266: 19 Case concerning rights of nationals of the United States of America in Morocco, Judgment of August 27th, 1952: ICJ Reports 1952, 176: 77 Affaire de l’or monétaire pris à Rome en 1943 (question préliminaire), Arrêt du 15 juin 1954: CIJ Recueil 1954, 19: 16 Affaire de l’Interhandel, Arrêt du 21 mars 1959: CIJ Recueil 1959, 6: 54 Case concerning Right of Passage over Indian Territory (Merits), Judgment of 12 April 1960: ICJ Reports 1960, 6: 19 North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3: 16, 35 Barcelona Traction, Light and Power Company, Limited, arrêt, CIJ Recueil 1970, 3: 24 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, 3: 17, 28 Aegean Sea Continental Shelf, Judgment, ICJ Reports 1978, 3: 84–85 Continental Shelf (Tunisia/​Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, 18: 16–17 Délimitation de la frontière maritime dans la région du golfe du Maine, arrêt, CIJ Recueil 1984, 246: 17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, 14: 20, 23–24, 73, 149–150

Table of Jurisprudence and Case Law

257

Différend frontalier, arrêt, CIJ Recueil 1986, 554: 21 Elettronica Sicula SpA (ELSI), Judgment, ICJ Reports 1989, 15: 54 Land, Island and Maritime Frontier Dispute (El Salvador/​Honduras), Application to Intervene, Judgment, ICJ Reports 1990, 92: 16 East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, 90: 16 Gabcíkovo-​Nagymaros Project (Hungary/​Slovakia), Judgment, ICJ Reports 1997, 7: 85 Kasikili/​Sedudu Island (Botswana/​Namibia), Judgment, ICJ Reports 1999, 1045: 77–78 LaGrand (Germany v United States of America), Judgment, ICJ Reports 2001, 466: 150 Mandat d’arrêt du 11 avril 2000 (République démocratique du Congo c Belgique), arrêt, CIJ Recueil 2002, 3: 21–22, 149, 211 Frontiére terrestre et maritime entre le Cameroun et le Nigéria (Cameroun c Nigéria; Guinée équatoriale (intervenant)), arrêt, CIJ Recueil 2002, 303: 78 Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, 161: 149, 151, 153 Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, ICJ Reports 2004, 12: 150 Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Belgique), exceptions préliminaires, arrêt, CIJ Recueil 2004, 279: 45 Licéité de l’emploi de la force (Serbie-​et-​Monténégro c France), exceptions préliminaires, arrêt, CIJ Recueil 2004, 575: 45 Legality of Use of Force (Serbia and Montenegro v Germany), Preliminary Objections, Judgment, ICJ Reports 2004, 720: 45 Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Italie), exceptions préliminaires, arrêt, CIJ Recueil 2004, 865: 45 Legality of Use of Force (Serbia and Montenegro v Netherlands), Preliminary Objections, Judgment, ICJ Reports 2004, 1011: 45 Licéité de l’emploi de la force (Serbie-​et-​Monténégro c Portugal), exceptions préliminaires, arrêt, CIJ Recueil 2004, 1160: 45 Legality of Use of Force (Serbia and Montenegro v United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2004, 1307: 45 Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment, ICJ Reports 2005, 6: 45 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, ICJ Reports 2005, 168: 23 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, ICJ Reports 2007, 43: 23–24, 46 Ahmadou Sadio Diallo (République de Guinée c République démocratique du Congo), exceptions préliminaires, arrêt, CIJ Recueil 2007, 582: 55

258 

Table of Jurisprudence and Case Law

Certaines questions concernant l’entraide judiciaire en matière pénale (Djibouti c France), arrêt, CIJ Recueil 2008, 177: 150, 211 Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, ICJ Reports 2009, 213: 85 Usines de pâte à papier sur le fleuve Uruguay (Argentine c Uruguay), arrêt, CIJ Recueil 2010, 14: 36, 30, 45, 86 Immunités jurisdictionnelles de l’État (Allemagne c Italie; Grèce (intervenant)), ârret, CIJ Recueil 2012, 99: 22–23, 40, 212 Questions concernant l’obligation de poursuivre ou d’extrader (Belgique c Sénégal), ârret, CIJ Recueil 2012, 422: 25, 41, 149 Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, ICJ Reports 2012, 624: 51 Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, ICJ Reports 2014, 226: 153–154, 175 Application de la convention pour la prévention et la repression du crime de génocide (Croatie c Serbie), arrêt, CIJ Recueil 2015, 3: 46 Certaines activités menées par le Nicaragua dans la region frontalière (Costa Rica c Nicaragua) et Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), arrêt, CIJ Recueil 2015, 665: 36, 51 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), Preliminary Objections, Judgment, ICJ Reports 2016, 3: 40



Advisory Opinions

Admission d’un État aux Nations unies (Charte, art 4), avis consultatif:  CIJ Recueil 1948, 57: 74 Réserves à la Convention sur le Génocide, Avis consultatif: CIJ Recueil 1951, 15: 15, 57 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16: 17, 81, 83–84, 92 Sahara occidental, avis consultatif, CIJ Recueil 1975, 12: 17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226: 26–27 Conséquences juridiques de l’édification d’un mur dans le territoire palestinien occupé, avis consultatif; CIJ Recueil 2004, 136: 27 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, 403: 20, 40

Orders

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Provisional Measures, Order of 14 April 1992, ICJ Reports 1992, 114: 41

Table of Jurisprudence and Case Law

259

Licéité de l’emploi de la force (Yougoslavie c Espagne), mesures conservatoires, ordonnance du 2 juin 1999, CIJ Recueil 1999, 761: 45 Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c Nicaragua); Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica), ordonnance du 16 juillet 2013, mesures conservatoires, CIJ Recueil 2013, 230: 41 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Provisional Measures, Order of 22 November 2013, ICJ Reports 2013, 354: 41 Construction d’une route au Costa Rica le long du fleuve San Juan (Nicaragua c Costa Rica); Certaines activités menées par le Nicaragua dans la région frontalière (Costa Rica c Nicaragua), mesures conservatoires, ordonnance du 13 décembre 2013, CIJ Recueil 2013, 398: 41 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-​ Leste v Australia), Order of 3 March 2014, ICJ Reports 2014, 147: 41 Activités armées sur le territoire du Congo (République démocratique du Congo c Ouganda), ordonnance du 1er juillet 2015, CIJ Recueil 2015, 585: 41 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), Order of 19 April 2017, ICJ 2017: 41 Jedha case (India v Pakistan), Order of 18 May 2017, ICJ 2017: 41



International Tribunal for the Law of the Sea

Judgments

M/​V “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10: 39, 154, 157 “Hoshinmaru” ( Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005-​2007, 18: 155 M/​V “Louisa” (Saint Vincent and the Grenadines v Kingdom of Spain), Judgment, ITLOS Reports 2013, 4: 47, 159 M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment, ITLOS Reports 2014, 4: 155, 157, 159



Advisory Opinions

Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10: 36, 38, 85, 88 Request for Advisory Opinion submitted by the Sub-​Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, 4: 38

260 

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Orders

“Arctic Sunrise” (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, 230: 156–157



Inter-​State Arbitration Affaire des Grisbadarna, Decision of 23 October 1909 (UNRIAA, vol xi, 147): 74 The North Atlantic Coast Fisheries Case, Decision of 7 September 1910 (UNRIAA, vol xi, 167): 74 Island of Palmas, Decision of 4 April 1928 (UNRIAA, vol ii, 829): 74 Case concerning a boundary dispute between Argentina and Chile concerning the frontier line between boundary post 62 and Mount Fitzroy, Decision of 21 October 1994 (­U NRIAA, vol xxii, 3): 44 Delimitation of the Border between Eritrea and Ethiopia, Decision of 13 April 2002 (­U NRIAA, vol xxv, 83): 78 Case concerning the audit of accounts between the Netherlands and France in application of the Protocol of 25 September 1991 Additional to the Convention for the Protection of the Rhine from Pollution by Chlorides of 3 December 1976, Decision of 12 March 2004 (UNRIAA, vol xxv, 267): 48 Award in the Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Decision of 24 May 2005 (UNRIAA, vol xxvii, 35): 48, 86–87 Uruguay v Argentina, Mercosul ad hoc tribunal, Award of 6 September 2006: 45 Indus Waters Kishenganga between the Islamic Republic of Pakistan and the Republic of India, pca Case, Partial Award of 18 February 2013: 87 The Arctic Sunrise Arbitration (Netherlands v Russia), pca Case No 2014-​02, Award of 14 August 2015: 156–157 Duzgit Integrity Arbitration (Malta v São Tomé and Principe), pca Case No 2014-​07, Award of 5 September 2016: 48, 157–159 Arbitration between the Republic of Croatia and the Republic of Slovenia, pca Case, Final Award of 29 June 2017: 48



Investment Treaty Arbitration

Awards

SD Myers Inc v Canada (uncitral/​n afta, Award of 13 November 2000): 165 Alex Genin, Eastern Credit Limited Inc and AS Baltoil v Estonia (icsid Case No ARB/​99/​ 2, Award of 25 June 2001): 173

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261

AIG Capital Partners Inc and CJSC Tema Real Estate Company v Kazakhstan (icsid Case No ARB/​01/​6, Award of 7 October 2003): 164 Saluka Investments BV v Czech Republic (pca Case, Partial Award of 17 March 2006): 170 Azurix Corp v Argentine Republic (icsid Case No ARB/​01/​12, Award of 14 July 2006): 159 Siemens AG v Argentine Republic (icsid Case No ARB/​02/​8, Award of 6 February 2007): 38, 166 Biwater Gauff (Tanzania) Limited v United Republic of Tanzania (icsid Case No ARB/​ 05/​22, Award of 24 July 2008): 159 Continental Casualty Company v Argentine Republic (icsid Case No ARB/​03/​9, Award of 5 September 2008): 168–169, 171 Glamis Gold Ltd v United States of America (uncitral/​n afta, Award of 8 June 2009): 164–165 Invesmart BV v Czech Republic (uncitral, Award of 26 June 2009): 169 Gemplus SA, SLP, SA and Gemplus Industrial SA de CV v United Mexican States (icsid Case No ARB(AF)/​04/​3 & ARB(AF)/​04/​4, Award of 16 June 2010): 165 Crompton (Chemtura) Corp v Canada (nafta, Award of 2 August 2010): 165 RosInvestCo UK Ltd v Russian Federation (scc Case No V079/​2005, Award of 12 September 2010): 46, 159 Frontier Petroleum Services Ltd v Czech Republic (pca Case, Final Award of 12 November 2010): 170 El Paso Energy International Company v Argentine Republic (icsid Case No ARB/​03/​15, Award of 31 October 2011): 159, 171, 174 Les Laboratoires Servier SAS, Biofarma SAS, Arts et Techniques du Progres SAS v Poland (uncitral, Award of 4 February 2012): 169 EDF International SA, SAUR International SA and León Participaciones Argentinas SA v Argentine Republic (icsid Case No ARB/​03/​23, Award of 11 June 2012): 165 Swisslion Doo Skopje v Former Yugoslav Republic of Macedonia (icsid Case No ARB/​09/​ 16, Award of 6 July 2012): 38 Quasar de Valors SICAV SA, Orgor de Valores SICAV SA, GBI 9000 SICAV SA v Russian Federation (scc Case No 24/​2007, Award of 20 July 2012): 46, 159, 167 Daimler v Argentina (icsid Case No ARB/​05/​1, Award of 22 August 2012): 87–88 Occidental Petroleum Corporation and Occidental Exploration and Production Company v Ecuador (icsid Case No ARB/​06/​11, Award of 5 October 2012): 164 Achmea BV ( formerly Eureko BV) v Slovak Republic (pca Case No 2008-​13, Final Award of 7 December 2012): 165 Abengoa SA and COFIDES SA v United Mexican States (icsid Case No ARB(AF)/​09/​2, Award of 18 April 2013): 159 The Rompetrol Group NV v Romania (icsid Case No ARB/​06/​3, Award of 6 May 2013): 159

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ST-​A D GmbH v Bulgaria (PCA Case No 2011-​06, Award on Jurisdiction of 18 July 2013): 164 Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Award of 11 December 2013): 52 TECO Guatemala Holdings LLC v Guatemala (icsid Case No ARB/​10/​23, Award of 19 December 2013): 166 Emmis International Holding BV, Emmis Radio Operating, BV and MEM Magyar Electronic Media Kereskedelmi és Szolgáltató Kft v Hungary (icsid Case No ARB/​12/​2, Award of 16 April 2014): 36 Hulley Enterprises Limited (Cyprus) v Russian Federation (pca Case No AA 226, Final Award of 18 July 2014): 46, 166 Yukos Universal Limited (Isle of Man) v Russian Federation (pca Case No AA 227, Final Award of 18 July 2014): 46, 166 Veteran Petroleum Limited (Cyprus) v Russian Federation (pca Case No AA 228, Final Award of 18 July 2014): 46, 166 Bernhard von Pezold and Others v Republic of Zimbabwe (icsid Case No ARB/​10/​15, Award of 28 July 2015): 166–167 Charanne BV and Construction Investments SARL v Kingdom of Spain (scc Case No 062/​ 2012, Award of 21 of January 2016): 222 Philip Morris Brands Sàrl (Switzerland), Philip Morris Products SA (Switzerland) and Abal Hermanos SA (Uruguay) v Occidental Republic of Uruguay (icsid Case No ARB/​10/​7, Award of 8 July 2016): 172–173



Other Decisions

Waste Management Inc v United Mexican States (icsid Case No ARB(AF)/​00/​3, Decision on Mexico’s Preliminary Objection concerning the Previous Proceedings of 26 June 2002): 44 Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Decision of Jurisdiction and Admissibility of 24 September 2008): 164 National Grid PLC v Argentina (uncitral, Award of 3 November 2008): 165 Enron Creditors Recovery Corporation ( formerly Enron Corporation) and Ponderosa Assets, LP v Argentine Republic (icsid Case No ARB/​01/​3, Decision on the Application for Annulment of the Argentine Republic of 30 July 2010): 165 Abaclat and Others v Argentine Republic (icsid Case No ARB/​07/​5, Procedural Order No 11 of 27 June 2012): 164 Electrabel SA v Republic of Hungary (icsid Case No ARB/​07/​19, Decision on Jurisdiction, Applicable Law and Liability of 30 November 2012): 171–172 Ioan Micula, Viorel Micula and others v Romania (icsid Case No ARB/​05/​20, Decision on Annulment of 26 February 2016): 52

Table of Jurisprudence and Case Law



263

European Court of Human Rights

Lawless v Ireland (No 3), 1 July 1961, Series A No 3: 61, 139, 145 Wemhoff v Germany, 27 June 1968, Series A No 7: 91 Certain aspects of the laws on the use of languages in education v Belgium, 23 July 1968, Series A No 8: 143 Wilde, Ooms and Versyp (Vagrancy) v Belgium, 18 June 1971, Series A No 12: 140 National Union of Belgian Police v Belgium, 27 October 1975, Series A No 19: 116 Swedish Engine Drivers’ Union v Sweden, 6 February 1976, Series A No 20: 116 Schmidt and Dahlström v Sweden, 6 February 1976, Series A No 21: 116, 205 Kjeldsen, Busk Madsen and Pedersen v Denmark, 7 December 1976, Series A No 23: 219 Handyside v United Kingdom, 7 December 1976, Series A No 24: 140–141, 184, 197 Ireland v United Kingdom, 18 January 1978, Series A No 25: 62, 90–91, 141, 149 Tyrer v United Kingdom, 25 April 1978, Series A No 26: 92 Klass and Others v Germany, 6 September 1978, Series A No 28: 199 Sunday Times v United Kingdom (No 1), 26 April 1979, Series A No 30: 184 Marckx v Belgium, 13 June 1979, Series A No 31: 67, 92, 118 Airey v Ireland, 9 October 1979, Series A No 32: 193 Young, James and Webster v United Kingdom, 13 August 1981, Series A No 40: 205 Dudgeon v United Kingdom, 22 October 1981, Series A No 45: 201 Sporrong and Lönnroth v Sweden, 23 September 1982, Series A No 52: 187 Rasmussen v Denmark, 28 November 1984, Series A No 87: 189 Feldbrugge v The Netherlands, 29 May 1986, Series A No 99: 93 Lithgow and Others v United Kingdom, 8 July 1986, Series A No 102: 187 Rees v United Kingdom, 17 October 1986, Series A No 106: 100 Johnston and Others v Ireland, 18 December 1986, Series A No 112: 92–93 Inze v Austria, 28 October 1987, Series A No 126: 118 F v Switzerland, 18 December 1987, Series A No 128: 185 Belilos v Switzerland, 29 April 1988, Series A No 132: 57 Müller and Others v Switzerland, 24 May 1988, Series A No 133: 197 Soering v United Kingdom, 7 July 1989, Series A No 161: 82, 91, 95–96, 110 Cossey v United Kingdom, 27 September 1990, Series A No 184: 100, 103 Open Door and Dublin Well Women v Ireland, 29 October 1992, Series A No 246-​ A: 198–199 Kokkinakis v Greece, 25 May 1993, Series A No 260-​A: 205 Brannigan and McBride v United Kingdom, 26 May 1993, Series A No 258-​B: 63 Casado Coca v Spain, 24 February 1994, Series A No 285-​A: 196 Keegan v Ireland, 26 May 1994, Series A No 290: 193 Barberá, Messegué and Jabardo v Spain (Article 50), 13 June 1994, Series A No 285-​C: 67 Otto-​Preminger-​Institut v Austria, 20 September 1994, Series A No 295-​A: 203

264 

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López Ostra v Spain, 9 December 1994, Series A No 303-​C: 193 Loizidou v Turkey (preliminary objections), 23 March 1995, Series A No 310: 59, 108 Wingrove v United Kingdom, No 17419/​90, ECtHR 1996: 196–197 Aksoy v Turkey, No 21987/​93, ECtHR 1996: 63–64 Chahal v United Kingdom [GC], No 22414/​93, ECtHR 1996: 191 Kalaç v Turkey, No 20704/​92, ECtHR 1997: 204 X, Y and Z v United Kingdom [GC], No 21830/​93, ECtHR 1997: 100, 200, 208 Z v Finland, No 22009/​93, ECtHR 1997: 142 Sakik and Others v Turkey, No 23878/​94, No 23879/​94, No 23880/​94, No 23881/​94, No 23882/​94 and No 23883/​94, ECtHR 1997: 65 Guerra and Others v Italy [GC], No 14967/​89, ECtHR 1998: 193 United Communist Party of Turkey and Others v Turkey [GC], No 19392/​92, ECtHR 1998: 192, 204 Petrovic v Austria, No 20458/​92, ECtHR 1998: 189 Socialist Party and Others v Turkey [GC], No 21237/​93, ECtHR 1998: 192 Demir and Others v Turkey, No 21380/​93, No 21381/​93 and No 21383/​93, ECtHR 1998: 64 Sheffield and Horsham v United Kingdom, No 22985/​93 and No 23390/​94, ECtHR 1998: 100–101 Selçuk and Asker v Turkey, No 23184/​94 and No 23185/​94, ECtHR 1998: 64 Freedom and Democracy Party (ÖZDEP) v Turkey [GC], No 23885/​94, ECtHR 1999: 192 T v United Kingdom, No 24724/​94, ECtHR 1999: 110, 186 Matthews v United Kingdom [GC], No 24833/​94, ECtHR 1999: 45 V v United Kingdom, No 24888/​94, ECtHR 1999: 110, 186 Chassagnou and Others v France [GC], No 25088/​94, No 28331/​95 and No 28443/​95, ECtHR 1999: 185 Selmouni v France [GC], No 25803/​94, ECtHR 1999: 191 Serif v Greece, No 38178/​97, ECtHR 1999: 204 Dikme v Turkey, No 20869/​92, ECtHR 2000: 64 Labita v Italy [GC], No 26772/​95, ECtHR 2000: 188 Hasan and Chaush v Bulgaria [GC], No 30985/​96, ECtHR 2000: 204 Thlimmenos v Greece [GC], No 34369/​97, ECtHR 2000: 129 Le Petit v United Kingdom (dec), No 35574/​97, ECtHR 2000: 112 Coster v United Kingdom [GC], No 24876/​94, ECtHR 2001: 119 Beard v United Kingdom [GC], No 24882/​94, ECtHR 2001: 119 Jane Smith v United Kingdom [GC], No 25154/​94, ECtHR 2001: 119 Lee v United Kingdom [GC], No 25289/​94, ECtHR 2001: 119 Chapman v United Kingdom [GC], No 27238/​95, ECtHR 2001: 119 Brumarescu v Romania (Article 41) [GC], No 28342/​95, ECtHR 2001: 68 Al-​Adsani v United Kingdom [GC], No 35763/​97, ECtHR 2001: 31–32, 191, 212 Gary Marshall v United Kingdom (dec), No 41571/​98, ECtHR 2001: 63

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265

Dahlab v Switzerland (dec), No 42393/​98, ECtHR 2001: 213–214 Prince Hans-​Adam II of Liechtenstein v Germany, No 42527/​98, ECtHR 2001: 45 Metropolitan Church of Bessarabia and Others v Moldova, No 45701/​99, ECtHR 2001: 204 Ilie Ilaşcu and Others v. Moldova and the Russian Federation (dec) [GC], No 48787/​99, ECtHR 2001: 59 Bankovic and Others v Belgium and Others (dec) [GC], No 52207/​99, ECtHR 2001: 45 I v United Kingdom [GC], No 25680/​94, ECtHR 2002: 101, 121 Christine Goodwin v United Kingdom [GC], No 28957/​95, ECtHR 2002: 100–103, 120, 134, 223 Wilson, National Union of Journalists and Others v United Kingdom, No 30668/​96, No 30671/​96 and No 30678/​96, ECtHR 2002: 116 Oliveira v The Netherlands, No 33129/​96, ECtHR 2002: 188 Landvreugd v The Netherlands, No 37331/​97, ECtHR 2002: 188 Pretty v United Kingdom, No 2346/​02, ECtHR 2002: 193 Elci and Others v Turkey, No 23145/​93 and No 25091/​94, ECtHR 2003: 64 Ernst and Others v Belgium, No 33400/​96, ECtHR 2003: 186 Hutton and Others v United Kingdom [GC], No 36022/​97, ECtHR 2003: 193 L and V v Austria, No 39392/​98 and No 39829/​98, ECtHR 2003: 5, 122–123 Zaprianov v Bulgaria (dec), No 41171/​98, ECtHR 2003: 112 Refah Partisi (The Welfare Party) and Others v Turkey [GC], No 41340/​98, No 41342/​98, No 41343/​98 and No 41344/​98, ECtHR 2003: 192, 204 Nuray Şen v Turkey, No 41478/​98, ECtHR 2003: 64 Odièvre v France [GC], No 42326/​98, ECtHR 2003: 200 Ahmet Özkan and Others v Turkey, No 21689/​93, ECtHR 2004: 64 Sadak c Turquie, No 25142/​94 and No 27099/​95, ECtHR 2004: 65 Ünal Tekeli v Turkey, No 29865/​96, ECtHR 2004: 110, 118 Leyla Şahìn v Turkey, No 44774/​98, ECtHR 2004: 212, 214–215, 218 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland [GC], No 45036/​98, ECtHR 2004: 45, 50 Vo v France [GC], No 53924/​00, ECtHR 2004: 186 Assanidze v Georgia [GC], No 71503/​01, ECtHR 2004: 68 Hirst v United Kingdom (No 2), No 74025/​01, ECtHR 2004: 188 Abdülsamet Yaman v Turkey, No 32446/​96, ECtHR 2005: 65 Leyla Şahin v Turkey [GC], No 44774/​98, ECtHR 2005: 187, 205, 212, 214–215, 218–219 Öcalan v Turkey [GC], No 46221/​99, ECtHR 2005: 82, 96–97 Jahn and Others v Germany [GC], No 46720/​99, No 72203/​01 and No 72552/​01, ECtHR 2005: 192 Hirst v United Kingdom (No 2) [GC], No 74025/​01, ECtHR 2005: 188 Shamayed and Others v Georgia and Russia, No 36378/​02, ECtHR 2005: 191 Phull v France (dec), No 35753/​03, ECtHR 2005: 204

266 

Table of Jurisprudence and Case Law

Bilen c Turquie, No 34482/​97, ECtHR 2006: 64 Ülke v Turkey [GC], No 39437/​98, ECtHR 2006: 129 Sorensen and Rasmussen v Denmark, No 52562/​99 and No 52620/​99, ECtHR 2006: 116 Zdanoka v Latvia [GC], No 58278/​00, ECtHR 2006: 187 Procaccini Giuseppina and Orestina v Italy [GC], No 65075/​01, ECtHR 2006: 68 Kurtulmus v Turkey (dec), No 65500/​01, ECtHR 2006: 215 Stec and Others v United Kingdom [GC], No 65731/​01 and No 65900/​01, ECtHR 2006: 121–122 Köse and 93 Others v Turkey (dec), No 26625/​02, ECtHR 2006: 215 Dickson v United Kingdom, No 44362/​04, ECtHR 2006: 201 DH and Others v Czech Republic [GC], No 57325/​00, ECtHR 2007: 119 Stoll v Switzerland [GC], No 69698/​01, ECtHR 2007: 5, 198 Parti Nationaliste Basque –​Organisation Regionale D’Iparralde v France, No 71251/​01, ECtHR 2007: 192 Folgerø and Others v Norway [GC], No 15472/​02, ECtHR 2007: 219 Phinikaridou v Cyprus, No 23890/​02, ECtHR 2007: 194 Dickson v United Kingdom [GC], No 44362/​04, ECtHR 2007: 121, 202 Evans v United Kingdom [GC], No 6339/​05, ECtHR 2007: 199, 208 Demir and Baykara v Turkey [GC], No 34503/​97, ECtHR 2008: 111, 113, 116–118, 120–121, 130, 205–206 Yumak and Sadak v Turkey [GC], No 10226/​03, ECtHR 2008: 187 S and Marper v United Kingdom [GC], No 30562/​04 and No 30566/​04, ECtHR 2008: 110 Kervanci c France, No 31645/​04, ECtHR 2008: 215 Kononov v Latvia, No 36376/​04, ECtHR 2008: 125–126, 128 Burden v United Kingdom [GC], No 13378/​05, ECtHR 2008: 200 Dogru v France, No 27058/​05, ECtHR 2008: 215–216 Sampanis et autres c Grèce, No 32526/​05, ECtHR 2008: 119 El Morsli v France (dec), No 15585/​06, ECtHR 2008: 204 Saadi v Italy [GC], No 37201/​06, ECtHR 2008: 191 Varnava and Others v Turkey [GC], No 16064/​90, No 16065/​90, No 16066/​90, No 16068/​90, No 16069/​90, No 16070/​90, No 16071/​90, No 16072/​90 and No 16073/​90, ECtHR 2009: 110 Scoppola v Italy (No 2) [GC], No 10249/​03, ECtHR 2009: 5, 111–113, 121 Bayatyan v Armenia, No 23459/​03, ECtHR 2009: 125, 128–129, 131, 136 Glor v Switzerland, No 13444/​04, ECtHR 2009: 107, 110, 113 A and Others v United Kingdom, No 3455/​05, ECtHR 2009: 62, 185–186 Micallef v Malta [GC], No 17056/​06, ECtHR 2009: 121 Lautsi v Italy, No 30814/​06, ECtHR 2009: 217–219, 221–222 Muñoz Díaz v Spain, No 49151/​07, ECtHR 2009: 119 SH and Others v Austria, No 57813/​00, ECtHR 2010: 208 Cudak v Lithuania [GC], No 15869/​02, ECtHR 2010: 32–33, 35

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267

Brosset-​Triboulet and Others v France, No 34078/​02, ECtHR 2010: 145 Orsus and Others v Croatia [GC], No 15766/​03, ECtHR 2010: 119 Schalk and Kopf v Austria, No 30141/​04, ECtHR 2010: 119 Kononov v Latvia [GC], No 36376/​04, ECtHR 2010: 107, 132 A, B and C v Ireland [GC], No 25579/​05, ECtHR 2010: 209 Serife Yigit v Turkey [GC], No 3976/​05, ECtHR 2010: 119 Carson and Others v United Kingdom [GC], No 42184/​05, ECtHR 2010: 192 Perdigao v Portugal [GC], No 24768/​06, ECtHR 2010: 144, 187 Alajos Kiss v Hungary, No 38832/​06, ECtHR 2010: 107, 111 Neulinger and Shuruk v Switzerland [GC], No 41615/​07, ECtHR 2010: 111, 121 Tanase v Moldova [GC], No 7/​08, ECtHR 2010: 144, 187 Al-​Saadoon and Mufdhi v United Kingdom, No 61498/​08, ECtHR 2010: 97 SH and Others v Austria [GC], No 57813/​00, ECtHR 2011: 208 Stummer v Austria [GC], No 37452/​02, ECtHR 2011: 185 Bayatyan v Armenia [GC], No 23459/​03, ECtHR 2011: 110, 121, 125, 128–130, 136, 205 Khodorkovskiy v Russia, No 5829/​04, ECtHR 2011: 46 OAO Neftyanaya Kompaniya Yukos v Russia, No 14902/​04, ECtHR 2011: 46 Paksas v Lithuania [GC], No 34932/​04, ECtHR 2011: 144, 187 Sabeh El Leil v France [GC], No 34869/​05, ECtHR 2011: 186 Palomo Sánchez and Others v Spain [GC], No 28955/​06, No 28957/​06, No 28959/​06 and No 28964/​06, ECtHR 2011: 143 Lausti and Others v Italy [GC], No 30814/​06, ECtHR 2011: 217–218 Hass v Switzerland, No 31322/​07, ECtHR 2011: 193 Diamante and Pelliccioni v San Marino, No 32250/​08, ECtHR 2011: 188 MSS v Belgium and Greece [GC], No 30696/​09, ECtHR 2011: 122 Kiyutin v Russia, No 2700/​10, ECtHR 2011: 106–107 Kotov v Russia [GC], No 54522/​00, ECtHR 2012: 187 Creanga v Romania [GC], No 29226/​03, ECtHR 2012: 144 Bouloius v Luxemburg [GC], No 37575/​04, ECtHR 2012: 186 Aksu v Turkey [GC], No 4149/​04 and No 41029/​04, ECtHR 2012: 143 Catan and Others v Moldova and Russia [GC], No 43370/​04, No 18454/​06 and No 8252/​ 05, ECtHR 2012: 187 Van Der Heijden v The Netherlands [GC], No 42857/​05, ECtHR 2012: 200 Mouvement Raëlien Suisse v Switzerland [GC], No 16354/​06, ECtHR 2012: 143, 197 Kuric and Others v Slovenia [GC], No 26828/​06, ECtHR 2012: 68 Konstantin Markin v Russia [GC], No 30078/​06, ECtHR 2012: 121 Granos orgánicos nacionales SA v Germany, No 19508/​07, ECtHR 2012: 121 De Souza Ribeiro v France [GC], No 22689/​07, ECtHR 2012: 185. Sitaropoulos and Giakoumopoulos v Greece [GC], No 42202/​07, ECtHR 2012: 111, 193 Stübing v Germany, No 43547/​08, ECtHR 2012: 199 Koch v Germany, No 497/​09, ECtHR 2012: 193

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Table of Jurisprudence and Case Law

Kautzor v Germany, No 23338/​09, ECtHR 2012: 200 Ahrens v Germany, No 45071/​09, ECtHR 2012: 200 Costa et Pavan c Italie, No 54270/​10, ECtHR 2012: 208–209 Hristozov and Others v Bulgaria, No 47039/​11 and No 358/​12, ECtHR 2012: 123 Roman v Finland, No 13072/​05, ECtHR 2013: 194 Khodorkovskiy and Lebedev v Russia, No 11082/​06 and No 13772/​05, ECtHR 2013: 46 X and Others v Austria [GC], No 19010/​07, ECtHR 2013: 46 Nada v Switzerland [GC], No 10593/​08, ECtHR 2013: 49, 189 Fabris v France [GC], No 16574/​08, ECtHR 2013: 143 Perinçek v Switzerland, No 27510/​08, ECtHR 2013: 196 Sindicatul “Pastorul cel Bun” v Romania [GC], No 2330/​09, ECtHR 2013: 205 Vallianatos and Others v Greece [GC], No 29381/​09 and No 32684/​09, ECtHR 2013: 223–224 Vinter and Others v United Kingdom [GC], No 66069/​09, No 130/​10 and No 3896/​10, ECtHR 2013: 111, 191, 223 Horváth and Kiss v Hungary, No 11146/​11, ECtHR 2013: 119, 187 OAO Neftyanaya Kompaniya Yukos v Russia, No 14902/​04, ECtHR 2014: 46 Karimov v Azerbaijan, No 12535/​06, ECtHR 2014: 187 Jones and Others v United Kingdom, No 34356/​06 and No 40528/​06, ECtHR 2014: 212 Fernández Martínez v Spain [GC], No 56030/​07, ECtHR 2014: 203 Adefdromil v France, No 32191/​09, ECtHR 2014: 205 Hämäläinen v Finland [GC], No 37359/​09, ECtHR 2014: 200 The National Union of Rail, Maritime and Transport Workers v United Kingdom, No 31045/​10, ECtHR 2014: 111, 205 Dubská and Krejzová v Czech Republic, No 28859/​11 and No 28473/​12, ECtHR 2014: 201 SAS v France [GC], No 43835/​11, ECtHR 2014: 216 Mennesson v France, No 65192/​11, ECtHR 2014: 202 Busch v Switzerland, No 9929/​12, ECtHR 2014: 200 Vasiliauskas v Lithuania [GC], No 35343/​05, ECtHR 2015: 33–34, 128 Hutchison v United Kingdom, No 57592/​08, ECtHR 2015: 191 Rohlena v Czech Republic [GC], No 59552/​08, ECtHR 2015: 120 Delfi AS v Estonia [GC], No 64569/​09, ECtHR 2015: 198 Parrillo v Italy [GC], No 46470/​11, ECtHR 2015: 142–143, 201 Lambert and Others v France [GC], No 46043/​14, ECtHR 2015: 193 Al-​Dulimi and Montana Management Inc v Switzerland [GC], No 5809/​08, ECtHR 2016: 25 Murray v The Netherlands [GC], No 10511/​10, ECtHR 2016: 193 Biao v Denmark [GC], No 38590/​10, ECtHR 2016: 122 İzzettin Doğan and Others v Turkey [GC], No 62649/​10, ECtHR 2016: 205 Novruk and Others v Russia, No 31039/​11, No 48511/​11, No 76810/​12, No 14618/​13 and No 13817/​14, ECtHR 2016: 106–107 Baka v Hungary [GC], No 20261/​12, ECtHR 2016: 195

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269

Meier v Switzerland, No 10109/​14, ECtHR 2016: 120 Dakir v Belgium, No 4619/​12, ECtHR 2017: 216 Barbulescu v Romania [GC], No 61496/​08, ECtHR 2017: 201 Belcacemi and Oussar v Belgium, No 37798/​13, ECtHR 2017: 216



European Commission of Human Rights

Greece v United Kingdom, No 176/​56, vol ii, Report of 26 September 1958: 62, 139–140 Grandrath v Federal Republic of Germany, No 2299/​64, Commission report of 12 December 1966, Yearbook vol 10: 129 GZ v Austria, No 5591/​72, Commission decision of 2 April 1973, Collection 43: 129 Conscientious objectors v Denmark, No 7565/​76, Commission decision of 7 March 1977, Decisions and Reports 9: 129 X v Federal Republic of Germany, No 7900/​77, Commission decision of 6 May 1978, Decisions and Reports 13: 112 X, Y and Z v United Kingdom, No 5727/​72, No 5155/​71, No 5744/​72 and No 5857/​72, Commission decision of 12 July 1978, Decisions and Reports 14: 63 X v United Kingdom, No 7992/​77, Commission decision of 12 July 1978, Decisions and Reports 14: 204 X v United Kingdom, No 8160/​78, Commission decision of 12 March 1981, Decisions and Reports 22: 204 Temeltasch v Switzerland, No 9116/​80, Commission decision of 12 October 1981, Decisions and Reports 26: 57 N v Sweden, No 10410/​83, Commission decision of 11 October 1984, Decisions and Reports 40: 129 Autio v Finland, No 17086/​90, Commission decision of 6 December 1991, Decisions and Reports 72: 129 Karaduman v Turkey, No 16278/​90, Commission decision of 3 May 1993, Decisions and Reports 74: 212–213 Heudens v Belgium, Commission decision of 22 May 1995: 129



Inter-​American Court of Human Rights

Judgments

Case of the “Street Children” (Villagrán-​Morales et al) v Guatemala, Merits, Judgment of 19 November 1999 Series C No 63: 5, 110 Case of Baena Ricardo et al v Panama, Merits, Reparations and Costs, Judgment of 2 February 2001 Series C No 72: 111

270 

Table of Jurisprudence and Case Law

Case of Ivcher Bronstein v Peru, Merits, Reparations and Costs, Judgment of 6 February 2001 Series C No 74: 195–196 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Merits, Reparations and Costs, Judgment of 31 August 2001 Series C No 79: 91, 114 Case of Hilaire v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 80: 59 Case of Benjamin et al v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 81: 59 Case of Constantine et al v Trinidad and Tobago, Preliminary Objections, Judgment of 1 September 2001 Series C No 82: 59 Case of Herrera Ulloa v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 2 July 2004 Series C No 107: 195 Case of Ricardo Canese v Paraguay, Merits, Reparations and Costs, Judgment of 31 August 2004 Series C No 111: 195 Case of the Plan de Sánchez Massacre v Guatemala, Reparations, Judgment of 19 November 2004 Series C No 116: 6 Case of Huilca Tecse v Peru, Merits, Reparations and Costs, Judgment of 3 March 2005 Series C No 121: 6 Case of Caesar v Trinidad and Tobago, Merits, Reparations and Costs, Judgment of 11 March 2005 Series C No 123: 110 Case of the Yakye Axa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 17 June 2005 Series C No 125: 6, 114 Case of the Sawhoyamaxa Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 29 March 2006 Series C No 146: 46, 114 Case of Claude Reyes et al v Chile, Merits, Reparations and Costs, Judgment of 19 September 2006 Series C No 151: 124 Case of Goiburú et al v Paraguay, Merits, Reparations and Costs, Judgment of 22 September 2006 Series C No 153: 25, 68–69 Case of Zambrano Vélez et al v Ecuador, Merits, Reparations and Costs, Judgment of 4 July 2007 Series C No 166: 61 Case of the Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 28 November 2007 Series C No 172: 114, 116–117, 120, 130 Case of Kimel v Argentina, Merits, Reparations and Costs, Judgment of 2 May 2008 Series C No 177: 196 Case of Salvador Chiriboga v Ecuador, Preliminary Objections and Merits, Judgment of 6 May 2008 Series C No 179: 192 Case of Apitz Barbera et al (“First Court of Administrative Disputes”) v Venezuela, Preliminary Objection, Merits, Reparations and Costs, Judgment of 5 August 2008 Series C No 182: 186

Table of Jurisprudence and Case Law

271

Case of Castañeda Gutman v Mexico, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 6 August 2008 Series C No 184: 189 Case of Dacosta Cadogan v Barbados, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 24 September 2009 Series C No 204: 67 Case of Barreto Leiva v Venezuela, Merits, Reparations and Costs, Judgment of 17 November 2009 Series C No 206: 184 Case of the Xákmok Kásek Indigenous Community v Paraguay, Merits, Reparations and Costs, Judgment of 24 August 2010 Series C No 214: 6 Case of Vélez Loor v Panama, Preliminary Objections, Merits, Reparations, and Costs, Judgment of 23 November 2010 Series C No 218: 184 Case of López Mendoza v Venezuela, Merits, Reparations, and Costs, Judgment of 1 September 2011 Series C No 233: 184 Case of Atala Riffo and daughters v Chile, Merits, Reparations and Costs, Judgment of 24 February 2012 Series C No 239: 124, 128, 132–134, 136, 202, 224–225 Case of Artavia Murillo et al (in vitro fertilization) v Costa Rica, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 November 2012 Series C No 257: 5, 104– 108, 114, 182, 194, 208 Case of the Santo Domingo Massacre v Colombia, Preliminary Objections, Merits and Reparations, Judgment of 30 November 2012 Series C No 259: 111 Case of Pacheco Tineo Family v Bolivia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 25 November 2013 Series C No 272: 109 Case of the Kaliña and Lokono Peoples v Suriname, Merits, Reparations and Costs, Judgment of 25 November 2015 Series C No 309: 46 Case of Duque v Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 26 February 2016 Series C No 310: 136



Advisory Opinions

The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75), Advisory Opinion OC-​2/​82 of 24 September 1982 Series A No 2: 57, 139 Restrictions to the Death Penalty (Arts 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-​3/​83 of 8 September 1983 Series A No 3: 58 Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-​4/​84 of 19 January 1984 Series A No 4: 141, 143 The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-​6/​86 of 9 May 1986 Series A No 6: 184 Habeas corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-​8/​87 of 30 January 1987 Series A No 8: 61, 140

272 

Table of Jurisprudence and Case Law

Judicial Guarantees in States of Emergency (Arts 27(2), 25 and (8) American Convention on Human Rights), Advisory Opinion OC-​9/​87 of 6 October 1987 Series A No 9: 62–63, 139 Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-​10/​89 of 14 July 1989 Series A No 10: 97–98, 123 The Right to Information on Consular Assistance in the Framework of the Guarantees of the due Process of Law, Advisory Opinion OC-​16/​99 of 1 October 1999 Series A No 16: 45, 91–92, 110 Juridical Condition and Human Rights of the Child, Advisory Opinion OC-​17/​02 of 28 August 2002 Series A No 17: 111 Rights and Guarantees of Children in the Context of Migration and/​or in Need of International Protection, Advisory Opinion OC-​21/​14 of 19 August 2014 Series A No 21: 109–110 Gender identity, and equality and non-​discrimination with regard to same-​sex couples, State obligations in relation to change of name, gender identity, and rights deriving from a relationship between same-​sex couples (interpretation and scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-​24/​17 of 24 November 2017 Series A No 24: 132

Orders

Case of Artavia Murillo et al (in vitro fertilization) v Costa Rica, Monitoring Compliance with Judgments, Order of the Inter-​American Court of Human Rights of 26 February 2016: 106



Court of Justice of the European Union



Court of Justice

283/​81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415: 90 89, 104, 114, 116, 117 and 125 to 129/​85 A Ahlström Osakeyhtiö and Others v Commission [1988] ECR 5193: 28 C-​9/​91 The Queen v Secretary of State for Social Security, ex parte Equal Opportunities Commission [1992] ECR I-​4297: 121 C-​328/​91 Secretary of State for Social Security v Evelyn Thomas and others [1993] ECR I-​1247: 121 C-​405/​92 Etablissements Armand Mondiet SA v Armement Islais Sarl [1993] ECR I-​6133: 28 C-​13/​94 P v S and Cornwall County Council [1996] ECR I-​2143: 102 C-​84/​95 Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others [1996] ECR I-​3953: 45, 50 C-​162/​96 A Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-​3655: 28–29 C-​196/​98 Regina Virginia Hepple v Adjudication Officer and Adjudication Officer v Anna Stec [2000] ECR I-​3701: 121

Table of Jurisprudence and Case Law

273

C-​112/​00 Eugen Schmidberger, Internationale Transporte und Planzüge v Republic of Austria [2003] ECR I-​5659: 161–162 C-​459/​03 Commission v Ireland [2006] ECR I-​4635: 48 C-​540/​03 European Parliament v Council [2006] ECR I-​5769: 160 C-​145/​04 Kingdom of Spain v United Kingdom [2006] ECR I-​7917: 45 C-​402/​05 P and C-​415/​05 P Yassin Abdullah Kadi and Ahmed Ali Yusuf and Ali Barakaat Int’l Foundation v Council and Commission [2008] ECR I-​6351: 49 C-​63/​09 Axel Walz v Clickair, SA [2010] ECR I-​4239: 28 C-​364/​10 Hungary v Slovakia [2012] OJ C379/​2: 28 C-​366/​10 Air Transport Association of America, American Airlines Inc, Continental Airlines Inc and United Airlines Inc and the Secretary of State for Energy and Climate Change [2011] ECR I-​13755: 29–31 C-​584/​10 P, C-​593/​10 P and C-​595/​10 P Commission and others v Yassin Abdullah Kadi [2013] OJ C260/​2: 49 C-​84/​11 Marja-​Liisa Susisalo, Olli Tuomaala, Merja Ritala [2012] OJ C250/​6: 162 C-​150/​11 European Commission v Belgium [2012] OJ C335/​5: 162 C-​154/​11 Ahmed Mahamdia v People’s Democratic Republic of Algeria [2012] OJ C295/​ 11: 28 C-​244/​11 European Commission v Hellenic Republic [2012] [2013] OJ C9/​15: 163 C-​379/​11 Caves Krier Frères Sàrl and Directeur de l’Administration de l’emploi [2012] [2013] OJ C38/​7: 161 C-​521/​11 Amazon.com International Sales Inc, Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH and Austro-​Mechana Gesellschaft zur Wahrnehmung mechanisch-​musikalischer Urheberrechte Gesellschaft mbH [2013] OJ C252/​10: 160 C-​168/​13 PPU Jeremy F and Premier ministre [2013] OJ C225/​38: 160



Court of First Instance/​General Court



International Criminal Court



Warrant of Arrest

T-​306/​01 Ahmed Ali Yusuf and Al Barakaat Int’l Foundation v Council and Commission [2005] ECR II-​3533: 28, 49 T-​315/​01 Yassin Abdullah Kadi v Council and Commission [2005] ECR II-​3649: 49 T-​85/​09 Yassin Abdullah Kadi v Commission [2010] ECR II-​5177: 49 T-​168/​11 AJ AQ v Parliament [2014] Order [2015] OJ C56/​16: 50

Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Warrant of Arrest of 4 March 2009: 37

274 

Table of Jurisprudence and Case Law

Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Warrant of Arrest of 12 July 2010: 37

Decisions

Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting observations from the Republic of Kenya of 25 October 2010: 37 Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting observations about Omar Al-​Bashir’s recent visit to Malawi of 19 October 2011: 37 Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision Requesting Observations on Omar Al Bashir’s Visit to the Democratic Republic of the Congo of 3 March 2014: 37 Prosecutor v Omar Hassan Ahmad al Bashir, ICC-​02/​05-​01/​09, Decision requesting the Republic of Uganda to provide submissions on its failure to arrest and surrender Omar Al-​Bashir to the Court of 17 May 2016: 37



International Criminal Tribunal for the Former Yugoslavia

Prosecutor v Tihomir Blaskic, No IT-​95-​14, Appeals Chamber Judgment of 29 October 1997: 211 Prosecutor v Zdravko Mucić et al, No IT-​96-​21-​T, Judgment of 16 November 1998: 126 Prosecutor v Anto Furundžija, No IT-​95-​17/​1, Judgment of 10 December 1998: 88 Prosecutor v Duško Tadić, No IT-​94-​1-​A, Judgment of 15 July 1999: 24 Prosecutor v Kupreškić et al, No IT-​95-​16-​T, Judgment of 14 January 2000: 37 Prosecutor v Tihomir Blaskic, No IT-​95-​14-​T, Judgment of 3 March 2000: 126



World Trade Organization Dispute Resolution Bodies

EC –​ Hormones (WT/​D S26/​A B/​R and WT/​D S48/​A B/​R, of 16 January 1998): 176 Korea –​ Procurement (WT/​D S163/​R, of 1 May 2000): 37–38 US –​Lead and Bismuth II (WT/​D S138/​A B/​R, of 10 May 2000): 176 US –​ Lamb (WT/​D S177/​A B/​R, of 1 May 2001): 176 US –​ Hot-​Rolled Steel (WT/​D S184/​A B/​R, of 24 July 2001): 177–179 EC –​Tube or Pipe Fittings (WT/​D S219/​R, of 7 March 2003): 178 Argentina –​Poultry Anti-​Dumping Duties (WT/​D S241/​R, of 22 April 2003): 177 Mexico –​Anti-​Dumping Measures on Rice (WT/​D S295/​R, of 6 June 2005): 176 Korea –​Certain Paper (WT/​D S312/​R, of 28 October 2005): 176 US –​Softwood Lumber VI (WT/​D S277/​A B/​RW, of 13 April 2006): 178 US –​Stainless Steel (Mexico) (WT/​D S344/​R, of 20 December 2007): 176

Table of Jurisprudence and Case Law

275

US –​Shrimp (Thailand) (WT/​D S343/​R, of 29 February 2008): 176 China –​Publications and Audiovisual Products (WT/​D S363/​A B/​R, of 21 ­December 2009): 89 EC –​Fasteners (China) (WT/​D S397/​R, of 3 December 2010): 178 EU –​Footwear (China) (WT/​D S405/​R, of 28 October 2011): 178 China –​ X-​Ray Equipment (WT/​D S425/​R, of 26 February 2013): 179 China –​Broiler Products (WT/​D S427/​R, of 2 August 2013): 178 US –​Shrimp II (Viet Nam) (WT/​D S429/​R, of 17 November 2014): 178



Decisions of Other International or Domestic Courts and Tribunals

Arbitration

Petroleum Development Ltd v Sheikh of Abu Dhabi, Decision of September 1951 (ILR, vol 18, 1951, 144): 78



Central American Court of Justice



International Criminal Tribunal for Rwanda

Asociación Foro Nacional de Reciclaje (FONARE) and Fundación Nicaragüense para el Desarrollo Sostenible v Costa Rica (CACJ, Case No 12-​06-​12-​2011, Judgment of 21 June 2012): 51

Prosecutor v Clément Kayishema and Obed Ruzindana, No ICTR-​95-​1-​T, Judgment of 21 May 1999: 126

Iran-​US Claims Tribunal

Sea-​Land Service Inc v The Government of the Islamic Republic of Iran, Ports and Shipping Organization (Case No 135-​33-​1, Award of 20 June 1984): 168



Southern Africa Development Community Tribunal



Spanish Constitutional Court



Spanish Supreme Court

Mike Campbell (Pvt) Ltd and Others v Zimbabwe, sadc (T) Case No 2/​2007, Judgment of 28 November 2008: 46

Judgment (Plenary of the Constitutional Court) 270/​2015, of 17 December 2015 (BOE No 19, of 22 January 2016): 222

Judgment of 4 April 2014 (Spanish Supreme Court, Chamber III, Section 3), Case No 444/​2012: 222

276 

Table of Jurisprudence and Case Law

United States Supreme Court

Gregg v Georgia, vol 428 (1976) 153: 5 Coker v Georgia, vol 433 (1977) 584: 5 Enmund v Florida, vol 458 (1982) 782: 5 Ford v Wainwright, vol 477 (1986) 399: 5 Stanford v Kentucky, vol 492 (1989) 361: 5 Atkins v Virginia, vol 536 (2002) 304: 5 Roper v Simmons, vol 543 (2005) 551: 5

Table of International Treaties

Universal Treaties

Convention (iv) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, done in The Hague, 18 October 1907 (187 CTS 227): 27, 110n54, 125–127 Covenant of the League of Nations, adopted on 29 April 1919 (United States Multilateral Treaties, vol 2 (1918–​1930) 43): 83 Convention concerning the employment of women during the night, adopted in Washington on 28 November 1919 (United Nations, Treaty Series, vol 38, No 587, 67): 82n36 Charter of the United Nations, signed at San Francisco on 26 June 1945 (United Nations, Treaty Series, vol 1, xvi): 41, 42n9, 49, 83–84, 151 International Convention for the Regulation of Whaling, adopted in Washington on 2 December 1946 (United Nations, Treaty Series, vol 161, No 2124, 72): 152–153 Convention on International Civil Aviation, done at Chicago on 24 February 1947 (United Nations, Treaty Series, vol 15, No 102, 295): 30 Convention concerning Freedom of Association and Protection of the Right to Organise, adopted in San Francisco on 9 July 1948 (United Nations, Treaty Series, vol 68, No 881, 17): 111, 117 Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, adopted on 1 July 1949 (United Nations, Treaty Series, vol 96, No 1341, 257): 117 Convention (iv) relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (United Nations, Treaty Series, vol 75, No 973, 287): 110n54, 125 Convention relating to the Status of Refugees, done in Geneva on 28 July 1951 (United Nations, Treaty Series, vol 189, No 2545, 137): 109 Convention on the High Seas, done at Geneva on 29 April 1958 (United Nations, Treaty Series, vol 450, No 6465, 11): 30 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958 (United Nations, Treaty Series, vol 330, No 4739, 3): 170 Vienna Convention on Consular Relations, done at Vienna on 24 April 1963 (United Nations, Treaty Series, vol 596, No 8638, 261): 149n30 International Covenant on Civil and Political Rights, adopted in New York on 19 December 1966 (United Nations, Treaty Series, vol 999, No 14668, 171): 109–110, 115 Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969 (United Nations, Treaty Series, vol 1155, No 18232, 331): 8, 15, 19, 29, 38, 42, 56n16, 57, 58n26, 72-73, 76, 79–81, 84, 91–92, 118, 151n38, 180, 228

278 

Table of International Treaties

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977 (United Nations, Treaty Series, vol 1125, No 17513, 609): 111n54 Convention on the Elimination of All Forms of Discrimination against Women, adopted in New  York on 18 December 1979 (United Nations, Treaty Series, vol 1249, No 20378, 13): 110 Convention on the Civil Aspects of International Child Abduction, done in The Hague on 25 October 1980 (United Nations, Treaty Series, vol 1343, No 22514, 89): 111 United Nations Convention on the Law of the Sea, adopted in Montego Bay on 10 December 1982 (United Nations, Treaty Series, vol 1833, No 31363, 3): 30, 47–48, 154–159 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New  York on 10 December 1984 (United Nations, Treaty Series, vol 1465, No 24841, 112): 110 Convention concerning Indigenous and Tribal Peoples in Independent Countries, adopted in Geneva on 27 June 1989 (United Nations, Treaty Series, vol 1650, No 28383, 383): 114, 116 Convention on the Rights of the Child, adopted in New  York on 20 November 1989 (United Nations, Treaty Series, vol 1577, No 27531, 3): 110–111 Agreement on Implementation of Article vi of the General Agreement on Tariffs and Trade 1994 (OJ L336/​1): 176, 178–179 Statute of the International Criminal Court, done in Rome on 17 July 1998 (United Nations, Treaty Series, vol 2187, No 38544, 3): 37, 111–113 United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted by the General Assembly of the United Nations on 2 Decem­ber 2004 (General Assembly resolution 59/​38, annex, Official ­Records of the General Assembly, Fifty-​ninth Session, Supplement No 49 (A/​59/​49)): 32–33 Convention on the Rights of Persons with Disabilities, adopted in New York on 13 December 2006 (United Nations, Treaty Series, vol 2515, No 44910, 3): 110, 113 International Convention for the Protection of All Persons from Enforced Disappearance, adopted in New York on 20 December 2006 (United Nations, Treaty Series, vol 2716, No 48088, 3): 110



Regional Treaties

Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (United Nations, Treaty Series, vol 213, No 2889, 221): 1, 4, 9, 31, 33, 39, 50, 54n2, 55–56, 59–60, 62–65, 68, 73, 90–92, 94–95, 98, 100–103, 107–108,

Table of International Treaties

279

111–113, 116, 118, 121–123, 125–129, 131–132, 139–141, 146, 156, 181, 183, 185–187, 189–191, 196, 198–199, 203–204, 206, 208–215, 217, 223–224, 228–229 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Paris on 20 March 1952 (Council of Europe, Treaty Series, No 9): 50, 187–188, 190–191, 214–215, 217, 219 European Social Charter, done in Torino on 18 October 1961 (Council of Europe, Treaty Series, No 35): 116–117 Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, done in Strasbourg on 16 September 1963 (Council of Europe, Treaty Series, No 46): 55 American Convention on Human Rights, adopted in San José on 22 December 1969 (United Nations, Treaty Series, vol 1144, No 17955, 123): 1, 4, 9, 39, 54n2, 56, 58–60, 64, 67–68, 73, 90, 92, 94–95, 97, 104–105, 108, 111, 113, 118, 124–125, 132–134, 139, 156, 183, 185n156, 186n168, 187n169, 187n171, 187n173, 187n175, 189–190, 196, 202, 224, 228–229, 234 European Convention on the Legal Status of Children Born out of Wedlock, done in Strasbourg on 15 October 1975 (Council of Europe, Treaty Series, No 85): 116, 118 Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, done in Strasbourg on 28 April 1983 (Council of Europe, Treaty Series, No 114): 55–56, 96 Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Strasbourg on 22 November 1984 (Council of Europe, Treaty Series, No 117): 55 Interamerican Convention to Prevent and Punish Torture, adopted in Cartagena de Indias on 12 September 1985 (Organization of American States, Treaty Series, No 67): 98 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted in San Salvador on 17 November 1988 (Organization of American States, Treaty Series, No 69): 56 Protocol to the American Convention on Human Rights to Abolish the Death Penalty, done in Asunción on 8 June 1990 (Organization of American States, Treaty Series, No 73): 56 Framework Convention for the Protection of National Minorities, done in Strasbourg on 1 February 1995 (Council of Europe, Treaty Series, No 157): 119 Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, done in Rome on 4 November 2000 (Council of Europe, Treaty Series, No 177): 55 Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances, done in Vilnius on 3 May 2002 (Council of Europe, Treaty Series, No 187): 55, 96–97

280 

Table of International Treaties

European Convention on the Adoption of Children (Revised), done in Strasbourg on 27 November 2008 (Council of Europe, Treaty Series, No 202): 120 Inter-​American Convention Against All Forms of Discrimination and Intole­rance, adopted at La Antigua on 6 May 2013 (Organization of American States, No A-​69): 225 Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, done in Strasbourg on 24 June 2013 (Council of Europe, Treaty Series, No 213): 146–148, 230



Bilateral Treaties

Treaty between Belgium and the Netherlands relative to the Separation of their Respective Territories, concluded on 1839 (88 CTS 427): 86n47 Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, signed in Teheran on 15 August 1955 (United Nations, Treaty Series, vol 284, No 4132, 93): 149–151 Treaty of Amity, Commerce and Navigation between the United States of America and Nicaragua, signed in Managua on 21 January 1956 (United Nations, Treaty Series, vol 367, No 5224, 3): 149 Statute of the River Uruguay, signed at Salto on 26 February 1975 (United Nations, Treaty Series, vol 1295, No 21425, 331): 86 Agreement between Switzerland and Uruguay on the Reciprocal Promotion and Protection of Investments, signed at Berne on 7 October 1988 (United Nations, Treaty Series, vol 1976, No 33771, 389): 172 Treaty between the French Republic and the Popular Republic of Poland Concerning the Promotion and Protection of Investments, signed in Paris on 14 February 1989 (JORF 5 April 1990): 170 Treaty between the Federal Republic of Germany and the Argentine Republic on the encouragement and reciprocal protection of investments, signed at Bonn on 9 April 1991 (United Nations, Treaty Series, vol 1910, No 32538, 198): 87 Treaty between United States of America and the Argentine Republic ­Concerning the Reciprocal Encouragement and Protection of Investment, done at Washington on 14 November 1991 (International Legal Materials, vol 31, No 1 (1992) 124–​137): 168

Table of Authors Abi-Saab G, 6, 45 Abou-​El-​Wafa A, 21 Acosta Alvarado PA, 182 Alland D, 22, 25, 43, 45, 47, 73, 93 Alston Ph, 92 Alter KJ, 69 Álvarez-​Jiménez A, 18 Ambrus M, 180 Arai-​Takahashi Y, 2, 99, 184 Arato J, 80, 173 Arp B, 21, 119 Baetens F, 43, 163 Barbosa Delgado FR, 142 Bartole S, 66 Bates E, 5, 62, 139, 206 Beck G, 49 Bedjaoui M, 44 Bellamy R, 67 Benavides Casals MA, 142 Benvenisti E, 4, 142 Berlia G, 73 Bernhardt R, 91, 93 Besson S, 114 Binder Ch, 92 Bjorge E, 79, 148 Boisson De Chazournes L, 44 Borrego Borrego J, 221 Bos M, 73 Bosset P, 215 Brauch JA, 142 Breitenmoser S, 57, 66 Brems E, 2, 146, 210, 215 Brewer SE, 67 Buergenthal Th, 5, 43, 52 Buffard I, 42, 59, 91 Burke-​White W, 163

Caflisch L, 4–5, 91 Cahier P, 14 Callewaert J, 2 Cameron I, 59 Cançado Trindade AA, 1, 4–5, 58, 182 Cannizzaro E, 29, 49, 184 Cardona Llorens J, 42 Carozza PG, 4, 54 Carrillo Salcedo JA, 14–15 Casanovas I La Rosa O, 14, 47 Cassese A, 2, 24 Cavallaro JL, 67 Charney JI, 13–14, 44 Chaumont Ch, 15, 18 Chía EG, 182 Chinkin Ch, 42 Christoffersen J, 144 Ciampi A, 21 Clayton R, 103 Cogan JK, 52 Cohen-​Jonathan G, 58 Condorelli L, 204 Conforti B, 22, 52 Contreras P, 182 Corten O, 24, 57 Costello C, 49 Cot J-​P, 21, 42, 181 Cox F, 182 Craven M, 92 Crawford A, 202 Crawford J, 44 Croley SP, 177 D’amato A, 13 D’argent P, 38 D’aspremont J, 48 Dahlberg M, 109

282  Danilenko GM, 13 David E, 1 De Búrca G, 48 De Salvia M, 204 Delmas-​Marty M, 146 Distefano G, 23 Djeffal Ch, 116 Dominicé Ch, 1, 44 Donnay L, 144 Donnelly S, 98, 114 Dopage F, 48 Drzemczewski A, 66 Du MM, 176 Duhaime B, 7 Dupuy P-​M, 17, 44, 47 Durling J, 176 Dzehtsiarou K, 5–6

Table of Authors

Eeckhout P, 29 Egerton-Vernon J, 173 Ehlermann C-​D, 177 Ehrlich L, 73 Elias OA, 14, 18 Escobar Hernández C, 1 Espósito Massicci C, 22

Gaja G, 92 Ganshof Van Der Meersch WJ, 180 García Roca J, 139, 146 García Rodríguez I, 175 García Segura C, 43 Garner BA, 7 Garrido-​Muñoz A, 49 Gathii JT, 69 Gattini A, 25, 49 Geiger RH, 24 Georgopoulos Th, 93 Gephart W, 1 Gianelli A, 29 Gogarty B, 153 Golsong H, 91 Gowlland-​Debbas V, 4, 43 Graf-​Brugère A-​L, 114 Green JA, 19 Greer S, 2 Gros G, 153 Gros Espiell H, 4–5 Grover SC, 142 Gruszczynski L, 7, 175, 180 Guillaume G, 7, 44 Guzmán AT, 13, 176

Fastenrath U, 24 Faúndez Ledesma H, 182 Feingold CS, 143 Fernández Sánchez PA, 68, 139 Ferrari Bravo L, 18 Ferrer Lloret J, 13, 22, 48, 212 Fikfak V, 49 Fitzmaurice GG, 74 Fitzmaurice M, 79 Forowicz M, 3 Francioni F, 22 Franco Da Fonseca JR, 15 Fredman S, 189 Frowein JA, 58, 66

Hafner G, 1 Haggenmacher P, 18 Hayim D, 42 Helfer LR, 4, 69, 93 Helmersen ST, 90 Henckels C, 174 Hennebel L, 5 Higgins R, 16, 61, 139, 148 Hilpold P, 21 Hirsch M, 47 Hjartarson A, 98, 114 Hobér K, 44 Hoffmeister F, 49 Horn F, 59

283

Table of Authors Huesa Vinaixa R, 42 Hutchinson MR, 142 Itzcovich G, 220 Izorche M-​L, 146 Jackson JH, 177 Jennings RY, 21 Jia BB, 7 Jiménez De Aréchaga E, 17, 19 Jiménez Piernas C, 15, 175 Jonas DS, 59 Kamto M, 15, 21 Katselas AT, 175 Klatt M, 192 Klein P, 57 Kleinlein Th, 2 Kolb R, 42 Koskenniemi M, 44 Kratochvíl J, 144 Krisch N, 16 Kulick A, 47 Ladenburger C, 55 Laghmani S, 18 Laird IA, 173 Lambert P, 103 Lamberti Zanardi P, 13, 143 Larik J, 49 Laval P-​F, 22, 68 Lavender N, 146 Lavranos N, 44 Lawrence P, 153 Lawson R, 55–56 Lebeck C, 49 Leino P, 44 Leiss JR, 42 Legg A, 142 Leonhardsen EM, 169, 175

Letsas G, 2, 4 Lewis T, 215 Liivoja R, 42 Lim CL, 14 Lobo De Souza IM, 16 Lockhart N, 177 Londono P, 210 López-Escudero M, 29 Lowe V, 45 Lugato M, 220 Lusa Bordin F, 25 Macdonald RStJ, 55, 57, 91, 143, 204 Mahiou A, 52 Mahoney P, 2, 96, 191 Malenovsky J, 30 Mariño Menéndez F, 22 Mastroianni R, 29 Matscher F, 58, 91–92, 180, 206 McLachlan C, 174 McNair AD, 73 Melchior M, 92 Mendelson M, 14 Méndez J, 182 Meron Th, 1 Morawa A, 103 Morini C, 215 Mosler H, 15 Müller ATh, 1 Muñoz Machado S, 13 Murray JL, 5 Neframi E, 29 Núñez Poblete M, 183 O’Donnell TA, 189 Ojinaga Ruiz R, 48 Olavo Baptista L, 15 Orakhelashvili A, 22, 192 Ovey C, 2

284  Palchetti P, 49 Panara C, 220 Pascual-​Vives F, 6, 29, 47, 164 Pastor Ridruejo JA, 54, 57, 90 Paulus A, 42 Pellet A, 3, 47, 57 Perelman C, 181 Pérez Vera E, 60 Petersen N, 17 Pettai E-​C, 127 Pettai V, 127 Petzold H, 54, 58, 91–92, 180 Pichon J, 13 Pitea C, 114 Pocar F, 60 Popelier P, 56 Prebensen S, 2, 96 Pronto AN, 3 Prost M, 24 Pulkowski D, 41 Rachovitsa A, 114 Ranjeva R, 26 Ratner SR, 21 Remiro Brotóns A, 43, 59 Rietiker D, 80 Rigaux F, 93 Rigo Sureda A, 7 Ripol Carulla S, 68 Riquelme Cortado R, 44 Roberts A, 93 Rodrigo Hernández AJ, 43 Rodríguez Carrión JA, 14, 60 Ruda JM, 58 Ryngaert C, 49, 212 Salmon J, 13, 21, 181 Sánchez Rodríguez LI, 21 Sands Ph, 21, 135

Table of Authors Santolaya Machetti P, 139 Sapienza R, 146 Sassoli M, 21 Saunders ThN, 59 Schabas WA, 1 Schill SW, 163, 175 Senden H, 131 Shany Y, 44–45, 69, 180 Shaw MN, 21, 204 Shelton D, 48 Shore L, 174 Sicilianos L-​A, 4 Simma B, 41–42, 47 Slaughter A-​M, 93 Sluiter G, 1 Snacken S, 202 Spielmann D, 94, 146 Spiliopoulou-​Akermark S, 56 Stahn C, 1 Stern B, 21 Sudre F, 23, 103, 142, 206 Summers J, 21 Sur S, 41 Suy E, 13 Swaine ET, 58 Sweeney JA, 103 Talmon S, 18 Tanaka Y, 46 Tancredi A, 21 Temperman J, 220 Thirlway H, 14, 126 Thouvenin JM, 42 Tigroudja H, 67 Tizzano A, 55 Tomka P, 18, 25 Tomlinson H, 103 Tomuschat Ch, 18, 46 Torres Bernárdez S, 21, 44

285

Table of Authors Touzé S, 93 Tulkens F, 55, 143 Tzevelekos VP, 6, 79 Van De Heyning C, 55 Van Dijk P, 4, 66, 184 Van Rossem J-​W, 48 Van Zyl Smit D, 202 Vander Elst R, 181 Verdier P-​H, 14 Verhoeven J, 22 Vigni P, 44 Villiger ME, 14 Voeten E, 14 Von Staden A, 163 Waldock H, 17, 147 Weil P, 14–15

Weiler T, 163 Weiniger M, 174 Wellens K, 42 Werner W, 7, 175, 180 White ND, 48 Wicks E, 209 Wildhaber L, 92, 98, 114 Wirth S, 22 Wolfrum R, 13, 181 Yassen MK, 73 Yourrow HC, 2, 143 Zemanek K, 16, 59, 238 Ziemele I, 2, 35, 94 Zilinskas J, 33 Zoppo L, 44 Zwaak L, 4, 66

Index Abortion 198–​199, 209–​210 Argentina 56n13, 87, 166, 168–​169, 171, 196, 225n65 Armenia 217n36 Asylum 122 Australia 103, 152, 153n45 Austria 55n6, 161, 208 Azerbaijan 129–​130 Belgium 55n6, 86, 162, 216 Bolivia 225n65 Brazil 225n65 Bulgaria 55n5, 217n36 Cameroon 78 Canada 56 Case law 2, 4, 5n17, 6–​10, 16, 24, 25n57, 27–​28, 30, 35–​36, 39, 46, 52, 66, 72, 74, 75n2, 77, 82, 85–​87, 95, 97–​98, 100, 116, 118, 121, 125, 126n123, 129, 131, 138, 139n1, 142–​143, 146, 148n30, 151, 155, 159–​160, 172, 174–​175, 179–​181, 184, 191n5, 192, 195, 197, 204–​205, 207–​209, 211–​212, 215–​216, 221–​223, 228–​234 Chile 56n13, 105, 134, 225 Colombia 51, 105, 135–​136, 225n65 Comity see also deference, inter-​judicial deference Condor Operation 69 Consensus  Consensus ad intra 132n139 Consensus generalis 14, 17, 25, 30–​31, 37, 93, 97, 99, 103, 106–​107, 109, 111, 116–​117, 118n82, 127, 130, 133, 210, 207–​210, 212, 217, 222, 226–​232 Consensus gentium 15 Consensus onmium 14n7 Formal dimension 13, 15–​16, 65, 98, 207, 221–​222, 225, 229, 232 Substantive dimension 13, 222, 224–​225, 229 Costa Rica 50–​51, 56n13, 104–​106, 123, 132n139, 141, 194, 208, 230

Council of Europe  Committee of Ministers 65n50, 66n50, 68n61, 120, 148n27 EComHR 7, 57n21, 61, 63, 129, 139, 145, 204, 212 Parliamentary Assembly 8, 103, 223–​224 Croatia 46 Crucifix 217–​220 Customary international law  Constitutive effect 37, 228 Declaratory effect 33, 127n127, 228 Especially affected State 14–​15 Identification 8, 18, 19n32 Local custom 19 Opinio juris 18, 37, 111 Persistent objector 14, 19, 25n51, 31, 210 Practice 14, 17–​20, 37, 69, 104, 193–​194 Regional custom 19, 25n51 Cyprus 139, 194, 217n36 Czech Republic 55n6, 169–​170 Death penalty 55, 82, 95–​97  Deference  Case-​by-​case approach 146, 148, 170, ​174, 194, 232 Extrinsic element 195, 230, 232 Inter-​judicial deference 43–​44, 46–​48, 51 Intrinsic element 194–​195, 232 Lawfulness 157, 231 National security 63n44, 168–​169, 182n140, 183n142, 183n143, 186n162, 187n175, 198, 216 Necessity 140–​141, 150, 155, 157, 159, 161–​162, 174, 180, 184–​185, 189, 191, 196n25, 197–​198, 205–​206, 231–​232 Proportionality 151, 155, 157–​159, 161, 166, 173–​175, 180, 185–​186, 187n164, 188–​ 189, 197–​198 Public emergency 60n32, 64, 141, 181 Public interest 145, 167, 173n109, 180, 187n169, 187n175, 195, 197–​198

287

Index Reasonableness 153–​155, 157–​158, 170, 174, 180–​181, 186 Standard of review 152–​153, 172n109, 175–​179 Denmark 55n5 Domestic law 2n8, 67, 113n69, 117, 131 Dominican Republic 56 Ecuador 56n13, 225n65 Environmental impact assessment 36 Equity 146n25 Estonia 55n6 European Union  Directive 29n71, 102n18, 121n106, 122, 160, 162 European Commission 29, 52n52, 172 European Council 29, 102n18, 121n106, 122, 160n69, 162n76 European Parliament 29, 122–​123, 217n37, 229 Foundational treaties 29, 90 Free movement of goods 161–​162 Freedom of establishment 161–​162 Reference for a preliminary ruling 29, 89 Restriction on imports 162 Secondary law 28–​29, 160, 229 State aid regime 51, 52n52, 169 Extradition 62n40, 95

Guatemala 105 Guyana 56 Haiti 225n65 Headscarf 204, 212–​215, 217–​219 Honduras 56n13 Human immunodeficiency virus 106–​107 Hungary 55n6, 171–​172

Immunity  Foreign Ministers 21 Officials 210–​211 Relative immunity 33 State 22, 31–​32, 35, 37, 180, 210–​212 India 27n60 Indigenous peoples 6, 114–​115 Institut de droit international 77–​78, 80 International Human Rights Law  Best interest of the child 111 Emergency situation 63 Enforcement 9, 65–​68, 91, 106, 108, 143, 148n27, 148n30, 155, 157–​158, 230 Freedom of expression 140, 144, 161, 183, 195–​198, 201–​203 Freedom of movement 187 Human rightism 3, 225, 228–​230, 233 Legality in criminal matters 33, 111 Non-​discrimination 101–​102, 132, 134, 136, 144, 185, 213, 223–​224 France 55n5, 77–​79, 108, 216 Obligation to respect Fundamental principles of international law  rights 185n156 Cooperation 12, 50n45, 52, 70, 95, 99, Principle of legality 61, 183–​184 108, 204, 230–​234 Prohibition of slavery and forced Good faith 15, 36, 80, 170, 172–​173 labour 60n34, 129 Peaceful settlement of disputes 40–​41, Prohibition of torture 25, 32, 142, 190 43, 45, 54 Right to a fair trial 185n156, 186 Prohibition of the threat or use of Right to an effective remedy 185 force 20, 150, 151n38, 154 Right to access to a court 25, 31, 210 Self-​Determination 17, 21n37, 84 Right to assembly and association 116, Sovereign equality 12, 21, 29–​30, 57, 61, 161, 183, 190, 205 69–​70, 83, 95–​100, 104, 106, 108, 117, Right to bargain collectively 116–​117 120–​121, 129, 138, 145, 148, 149n30, Right to education 187, 210 153–​155, 157n59, 158–​159, 166, 170, Right to family reunification 160 177, 204, 210, 220–​221, 227–​228, 230, ​ Right to free elections 187, 193 232, 234 Right to freedom of thought, conscience and religion 128, 182, 183n141, Germany 30, 55, 87, 161 183n144, 187n173, 203, 207 Greece 55, 84, 217n36, 223–​224

288 Index Right to liberty and security 62, 64, 186n168 Right to life 58, 60n34, 104, 142, 181, 185n156, 186 Right to marry 100, 102, 185, 200n35 Right to organise 116 Right to participate in government  60n34, 187n173 Right to property 91n65, 115, 187n169, 190, 192 Right to respect for private and family life  134, 140, 160, 182, 199, 201–​202, 207 International Humanitarian Law  Armed conflict 23, 26, 61 Crimes against humanity 21 Genocide 91n65, 115, 187n169, 190, 192 War Crime 21, 125, 127n127, 128 International Investment Law  Bilateral investment treaty 51, 166, 168–​169, 173–​175 Expropriation 46, 166, 169–​170 Fair and equitable treatment 164–​165, 169–​173 Foreign investor 52n52, 163–​165, 169, 172–​173 Host State 52n52, 122, 163–​165, 168–​170, 172–​173 Legitimate expectations 171, 222n56 Public policy 33n83, 151, 170, 172–​173 International Law Association 14 International Law Commission  Diplomatic Protection 43 Fragmentation of International Law 81 Identification of Customary International Law 8, 17n23, 20n32, 20n34, 26n58 Jurisdictional Immunities of States and Their Property 32–​33 Law of Treaties 37, 74, 79 Obligation aut dedere aut iudicare 25 Peremptory Norms of General International Law (jus cogens) 25n51 State responsibility for internationally wrongful acts 23–​24, 38, 42, 85n42 Subsequent agreements and subsequent practice in relation to interpretation 81

International responsibility  Compensation 32, 52, 66, 166 Cumulative effect 158–​159 Individual 1, 24, 33, 42n11, 88, 126, 127n127, 212 International organizations 42n11 Precautionary principle 88 State 2, 23, 36, 38, 42n11, 99–​100, 129, 159, 180, 184, 197, 211, 227 Reparation 36, 65, 67, 68n61, 69, 136, 166 International treaties  Accession 55, 89, 121 Amendment 15–​16, 79, 82 Conclusion 9, 55, 75, 76n11, 76n12, 77, 81 Conflict with Peremptory International Law 42n9 Interpretative declarations 58–​59 Non-​retroactivity 15 Obligation not to frustrate the object and purpose 37 Ratification 56, 115 Reservations 15, 56–​59, 108n35, 210 Succession 42n9 Suspension 9, 28, 60–​64 Termination 16, 28–​29, 61n34 International society  Complexity 41, 52 Heterogeneous 52 Interdependent 41 Inter-​temporal law see also treaty interpretation, principle of contemporaneity In vitro fertilization 104–​107, 194, 199, 208 Ireland 5n17, 50, 209 Israel 27 Italy 22, 55n6, 111n62, 112, 161, 217, 219–​220, 221n54 Judicial activism 3, 43, 106, 108, 114, 117, 124, 128, 130, 136, 175, 182, 229, 233 Kuwait 31 Latvia 55n6, 125–​126, 128 Law of the Sea  Abuse of rights 47, 154 Archipelagic waters 156–​158

289

Index Confiscation 155, 159 Delimitation 17 Exclusive Economic Zone 155–​156 High seas 29–​31 Hot pursuit 154 International seabed area 36 Piracy 15n10, 156 Prompt release 155 Seizure 155 League of Nations 83 Lithuania 33, 55n5, 217n36, 224 Luxembourg 161 Malta 217n36 Marriage  Celibacy 203 Civil union 200, 223 Incest 199 Same-​sex 132n139, 200n36, 223 Transsexuals 100–​103, 200n36, 223–​224 Marshall Islands 27n60 Matanza de San Patricio 196 Mexico 56n13, 105 Monaco 217n36 Netherlands 55, 74n2, 86, 156 New Zealand 103, 152 Nicaragua 50–​51, 56n13, 85, 149–​150 Nigeria 78 Non-​derogable rule see also obligations, peremptory Nuclear disarmament 8n25 Obligations  Dispositive 192, 231 Generic  81, 85–87, 89, 102, 227 Negative nature 180–​181, 192–​193, 231 Obligations of means 181 Obligations of result 181 Peremptory 32, 151, 192, 231 Positive nature 180, 193, 231 Official secrets 198 Organization of American States  General Assembly 8, 98, 123–​124, 133, 224–​225, 229 IAComHR 7, 54n2, 135, 234 Overflow see also judicial activism Overstep see also judicial activism

Pakistan 27n60 Panama 56n13, 225n65 Paraguay 56n13, 69 Peru 105, 123, 195, 225n65 Poland 55n5 Principle  Exhaustion of local remedies 54 Integration 48, 50, 67, 89–​90, 93, 101, 103, 120, 123, 134, 223, 225, 227, 229 Relativity 15, 114, 228 Res judicata 44 Subsidiarity 9, 12, 53–​57, 60, 64–​65, 68–​70, 96, 99, 101, 108, 136, 138, 143, 146, 147, 149n30, 180–​181, 210, 220, 226, 230 Uti possideti juris 21 Public international law  Autonomy 19, 41, 228 Coordination techniques 4, 38, 41–​43, 45, 52, 103, 228, 235 Cross-​fertilization 43, 45, 167, 234 Effectiveness 15–​16, 226 Fragmentation 52 Hierarchy 49 Interactions between treaty and custom see also customary international law, constitutive and declaratory effect Judicial dialogue 104, 128, 131, 136, 234 Jus cogens 20, 22, 25, 32, 42n9, 182, 191 Lex posterior derogat lex priori 41 Lex specialis derogat legi generali 23, 41, 43, 228 Parallel litigation 45, 164, 235 Pluralism 52 Regionalism 95 Sectorialization 3, 9, 12, 39, 229, 235 Specialization 9, 12, 39, 42–​43, 47, 52 Unity 4, 41–​42, 44, 59n29, 114, 128, 131, 135n147, 136, 182 Voluntarism 14, 19–​20, 40, 210, 228 Public morality 201 Republic of Guinea 154 Roma minority 119 Romania 52n52, 217n36 Rule of law 3, 61, 128, 233

290 Index Russian Federation 46, 55, 156n55, 159, 217n36 Saint Vincent and the Grenadines 47, 154 San Marino 217n36 São Tomé and Principe 156–​158 Saudi Arabia 210 Sikh 204 Slovak Republic 55n6 Suriname 114–​116 Sweden 55n5 Switzerland 113, 197–​198, 216 Terrorism 61–​62, 64, 199 Trade union 117, 183n143, 205 Treaty interpretation  Evolutive 1, 4–​7, 9, 39, 70, 72–​73, 75, 77, 79–​88, 90, 92–​93, 96–​99, 101, 103–​104, 109, 111, 113–​115, 117–​120, 123–​125, 128–​129, 131, 134, 207, 209–​211, 222, 224, 226–​230, 232, 234 Literal see also treaty interpretation, ordinary meaning Object and purpose 15, 37, 57–​59, 65, 73, 75n11, 75n12, 79–​80, 84, 87, 90–​91, 129, 153n44, 227 Ordinary meaning 47–​48, 73, 82, 154, 180 Principle of contemporaneity 73–​80, 84 Pro homine 3, 114, 233 Subsequent agreement 76n11, 76n12, 80–​81, 96–​97

Subsequent practice 75, 76n12, 79–​82, 97, 227 Systemic integration 42n9, 79, 81, 84, 118 Textual see also treaty interpretation, ordinary meaning Travaux préparatoires 34n89, 47, 129, 148n27, 177n125 Trinidad and Tobago 56, 59 Turkey 59, 64, 116–​117, 118n82, 129–​130, 212, 214–​216 United Kingdom 27n60, 30–​32, 55n5, 62, 63n42, 78, 95–​96, 100, 101n16, 102, 108, 121, 140, 186, 188, 191, 199n33, 210, 212, 223n57, 230 United Nations  Compensation Commission 38 Sanctions Committee 49 Self-​defence 27, 150–​151 United States of America 56, 62, 74n2, 77, 95, 149–​151 Uruguay 56n13, 105, 123, 172–​173, 225n65 Venezuela 56, 108, 123, 230 Yihab see also headscarf Yugoslavia 46