The Inter-State Application under the European Convention on Human Rights : Between Collective Enforcement of Human Rights and International Dispute Settlement [1 ed.] 9789004357266, 9789004357259

Citation preview

The Inter-State Application under the European Convention on Human Rights

International Studies in Human Rights volume 125

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

The Inter-State Application under the European Convention on Human Rights Between Collective Enforcement of Human Rights and International Dispute Settlement

By

Isabella Risini

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Risini, Isabella, author. Title: The inter-state application under the European Convention on Human Rights : between collective enforcement of human rights and international dispute settlement / By Isabella Risini. Description: Leiden : Brill Nijhoff, 2018. | Series: International studies in human rights ; Volume 125 | Includes index. Identifiers: LCCN 2018005092 (print) | LCCN 2018005278 (ebook) | ISBN 9789004357266 (E-book) | ISBN 9789004357259 (hardback : alk. paper) Subjects: LCSH: Human rights--Europe. | Civil rights--Europe. | Law enforcement--European Union countries--International cooperation. | International and municipal law--Europe. | Dispute resolution (Law)--Europe. | European Court of Human Rights. | Convention for the Protection of Human Rights and Fundamental Freedoms (1950 November 5) Classification: LCC KJC5132 (ebook) | LCC KJC5132 .R57 2018 (print) | DDC 341.4/8094--dc23 LC record available at https://lccn.loc.gov/2018005092 Inaugural dissertation for the academic degree of Doctor of Law (Doktorin der Rechte) by the Faculty of Law of Ruhr-University Bochum, Germany. Dean of the Faculty of Law of Ruhr-University: Professor Dr. Stefan Huster. First supervisor: Professor Dr. Adelheid Puttler, LL.M. (University of Chicago). Second supervisor: Professor Dr. Markus Kaltenborn.

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0924-4751 isbn 978-90-04-35725-9 (hardback) isbn 978-90-04-35726-6 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. 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.

Contents Acknowledgements XI Acronyms and Abbreviations, Legal Citation Format XIII 1 Any Alleged Breach: The Inter-State Application under the echr 1 1.1 Growing Relevance of the Inter-State Application under the echr 1 1.2 Object and Purpose of the Inter-State Application 5 1.3 Link to Current Debate Concerning the Role of the European Court of Human Rights 7 1.4 Stream of Inquiry: Between Collective Enforcement and International Dispute Settlement 7 1.4.1 The Drafting Process and the Evolution of the Supervisory Framework of the echr 8 1.4.2 Comparisons in Light of Leading Question 8 1.4.3 Case Law: Documentation, Context and Functions 9 1.4.4 Recommendations for Reform 10 1.5 Collective Enforcement and International Dispute Settlement 11 2 The Inception and Evolution of the Inter-State Application under the European Convention on Human Rights 13 2.1 Overview: The Privilege of Hindsight 13 2.1.1 Filling the Academic Gap 13 2.1.2 Methodological Considerations 13 2.1.3 Descriptive Concern of the Chapter 14 2.2 International Human Rights on the Universal Level: Developments Without Specific Enforcement Structures 14 2.3 The Regional Initiative: The Council of Europe and Its Idiosyncrasies 16 2.3.1 Human Rights: A Central Feature and the Need for Enforcement 16 2.3.2 The Object and Purpose of the Convention: More Collective Enforcement than Individual Justice 17 2.4 Retracing the Notion of Collective and Enforcement 18 2.4.1 Introducing the Notion of Collective Enforcement 19 2.4.2 Enforcement – A Point of Contention 19 2.5 The 1950 Convention Revisited 20

vi

contents

2.5.1 Amenable to Judicial Enforcement: The Substantive Guarantees of the echr 20 2.5.2 The Architecture of Supervision: A Complex Compromise 21 2.5.3 Supervision à la Carte 23 2.5.4 Evaluation of the 1950 Convention’s Supervisory Structure 25 2.6 Towards Judicial Supervision: Subsequent Amendments of the Convention 27 2.7 Results: The Inter-State Application between Collective Enforcement and International Dispute Settlement 28 3 International Dispute Settlement and Collective Enforcement Functions of the Inter-State Application Approached Through Comparison 30 3.1 Inter-State Litigation in Strasbourg and The Hague – A Comparison with a View to the Function of International Dispute Settlement 31 3.1.1 Overview 31 3.1.2 Jurisdiction Compared 35 3.1.3 The Respective Yardsticks and the Cinderella Problem 44 3.1.4 Interim Result: Dispute Settlement Functions in Light of the Object and Purpose of the Inter-State Application? 45 3.2 The Inter-State and the Individual Application under the European Convention on Human Rights – A Comparison with a View to the Function of Collective Enforcement 46 3.2.1 Overview 46 3.2.2 Applicable Rules of Admissibility in Individual and Inter-State Cases 49 3.2.3 Standing 51 3.2.4 The Requirement of the Exhaustion of Domestic Remedies 53 3.2.5 Interim Results: Collective Enforcement Functions as Added Value of the Inter-State Application Within echr Supervisory Framework 59 3.3 Results: The Inter-State Application between International Dispute Settlement and Collective Enforcement 61 3.3.1 Dispute Settlement Functions, Jurisdiction and Yardstick 61 3.3.2 Collective Enforcement: Added Value of the Inter-State Application 62

c ontents

vii

4 The Inter-State Case-Law under the European Convention on Human Rights: Approaching the Object and Purpose of the Inter-State Application in Practice 63 4.1 Collective Enforcement Functions 63 4.1.1 Collective Enforcement beyond Individual Justice 63 4.1.2 Public Interest Litigation 64 4.1.3 Enforcement in the Specific Inter-State Context 64 4.1.4 More than Diplomatic Protection 65 4.2 Dispute Settlement Functions 65 4.2.1 Judicial Review in Times of Crises: Proportionality and the Role of the Court in the Context of Inter-State Applications 65 4.2.2 Private Interest Litigation 66 4.2.3 Fact-Finding, Adversarial, Inquisitorial, Cooperational 66 4.3 Carving Out the Potential and the Need for Reform of the Inter-State Application 66 4.4 Greece v United Kingdom (1956–59) 67 4.4.1 Overview 67 4.4.2 Documentation 68 4.4.3 Collective Enforcement Functions 71 4.4.4 Dispute Settlement Functions 73 4.4.5 Evaluation: Incident Collective Enforcement, but Mainly Settling the Status of Cyprus 76 4.5 Austria v Italy (1960–1963) 77 4.5.1 Overview and Documentation 78 4.5.2 Context: The Situation of the German-Speaking Minority in Italy 79 4.5.3 Collective Enforcement Functions 79 4.5.4 International Dispute Settlement Functions 81 4.5.5 Evaluation: Strasbourg as a Forum for Kin-State Litigation 82 4.6 Denmark et al. v Greece (1967–1976) 83 4.6.1 Overview 83 4.6.2 Documentation 84 4.6.3 Context: Greece Falling Prey to a coup d’état 87 4.6.4 Collective Enforcement Functions 88 4.6.5 Dispute Settlement Functions 91 4.6.6 Evaluation: Collective Enforcement Tested by Reality 95 4.7 Ireland v United Kingdom (1971–1978 and 2014–Present) 97 4.7.1 Overview and Documentation 98 4.7.2 Context: A Protracted, Multy-Layered Conflict 101

viii

contents

4.7.3 Collective Enforcement Functions 102 4.7.4 Dispute Settlement Functions 107 4.7.5 Evaluation: A Preponderance of Collective Enforcement Functions 111 4.8 Cyprus v Turkey (1974–Present) 113 4.8.1 Overview 113 4.8.2 Context: Cyprus as Object of Greek and Turkish Interests 116 4.8.3 Collective Enforcement Functions 119 4.8.4 Dispute Settlement Functions 125 4.8.5 Evaluation: Neither Collective Enforcement nor Dispute Settlement: Learning from Past Mistakes 128 4.9 Denmark et al. v Turkey (1982–1985) and Denmark v Turkey (1997–2000) 130 4.9.1 Overview and Documentation 130 4.9.2 Context: A Coup d’état and Its Long-Term Consequences 133 4.9.3 Collective Enforcement Functions 135 4.9.4 International Dispute Settlement Functions 136 4.9.5 Evaluation: Friendly Settlements: Efficient for the Collective Enforcement of Human Rights, but Not Universal Remedies 138 4.10 Georgia v Russia (2008–Present) 139 4.10.1 Overview and Documentation 140 4.10.2 Context: The Frozen and Not so Frozen Conflicts in the Aftermath of the Breakup of the Soviet Union 143 4.10.3 Collective Enforcement Functions 145 4.10.4 Dispute Settlement Functions 148 4.10.5 Evaluation: Strasbourg as Appropriate Forum for the Settlement of a Complex Conflict? 151 4.11 Ukraine v Russia (2014–Present) 151 4.11.1 Overview and Documentation 152 4.11.2 Context: Competing Interests Over Ukraine – East vs West Reloaded 154 4.11.3 Collective Enforcement Functions: Focus on Interim Measures 156 4.11.4 Dispute Settlement Functions in View of Ukrainian MultiForum Litigation Strategy 157 4.11.5 Evaluation: Open Questions about the Role of the Strasbourg Court 159 4.12 Results from the Analysis of Inter-State Case Law 160 4.12.1 Collective Enforcement Functions 160 4.12.2 Dispute Settlement Functions 167

c ontents

ix

4.12.3 Grouping of Inter-State Case Law: Private and Public Interest Litigation 168 4.12.4 Between Collective Enforcement and International Dispute Settlement 169 5 Reform Considerations: The Inter-State Application between Collective Enforcement and Dispute Settlement 171 5.1 General Reform Considerations for the Inter-State Application 171 5.2 Spelling Out the Object and Purpose of the Inter-State Application 173 5.3 Dispute Settlement Functions 174 5.3.1 No Broader Yardstick and No Counterclaims 174 5.3.2 Broadening the Court’s Advisory Jurisdiction under Article 47 echr 178 5.3.3 Fact-Finding 181 5.4 Collective Enforcement 186 5.4.1 The Accession of the European Union to the echr and the Looming Admissibility Restrictions for the Inter-State Application 186 5.4.2 The Exhaustion of Domestic Remedies and the Exceptions 191 5.4.3 The Court’s Remedial Toolbox in Light of the Object and Purpose of the Inter-State Application 192 5.5 Cross-Cutting: Relationship of Individual and Inter-State Applications 208 Appendix 211 Index of Authorities 226 Index 277

Acknowledgements This study was accepted as a doctoral thesis by the Faculty of Law of RuhrUniversity Bochum (Germany) in December 2016. For the publication at hand, the manuscript has been updated and includes major developments until August 2017. Professor Mark Villiger, former judge at the European Court of Human Rights, gave me the initial idea to write about the inter-State Application and followed my endeavors with enthusiasm and great interest as well as patience; without him, this book would not have been written. My gratitude goes further to Professor Adelheid Puttler, the first supervisor of the thesis here at RuhrUniversity, who challenged me and patiently awaited the final version of the manuscript. Professor Markus Kaltenborn as second reviewer provided support when needed the most. I wish to extend my thanks to Professor Julian Krüper who was a part of the committee. I am further thankful to Professor Knut Ipsen. Among many other insights, he patiently shared his knowledge about the development of international law in the 1970s. I am thankful to Dr Stefan Lorenzmeier from my alma mater Augsburg University, I would not be an author without him. Professor Sarah K. Harding from Chicago-Kent promoted my interest in legal writing. I also would like to thank Professor Ferdinand Wollenschläger for everything he taught me. The very constructive criticism by Erika and Norbert Engel concerning my earlier writing on the inter-State Application largely resounds in the way this study has been laid out. Many colleagues have commented on the study in various stages of its fruition, Tobias Ackermann and Sebastian Wuschka are among the most outspoken ones. Dr Judit Beke-Martos reviewed an earlier and longer history part of the study. For uncounted hours of copying and proofreading I am indebted to the Chair’s student assistants Katharina Bleiker, Eileen Wolmerath, Rafaela Knäpper and Luisa Wilbert. I would like to thank Heike Müller from the Dean’s Office for all her help with the formal proceedings at the Faculty of Law. Further, I am thankful for the financial support of Ruhr-University’s Research School, the local graduate school, which funded training, many ­conference visits and my stay at The Hague Academy of International Law. Further, the institution provided the administration for the grant by the Wilhelm and Günter Esser Foundation to finish the study.

xii

Acknowledgements

Many thanks go to Brill-Nijhoff, in particular to publisher Lindy Melman for her support and patience. My thanks also go to the language editor. Finally, I would like to thank my friends and my family, first and foremost my mother and my sister for unquestioning support, and my husband for his enduring comprehension. Isabella Risini

Acronyms and Abbreviations, Legal Citation Format achpr African Charter on Human and Peoples’ Rights achr American Convention on Human Rights afdi Annuaire Francais de Droit Intenational ajil American Journal of International Law Art Article AustYBIL Australian Yearbook of International Law AvR Archiv des Völkerrechts Bd Band (volume) BerDGVR Berichte der Deutschen Gesellschaft für Völkerrecht (reports of the German Society of International Law) byil British Yearbook of International Law cd n Collection of Decisions of the European Commission of Human Rights, edition number; from 1960 to 1974, the European Commission of Human Rights, established under the European Convention on Human Rights, published its decisions in 46 brochures making up the Collection of Decisions of the European Commission on Human Rights, the Recueil des Décisions de la Commission Européenne des Droits de l’Homme cddh Steering Committee for Human Rights cerd International Convention on the Elimination of All Forms of Racial Discrimination cets, ets  Council of Europe Treaty Series (Conventions and agreements opened for signature between 1949 and 2003 were published in the European Treaty Series (ets No 001 to 193). Since 2004, this Series is continued by the Council of Europe Treaty Series (cets No 194 and following). cf compare cjicl Cambridge Journal of International and Comparative Law cm Committee of Ministers of the Council of Europe cmp Committee on Missing Persons CoE Council of Europe CoE-St Statute of the Council of Europe ColumbiaJTL Columbia Journal of Transnational Law cpt Committee for the Prevention of Torture döv Die Öffentliche Verwaltung (Zeitschrift für Öffentliches Recht und Verwaltungswissenschaften)

xiv

Acronyms and Abbreviations, Legal Citation Format 

dr n Decisions and Reports of the Commission and edition number; from 1975 to 1998, the decisions and reports of the European Commission on of Human Rights established under the European Convention on Human Rights were published in Decisions and Reports in 94 installments. echr Convention for the Protection of Human Rights and Fundamental Freedoms ecpsd European Convention for the Peaceful Settlement of Disputes ECtHR European Court of Human Rights ed edition ed/ eds editor/ editors eg for example egmr-e 1 Europäischer Gerichtshof für Menschenrechte – (volume 1 of a collection of the most important decisions and judgments by the organs established under the European Convention on Human Rights, in German) ehrlr European Human Rights Law Review ejil European Journal of International Law ejil:Talk! Blog of the European Journal of International Law emrk Europäische Menschenrechtskonvention epil Encyclopedia of Public International Law et al and others etc et cetera ets, cets European Treaty Series, Council of Europe Treaty Series eu European Union EuGRZ Europäische Grundrechte Zeitschrift fcnm Framework Convention for the Protection of National Minorities ga United Nations General Assembly ga Res United Nations General Assembly Resolution gc Grand Chamber of the European Court of Human Rights gyil German Yearbook of International Law HarvardJIL Harvard International Law Journal hjil Heidelberg Journal of International Law (Zeitschrift für ausländisches öffentliches Recht und Völkerrecht) hrlj Human Rights Law Journal hudoc Human Rights Documentation Service, available on the website of the European Court of Human Rights, hudoc.echr.coe.int icc Rome Statute of the International Criminal Court iccpr International Covenant on Civil and Political Rights icj International Court of Justice

 Acronyms and Abbreviations, Legal Citation Format

xv

ICJ-St Statute of the International Court of Justice ie that is (it est) iiffmcg Independent International Fact-Finding Mission on the Conflict in Georgia ilc International Law Commission ilo International Labour Organization Int’lCLQ International and Comparative Law Quarterly ira Irish Republican Army jz Juristen Zeitung ljil Leiden Journal of International Law m million mn margin number mpeil Max Planck Encyclopedia of Public International Law nato North Atlantic Treaty Organization ngo Non-Governmental Organization no/ nos number/ numbers nqhr Netherlands Quarterly of Human Rights pace Monitoring Committee of the Parliamentary Assembly of the Council of Europe para paragraph Pt part rbdi Revue Belge de Droit International RdC Recueil des Cours de l’Académie de Droit International de La Haye (Collected Courses of the Hague Academy of International Law) Res resolution Series A/B The European Court of Human Rights’ judgments were published in Series A: Judgments and Decisions, volume 1 (1960) to 338 (1996). This series was superseded by the Reports of Judgments and Decisions (Recueil des arrêts et décisions); in Series B: Pleadings, Oral Arguments and Documents, volume 1, 1960–1961 (1961) to 104, 1985–1988 (1995), the pleadings and oral arguments in cases brought before the Court were published. tp (i–viii) Collected Edition of the Travaux Préparatoires to the European Convention on Human Rights, volumes i–viii (edited by A Robertson) trnc Turkish Republic of Northern Cyprus u.a. et al udhr Universal Declaration on Human Rights uk United Kingdom un United Nations unc Charter of the United Nations

xvi

Acronyms and Abbreviations, Legal Citation Format

unesco United Nations Educational, Scientific and Cultural Orga­nization unts United Nations Treaty Series us United States of America v/vs/vs. versus vclt Vienna Convention on the Law of Treaties vol volume YaleJIL Yale Journal of International Law Yb n (year) Yearbook of the European Convention on Human Rights / Annuaire de la convention europeenne des droits de l’homme pcij Permanent Court of International Justice

Chapter 1

Any Alleged Breach: The Inter-State Application under the echr The Convention for the Protection of Human Rights and Fundamental Freedoms1 (the Convention, echr, European Convenion on Human Rights) is a successful instrument for the protection of human rights. The present study is dedicated to the inter-State application under Article 33 echr and its share in the success story of the Convention. Article 33 ehcr provides that ‘[a]ny High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’.2 Before the reform of the Convention via Protocol No 11 to the Convention,3 which restructured the control machinery of the instrument, the provision was contained in ex-Article 24 echr.4 It authorized the High Contracting Parties to refer any alleged breach of the Convention’s provisions by another High Contracting party to the former European Commission of Human Rights.5 The jurisdiction of the European Court of Human Rights (the Court) was optional under ex-Article 46 echr, both for individual and inter-State applications. ­Today, the Court is vested with compulsory jurisdiction, both over individual and inter-State applications. 1.1

Growing Relevance of the Inter-State Application under the echr

The Court’s docket shows the relevance of the inter-State application. Since 2006, Georgia has lodged three applications against Russia, two of which are 1 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ets 5. 2 The French text of Article 33 echr is equally authentic: ‘Toute Haute Partie contractante peut saisir la Cour de tout manquement aux dispositions de la Convention et de ses protocoles qu’elle croira pouvoir être imputé à une autre Haute Partie contractante’. 3 Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, cets no 155, 11 May 1994; since its entry into force on 1 November 1998, this protocol forms an integral part of the Convention. 4 The 1950 text of the Convention is reprinted in the appendix to the present study. 5 The organ was abolished with the 1998 reform (n 3). © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_002

2

Chapter 1

still pending before the Court.6 The events in Crimea and Eastern Ukraine since February 2014 have resulted in currently five sets of pending inter-State applications.7 In this context the President of the European Court of Human Rights has spoken of a ‘wave’ of cases.8 The cases associated with the Ukraine conflict have been described as ‘one of the most significant challenges that the Court has ever had to face on how the Convention should apply to armed conflict’.9 The second case between Georgia and Russia likewise concerns a situation of armed conflict. However, the Court’s role in view of a large-scale armed conflict between High Contracting Parties is unclear.10 In December 2014, Ireland requested the reopening of the case of Ireland v United Kingdom, which was before the Convention organs in the 1970s. The Court communicated the case to the United Kingdom in March 2016.11 A new 6 In Georgia v Russia (i), no 13255/07, the Grand Chamber issued a judgment on the merits on 3 July 2014; the case is pending with regard to the question of just satisfaction under Article 41 echr; pending is also Georgia v Russia (ii), no 38263/08. 7 Ukraine v Russia (i), no 20958/14; Ukraine v Russia (ii), no 43800/14; Ukraine v Russia (iii), no 49537/14, (the third case was struck off the list of the Court’s cases in September 2015 after the Ukrainian government had informed the Court that they did not wish to pursue the application, press release echr 296 (2015), 1 October 2015); Ukraine v Russia (iv), no 42410/15; on 9 February 2016 the Court decided, with a view of making the processing of the case more efficient, to divide the first inter-State application according to geographical criteria – all the complaints related to the events in Crimea up to September 2014 are currently registered under the case number 20958/14; the complaints concerning the events in Eastern Ukraine up to September 2014 are now registered under the Ukraine v Russia (v), no 8019/16; the same rule was applied in respect of Ukraine v Russia (iv), no 42410/15. Following the Court’s decision of 25 November 2016 all the complaints related to the events in Crimea from September 2014 onwards are currently registered under the case no 42410/15, Ukraine v. Russia (iv); the complaints concerning the events in Eastern Ukraine from September 2014 are now registered under the case no 70856/16, Ukraine v Russia (vi). 8 D Spielmann, ‘The European Court of Human Rights as a guarantor of a peaceful public order in Europe’, speech to Gray’s Inn, 12 November 2014, echr.coe.int/Documents/ Speech_20141107_Spielmann_GraysInn.pdf. 9 M Milanovic, ‘Ukraine derogates from the iccpr and the echr, Files Fourth Interstate Application against Russia’, ejil: Talk!, 5 October 2015, www.ejiltalk.org/ukraine-derogates -from-the-iccpr-and-the-echr-files-fourth-interstate-application-against-russia/. 10 M Breuer, ‘The ECtHR – torn between Russia and Ukraine?’ Verfassungsblog, 18 March 2014, verfassungsblog.de/egmr-zerrieben-im-konflikt-russland-ukraine/. 11 Ireland v United Kingdom, 5310/71, communication of 22 March 2016; see also P Leach, ‘Ireland v. uk: Revisiting the Treatment of the Hooded Men’, jurist, 6 December 2014, jurist.org/student/2014/12/Philip-Leach-Hooded-Men.php.

Any Alleged Breach

3

inter-State application was lodged by Slovenia against Croatia in September 2016.12 Moreover, the inter-State application is a major topic in the context of the accession of the European Union (eu) to the European Convention on H ­ uman Rights. According to the 2014 Opinion of the European Court of Justice, the inter-State application was an obstacle for the accession of the European Union to the European Convention on Human Rights, inter alia, because it would have extended the competences of the European Union to supervise eu member States in questions of human rights.13 The growing relevance of the inter-State application is not adequately reflected in the academic work about the mechanism.14 The admittedly small number of inter-State applications in the history of the Convention is no impediment for a monographic study.15 Admittedly, viewed in comparison with the number of individual applications,16 the twenty-one inter-State cases in 12

13

14

15

16

See Press Release echr 340 (2016) of 20 October 2016; the case is registered as Slovenia v Croatia, no 54155/16; J Hojink, ‘Slovenia v. Croatia: The First eu Inter-State Case before the ECtHR’, ejil:Talk!, 17 October 2016, www.ejiltalk.org/slovenia-v-croatia-the-first-eu -inter-state-case-before-the-ecthr/. cjeu Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454; I Risini, ‘The ­Accession of the European Union to the echr and the Inter-State Application under ­Article 33 echr’, in S Lorenzmeier (ed), Contemporary Issues of Human Rights Protection in International and National Settings (forthcoming, 2018); ‘E Vranes, Die Staatenbeschwerde im Verhältnis von egmr, internationalen Gerichten und EuGH’ (2014) 69 Zeitschrift für öffentliches Recht 257. The sources listed here are a non-exhaustive overview of the most-cited contributions about the inter-State application in their chronological order: S Leckie, ‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Whishful Thinking?’ (1987–88) 10 Human Rights Quarterly 249, 271; L-E Pettiti, ‘Les Recours ­Interétatiques dans le Système de la Convention Européenne des Droits de l’Homme’, in D Bardonnet (ed), Le règelement pacifique des différends internationaux en Europe: Perspectives d’avenir (1991) 331; K Rogge, ‘Inter-State cases under Article 33 of the European Convention on Human Rights’, in H Hartig (ed), Trente ans de droit européen des droits de l’homme, Etudes à la mémoire de Wolfang Strasser (2007) 289; S Prebensen, ‘Inter-State Complaints under Treaty Provisions – The experience under the European Convention on Human Rights’, in G Alfredsson et al. (eds), International Monitoring Mechanisms: ­Essays in Honor of Jacob Th. Möller (2nd ed, 2009) 441. The last monographic study was undertaken by P Hold von Zürich, Die Staatenbeschwerde im Rahmen der Europäischen Menschenrechtskonvention – rechtliche und politische Probleme (1976). According to statistical information by the Strasbourg Court, in late 2016, more than 70,000 individual cases were pending before the Court, see echr.coe.int/Documents/ Stats_pending_2016_BIL.pdf.

4

Chapter 1

more than 60 years seem negligible. However, some of the inter-State cases affected (and continue to affect) a large number of individuals. A significant number of individual cases overlap with inter-State proceedings. Approximately 3,700 individual cases against Russia and Ukraine are pending before the Court which are related to the events in Crimea or Eastern Ukraine.17 It is worthwhile to observe that there are more inter-State cases than what meets the eye: High Contracting Parties have the possibility to join proceedings initiated by an individual under Article 34 echr as third party under Article 36 echr.18 These cases are so-called disguised inter-State cases.19 Further, compared to other regional and universal human rights instruments, where inter-State mechanisms are a common feature, the number of inter-State applications in Europe is remarkable. Other regional human rights instruments have witnessed only very few cases.20 Formal State-to-State complaint mechanisms on the universal level have never been used. Under Article 41 of the International Covenant of Civil and Political Rights21 (iccpr), the Human Rights Committee established under Article 28 iccpr can receive communications by States if they consider that another State Party is not giving effect to the provisions of the Covenant. An inter-State communication is an optional remedy, Article 41 § 1 iccpr. About 50 States have recognized the competence of the Human Rights Committee to receive such communications.22 While it is theoretically possible for interState proceedings to be initiated both in Geneva and in Strasbourg, the Committee of Ministers of the Council of Europe has recommended to ‘normally utilise only the procedure established by the European Convention’.23 17 18 19 20

21 22 23

Press release echr 263 (2016) of 28 July 2016. B Ohms, ‘Artikel 33, Staatenbeschwerden’, in K Korinek et al. (eds), Österreichisches Bundesverfassungsrecht, Kommentar II/1; loseleaf, 6th follow-up delivery, mn 7. Examples are Loizidou v Turkey, no 15318/89; Chiragov and Others v Armenia, no 13216/05; Sargsyan v Azerbaijan, no 40167/06. As far as the author is aware, these are the only inter-State cases on the regional human rights level outside of Europe: African Commission of Human Rights, no 227/99, Democratic Republic of Congo v Burundi, Rwanda, Uganda; 20th Annual Activity Report of the African Commission on Human and Peoples Rights 2006, Annex iv; Inter-American Commission on Human Rights, Nicaragua v Costa Rica, no 01/06, admissibility decision, 8 March 2006. The case was declared inadmissible; it is partly reprinted in D Shelton, Regional Protection of Human Rights (2010) 910f; see also M Wood, ‘European Perspectives on Inter-State Litigation’, in N Klein (ed), Litigating International Law Disputes, Weighing the Options (2014) 130, 140. International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171. M Nowak, u.n. Covenant on Civil and Political Rights Commentary (2005), Article 41, mn 5. Committee of Ministers, Resolution (70)17, 15 May 1970, reprinted in Yb 13 (1970) 70.

Any Alleged Breach

5

The International Covenant on Economic, Social and Cultural Rights (icescr)24 does not provide for a State-to-State complaint procedure. However, Article 10 of the Optional Protocol to the icescr25 provides for inter-State communications on an optional basis. Against this background, an in-depth study of the inter-State application under the European Convention of Human Rights is justified. 1.2

Object and Purpose of the Inter-State Application

The object and purpose of the inter-State application under the Convention are currently not clearly defined. Pending a clear definition of the object and purpose of the inter-State application within the supervisory framework of the Convention, the present study sets out to ask whether the mechanism is intended to settle international disputes between States or whether it is a mechanism for the collective enforcement of the echr. The settlement of disputes between States is a private function, driven by the petitum of the applicant. The collective enforcement of human rights is a public function, triggered by one or more High Contracting Parties; the collective enforcement function, which is also referenced in the fifth recital of the preamble to the Convention, is distinct from and goes beyond the settlement of a given dispute.26 The heterogeneous inter-State case law indicates that the mechanism can be employed in different ways, and States use the mechanism to pursue a variety of goals. A recalibration of the object and purpose of the inter-State mechanism is needed in view of the significant changes the supervisory framework of the Convention has undergone over the past decades and in view of the challenges the mechanism is currently exposed to. The quest to clarify the object and purpose is not a goal in itself. Rather, the clarification of the inter-State application’s object and purpose is necessary for the successful operation of the Convention and the Court. A clearer definition of the object and purpose of the inter-State application allows the Court to 24 25

26

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 24 September 2009, adopted by the General Assembly, 5 March 2009, A/RES/63/117 (in force since 2013). F Matscher, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der emrk’, in B Funk et al. (eds), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburtstag (2002) 417; Cf C Brown, ‘The inherent powers of international courts and tribunals’ (2005) 76 byil 159, 229.

6

Chapter 1

b­ etter exercise its functions: judicial review and its inherent proportionality test can be performed successfully if the object and purpose of such an exercise are clear. Likewise, the object and purpose of a review mechanism defines the role of the Court in light of considerations of subsidiarity as enshrined in Protocol No 15 to the Convention, which is open for signature.27 Ultimately, the object and purpose of the inter-State application helps to assess the role of the European Court of Human Rights within the Convention’s supervisory framework, to manage expectations towards it, and to allocate its resources efficiently in order to help safeguard individual human rights in the best possible manner. Golsong contended that the interpretation of the substantive and procedural provisions of the Convention in light of their object and purpose were two ‘fundamentally different’28 situations. He was of the opinion that ‘the Strasbourg organs are not empowered to transform by judicial fiat the meaning attributed by the Contracting States to such procedural or structural provisions, or to add to these provisions a meaning which does not find explicit support in the text’.29 It is not the intention of the present volume to depart from G ­ olsong’s view. However, it has to be acknowledged that the Court has taken some liberty in the interpretation of the object and purpose of the right of individual petition under Article 34 echr. Evidence thereof is for example the pilot judgment procedure, which does in fact not find support in the Convention’s text and was introduced only recently in Rule 61 of the Rules of the Court, which do not share the Convention’s status as international treaty law.30 The present volume does not argue that the Court should assume a certain role or that it should exercise its functions in a certain manner. The approach of the volume is more modest: it is intended to show there is in fact a certain need to reform the mechanism which should not be dealt with exclusively on the level of interpretation. The Convention is a treaty between States and is as such essentially conditioned by the sustained consensus of the High Contracting Parties.

27

Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, cets no 213, open for signature since 24 June 2013. 28 H Golsong, ‘Interpreting the European Convention on Human Rights Beyond the Confines of the Vienna Convention on the Law of Treaties’, in R Macdonald et al. (eds), The European System for the Protection of Human Rights (1993) 145, 150. 29 Ibid. 30 Under Article 24 § 1 echr, the Court is authorized to give itself rules. The Rules of the Court are constantly updated and available at www.echr.coe.int/Documents/Rules_Court _ENG.pdf.

Any Alleged Breach

1.3

7

Link to Current Debate Concerning the Role of the European Court of Human Rights

Large numbers of well-founded individual applications deriving from structural problems have been identified as a burden to the echr’s supervisory machinery.31 The central question that can be extrapolated from the ongoing debate is what role and function the Court shall have: to provide individual justice or to stimulate change in national legal systems beyond the single case.32 The present volume seeks to contribute an answer to that question with respect to the functions an inter-State application can best provide. The volume seeks to make a contribution to the debate about the role of the Strasbourg Court as ‘constitutional Court’. The latter debate, which until now has been solely conducted in the context of individual applications, has many facets.33 The term ‘constitutional’ can refer to a type of judiciary work which concentrates on certain fundamental issues and does not seek individual justice at all times. However, the term ‘constitutional’ is avoided at large. Rather, the term collective enforcement is employed to carve out the characteristic functions the inter-State application aptly performs. Without seeking to exclude the possibility for individual justice, the study argues in favor of a recalibration of the Court’s focus towards addressing serious and widespread human rights issues, which affect more than one individual. 1.4

Stream of Inquiry: Between Collective Enforcement and International Dispute Settlement

The collective enforcement of international human rights is no absolute counterpart or opposite concept to international dispute settlement. Rather, the two functions and their intuitive opposition are a tool to access and to use 31

32 33

L Wildhaber, ‘Pilot Judgments in Cases of Structural or Systemic Problems on the National Level’, in R Wolfrum, U Deutsch (eds), The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions (2009) 69; P Leach et al., Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level (2010) 9; A Buyse, ‘Airborne or Bound to Crash? The rise of Pilot Judgments and their Appeal as a Tool to Deal with the Aftermath of Conflict’, in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 175. See also L Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23 hrlj 161. S Greer, L Wildhaber, ‘Revisting the Debate about ‘constitutionalising’ the European Court of Human Rights’ (2013) Human Rights Law Review 655, 666.

8

Chapter 1

all registers of treaty interpretation needed to analyze Article 33 echr.34 The term function is used in this context in distinction to the legal term purpose. The two terms, function and purpose, are not synonymous. Rather, they can be conceptualized as concentric circles: functions are broader in meaning and do not always have a fully corresponding or explicit legal purpose.35 The formal gap between functions and purposes is one of legitimacy.36 The Drafting Process and the Evolution of the Supervisory Framework of the echr Even though the historic interpretation of an international treaty is a subsidiary means of interpretation, the volume starts with a historic perspective. Here, the study sets out to approach the assigned meaning of the term collective enforcement, which features prominently in the fifth recital of the ­preamble of the Convention. It appears that the travaux préparatoires have never been scrutinized from the angle of the inter-State application.37 Therefore, this part of the study also closes a gap in the literature about the Convention. Further, the study provides an overview of the evolution of the mechanism and retraces its judicialization. This part further allows the reader to better access the interState case law with a description of the original supervisory framework of the Convention. 1.4.1

1.4.2 Comparisons in Light of Leading Question The volume does not provide for extended comparisons with other regional or universal inter-State mechanisms. Even though many human rights instruments are equipped with a State-to-State enforcement mechanism, the scarce inter-State case law under other human rights instruments does not support a meaningful comparison. A comprehensive comparison is also not valuable as an academic exercise in view of the fact that the European Convention often served as a model for other, younger instruments. However, inspiration for 34

35

36 37

There is no cogent order as there is no hierarchy between the different methods of treaty interpretation, A Aust, Modern Treaty Law and Practice (3rd ed, 2013) 206; M Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) Art. 31 para. 29. See also for the term function J Alvarez, ‘What are international judges for? The main functions of international adjudication’, in C Romano et al. (eds), The Oxford Handbook of International Adjudication (2014) 158. Y Shany, ‘No longer a weak department of power? Reflections on the emergence of a new international judiciary’ (2009) 20 ejil 74, 89. The only monographic study about the inter-State application by P Hold von Zürich (n 15) was written in 1976; the travaux préparatoires were published only starting in 1975, edited by A Robertson.

Any Alleged Breach

9

reform consideration is drawn from innovations enshrined in other human rights instruments. The study undertakes two specific comparisons: first, the inter-State application is compared to proceedings before the International Court of Justice (icj). Second, the inter-State application is compared to the individual application under Article 34 of the Convention. The comparisons offered in the study are tightly interwoven with the leading question of the study. By comparing the individual and the inter-State application of the Convention, the function of collective enforcement is carved out by showing the wider spectrum of complaints the inter-State application offers in comparison to the individual application. The comparison with the International Court of Justice is intended to show how the functions of international dispute settlement performed by the Strasbourg Court in the context of inter-State applications have approximated those performed by the Court in The Hague. 1.4.3 Case Law: Documentation, Context and Functions The backbone of the present volume is a case study of the inter-State cases, which were litigated under the Convention over seven decades. The goal of the chapter is to approach the question of the object and purpose of the interState mechanism under Article 33 echr through the analysis of the inter-State case law. The twenty-one cases are analyzed according to the leading question whether the inter-State application is a collective enforcement mechanism for the advancement of human rights or whether the mechanism is used to access a forum for international dispute settlement. For the analysis, the study relies on criteria indicating functions of collective enforcement or international dispute settlement developed in the previous chapters. 1.4.3.1 Documentation As no comprehensive resource repository38 or official collection about the ­inter-State case law exists, the primary sources assembled in the volume fill a gap in the literature about the Convention. The only other monograph about the inter-State application, which was published in 1976, does not, for obvious reasons, cover the applications after 1976.39 For the cases before 1976, the volume by Hold von Zürich provides only fragmentary documentation of the older case law because the author was in the disadvantaged position that many primary sources were still confidential at the time. Due to this disadvantage, he drew at times false conclusions about the outcome of the proceedings. 38 39

Primary sources listed before B Ohms, ‘Artikel 33, Staatenbeschwerden’ (n 18). P Hold von Zürich (n 15).

10

Chapter 1

1.4.3.2 Contextual Approach The case law analysis provides the historical and political context of the respective cases. Where possible, contemporary secondary sources are provided and engaged with. The context of each case is indispensable to evaluate how States used the inter-State mechanism and which functions were performed by the Strasbourg organs. The inter-State application, at times, appears as the continuation of politics by legal means.40 The context of a case helps to situate the inter-State application as a tool to advance the respective State’s interests, be it private or public ones. Further, States’ political and economic concerns sometimes hinder the ideal operation of the inter-State application.41 In addition, the context of each case shows what limitations the inter-State application faces. 1.4.4 Recommendations for Reform The reform considerations offered in the last part are mainly nurtured by the experience in the inter-State cases. At this point it is worthwhile to distinguish the present study from the scholarship about erga omnes obligations and their enforcement.42 The latter has eclipsed the broad concept of standing in interState cases and other similar mechanisms on the regional and universal level.43 The present study thus rather seeks to address how States can be eased into using their broad enforcement possibilities under the existing treaty framework. Accordingly, the results of the study are translated into concrete recommendations for reform of the mechanism. The reform considerations are not invariably driven by the quest to strengthen the Court’s position vis a vis the High Contracting Parties by providing it with more formal legal powers and an arsenal of remedial ‘weapons’. The approach taken here is critical of the judicialization and formalization of

40

41 42 43

F Matscher, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der emrk’, in B Funk et al. (eds), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburtstag (2002) 417, 421; B Ohms, ‘Artikel 33, Staatenbeschwerden’ (n 18) mn 4; K Ipsen, ‘Die Funktion des Völkerrechts’, in E Menzel et al. (eds), Völkerrecht (6th ed, 2014), § 3 mn 4. S Leckie (n 14) 254. See eg C Tams, Enforcing Obligations Erga Omnes in International Law (2010). C Tams, ‘Individual States as Guardians of Community Interests’, in U Fastenrath et al. (eds), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011) 379, 386.

Any Alleged Breach

11

i­nternational adjudication and pleads for more ­procedural flexibility to reach the goal of the effective protection of individual human rights. Inter alia, the reform considerations will address the remedial toolbox in inter-State proceedings. The telos of the proceedings in Strasbourg should, it is argued here, determine also the remedial powers of the European Court of Human Rights. 1.5

Collective Enforcement and International Dispute Settlement

The underlying thesis of the present study is that the inter-State application contributes best to the protection of human rights when it integrates certain aspects of international dispute settlement and collective enforcement. A balanced combination of certain functions will render the tool attractive for those who are expected to use it: States. In the context of recent conflicts, especially with Russia, commentators question the future of the Strasbourg model of human rights litigation.44 The costly maintenance of an international judicial infrastructure needs to be ­justified.45 The study seeks to provide such justification for the inter-State application and carves out that it is worthwhile to maintain the inter-State mechanism within the supervision architecture of the Convention.46 The volume also pulls the analytical threads together in order to relate the results to the object and purpose of the Convention itself, also in light of recent modifications in the additional Protocols No 1547 and No 1648 to the Convention, which are not yet in force. 44

45 46

47 48

B Bowring, ‘Georgia, Russia and the Crisis of the Council of Europe: Inter-State Applications, Individual Complaints, and the Future of the Strasbourg Model of Human Rights Litigation’, in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the ­International Legal Order (2010) 114. C Romano, ‘International Courts and Tribunals: Price, Financing and Output’, in S Voigt and others (eds), International Conflict Resolution (2006) 189, 206. The Court’s budget in 2015 roughly €68 m, Council of Europe Budget and Programme 2014–2015, cm(2014)1, 21. States bear their own costs when they litigate an inter-State case before the Strasbourg court. Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, cets no 213, open for signature since 24 June 2013 (not yet in force). Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms, cets no 214, open for signature since 2 October 2013 (will enter into force upon receipt of tenth ratification).

12

Chapter 1

The study critically reflects upon the limitations of the Court in the specific context of inter-State applications. For example, recent comments describe the inter-State procedure as ‘means of protecting smaller countries from ­neighboring states’ hostile acts’.49 The statement raises high expectations but does not correspond to the powers of a regional human rights court. 49

B Arp, ‘Georgia v. Russia (i)’, (2015) 109 ajil 167, 171.

Chapter 2

The Inception and Evolution of the Inter-State Application under the European Convention on Human Rights 2.1

Overview: The Privilege of Hindsight

This chapter revisits the travaux préparatoires against the background of the leading question of the volume: whether the inter-State application is a mechanism of collective enforcement of human rights or one of international dispute settlement. It is intended to elucidate what exactly the term ‘collective enforcement’ means. In addition, this looking back seeks to sharpen the reader’s sense for the evolution, that is, the judicialization, which the inter-State application under today’s Article 33 echr has undergone since its inception. 2.1.1 Filling the Academic Gap The history of the Convention has already been explored extensively.1 The present volume is less ambitious and more specific. The travaux préparatoires have not yet been examined from the perspective of the inter-State application. It appears that Hold von Zürich, the author of the only monographic study about the inter-State application of 1976, had no access to the preparatory works, which were rendered public only between 1975 and 1985 in eight consecutive volumes.2 2.1.2 Methodological Considerations The chapter provides supplementary means for the interpretation of Article 33 echr within the meaning of Article 32 of the Vienna Convention on the Law of Treaties (vclt).3 The vclt is of more recent vintage than the echr. Given that the treaty about treaties does not apply retroactively 1 E Bates, The Evolution of the European Convention on Human Rights (2010); B Simpson, H ­ uman Rights and the End of Empire (2004); J Sharpe (ed), The Conscience of Europe: 50 Years of the European Court of Human Rights (2000); O Dörr, European Convention on Human Rights (2016) in S Schmahl, M Breuer (eds) The Council of Europe (2017) 465. 2 A Robertson (ed), Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights, volumes i–viii (1975–1985); hereinafter, A Robertson (ed), tp i–viii. 3 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_003

14

Chapter 2

according to Article  4 vclt, it applies in as much as the respective rules enshrined in the vclt have a counterpart in customary international law. The Court referred to Articles 31–33 vclt at a time when it had not yet entered into force.4 The inquiry takes into account that the Strasbourg organs, and especially the Court, have not embraced an overly original approach in the interpretation of the Convention. Instead, the living instrument doctrine is one example of how future-oriented the Court has interpreted the Convention.5 Historians of human rights have been criticized for adopting a ‘celebratory attitude toward the emergence and progress of human rights’.6 A neutral ­description of the drafting and the evolution of the Convention is an ideal aspired to, even if it is hardly attainable, not only because the formal historic knowledge about the process is fragmentary.7 2.1.3 Descriptive Concern of the Chapter This chapter describes the 1950 supervisory set-up of the Convention. Today’s reader may not be familiar with the initial architecture of the supervisory framework of the Convention, which gave way to the single Court in 1998 via Protocol No 11 to the Convention.8 This knowledge is however, indispensable to follow the case law analysis, especially in view of the fact that the majority of inter-State cases were litigated under the original set-up. 2.2

International Human Rights on the Universal Level: Developments Without Specific Enforcement Structures

International human rights law refers to those principles, rules, processes and institutions of international law which create and administer obligations for States to respect and ensure certain entitlements to all human beings under their jurisdiction, irrespective of nationality, including, indeed above all, to 4 Golder v United Kingdom, no 4451/70, judgment, 21 February 1975, Series A no 18, 1 ehrr (1979–1980) 524, specifically § 29f. 5 G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 ejil 509. 6 S Moyn, The last Utopia: Human Rights in History (2010) 5. 7 For the chosen approach see also M Koskenniemi, The Gentle Civilizer of Nations, The Rise and Fall of International Law 1870–1960 (2001) 8; M Koskenniemi, ‘A History of International Law Histories’, in A Peters, B Fassbender (eds), The Oxford Handbook of History of International Law (2012) 943. 8 Protocol No 11 to the Convention, above (Chapter 1, n 3).

Inception and Evolution

15

their own nationals.9 In contrast, general international law provides for a system of rules delimiting the spheres of sovereignty of States in space and time, as well as with regard to persons and certain jurisdictional matters, respectively. In essence, these rules oblige States to abstain from interfering in the areas so demarcated. The design of mechanisms for the supervision of international human rights is a neuralgic point for the balancing of sovereignty10 and the protection of individuals under the jurisdiction of another sovereign. In 1945, human rights made their appearance in the text of the United Nations Charter11 (unc), in the preamble, in Article 1, 13 and 55 unc. It is one of the first references to human rights in an international treaty.12 In 1948, the General Assembly, which was according to Article 13 unc endowed with the task to ‘initiate studies and make recommendations for the purpose of (…) assisting in the realization of human rights and fundamental freedoms (…)’ produced the Universal Declaration of Human Rights (udhr).13 Even if the document was formally not binding, it was a catalyst for other movements, including the European one.14 However, the United Nations arose as a concert of great powers that refused to break, in principle, with either sovereignty or empire.15 While the United Nations Charter and the Universal Declaration on Human Rights indicate that the treatment of citizens by their own governments was no longer in the realm of exclusive jurisdiction of nation States, the domaine réservé,16 the formalization of human rights was not accompanied by any specific (quasi-)judicial ­enforcement mechanism at the universal level.17 The International Court of Justice was not projected as a forum that would deal with human rights as a subject matter. The International Covenant on 9

10 11 12 13 14 15 16 17

B Simma, ‘International Human Rights and General International Law: A Comparative Analysis’, The Protection of Human Rights in Europe, Collected Courses of the Academy of European Law (Vol iv 2) (1995) 153, 166; see also P Lauren (ed), The Evolution of International Human Rights, Visions Seen (3rd ed, 2011). For the term sovereignty in the context of human rights J van der Vyver, ‘Sovereignty’, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (2013) 379. Charter of the United Nations, 24 October 1945, 1 unts 16. J Merrils, A Robertson, Human Rights in Europe (2001) 2. United Nations General Assembly Resolution 217 A (iii), 10 December 1948, Universal Declaration of Human Rights. P Lauren (n 9) 232. S Moyn (n 6) 8. W Kälin, J Künzli, Universeller Menschenrechtsschutz (2013) 3. See for the more recent debate M Nowak, ‘The need for a World Court of Human Rights’ (2007) 7 hrlr 251.

16

Chapter 2

Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were finalized in 1966 and entered into force only in 1976.18 2.3

The Regional Initiative: The Council of Europe and Its Idiosyncrasies

Winston Churchill, in his famous 1946 speech in Zurich, had the idea of uniting Europe in an organization as a reaction to the devastating war the world had just witnessed.19 The Council of Europe (CoE) was founded as an international organization in London on 5 May 1949.20 It was conceived as an intergovernmental forum for European cooperation and standard setting.21 At that time, the project of European integration comprised every aspect; only in the mid1950s did it become clear that economic integration would follow different rules towards today’s European Union.22 According to Article 10 of the Statute of the Council of Europe, (CoE-St), the CoE is equipped with two main organs: the Committee of Ministers as political organ and the Consultative Assembly as deliberative complement. While the text of the Statute of the Council of Europe has remained unchanged since 1949, the latter body was denominated Parliamentary Assembly in 1994. 2.3.1 Human Rights: A Central Feature and the Need for Enforcement While human rights were mentioned in the founding instruments of the United Nations as well as other regional organizations, such as the Charter of the Organization of American States,23 the Statute of the Council of Europe features human rights as a central aim of the organization:24 Article 1 CoE-St

18 19 20

21

22 23 24

See above (Chapter 1, n 21) and (Chapter 1, n 24). Winston Churchill, speech delivered at the University of Zurich, 19 September 1946, www .coe.int/t/dgal/dit/ilcd/Archives/selection/Churchill/ZurichSpeech_en.asp. Statute of the Council of Europe, 5 May 1949, ets 001; the ten original members were Belgium, Denmark, France, the United Kingdom, Ireland, Italy, Luxemburg, the Netherlands, Norway and Sweden; A Robertson, The Council of Europe, Its Structure, Functions and Achievements (1956) 2f; K Carstens, Das Recht des Europarats (1956) 8f. R Uerpmann-Wittzack, ‘Der Europarat’, in A Hatje, P Müller-Graff (eds), Enzyklopädie Europarecht, vol 1, Europäisches Organisations- und Verfassungsrecht (2014) 1071, 1073; T Kleinsorge (ed), Council of Europe (2010). B Wassenberg, History of the Council of Europe (2013) 48. Charter of the Organisation of American States, 30 April 1948, 3 unts 47. K J Partsch, ‘Die Entstehung der europäischen Menschenrechtskonvention’ (1954) 15 hjil 631, 638.

Inception and Evolution

17

states that ‘[t]he aim of the Council of Europe is to achieve a greater unity between its members (…)’ and that ‘[t]his aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms’. Article 3 CoE-St postulates that ‘[e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms […]’. Thus, the Statute of the Council of Europe was a ‘landmark in the international legal recognition of these rights’.25 Article 8 CoE-St contains the possibility to expel or suspend a member State for human rights violations committed under their jurisdiction. The need for enforcement proceedings against member States for human rights violations is thus rooted in the Statute of the Council of Europe.26 This institational framework is relevant for the Convention’s interpretation under Article 5 vclt. Despite the prominent position of human rights within the Council of Europe’s Statute, the Committee of Ministers was at first reluctant to include the item of human rights on the Consultative Assembly’s agenda of the first session.27 Winston Churchill stated that ‘[a] European Assembly forbidden to discuss human rights would indeed have been a ludicrous proposition to put to the world’.28 Even if fears about sovereignty were similar at the level of the United Nations and the Council of Europe, the status of human rights within the regional organization, specifically the acknowledgement of the need of their enforcement, is to be distinguished from the one at the level of the United Nations. The Object and Purpose of the Convention: More Collective Enforcement than Individual Justice The motives of the participants in the drafting process of the Convention were variegated, the group of States they represented29 was heterogeneous.30 West Germany was eager to be allowed back into the group of States since

2.3.2

25 26

27 28 29

30

H Lauterpacht, International Law and Human Rights (1950). R Blackburn, ‘The Institutions and Processes of the Convention’, in R Blackburn, J Polakiewicz (eds), Fundamental Rights in Europe, The European Convention on Human Rights and its Member States, 1950–2000 (2002) 3, 11. A Robertson (ed), tp i, xxiv, and 2–13. A Robertson (ed), tp i, 34. Denmark, Ireland, Italy, Luxembourg, Norway, Sweden, the United Kingdom, Germany and Turkey, see for a chronological list of signature and ratification E Engel, N Engel (eds), egmr-e 1 (2008) 572, 573. Cf P Hold von Zürich (Chapter 1, n 15) 7.

18

Chapter 2

­participation in the Council of Europe and in the Convention also meant recognition.31 The Convention could be seen as a bulwark against totalitarian rule and communism in Western Europe or as a potential Bill of Rights for Europe.32 Some drafters saw the Convention as a ‘first counter strike to the intending tyrant’.33 Others saw the instrument as an alarm bell, which would call for further action and prevent a repetition of the horrors of the Second World War.34 A clear-cut object and purpose of the Convention, which would also ­inform the inter-State application as enforcement mechanism does not emerge from the travaux. What can be deduced from these aspirations as well as the way the preamble of the Convention is phrased is that the notion of individual justice was not a central aim of the instrument. 2.4

Retracing the Notion of Collective and Enforcement

When the drafters of the Convention started their work, they could draw on earlier work by the European Movement.35 The latter was an informal association of statesmen, academics and members of civil society advocating for ­European integration.36 Inter alia, Pierre-Henri Teitgen, Henri Rolin and W ­ inston Churchill were involved. The European Movement worked towards a binding human rights document and ‘desire[d] a Court of Justice with ­adequate sanctions for the implementation of this Charter’.37 In February 1949, a committee of the movement had prepared a first draft of a European Convention on ­Human Rights. This draft provided for a guarantee of some ten rights and freedoms and projected a court that was accessible to individuals.38 31 32 33 34

35 36 37 38

E Klein, ‘50 Jahre Europarat, Seine Leistungen beim Ausbau des Menschenrechtsschutzes’ (2001) 39 avr 121, 122. H Waldock, ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’ (1958) 34 byil 356, 359. A Robertson (ed), tp i, 119. D Harris et al., Law of the European Convention on Human Rights (2014, 3rd ed) 3; L-E Pettiti, ‘Réflexions sur les principes et les mécanismes de la Convention, De l’idéal de 1950 a l’humble réalitè d’ajourd’hui’, in L-E Pettiti et al. (eds), La Convention Européenne des Droits de l’Homme, Commentaire article par article (1999) 27. The draft Convention by the European Movement is reprinted in the A Robertson (ed), tp i, 296f; K J Partsch (n 24) 642; see also B Simpson (n 1) 649f. See for more background B Simpson (n 1) 597–648. A Robertson (ed), tp i, xxii. J Sharpe, ‘The Birth of the European Convention on Human Rights’, in J Sharpe (ed), The Conscience of Europe: 50 Years of the European Court of Human Rights (2000) 16, 18.

Inception and Evolution

19

2.4.1 Introducing the Notion of Collective Enforcement The Consultative Assembly held its first session in Strasbourg from 10 August to 8 September 1949.39 In early September 1949, the so-called Teitgen-report contained the results of the discussions.40 The report was presented by the French lawyer Pierre-Henri Teitgen. As a member of the French government he had also been part of the European Movement. The idea of collective enforcement can be traced to the Teitgen-report.41 The document affirms the ‘­usefulness of such a collective guarantee’ and details that ‘this guarantee will demonstrate clearly the common desire of the Member States to build a ­European Union in accordance with the principles of natural law, of humanism and of democracy; (…) it will allow Member States to prevent – before it is too late – any new member who might be threatened by a rebirth of totalitarianism from the succumbing to the influence of evil, as has already happened in general ­conditions of apathy’.42 2.4.2 Enforcement – A Point of Contention During the drafting process in Strasbourg, Tetigen lobbied for a Court as ‘the conscience of which we all have need’.43 Winston Churchill shared his views.44 The opposing school advocated for a mechanism of investigation and publicity, with consequential pressures either from public opinion or from unspecified diplomatic or political action.45 Rolin, the later president of the European Court of Human Rights, was one of the opponents of a Court.46 In his view, the collective protection of human rights would be completely ensured by the creation of the European Commission of Human Rights, which would produce reports on the facts and make them public without the power to make 39 40

41

42 43 44 45 46

A short overview over the role in the drafting of various bodies within the Council of Europe is available in A Robertson (ed), tp i, xxii–xxxiii. Consultative Assembly of the Council of Europe, 5 September 1949, Doc 77, Report presented by P Teitgen on behalf of the Committee on Legal and Administrative Questions, reprinted in A Robertson (ed), tp i, 192f. B Simpson (n 1) 657; for the role of the different organs of the Council of Europe in the drafting process see J Frowein, ‘Einführung’, in J Frowein, W Peukert, emrk-Kommentar (3rd ed, 2009) mn 1; see also E Decaux, ‘Les États parties e leurs engagements’ in L-E ­Pettiti et al. (eds), La Convention Européenne des Droits de l’Homme, commentaire article par a­ rticle (1999) 1. A Robertson (ed), tp i, 192. A Robertson (ed), tp i, 292. A Robertson (ed), tp i, 34. See also B Simpson (n 1) 678. A Robertson (ed), tp ii, 144f.

20

Chapter 2

a ­declaration on the merits. He argued that ‘[i]f our States are (…) really lawabiding States, such a measure of publication would be sufficient to arouse the attention of the Parliaments to persuade the Governments to make the necessary restitution’.47 He further argued that in the event of persistent issues, it would be ‘possible for the Parliament of another State to use the ­Report of the Commission of Enquiry as a basis for a request for its own Governments to intervene by setting in motion some inter-State form of procedure, whether by means of legal action [before the International Court of Justice] or by arbitration’.48 It seems that the drafters wanted to avoid the duplication of ­judicial structures; the argument was that the International Court of Justice already was in existence ‘whose competence for most disputes of a legal nature has already been accepted as obligatory by most Members of the Council of Europe’.49 2.5

The 1950 Convention Revisited

The key features of the Convention as finalized in 1950 are recalled and ­described briefly. Amenable to Judicial Enforcement: The Substantive Guarantees of the echr An essential prerequisite for the supervision and enforcement of international human rights obligations is their level of concreteness. During the drafting period, it was debated whether the rights of the future Convention were to be defined in a detailed manner or merely enumerated in a more general way.50 The final text was an amalgamation of both, while the text is, much more than the one of the 1948 udhr, a specification of human rights with finer shades of meaning, amenable to judicial enforcement.51 Moreover, the echr is a selective document to the extent that not all rights contained in the 1948 udhr are restated. While civil and political rights are enunciated, cultural, economic and social rights were excluded, apparently

2.5.1

47 48 49 50 51

A Robertson (ed), tp i, 244. A Robertson (ed), tp i, 244 and 258. A Robertson (ed), tp i, 242. A Robertson (ed), tp i, 157f. A Robertson, The Council of Europe, Its Structure, Functions and Achievements (1956) 150.

Inception and Evolution

21

­because they were deemed not to be enforceable in the same way.52 Substantive additions to the echr were envisaged already at the time when the ­Convention was signed in Rome on 4 November 1950. Not contained in the Convention was the right to self-determination and a general prohibition of discrimination. While the first was never added to the concert of protected rights under the echr’s framework, the latter is contained in Protocol No 12 to the Convention, which was opened for signature in 2000.53 Likewise, minority rights were not included in the echr because in the postworld war order, ethnic claims were seen as a threat to sovereignty.54 It took the shock of the interethnic violence in the post-cold war Eastern Europe for a formal recognition of minority rights in Europe.55 In 1993, the ­Parliamentary Assembly of the Council of Europe had called for adoption of a protocol to the echr on the rights of minorities, however, with no avail.56 2.5.2 The Architecture of Supervision: A Complex Compromise The relative complexity of the compromise reached in the 1950 Convention is explained by the fundamental disagreement about whether there should be a Court or whether the obligations undertaken should be overseen by a political mechanism.57 The Convention entrusted three bodies with the supervision 52

53 54

55

56 57

P Mahoney, ‘Reconciling Universality of Human Rights and Local Democracy – the ­ uropean Experience’, in C Hohmann-Dennhardt, P Masuch, M Villiger (eds), GrunE drechte und Solidarität, Durchsetzung und Verfahren (2011) 147, 151. Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 2000, ets No 177. A Eide, ‘The Framework Convention in Historical and Global Perspective’, in M Weller (ed), The Rights of Minorities in Europe (2005) 25, 39; see also R Knight, ‘Western Perspectives on Ethnic Politics’, in R Knight (ed), Ethnicity, Nationalism and the European Cold War (2012) 13, 14. The first binding instrument was drawn up within the Council of Europe in 1992, ­European Charter for Regional or Minority Languages, 5 November 1992, ets 148; S Oeter, ‘The European Charter for Regional or Minority Languages’, in Council of Europe Publishing (ed), Mechanisms for the Implementation of Minority Rights (2004) 131. The Framework Convention for the Protection of National Minorities was adopted on 1 February 1995, ets 157; R Hofmann (ed), Rahmenübereinkommen zum Schutz nationaler Minderheiten (2015); H-J Heintze, ‘Article 1 of the Framework Convention for the Protection of National Minorities’, in M Weller (ed), The Rights of Minorities in Europe (2005) 77, 78. Parliamentary Assembly, Recommendation 1201(1993), ‘Additional protocol on the rights of minorities to the European Convention on Human Rights’, 1 February 1993. F Matscher, ‘Betrachtungen über das Verfahren der Straßburger Konventionsorgane’ in M  Nowak et al. (eds), Fortschritt im Bewußtsein der Grund- und Menschenrechte – ­Festschrift für Felix Ermacora (1988) 79, 93.

22

Chapter 2

of the Convention’s obligations: the European Commission of Human Rights (the Commission), the European Court of Human Rights (the Court) and the ­Committee of Ministers of the Council of Europe.58 2.5.2.1 The Commission’s Tasks The Commission met for the first time in 1954. It was a part time organ.59 The Commission’s task under the Convention was to decide on the admissibility of both individual and inter-State applications according to ex-Articles 26 and 27 echr. At the merits stage, the Commission had the duty to establish facts and to work with the parties towards a friendly settlement under ex-Article 28 echr. If a settlement was reached, the Commission was to prepare a report, which was confined to a brief statement of facts, ex-Article 30 echr. If a settlement could not be reached, the Commission would prepare a report under ex-Article 31 echr. In this non-binding document, the Commission stated its opinion whether the established facts disclosed a violation of the Convention. The Commission could also, under ex-Article 31 § 3 echr, ‘make such proposals as it thinks fit’. The Commission’s reports were confidential documents, and were only published by decision of the Committee of Ministers, or if the case was referred to the Court. The Commission could not award just satisfaction under ex-Article 50 echr (today Article 41 echr). In a formal sense, it could not establish the international responsibility of a State. The only ‘binding’ decision the body could issue was a decision of inadmissibility. It was therefore described as a quasi-judicial body.60 2.5.2.2 The Role of the Court The Court was established in 1959, six years after the Convention had entered into force. The birth of the Court had been conditional on eight acceptances of its jurisdiction under ex-Article 46 echr by the High Contracting Parties.61 Like the Commission it was not in permanent session. At the time, it was seen as a daring experiment.62 58

59 60 61 62

H Golsong, ‘Die eigenartige Rolle des mk des Europarates als eine der beiden Entscheidungsinstanzen im Rahmen der mrk’ (1975) 2 EuGRZ 448; the number of commissioners and judges was equal to the number of High Contracting Parties, ex-Articles 20 and 38 echr. Ex-Article 35 echr. E Fribergh, M Villiger, The European Commission of Human Rights, in R Macdonald et al. (eds), The European System for the Protection of Human Rights (1993) 605, 619. Ex-Article 46 of the Convention. H Mosler, ‘Organisation und Verfahren des Europäischen Gerichtshofes für Menschenrechte‘ (1959–60) 20 hjil 415, 416.

Inception and Evolution

23

If a case reached the Court, the judicial organ was not bound by the Commission’s report, which at times led to contradictory results. Judgments by the Court were final and binding under ex-Articles 52 and 53 echr. The Court could afford just satisfaction under ex-Article 50 echr. The Committee of Ministers was entrusted with the task of the supervision of the execution of the judgment under ex-Article 54 echr. 2.5.2.3 The Twofold Role of the Committee of Ministers The Commission and the Court were organs under ex-Article 19 of the Convention, while the Committee of Ministers was the political organ of the Council of Europe as envisaged in Articles 10, 13, 14 and 15 CoE-St. The Committee of Ministers had a twofold role under the Convention: first, it was entrusted with the supervision of judgments under ex-Article 54 echr. Its second role, which was more important during the Convention’s infancy years, was to decide, by a majority of two thirds of its members, whether there had been a violation of the Convention under ex-Article 32 echr. Thus, the Committee would decide instead of the Court if cases did not reach the judicial organ, which was the rule rather than the exception because especially in the early years, States were reluctant to accept the Court’s jurisdiction.63 The Committee of ­Ministers’ ­decision was binding under ex-Article 32 § 4 echr. The decision-making about violations of the Convention by the political ­organ was, as could be expected, not always a clear-cut success. On the contrary, especially in inter-State cases with their complex political ramifications, the danger of political dilution once the case reached the Committee of Ministers manifested itself more than once. The clearest example is the way the Committee of Ministers handled the first three inter-State applications between Cyprus and Turkey. The protracted litigation over more than four decades is in part due to the sobering performance of the Committee of ­Ministers.64 When the case came before the Court after the 1998 reform, the Grand Chamber ­noted that the Committee of Ministers had failed to take decisions in accordance with ex-Article 32 § 1 echr in the previous inter-State cases.65 2.5.3 Supervision à la Carte States could expose themselves to various degrees of oversight under the original 1950-Convention. 63 64 65

S Prebensen (Chapter 1, n 14) 458. C Tomuschat, ‘Quo Vadis, Argentoratum? The Success Story of the European Convention on Human Rights – and a Few Dark Stains’ (1992) 13 hrlj 401, 402. Cyprus v Turkey (iv), no 25781/94, judgment (merits) [gc], 10 May 2001, echr 2001-iv, § 67.

24

Chapter 2

2.5.3.1 The Right of Individual Petition as an Optional Remedy The right of individuals to apply to the European Commission on Human Rights was optional under ex-Article 25 echr. The acceptance did not mean, however, that individual applications would reach the Court automatically. The respondent State had to accept the jurisdiction of the Court under exArticle 46 echr. In addition, before Protocol No 9 to the Convention entered into force in 1994,66 individuals could not refer the cases to the Court by themselves. Only the Commission or a High Contracting Party could refer the cases to the Court.67 As a consequence of this design, both the Court and the Commission were constantly ‘on probation’68 because the optional acceptances, if they were made at all, were subject to renewal. The initial design of the right to individual petition indicates that the notion of individual justice was not a central aim of the Convention as finalized in 1950. 2.5.3.2

The Inter-State Application to the Commission as Default Mechanism The thrust of disagreement during the drafting of the supervisory mechanism concerned the design of the right of individual petition.69 The debate sheds light on the way in which the inter-State application was seen: as a low, but not the lowest, common denominator. One proposal within the Committee on Legal and Administrative Questions was to ensure ‘that all its members respect the principles of democracy’.70 The proposition was that as long as democracy was safeguarded, the ‘peoples should be entitled to settle their own affairs as they think best’.71 While the Convention was seen as a membership test for the democratic club of Western European States,72 this minimum supervision was deemed to be insufficient. The default supervision mechanism upon ratification of the Convention was the possibility for member states to apply to the European Commission of Human Rights under ex-Article 24 echr.

66 67

68 69 70 71 72

Protocol No 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 6 November 1990, ets 140. K Rogge, ‘The European Commission of Human Rights’, in M de Salvia/M Villiger (eds), The Birth of European Human Rights Law, Studies in Honour of Carl Aage Norgaard (1998) 5. E Bates (n 1) 193. A Robertson (ed), tp i, 244; see also A Robertson, ‘The European Convention for the ­Protection of Human Rights’ (1950) 27 byil 154. A Robertson (ed), tp i, 226. A Robertson (ed), tp i, 226. A Robertson (ed), tp i, 114; E Bates (n 1) 5.

Inception and Evolution

25

Both the applicant and the respondent had to accept the optional jurisdiction of the Court under ex-Article 46 echr for the case to reach the Court. A further contingency for the case to come before the Court was a referral to the Court under ex-Article 48 echr. A referral was possible by the Commission, by the applicant State, by the respondent State, or by a State whose n ­ ationals were allegedly victims. Without the reciprocal consent of the parties for the jurisdiction of the Court according to ex-Article 46 echr or absent a referral to the Court under ex-Article 48 echr, an inter-State case was, by d­ efault, destined for the Committee of Ministers. Only one inter-State case came before the Court before the reform of 1998, namely Ireland v United Kingdom. In 1978, the Court delivered its first judgment in an inter-State case.73 2.5.4 Evaluation of the 1950 Convention’s Supervisory Structure The drafting process of the Convention was short. Thus, many issues were relegated to the practice of the Convention organs. In turn, this left Strasbourg in a difficult role between law and diplomacy when the Convention entered into force.74 When the Commission received the first petitions, supervision of the Convention was seen as a political rather than judicial task. The British President of the Commission, Waldock, said in 1958: ‘It [the Convention] was not primarily established for the purpose of putting States in the dock and registering convictions against them’.75 International law was, at the time the Convention was drafted, firmly in the hands of sovereign States, predicated on their bilateral legal relations.76 No group of States had ever agreed to a binding multilateral human rights convention, much less established a permanent institutional arrangement to give it teeth.77 While Lauterpacht had argued in 1945 that the transformation of the relations between a State and its nationals into international legal obligations by which the international community could derive a meaningful level of o­ versight would engender utopian restrictions of sovereignty,78 73 74

75 76 77 78

Ireland v United Kingdom, no 5310/71(judgment) 18 January 1978, Series A, no 25. M Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal ­Diplomacy to Integrationist Jurisprudence’ in J Christoffersen, M Madsen (eds), The European Court of Human Rights between Law and Politics (2011) 43, 44. H Waldock, ‘The European Convention for the Protection of Human Rights and Fundamental Freedoms’ (1958) 34 byil 356, 362. B Simma, ‘From Bilateralism to Community Interest in International Law’ (1993) RdC 217, 229. B Simpson (n 1) 9. H Lauterpacht, An International Bill of Rights of Man (1945) 14.

26

Chapter 2

he had to ­temper this statement in 1950, shortly before the echr was signed in Rome.79 Leaving the Geneva Conventions of 1949 aside, the echr provided the first treaty-based human rights catalogue.80 However, the Convention itself ‘aroused little more than polite curiosity’81 at the time it was finalized. Disappointment about the supervisory mechanism was prevalent.82 It was fully appreciated in 1950 that it would be a rare occurrence for States to bring each other before the Commission.83 However, the possibility to cite another party before the Commission not only on behalf of the applicant’s nationals but also on behalf of any other person within the jurisdiction of the respondent was considered a ‘major ­departure’ from the traditional concepts of international law.84 The inter-State application was ‘far beyond the existing right of States to afford diplomatic protection to their own citizens abroad’.85 Even if the instrument was imperfect, it  contained legal commitments and thus was a leap forward after the Universal Declaration of 1948 remained a non-binding expression of intentions.86 In order to provide a balanced picture one should not fail to mention that the right of individuals to apply to an international body was the even more remarkable novelty in international law, even if the individuals’ right was designed as an optional remedy at the time.87

79 80

81 82 83 84 85 86 87

H Lauterpacht, International Law and Human Rights (1950) 383. See especially the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 unts 287; G Oberleitner, ‘Humanitarian Law as a Source of Human Rights Law’, in D Shelton, The Oxford Handbook of International Human Rights Law (2013) 275. R Ryssdall, ‘The Coming of Age of the European Convention on Human Rights’ (1996) 1 ehrlr 18. E Bates (n 1) 8; see also H Rolin, ‘Has the European Court of Human Rights a Future?’ (1965) 11 Howard Law Journal 442, 444. A Robertson (ed), tp v, 112; A Robertson (ed), tp ii, 196; E Bates (n 1) 9; A Robertson, The Council of Europe, Its Structure, Functions and Achievements (1956) 152. A Robertson, The Council of Europe, Its Structure, Functions and Achievements (1956), 168; A Robertson, Human Rights in Europe (1963) 59. R Ryssdall, ‘The Coming of Age of the European Convention on Human Rights’ (1996) 1 ehrlr 18, 19. A Robertson, ‘The European Convention for the Protection of Human Rights’ (1950) 27 byil 145, 162. K Rogge, ‘Der Rechtschutz der Europäischen Menschenrechtskonvention’ (1975) 1/2 E­ uGRZ 117, 119.

Inception and Evolution

2.6

27

Towards Judicial Supervision: Subsequent Amendments of the Convention

Over the years, several Protocols were drawn up to modify certain aspects of the procedure before the Strasbourg institutions. Of these various instruments, Protocol No 11 to the Convention,88 which entered into force in 1998, was of particular importance. The work of the Strasbourg machinery had to be streamlined to avoid duplication and to be able to deal with the increased number of cases in view of the accession of many new member States from Eastern Europe.89 Protocol No 11 to the Convention instituted a single permanent court with compulsory jurisdiction in both individual and inter-State applications.90 The Committee of Ministers’ role was reduced to the supervision of the execution of judgments. The political organ is no longer entrusted with the decision whether or not a breach of the Convention actually occurred, the task is now the exclusive domain of the Court. The Commission was abolished, the Court took over the functions previously carried out by the C ­ ommission. It was discussed to retain the role of the Committee of Ministers to decide upon the merits of a case in inter-State cases.91 However, the design of the inter-State application was not a central concern for the reform considerations in 1994. The inter-State application is mentioned only a few times in the explanatory ­report to Protocol 11 to the Convention; § 83 of the explanatory report hints at the reading that Article 33 echr was based on ex-Article 24 echr w ­ ithout much additional thought.92 It appears that the compulsory jurisdiction of the European Court of Human Rights in inter-State cases was ­introduced unnoticed.

88 89 90 91

92

Protocol No 11 to the Convention, above (Chapter 1, n 3). V Schlette, ‘Das neue Rechtsschutzsystem der Europäischen Menschenrechtskonvention’ (1996) 56 hjil 905, 918. See also R Bernhardt, ‘Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11’ (1995) 89 ajil 145. Documentation of the Reform of the Control System of the European Convention on ­Human Rights, (1993) Human Rights Law Journal 31, 40; J Fitzpatrick, Human Rights in Crisis, The International System for Protecting Rights During States of Emergency (1994) 200. Explanatory Report to Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby, 11 May 1994, rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMCo ntent?documentId=09000016800cb5e9.

28 2.7

Chapter 2

Results: The Inter-State Application between Collective Enforcement and International Dispute Settlement

This look back on the drafting history and the evolution of the European Convention of Human Rights shows that the inter-State application was never ­assigned a clear-cut object and purpose. Rather, different functions were ­ascribed to it. The travaux préparatoires indicate that the term ‘collective ­enforcement’ referred to a legal right for preventive action in view of totalitarian ­tendencies in a member State.93 Collective enforcement can be further understood as a departure from the traditional, bilateral structure of diplomatic protection. The inter-State application under ex-Article 24 echr enabled every member State to take action against another member State in favor of all persons under the jurisdiction of the respondent State, regardless of their nationality. On the European regional level, the possibility of enforcement was deemed to be a necessary feature of an international human rights instrument. The inter-State application was the default remedy. The modalities of enforcement via the inter-State application were conceived of a combination of political and judicial elements. The collective enforcement of human rights as envisaged in the 1950 Convention was not a complete departure from the State-to-State dispute s­ ettlement: existing competences of the International Court of Justice to settle disputes were not to be curtailed.94 The collision-clause contained in the Convention, which is today’s Article 55 echr speaks of ‘means of settlement other than those provided for in this Convention’. The template norm for awarding just satisfaction under ex-Article 50 echr (today Article 41 echr) were bi- and multilateral arbitration treaties concluded at the beginning of the 20th century.95 The expectation of the drafters seems to have been that a considerable portion of the litigation under the Convention would take place in an interState context. Thus, the idea of collective enforcement was not intended to create a sui generis type of inter-State enforcement structure. Today, Article 33 echr authorizes all member states to ‘refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party’. Thus, the inter-State mechanism is one of the most visible steps towards the judicialization of the supervisory 93 94 95

A Robertson (ed), tp i, 119. A Robertson (ed), tp i, 204. M Mas, ‘The Right to Compensation under Article 50’ in R Macdonald, F Matscher, H ­Petzold (eds), The European System for the Protection of Human Rights (1993) 775, 776.

Inception and Evolution

29

framework of the European Convention of Human Rights: it confers compulsory jurisdiction to the Court in inter-State cases. The development fulfills the aspirations of those drafters who had wished that Member States should be given the possibility to ‘insist on a legal ruling’.96 This is a remarkable development in the arena of international law, a field of law where a mandatory or default forum for the settlement of disputes is still not available. The judicialization is an improvement for the mechanism because it eliminates the decisive role of the Committee of Ministers towards a more objective system of supervision. The development renders the echr’s ­inter-State application attractive because the judicialization of the mechanism is not matched by other fields of international law. 96

A Robertson (ed), tp i–viii, 204.

Chapter 3

International Dispute Settlement and Collective Enforcement Functions of the Inter-State Application Approached Through Comparison The function of collective enforcement of human rights and the function of international dispute settlement, which the inter-State application under the European Convention on Human Rights seems to combine, are, at first sight, strange bedfellows. This chapter shows how both functions are invested in the inter-State application under Article 33 echr. The method to grasp and delineate the two functions is by comparison. First, the inter-State proceedings before the European Court of Human Rights and the International Court of Justice are compared in order to ­highlight their common dispute settlement functions. The access to the dispute settlement functions via the jurisdictional clauses of the two Courts is, h ­ owever, very different. Further, the two Courts apply different material yardsticks. These two features, jurisdiction and yardstick, are included in the comparison against the background of the conflict between Georgia and Russia in 2008.1 The comparison is intended to show how the Strasbourg Court’s dispute settlement functions become more attractive and relevant in the absence of compulsory jurisdiction of the icj even though the inter-State application was not primarily designed to settle international disputes. Second, the inter-State application under Article 33 echr and the individual application under Article 34 echr are compared. The function of collective enforcement is thereby carved out as added value of the inter-State ­application within the current supervisory framework of the Convention. The comparison further provides an overview regarding the admissibility requirements of the inter-State application. The stream of inquiry is nurtured by the debate about the future role of the Strasbourg Court as a constitutional court for Europe dealing with large-scale human rights problems on the one hand, and on the other, as a Court which is challenged to deal with large numbers of applications under Article 34 echr which seek individual justice. 1 Before the European Court of Human Rights, Georgia v Russia (ii), no 38263/08; before the International Court of Justice, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Preliminary Objections, Judgment, 1 April 2011; icj Reports 2011, 70.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_004

International Dispute Settlement

3.1

31

Inter-State Litigation in Strasbourg and The Hague – A Comparison with a View to the Function of International Dispute Settlement

3.1.1 Overview International dispute settlement is an umbrella term for many possible arrangements for the resolution of a dispute between States by peaceful means, as also the 1970 Friendly Relations Declaration indicates.2 International ­dispute settlement is understood as a proceeding which is intended to assist in decreasing the level of tension between States by a review of facts and applicable law by a third party. It comprises a proceeding in front of a permanent international court equipped with independent judges, triggered by a State against another State. It involves a proceeding in which facts are established, international law is applied as yardstick and where a binding decision sets the end of the proceedings.3 For the purposes of the present volume, there is no need to dwell e­ xtensively on the question whether there is a difference between international dispute settlement and dispute settlement because the present study’s scope is limited to State-to-State litigation.4 Furthermore, there is no ­legal distinction in international law which would necessitate a differentiation.5 The two terms, international dispute settlement and dispute settlement, are therefore used interchangeably in the present volume. Despite the different intellectual premises and institutional developments, the Strasbourg and The Hague Courts perform similar judicial ­dispute

2 United Nations General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(xxv): ‘Every State shall settle its international disputes with other States by peaceful means in such a manner that international peace and security and justice are not endangered. States shall accordingly seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, ­arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice. In seeking such a settlement the parties shall agree upon such peaceful means as may be appropriate to the circumstances and nature of the dispute’. 3 A Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’ (2003) 14 ejil 1, 2. 4 C Tomuschat, Article 2 (3) United Nations Charter, in B Simma et al. (eds), The Charter of the United Nations, A Commentary (2012) mn 29, with further references as to the possible inclusion of peoples. 5 A Peters, ‘Cooperation in International Dispute Settlement’, in J Delbrück (ed), International Law of Cooperation and State Sovereignty (2002) 107, 109.

32

Chapter 3

­settlement functions.6 Both Courts exercise judicial review and both can ­engage in fact-finding if necessary. The similarity of both Courts has become evident during the 2008 conflict between Georgia and Russia, when Georgia approached both the European Court of Human Rights and the International Court of Justice. Before the ­International Court of Justice, Georgia sought to use the compromissory clause of the International Convention on the Elimination of All Forms of ­Racial Discrimination7 (cerd) as a basis of jurisdiction. In 2011, the icj found that the procedural requirements of Article 22 cerd were not met because there was no dispute.8 The parallel case Georgia brought before the European Court of Human Rights was declared admissible in 2011 and is currently pending before the Strasbourg Court.9 What distinguishes the two Courts is the way access to international dispute settlement functions is designed. Access to third party dispute ­settlement functions is, in the international legal order, not a common feature. The focus of the comparison between the International Court of Justice and the ­European Court of Human Rights lies on the way the jurisdiction of both Courts is d­ esigned. Jurisdiction refers to the requirement of consent of States to be exposed to international adjudication. The European Court of Human Rights is equipped with compulsory jurisdiction. An important related a­ spect is the ­respective subject matter jurisdiction, that is, the yardstick the two Courts apply. These selected properties allow a better understanding of the role, functions and potential of the European Court of Human Rights in the specific context of inter-State proceedings.10 6 7 8

9 10

F Ermacora, ‘Über die Staatenbeschwerde in Fragen der Menschenrechte’, in Recueil de travaux publiés par la faculté de droit, Mélanges Marcel Bridel (1968) 169. International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, 660 unts 195. Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Preliminary Objections, Judgment, 1 April 2011; icj Reports 2011, 70; see also A Zimmermann, ‘Zuständigkeit des ­Internationalen Gerichtshofs und Treaty Bodies’, in M Breuer et al. (eds), Der Staat im Recht, Festschrift für Eckart Klein zum 70. Geburtstag (2013) 953 (Zimmermann was counsel for the Russian Federation in the proceedings before the International Court of Justice). Georgia v Russia (ii), no 38263/08 (dec), 13 December 2011. See Y Shany, ‘Jurisdiction and Admissibility’, in C Romano et al. (eds), The Oxford Handbook of International Adjudication (2014) 797, 804; H Steiger, ‘Zur Struktur der Kontroll- und Durchsetzungsverfahren gegenüber Mitgliedsstaaten einer Internationalen ­Organisation’, in I von Münch (ed), Festschrift für Hans-Jürgen Schlochauer (1981) 649.

International Dispute Settlement

33

3.1.1.1

The International Court of Justice as Suitable Tertium Comparationis The International Court of Justice is the principal judicial organ of the United Nations according to Article 92 of the Charter of the United Nations. The present volume does not embark on a lengthy description of the icj. The judicial body has been selected as a tertium comparationis to the European Court of Human Rights in the specific context of inter-State proceedings because the icj is the archetype of an international court.11 It is the most relevant judiciary organ with a view to the leading question of the volume because according to Article 38 icj-Statute, the icj is to ‘decide in accordance with international law disputes as are submitted to it’. Admittedly, the institution is not a human rights court. The judicial organ has, however, dealt with matters relating to individuals in the framework of diplomatic protection12 and its subject matter jurisdiction comprises human rights treaties.13 Undeniably, the Court has taken cognizance of the ‘human realities behind disputes of States’.14 The differences in the jurisdiction ratione loci between The Hague and Strasbourg are, in view of the global reach of the icj, out of question. Article 1 echr limits the application of the Convention.15 The French text of Article 1 echr, which is equally authentic, arguably has a less territorial connotation than the English text.16 Notwithstanding these

11

12

13 14

15 16

S Oeter, ‘Vielfalt der Gerichte – Einheit des Prozessrechts?’ in Berichte der Deutschen ­ esellschaft für Völkerrecht (42), Die Rechtskontrolle von Organen der StaatengemeinG schaft (2005) 149, 153. LaGrand (Germany v United States of America), Judgment, 27 June 2001, icj Reports 2001, 466; Avena and Other Mexican Nationals (Mexico v United States of America), Judgment, 31 March 2004, icj Reports 2004, 12. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Judgment, 24 March 2006, icj-Reports 2007, 582. R Higgins, ‘Interim Measures for the Protection of Human Rights’, in R Higgins (ed), Themes and Theories, Selected Essays, Speeches, and Writings in International Law (2009), 604, 618; see also B Simma, ‘Human Rights before the International Court of Justice: Community interest coming to life?’ in H Hestermeyer et al. (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (2011) 577, 601; C Tomuschat, Human Rights, Between Idealism and Realism (2nd ed, 2008) 231. Article 1 echr: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section i of this Convention’. Article 1 echr: ‘Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les droits et libertés définis au titre I de la présente Convention’, see A Peters, ‘Die Anwendbarkeit der emrk in Zeiten komplexer Hoheitsgewalt und das Prinzip der Grundrechtstoleranz’ (2010) 48 AvR 1, 3; C Grabenwarter, ‘Article 1 – O ­ bligation to respect human rights’, in C Grabenwarter (ed), European Convention on Human Rights,

34

Chapter 3

­limitations inherent in the Convention as a regional human rights instrument, the difference between the Courts in geographical reach should not be overestimated in view of cases before the Strasbourg Court that dealt with the ­breakup of the former Yugoslavia17 and the invasion of Iraq by the United Kingdom and the United States.18 At this point it is also worthwhile to recall that in the early days of the European Convention on Human Rights, the socalled colonial clause, ex-Article 63 echr, which is today’s Article 56 echr, extended the territorial scope of application of the echr to most African and Asian colonies of the United Kingdom.19 From an outcome perspective, the Courts offer similar ‘products’: The ­judgments of the icj are binding under Article 94 of the United Nations Charter. The possibility for the Security Council of the United Nations to enforce a judgment has remained largely theoretical.20 In the Strasbourg context, judgments are binding under Article 46 echr. Their execution is supervised by the Committee of Ministers of the Council of Europe, a construct that has, more often than not, proven to be effective.21 3.1.1.2

International Dispute Settlement and the European Court of Human Rights According to Article 19 echr, the Strasbourg court was set up to ‘ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’. According to Article 55 echr, the High Contracting Parties agreed that ‘they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of ­submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.22 The wording of the collision norm indicates that the

17 18 19 20 21 22

Commentary (2014) mn 11, with further references to the travaux préparatoires; for a critical survey of the drafting materials and against a territorial reading of Article 1 echr M Milanovic, Extraterritorial Application of Human Rights Treaties, Law, Principles, and Policy (2011) 38f. Bankovic and Others v Belgium (dec) [gc], no 52207/99; Behrami and Saramati v France, Germany and Norway (dec) [gc], nos 71412/01 and 78166/01. Al-Skeini and Others v the United Kingdom, [gc] no 55721/07; Al-Jedda v The United K ­ ingdom [gc] no 27021/08. Declaration of extension under ex-Article 63 echr of the United Kingdom, Yb 1 ­(1955–56–57) 46, 47. C Schulte, Compliance with decisions of the International Court of Justice (2004) 39. H Lovat, Y Shany, ‘The European Court of Human Rights’ in Y Shany (ed), Assessing the Effectiveness of International Courts (2014) 251, 268. Emphasis added.

International Dispute Settlement

35

European Convention on Human Rights itself sees the supervisory framework created by the Convention as a dispute settlement arrangement. At the time the Convention was drafted, its supervisory mechanism was not intended to be something altogether different from existing State-to-State dispute settlement mechanisms.23 Thus, the open mandate of the Court in Article 19 echr arguably comprises judicial dispute settlement functions. Structurally, the type of international dispute settlement the European Convention on Human Rights provides via the inter-State application is not the same as envisaged in Articles 2 § 3 and 33 of the United Nations Charter. In proceedings under the echr, it is the relationship of the respondent State with individuals under its jurisdiction within the meaning of Article 1 echr that is under scrutiny in an inter-State case under Article 33 echr. It is not the bilateral relationship between applicant and respondent. In Strasbourg, there is no quid pro quo, which comes at the price of the prohibition of self-help, one of the main aims of international dispute settlement as envisaged by the C ­ harter of the United Nations.24 However, the ultimate goals of the United ­Nations framework and the echr, namely the preservation of peace, are congruent. Under the Convention, peace was to be preserved by safeguarding certain basic human rights within the member States.25 The quest of the preservation of peace is inherent in human rights protection and features prominently in the fourth recital of the preamble to the Convention.26 3.1.2 Jurisdiction Compared Jurisdiction relates to conditions affecting the parties’ consent to have a body decide a case at all.27

23

24 25

26

27

For the drafting and the evolution of the inter-State mechanism see above, Chapter 2, ‘From collective enforcement towards international dispute settlement – the inception and evolution of the inter-State application under the European Convention on Human Rights’. See D Shelton, ‘Form, Function, and the Powers of International Courts’ (2008–09) 9 ­Chicago Journal of International Law 537, 557. L-E Pettiti, ‘Le système de Strasbourg – Les recours interétatiques dans le système de la Convention Européenne des Droits de l’Homme’, in D Bardonnet (ed), Le règelement pacifique des différends internationaux en Europe: Perspectives d’avenir (1991), 331, 333. Fourth recital of the echr: ‘Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common ­understanding and observance of the Human Rights upon which they depend’. J Crawford, Brownlie’s Principles of Public International Law (8th ed, 2012) 693.

36

Chapter 3

3.1.2.1 Jurisdiction of the International Court of Justice The jurisdiction of the International Court of Justice continues to be characterized by the requirement of consent.28 In comparison to the jurisdiction of the echr, the requirement of a dispute between States is an essential precondition of the icj’s contentious jurisdiction. In the Mavrommatis case, the ­Permanent Court of International Justice defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or interests between two persons’.29 For a dispute to exist, it must be shown that the claim of one party is positively opposed by the other. The requirement of a dispute is a threshold question. The recent cases initiated by the Marshall Islands against several States in possession of nuclear weapons, which were declared inadmissible for the absence of a dispute between the States by the International Court of ­Justice in October 2016, confirm that the requirement is a high hurdle.30 3.1.2.1.1 Ad hoc References The first alternative of Article 36 § 1 of the icj Statute provides that the jurisdiction of the icj comprises cases that the parties refer to it. The possibility to approach the icj on an ad hoc basis via a compromis is a unique feature, which has no counterpart in inter-State proceedings before the Strasbourg Court. 3.1.2.1.2 Compromissory Clauses According to the second alternative of Article 36 § 1 of the icj Statute, compromissory clauses in bi- or multilateral treaties, including human rights treaties, are further alternative to confer jurisdiction to the icj.31 Currently, there are

28

29 30

31

See also K Oellers-Frahm, ‘Nowhere to go? The obligation to settle disputes peacefully in the absence of compulsory jurisdiction’, in T Giegerich, U Heinz (eds), A wiser ­century? ­Judicial dispute settlement, disarmament and the laws of war 100 years after the second Hague Peace Conference (2009) 435; T Treves, ‘The International Law Commission’s Articles on State Responsibility and the settlement of disputes’ in M Ragazzi (ed), I­ nternational Responsibility Today (2005) 223. Mavrommatis Palestine concessions (Greece v United Kingdom), Jurisdiction, Judgment, 30 August 1924, pcij Ser A no 2, 11. Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) Preliminary Objections, 5 October 2016 (not yet reported); see also C Tams, ‘No dispute about Nuclear Weapons?’ ejil:Talk!, 6 October 2016, www.ejiltalk.org/no-dispute-about-nuclear-weapons/. C Tams, ‘The continued relevance of compromissory clauses as a source of icj jurisdiction’ in T Giegerich (ed), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference (2009) 461.

International Dispute Settlement

37

about 300 treaties that confer jurisdiction to the icj.32 This type of jurisdiction is, at first sight, similar to the jurisdiction of the Strasbourg Court: the echr confers jurisdiction over the European Convention on Human Rights. ­However, a closer look reveals the contentious nature of the icj’s jurisdiction, as evidenced in Articles 34, 36 and 38 of the icj Statute.33 The jurisdiction of the icj depends on the existence of a dispute, also in cases where its jurisdiction is based on a compromissory clause. The requirement of a dispute prevents a unilateral approach of the Court under compromissory clauses.34 Georgia sought to use the compromissory clause of the International Convention on the Elimination of All Forms of ­Racial Discrimination to access the International Court of Justice, however, with no avail. In the Georgia v Russia case, the icj has taken a ‘considerably more formalistic approach than the Court had previously taken’35 with regard to the existence of a dispute. Thus, it can be stated that to approach the International Court of Justice via a compromissory clause is more burdensome than approaching the echr, where mere allegations of human rights violations suffice for the Court to take cognizance of a case. 3.1.2.1.3 Acceptance of Compulsory Jurisdiction A further alternative for the jurisdiction of the icj is contained in Article 36 § 2 of the icj Statute. A State may accept the compulsory jurisdiction of the Court in relation to any other State accepting the same obligation. According to information of the icj, currently, about 70 States have accepted the compulsory jurisdiction of the Court.36 Reciprocity is an important driver in a legal order which is ‘essentially relative’37 and where no central enforcement

32

33 34 35 36 37

A list of treaties with jurisdictional clauses is available on the icj’s website, see www .icj-cij.org, in addition, roughly 300–400 treaties establish jurisdiction for the now ­defunct Permanent Court of International Justice, which pursuant to Articles 36 § 5 and 37 ­i cj-Statute can be transferred to the icj. The number of these treaties is more difficult to establish as consolidated lists treaties are unavailable; see for more background C Tams, (n 31) 461, 470. C Tomuschat, ‘Article 36 icj-Statute’, in K Oellers-Frahm et al. (eds), The Statute of the International Court of Justice, A Commentary (2012) mn 8. R Higgins, Problems & Process – International Law and how we use it (1994) 196. J Crawford (n 27) 695. A list of States which have accepted the compulsory jurisdiction of the icj is available at the icj’s website, www.icj-cij.org. A Verdross, Universelles Völkerrecht. Theorie und Praxis, (5th ed, 1964), 126.

38

Chapter 3

structure exists.38 The icj’s authority to perform judicial functions derives from the reciprocal consent.39 The International Court of Justice captured the bilateral and reciprocal structure of jurisdictional clauses by finding that ‘[i]n fact, the declarations [under Article 36 § 2 icj-Statute], even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration’.40 Many of the ­acceptances under Article 36 § 2 of the icj Statute are subject to reservations.41 3.1.2.1.4 Forum Prorogatum The possibility for the icj to gain jurisdiction over the notion of forum prorogatum is mentioned here in order to highlight the flexibility of the International Court of Justice in comparison to the Strasbourg Court. Prorogated jurisdiction occurs when jurisdiction is conferred by the consent of the parties and following the initiation of proceedings, Article 38 § 5 of the Rules of the International Court of Justice.42 Such consent can be indicated in an implied or informal way or by a succession of acts. The European Court of Human Rights does not have the flexibility to broaden the subject matter of its jurisdiction based on the ad hoc consent of the parties. 3.1.2.1.5 Counterclaims before the International Court of Justice The possibility of lodging counterclaims is a feature, which distinguishes the International Court of Justice from the European Court of Human Rights. The difference highlights that the Strasbourg proceedings are not intended to settle international disputes. Rule 80 of the Rules of the International Court of ­Justice enables respondent States to lodge counterclaims. A counterclaim invites the Court to issue a judgment where the international responsibility of the 38

39 40 41 42

See for the continued relevance of reciprocity in international law the academic grandson of Verdross A Paulus, ‘Reciprocity Revisited’, in U Fastenrath et al. (eds), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011) 113, 116. F Amerasinghe, Jurisdiction of Specific International Tribunals (2009) 63. Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction, 26 November 1984, icj Reports 1984, 392, 418. N Klein, ‘Who litigates and why’, in C Romano et al. (eds), The Oxford Handbook of I­ nternational Adjudication (2014) 567, 576. Article 30 of the Statute of the International Court of Justice provides that ‘the Court shall frame rules for carrying out its functions’. These Rules are intended to supplement the general rules set forth in the Statute and to make detailed provision for the steps to be taken to comply with them. They are available at the website of the International Court of Justice, www.icj-cij.org.

International Dispute Settlement

39

­applicant is found.43 Thirlway defines counterclaims as claims presented in the context of proceedings already instituted before the Court, by the respondent against the applicant, and which the respondent whises to have determined by the Court along with the claims of the applicant in those proceedings.44 Counterclaims shall allow arriving at a more complete picture of a dispute and are not restricted to a merely defensive purpose.45 The possibility to file a counterclaim is open in all types of proceedings envisaged under Article 36 of the icj Statute.46 However, counterclaims do not broaden the icj’s consentbased jurisdiction.47 3.1.2.1.6

Public Interest Litigation: Erga Omnes Obligations are Not a Title of Jurisdiction The purported breach of erga omnes obligations does not affect the consensual nature of the International Court of Justice’s jurisdiction. According to the definition of the icj, obligations erga omnes ‘derive, for example (…) from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including ­protection from slavery and racial discrimination’.48 Thus, they concern grave violations of international law. However, States can enforce erga omnes obligations before the icj only if they can avail themselves of a title of jurisdiction.49 43

44 45

46 47

48 49

See for example Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v Uganda), Judgment, 19 December 2005, icj Reports 2005, 168, 176f, where Uganda filed a counter-claim alleging involvement by the Democratic Republic of the Congo in armed attacks against Uganda. H Thirlway, ‘Counterclaims before the International Court of Justice: The Genocide Convention and Oil Platforms decisions’ (1999) 12 ljil 197, 198. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Counterclaims, 17 December 1997, ­i cj-Reports 1997, para 35; S Rosenne, ‘The International Court of Justice: ­Revision of ­Articles 79 and 80 Rules of the Court’ (2001) 14 ljil 77, 85; C Antonopolous, ­Counterclaims before the International Court of Justice (2011) 57; compare O Lopes Pegna, ‘Counter-claims and Obligations erga omnes before the International Court of Justice’ (1998) 9 ejil 724, 735. S Murphy, ‘Counter-claims at the International Court of Justice’, in K Oellers-Frahm et al. (eds), The Statute of the International Court of Justice, A Commentary (2012) mn 10. Rule 80 of the Rules of the International Court of Justice: ‘The Court may entertain a counter-claim only if it comes within the jurisdiction of the Court and is directly connected with the subject-matter of the claim of the other party’. Case Concerning the Barcelona Traction, Light and Power Company (Belgium v Spain), Judgment, 5 February 1970, icj Reports 1970, 3, 32. C Tams, Enforcing Obligations Erga Omnes in International Law (2005) 160.

40

Chapter 3

3.1.2.1.7 Advisory Jurisdiction of the icj Besides the contentious jurisdiction of the icj, it is equipped with a broad ­advisory jurisdiction. Under Article 96 § 1 of the Charter of the United Nations ‘the General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question’. Article 96 §  2 unc provides that ‘other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions (…)’. Unlike judgments, the advisory opinions of the icj have no binding effect. Regardless of their formal nature, advisory opinions of the icj do carry weight. According to the website of the International Court of Justice, ‘­advisory ­opinions are often an instrument of preventive diplomacy and have ­peacekeeping virtues. Advisory opinions also, in their way, contribute to the elucidation and ­development of international law and thereby to the strengthening of peaceful relations between States’.50 Without the necessity of consent for States, advisory opinions can encourage States to adopt a certain conduct. The icj’s advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory51 exemplifies the broad relevance of advisory opinions, including human rights matters. As the Kosovo advisory opinion52 indicates, the Court possesses discretion regarding the way the Court exercises its advisory functions. 3.1.2.2

Jurisdiction of the European Court of Human Rights in Inter-State Cases Despite the dispute settlement functions the inter-State proceedings provide for States, namely fact-finding and judicial review, the jurisdiction of the echr is not designed for States to settle bilateral disputes but to enforce human rights of individuals.

3.1.2.2.1 Compulsory Jurisdiction The jurisdiction of the European Court of Human Rights in inter-State cases was optional under ex-Article 46 § 2 echr and had to be accepted by both

50 51 52

Information by the International Court of Justice about its advisory jurisdicton, www .icj-cij.org/jurisdiction/index.php?p1=5&p2=2. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ­Advisory Opinion, 9 July 2004, icj Reports 2004, 136. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, icj Reports 2010, 403.

International Dispute Settlement

41

parties.53 After the abolition of the European Commission with Protocol No 11 to the Convention, the European Court of Human Rights was vested with compulsory jurisdiction over inter-State applications under Articles 32 and 33 echr as long as both the applicant and the respondent State are High Contracting Parties.54 No additional acceptance is required by States to be exposed to the jurisdiction of the Court. The design of the inter-State application under the European Convention on Human Rights features departures from the principle of reciprocity in ­contrast to the icj’s compulsory jurisdiction under Article 36 § 2 icj-Statute.55 A State can allege violations of the Convention in another State during a time the applicant State was not yet a member of the Convention.56 In addition, it is formally not required that the respondent State recognizes the applicant State in order for an inter-State application to be validly introduced.57 As the fruitless litigation between Cyprus and Turkey evidences, the possibility of setting the inter-State mechanism under the Convention in motion does not guarantee the cooperation of the respondent State or the improvement of the human rights situation at issue.58 A further departure from the principle of reciprocity is that High C ­ ontracting Parties can allege breaches of the Convention even if they themselves entered reservations concerning the respective provisions.59 Further, it is conceivable that a State alleges breaches of a Protocol to the Convention even if the applicant itself has not ratified the instrument.60 The way reciprocity is of limited 53 54 55

56 57 58 59 60

V Starace, ‘Art. 33, Ricorsi Interstatali’, in S Bartole et al. (eds), Commentario alla Convenzione Europea per la Tutela dei Diritti dell’Uomo e delle Libertà Fondamentali (2001) 553, 554. See also J Frowein, W Peukert, ‘Artikel 33, Staatenbeschwerden’ in J Frowein, W Peukert (eds), Europäische Menschenrechtskonvention, emrk-Kommentar (3rd ed, 2009) mn 1. F Matscher, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der emrk’, in B Funk et al. (eds), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburtstag (2002) 417, 423. Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116f. See eg Cyprus v Turkey (iv), no 25781/94, report of the Commission, 4 June 1999, § 27. Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75; Cyprus v Turkey (iii), no 8007/77, Cyprus v Turkey (iv), no 25781/94. France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, Yb 26 (1986), Pt ii, 1–31; dr 35 (1984), 143, 169. Such a case has not yet occurred in practice, but see H Krüger C Norgaard, ‘The Right of Application’, in R McDonald, F Matscher, H Petzold (eds), The European System for the Protection of Human Rights (1993) 657, 659; K Rogge, ‘Inter-State cases under Article 33 of the European Convention on Human Rights’ in H Hartig (ed), Trente ans de droit européen des droits de l’homme, etudes à la mémoire de Wolfgang Strasser (2007) 289, 290.

42

Chapter 3

relevance in the context of inter-State proceedings was deemed to be evidence of the function collective enforcement.61 3.1.2.2.2

Allegations of Human Rights Violations Instead of Disputes between States Under the echr, High Contracting States can set the inter-State mechanism in motion without the existence of a dispute between them.62 The States involved in an inter-State proceeding before the Strasbourg Court will disagree on points of law and fact in the course of proceedings. However, according to the wording of Article 33 echr applicant States only make allegations that human rights in the respondent State are violated.

3.1.2.2.3 No Counterclaims before the European Court of Human Rights Counterclaims are not part of the inter-State proceedings before the Strasbourg Court. This perceived missing possibility surfaces every now and then in the inter-State case law. The instances indicate that the inter-State application is viewed like a dispute settlement mechanism. For example, in the C ­ yprus v Turkey case, the Turkish Commissioner Davner deplored that the atrocities committed against the Turkish minority on the island before 1974 could and should have been taken into account to ‘arrive at a truer version of the events’.63 In Georgia v Russia context, the Court has received a large number of individual applications in connection with the armed conflict in South O ­ ssetia. On ­Russia’s behalf,64 three lawyers from South Ossetia filed more than 3,300 ­individual complaints with the echr in the name of Russian soldiers deployed in the region. The Court has so far dismissed 1,549 of these cases.65

61

62

63 64

65

D Harris et al., Law of the European Convention on Human Rights (2014, 3rd ed), 115; K Rogge, ‘Examining the merits of human rights applications – The legal issues’, in P Mahoney et al. (eds), Protecting Human Rights: The European Perspective (2000) 1215, 1219. V Starace, ‘Art. 33, Ricorsi Interstatali’ in S Bartole et al. (eds), Commentario alla ­Convenzione Europea per la Tutela dei Diritti dell’ Uomo e delle Libertà Fondamentali (2001) 553. Cyprus v Turkey (i) and (ii), nos6780/74, 6950/75, 10 July 1976, separate opinion of Commissioner Daver, 186 et seq. B Arp, ‘Georgia v. Russia (i)’, (2015) 109 ajil 167, 171; C Waters speaks of ‘mass channeling of human rights complaints’ in ‘The Caucasus Conflict and the Role of Law’, in J Green, C Waters (eds), Conflict in the Caucasus (2010) 8, 18. Khetagurova and others v Georgia, no 43253/08, (dec) 14 December 2010; Abayeva and ­others v Georgia, no 52196/08 (dec) 23 March 2010.

International Dispute Settlement

43

3.1.2.2.4 Public and Private Interest Litigation in Strasbourg The rather broad entitlements of States to lodge inter-State applications are intended to allow States to safeguard human rights of individuals. Under the echr’s inter-State application, a legal interest in the outcome of the proceedings is not a precondition to set the proceedings in motion or to entertain them. States do not enforce their own interests or own rights under the echr.66 In contrast, in proceedings before the icj, the existence of a legal interest of the applicant in the outcome of a dispute is a further prerequisite.67 The low threshold for inter-State applications allows States to access the ­European Court of Human Rights if they pursue interests besides the collective enforcement of human rights. For example, Greece litigated its case against the United Kingdom arguably because it had the intention to annex Cyprus.68 The possibility to pursue private interests in Strasbourg makes the inter-State application even more attractive. In view of a theoretical case of the abuse of the right to initiate inter-State proceedings, an inter-State application could be inadmissible on the basis of a general principle of international procedural law.69 While individual applications can be declared as inadmissible for the abuse of the right of procedure under Article 35 § 3 a) echr, the Convention assumes that States use their broad entitlements responsibly. 3.1.2.2.5 Limited Advisory Jurisdiction of the Strasbourg Court In comparison to the advisory jurisdiction of the icj, Article 47 echr provides for a rather narrow scope of the advisory jurisdiction of the Strasbourg Court. According to Article 47 § 1 echr, ‘[t]he Court may, at the request of the ­Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto’. H ­ owever, according to Article 47 § 2 echr, ‘[s]uch opinions shall not deal with any ­question relating to the content or scope of the rights or freedoms defined in Section i of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention’. Overall, the Court has rendered only two advisory opinions under Article 47 echr which both concerned the election of judges to the 66 67 68 69

U Karpenstein, C Johann, ‘Art. 33, Staatenbeschwerden’, in U Karpenstein, C Mayer (eds), emrk Kommentar (2nd ed, 2015), mn 1. J Crawford (n 27) 697. B Simpson, Human Rights and the End of Empire (2004) 924. B Ohms, ‘Artikel 33, Staatenbeschwerden’ (Chapter 1, n 18) mn 22.

44

Chapter 3

Court.70 One request for an advisory opinion was rejected by the Court in 2004 because the judicial body found that the request related ‘to a question which the Court might have to consider in consequence of proceedings instituted in accordance with the Convention and that it therefore does not have competence to give an advisory opinion on the matter referred to it’.71 3.1.3 The Respective Yardsticks and the Cinderella Problem The two Courts substantially differ with respect to the legal yardstick they ­apply. The yardstick is the material law the Courts are authorized to apply in order to evaluate the factual situations put before them. 3.1.3.1 The International Court of Justice As Article 36 § 2 b) icj-Statute states, the subject matter jurisdiction of the International Court of Justice comprises ‘any question of international law’, and can have recourse to all sources of international law listed in Article 38 icj-Statute. States can also agree to a decision ex aequo et bono under Article 38 § 2 icj-Statute. However, it depends on the respective consensus of the States that are parties to the specific dispute which yardstick the icj is supposed to apply. In cases where the Court’s jurisdiction is based on a compromissory clause in a bi- or multilateral treaty, the subject matter jurisdiction is limited to the four corners of the respective instrument. The way compromissory clauses in human rights treaties confer jurisdiction to the icj is similar to the jurisdiction of the echr in inter-State proceedings. The restriction of the subject matter jurisdiction in cases where the icj’s jurisdiction is based on compromissory clauses has been described as ‘tunnel vision’72 or ‘Cinderella problem’: the jurisdictional clauses are akin to a glass slipper that is too small for the full size and complexity of a case.73 70

71 72

73

Advisory Opinion no 1 [gc] on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights, 12 February 2008; Advisory Opinion no 2 [gc] on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights, 22 January 2010. Decision on the Competence of the Court to Give an Advisory Opinion, [gc] 2 June 2004. C Romano, K Alter, Y Shany, ‘Mapping international adjudicative bodies, the issues and players’, in C Romano et al. (eds), The Oxford Handbook of International Adjudication (2014) 3, 21. C Greenwood, ‘Challenges of International Litigation’, Lecture delivered on 7 October 2011 at the The Lauterpacht Centre for International Law, video available at sms.cam.ac.uk/ media/1180328.

International Dispute Settlement

45

3.1.3.2 The European Court of Human Rights The European Court of Human Rights applies its yardstick, the European ­Convention on Human Rights. Inter-State applications are no exception. Thus, the subject matter jurisdiction of the Strasbourg Court is limited to the Convention. The so-called Cinderella problem is thus a familiar phenomenon in Strasbourg in the context of inter-State proceedings. The uneven judicialization under international law74 is a potential burden on the Strasbourg Court: States lodge inter-State applications in Strasbourg which have broader legal ­implications than the human rights issues cognizable in Strasbourg. Interim Result: Dispute Settlement Functions in Light of the Object and Purpose of the Inter-State Application? The inter-State application under the European Convention on Human Rights confers compulsory jurisdiction to the Strasbourg Court in inter-State litigation. At the same time, the Convention is the limited yardstick of the Court. In contrast, the jurisdiction of the International Court of Justice is a narrow bottleneck, which opens up a potentially very broad subject matter jurisdiction. The way the jurisdiction of the Strasbourg Court is designed in comparison with the icj shows that the inter-State application is not designed to solve disputes between States. However, both Courts offer, in their respective ­procedural frameworks, similar dispute settlement functions, that is judicial review and fact-finding, which are intended help to decrease the level of tension between two States. Despite its inherent limitations concerning the yardstick, ­Strasbourg has ­become an attractive forum because it provides a convenient vehicle to access an international Court and its valuable dispute settlement functions.75 The inter-State application does not exclude private interest litigation, thus, litigation which serves, besides the enforcement of human rights, also other purposes. This open design renders the mechanism even more attractive for States. The overlap of the two Courts compared in this chapter concerning their dispute settlement functions will most likely not be solved on the level of the 3.1.4

74

75

See B Kingsbury, ‘International courts: uneven judicialization in global order’, in J Crawford, M Koskenniemi (eds), The Cambridge Companion to International Law (2012) 203; C Romano, ‘Trial and Error in International Judicialization’, in C Romano et al. (eds), The Oxford Handbook of International Adjudication (2014) 111, 112; T Buergenthal, ‘Proliferation of International Courts and Tribunals: Is it good or bad?’ (2001) 14 ljil 267, 269. L-E Pettiti, ‘Le système de Strasbourg – Les recours interétatiques dans le système de la Convention Européenne des Droits de l’Homme’, in D Bardonnet (ed), Le règelement pacifique des différends internationaux en Europe: Perspectives d’avenir (1991) 331.

46

Chapter 3

provisions conferring jurisdiction to the two judicial bodies. It would be laudable, but naïve to postulate a comprehensive and compulsory jurisdiction of the main judicial organ of the United Nations. Likewise, it is unrealistic to ­expect the subject matter jurisdiction of the European Court of Human Rights to be broadened to comprise all matters of general international law. This would not only introduce compulsory jurisdiction through the backdoor, but also overburden the Strasbourg Court. It is also not advisable to cut back the jurisdiction of the European Court of Human Rights in inter-State applications because this would be a step back and away from the level of judicialization the mechanism has achieved. The jurisdictional properties of the inter-State mechanism are to be welcomed because litigation in Strasbourg can have beneficial effects for the human rights situation of individuals regardless of the motivation of an applicant State. Instead of tackling the apparent competition between the icj and the Strasbourg Court on the level of jurisdictional design or yardstick, the object and purpose of the inter-State application needs to be defined more clearly. In other words, it must be carved out for what purpose the dispute settlement functions should be performed by the Strasbourg Court. Translated to the pending case between Georgia and Russia before the Strasbourg Court, reflection upon the way in which the Court shall deal with the context of a case is necessary. Further, it is important to recognize the limitations in the inter-State proceedings in Strasbourg. It is argued that a clearer definition of the object and purpose of the inter-State application would help to manage expectations towards the Strasbourg Court. 3.2

The Inter-State and the Individual Application under the European Convention on Human Rights – A Comparison with a View to the Function of Collective Enforcement

3.2.1 Overview The leading question of the volume is whether the object and purpose of the inter-State application under Article 33 echr is the collective enforcement of human rights or the settlement of international disputes. This subchapter ­approaches the inter-State application’s functions of collective enforcement by a comparison to the individual application under Article 34 echr. The focus lies on the admissibility requirements, which have to be met for an ­inter-State application under Article 33 echr to reach the merits phase. The comparison of the applications under Articles 33 and 34 echr is intended to show the added value of the inter-State application with the supervisory framework of the European Convention on Human Rights as of today.

International Dispute Settlement

47

More than the rules concerning the jurisdiction, admissibility requirements are amenable to a flexible interpretation by the Court. The admissibility requirement of the exhaustion of domestic remedies contained in Article 35 § 1  echr is identified as the highest hurdle for an inter-State application to reach the merits stage and thus a disincentive to lodge inter-State applications.76 The rule, and more importantly, the exceptions to it, are explored and explained in more depth. The subchapter is further intended to highlight where reform considerations would be helpful to improve the inter-State complaint in terms of legal clarity. Especially the exceptions to the requirement of the exhaustion of ­domestic remedies were subject to remarkable shifts in the inter-State case law. In order to encourage more States to take the risk of inter-State proceedings, it is worthwhile to consider clarifying the exceptions to the requirement as developed in the inter-State case law. At the same time, the flexibility of the Court in the application of the admissibility requirement should not be circumcised. 3.2.1.1 Collective Enforcement Functions of the Inter-State Application The collective enforcement functions of the inter-State application under ­Article 33 echr are reflected in the reach of the mechanism beyond an individual victim and the possibility to address large-scale human rights issues. Specifically, the design of the admissibility of the inter-State application, with its remarkably low requirements, merits to be highlighted here. Where appropriate for the clearer delineation of the function of collective enforcement, comparisons are also drawn to the admissibility of claims in the bilateral framework of diplomatic protection to defend particular interests.77 For the purposes of the present volume, diplomatic protection is the ­invocation by a State, by means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.78 The distinction to the law of diplomatic protection is also included in view of the fact that in the recent 76

77 78

Y Shany, ‘Jurisdiction and Admissibility’, in R Cesare et al. (eds), The Oxford Handbook of International Adjudication (2014) 779, 785; C Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures’, in N Boschiero et al. (eds), International Courts and the Development of International Law, Essays in Honour of Tullio Treves (2013) 561, 562. A Vermeer-Künzli, The Protection of Individuals by Means of Diplomatic Protection, ­Diplomatic Protection as a Human Rights Instrument (2007) 127. See the non-binding definition in Article 1 of the Draft Articles on Diplomatic P ­ rotection with Commentaries, yb Int’l L Comm, 2006, vol. ii, Part Two; see also I Risini, ‘The ­Inter-State Application Under the European Convention on Human Rights: More Than

48

Chapter 3

inter-State case law, the notion of diplomatic protection is still used as an argument, eg in order to ascribe certain properties to the inter-State application.79 The present contribution is intended to underline the fundamental differences between the treaty based inter-State application and the customary law of diplomatic protection. The study focuses on the two main avenues of judicial enforcement under Articles 33 and 34 echr, leaving aside that under Article 52 echr, the Secretary General of the Council of Europe can request any High Contracting Party to furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention. According to the information of the Secretariat of the Council of Europe, the nonjudicial procedure has been used eight times.80 The mechanism is left outside of the present study because of its limited relevance. 3.2.1.2

Gaining Perspective over the Admissibility Requirements in Individual and Inter-State Applications It is worthwhile to recall that the Strasbourg Court is dealing with large numbers of individual applications lodged under Article 34 echr. According to statistical information by the Court, more than 40,000 new applications reached Strasbourg in 2015.81 In 2016, roughly 70,000 individual applications were pending before the Court; the number of pending applications had peaked in 2011 with more than 150,000 applications.82 In contrast, less than ten inter-State applications under Article 33 echr are pending in Strasbourg as of summer 2017.83 Inter-State applications often affect a large number of individuals. For example, the inter-State cases pending between Ukraine and Russia concern the human rights of the inhabitants of Eastern Ukraine and Crimea, some two million individuals.

Diplomatic Protection’, in N Weiß, J-M Thouvenin (eds), The Influence of Human Rights on International Law (2015) 69. 79 See the argumentation of Turkey in Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) [gc], 12 May 2014, § 36. 80 Further details about Article 52 echr are available at the Secretariat of the Council of Europe, www.coe.int/t/dghl/standardsetting/hrpolicy/Others_issues/Article_52/ Article_52_en.asp. 81 European Court of Human Rights, Analysis of Statistics 2015, www.echr.coe.int/ Documents/Stats_analysis_2015_ENG.pdf. 82 Statistical Information by the European Court of Human Rights, echr.coe.int/Documents/ Stats_pending_2016_BIL.pdf. 83 See above, Chapter 1.1, ‘Growing relevance of the inter-State application under the echr’ with detailed references to the pending inter-State cases.

International Dispute Settlement

49

About 98% of individual applications are inadmissible. According to statistical information by the Court, in absolute numbers, more applications were declared inadmissible than were received in 2015, which is due to the backlog of cases.84 It is further worth noting that the majority of those cases which are admissible concern systemic human rights violations rooted in the domestic legal order. In contrast, from the twenty-one inter-State applications so far, none has been declared inadmissible. Only in one instance, an application was declared partly inadmissible: the second application of Greece against the United Kingdom was not fully admissible because not all of the 49 individuals which were subject of the application had exhausted domestic remedies as required under ex-Article 26 echr, today’s Article 35 § 1 echr.85 3.2.2 Applicable Rules of Admissibility in Individual and Inter-State Cases Before the analysis starts, it is indispensable to identify the applicable provisions for the admissibility of both types of applications at the level of the Convention and at the level of the Rules of the Court. The inter-State application is subject to fewer admissibility requirements than individual applications under Article 34 echr. In addition, a short overview of the itinerary of an interState application through the Court is provided. 3.2.2.1 Admissibility Requirements at the Level of the Convention At the level of the Convention, the individual and the inter-State applications differ in several key aspects with regard to the requirements of admissibility. Article 35 § 1 echr formally applies to both individual and inter-State applications, while Article 35 § 2 and § 3 echr only governs the admissibility of individual applications. The criteria contained in Article 35 § 2 and § 3 echr are accordingly left outside of the present analysis.86 The requirements in Article 35 § 2 and § 3 echr mostly concern matters about the merits of an individual application, for example the question whether an application is manifestly ill-founded. For the comparison it is worthwhile to highlight that in inter-State cases, no considerations regarding the merits are made at the admissibility stage. As a matter of logic, an inter-State case cannot be declared inadmissible as manifestly ill-founded.

84 85 86

European Court of Human Rights, Analysis of Statistics 2015 (n 81). Greece v United Kingdom (ii), no 299/57, admissibility decision, 10 January 1958, Yb 2, 186. Directorate of the Jurisconsult at the European Court of Human Rights, Practical guide on admissibility criteria (3rd ed, 2014), www.echr.coe.int/Documents/Admissibility_guide _ENG.pdf.

50

Chapter 3

The six-month rule of Article 35 § 1 Alt 2 echr is applied in the same manner in both types of applications, and is thus not analyzed in more depth here. The key admissibility requirement for inter-State applications is thus the ­exhaustion of domestic remedies in Article 35 § 1 Alt 1 echr. 3.2.2.2 Formal Requirements at the Level of the Rules of the Court In view of the different admissibility criteria applicable to the individual and the inter-State application, the Court has given itself different rules under Article 24 § 1 echr87 to deal with the different types of applications. From the Rules of the Court, it emerges that the inter-State proceedings are handled more strictly in two phases, admissibility and merits, than in individual applications. The formal requirements for individual applications under Article 34 echr as well as information about the progress of an application by judicial formation are easily accessible.88 Accordingly, the focus of the present overview lies on the differences in the formal requirements. In an effort to render the proceedings in cases under Article 34 echr more efficient, formal requirements have been tightened over the last years. Since 2014, Rule 47 of the Rules of the Court sets relatively strict requirements for  i­ ndividual applications. Inter alia, it is necessary for individuals to use a form to lodge their applications, which can be downloaded from the Court’s website. Rule 46 of the Rules of the Court details the necessary contents of an interState application.89 The equivalent Rule 47 of the Rules of the Court for 87

88 89

Under Article 24 § 1 echr, the Court is authorized to give itself rules. The Rules of the Court as well as the so-called Practice Directions are constantly updated and available at www.echr.coe.int/Documents/Rules_Court_ENG.pdf. See also the practice direction regarding the institution of individual applications as an appendix to the Rules of the Court. Article 46 of the Rules of the Court: Any Contracting Party or Parties intending to bring a case before the Court under Article 33 of the Convention shall file with the Registry an application setting out (a) the name of the Contracting Party against which the application is made; (b) a statement of the facts; (c) a statement of the alleged violation(s) of the Convention and the relevant arguments; (d) a statement on compliance with the ­admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in Article 35 § 1 of the Convention; (e) the object of the application and a general indication of any claims for just satisfaction made under Article 41 of the Convention on behalf of the alleged injured party or parties; and (f) the name and address of the person or persons appointed as Agent; and accompanied by (g) copies of any relevant

International Dispute Settlement

51

i­ndividual applications contains a much longer list of requirements. This ­difference reflects Article 35 echr, which only partly applies to inter-State applications. It is also worthwhile to note that for inter-State applications, an equivalent of Rule 47 § 5 (1) Rules of the Court does not exist. The rule provides that an individual application will not be examined in case of failure to comply with the formal requirements. 3.2.2.3 An Inter-State Application’s Way through the Court At the admissibility stage, Rule 48 of the Rules of the Court provides for a judge rapporteur who is responsible to prepare a report about the admissibility of an inter-State application. Under Rule 51 of the Rules of the Court, inter-State applications are immediately communicated to the respondent State and assigned to a section of the Court. There is no automatic requirement for the Grand Chamber to deal with inter-State cases. This design was criticized because the absence of an automatic competence of the Grand Chamber potentially prolongs proceedings in as much as the High Contracting Parties could ask for a referral to the Grand Chamber; a ‘second instance’ could barely be denied in inter-State cases. Of those inter-State applications which reached the Court only one was not decided on the merits by the Grand Chamber. It was the case of Denmark v Turkey,90 which was ended by friendly settlement. In inter-State cases, judges elected in respect of the applicant and respondent State sit ex officio as members of the Chamber constituted to consider the case according to Rule 51 and Rule 26 § a) of the Rules of the Court. If more than one State is in the role of the applicant or the respondent, Rule 30 of the Rules of the Court requires that where two or more contracting parties have a common interest, the President of the Chamber may invite the High Contracting Parties to agree to appoint a single judge elected in respect of one of the High Contracting Parties as a common interest judge. 3.2.3 Standing Standing refers to the right to appear as a party and to set a certain mechanism in motion.91 The differences regarding standing between inter-State and individual applications are illustrated in view of the case of Ljubljanska banka

90 91

documents and in particular the decisions, whether judicial or not, relating to the object of the application. Denmark v Turkey, no 34382/97, 5 April 2000, echr 2000 iv. C Tams, Enforcing Obligations Erga Omnes in International Law (2005) 25f.

52

Chapter 3

d.d. v Croatia92 and a newly filed inter-State application between Slovenia and Croatia.93 3.2.3.1

Standing to Bring Individual Application under Article 34 echr and the Victim Requirement Under Article 34 echr, the Court may receive applications from ‘any person, non-governmental organization or group of individuals’. The current design of the individual application is individual justice-oriented. The applicant must claim to be a victim of a violation of one or more Convention rights. A victim in the context of Article 34 echr is a person or persons directly or indirectly affected by the alleged violation. The Court will not permit abstract challenges nor hypothetical breaches.94 A governmental organization is excluded from bringing an individual application under Article 34 echr. An example of such exclusion is the case of Ljubljanska banka d.d. v Croatia.95 The applicant was a government-controlled bank and thus not eligible to use the individual application under Article 34 echr. 3.2.3.2 Standing in Inter-State Applications High Contracting States, either alone or collectively with others, can initiate inter-State applications against other High Contracting Parties.96 The ­denouncement of the echr does not bar an application before the termination becomes effective six months after the denouncement, Article 58 § 1 echr.97 For inter-State applications to be admissible, there is no victim requirement. It is sufficient that States allege breaches of the Convention.

92

93

94 95

96 97

Ljubljanska banka d.d. v Croatia, no 29003/07 (dec) 12 May 2015; see also press release echr 183 (2015), 4 June 2015, see also Ališić and Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia and The Former Yugoslav Republic Of Macedonia, no 60642/0, judgment [gc], 16 July 2014. See Press Release echr 340 (2016) of 20 October 2016; J Hojink, ‘Slovenia v. Croatia: The First eu Inter-State Case before the ECtHR’, 17 October 2016, ejil:Talk!, www.ejiltalk.org/ slovenia-v-croatia-the-first-eu-inter-state-case-before-the-ecthr/. P Leach, Taking a case to the European Court of Human Rights (3rd ed, 2011) mn 4.24. Ljubljanska banka d.d. v Croatia, no 29003/07 (dec) 12 May 2015; see also press release echr 183 (2015), 4 June 2015, see also Ališić and Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia and The Former Yugoslav Republic Of Macedonia, no 60642/0, judgment [gc], 16 July 2014. H Golsong, Das Rechtsschutzsystem der Europäischen Menschenrechtskonvention (1958) 86. Denmark, Norway and Sweden v Greece (ii), no 4448/70, admissibility decision of 26 May 1970, Yb 13 (1970), 108; however, Greece refused to participate in the proceedings.

International Dispute Settlement

53

Slovenia lodged an inter-State application against Croatia covering the subject matter of the claim initially lodged in the context of the individual application in Ljubljanska banka d.d. v Croatia.98 While the Court has not issued any information yet about the inter-State application and all conclusions drawn here must remain tentative, the new inter-State case illustrates that it has a broader potential than the individual application at the level of standing. The inter-State application cannot be rejected at the admissibility level in view of the governmental control over the Ljubljanska banka. The question whether the bank in question can bear rights under the Convention must be decided at the level of the merits. A similar question has not yet been decided in interState proceedings under the Convention. 3.2.4 The Requirement of the Exhaustion of Domestic Remedies The requirement of the exhaustion of domestic remedies enshrined in Article 35 § 1 echr applies to both individual and inter-State applications. In essence, allegations of violations of the Convention cannot be brought before the Strasbourg Court unless the claim has previously been brought before the competent courts of the respondent State, and these judicial remedies have been pursued without success as far as permitted by national law. The rationale for the exhaustion rule is to afford the national authorities, primarily the courts, the opportunity to prevent or remedy the alleged violations of the Convention. It is based on the assumption that the domestic legal order will provide an effective remedy for violations of Convention rights, guaranteed also by A ­ rticle 13 echr.99 While on a formal level, the requirement of the exhaustion of domestic remedies applies to both types of applications, the exceptions to the rule are more far-reaching in inter-State applications than in individual applications. 3.2.4.1 Exhaustion of Domestic Remedies in Individual Applications In the context of individual applications, the requirement of the exhaustion of domestic remedies is applied by the Court with considerable flexibility, that is ‘without excessive formalism, given the context of protecting human rights’.100 Applicants are obliged to exhaust domestic remedies, which are available in 98

See Press Release echr 340 (2016) of 20 October 2016; J Hojink, ‘Slovenia v. Croatia: The First eu Inter-State Case before the ECtHR’, 17 October 2016, ejil:Talk!, www.ejiltalk.org/ slovenia-v-croatia-the-first-eu-inter-state-case-before-the-ecthr/. 99 Directorate of the Jurisconsult at the European Court of Human Rights, Practical guide on admissibility criteria, (3rd ed, 2014), (n 86) § 63. 100 Ibid, § 64.

54

Chapter 3

theory and in practice at the relevant time and which they can directly institute themselves. The test the Court applies concerning the exhaustion of d­ omestic remedies is a concrete one, thus it operates on a case by case basis, and not an abstract one about the general functionality of the national legal system.101 Where the government claims non-exhaustion of domestic remedies, it bears the burden of proving that the applicant has not used a remedy that was both effective and available. It is not uncommon for an objection on grounds of non-exhaustion to be joined to the merits, particularly in cases ­concerning procedural obligations or guarantees, for example applications relating to the procedural limb of Article 2 echr.102 3.2.4.2 Exhaustion of Domestic Remedies in Inter-State Applications The domestic remedies rule and the exceptions thereto apply in an analogous manner in individual applications under Article 34 echr and in inter-State applications which deal with a specific individual akin to the situation of diplomatic protection. Where an inter-State application is not concerned with the fate of a certain individual but with a systemic issue, the exceptions to the requirement of the exhaustion of domestic remedies outreach the scope of exceptions applicable in individual-specific inter-State applications and individual applications under Article 34 echr. At the outset of this subchapter, the applicability of the rule to inter-State applications is addressed in further detail, while the inter-State application is distinguished from the customary law of diplomatic protection. Then, the exceptions to the requirement in interState cases dealing with administrative practices and legislative measures are analyzed in further detail. 3.2.4.2.1 The Inter-State Application: More than Diplomatic Protection In the early years of the Convention it was not evident that the requirement of the exhaustion of domestic remedies applied to the inter-State application because of the wording of ex-Article 26 echr, now Article 35 § 1 echr. The ­provision stipulates that the ‘Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law’.103 At first glance, Article 35 § 1 echr looks like a

101 C Grabenwarter, K Pabel, Europäische Menschenrechtskonvention (2016) § 13, mn 25. 102 Directorate of the Jurisconsult at the European Court of Human Rights, Practical guide on admissibility criteria, § 83, (3rd ed, 2014), www.echr.coe.int/Documents/Admissibility _guide_ENG.pdf. 103 Emphasis added; the provision was contained in ex-Article 26 echr, but has not been changed.

International Dispute Settlement

55

reference to the law of diplomatic protection.104 The newly designed human rights law in the 1950 Convention transposed the requirement of the exhaustion of domestic remedies taken from the rules of diplomatic protection to the context of disputes between individuals and States.105 However, it was not so clear how the rule would fit into the Convention’s supervisory architecture, which initially foresaw the inter-State application to the European Commission on Human Rights as the default supervisory mechanism. The travaux préparatoires indicate that the requirement of the exhaustion of domestic remedies was intended to control individual applications, but has not been discussed in the context of inter-State cases.106 The uncertainty surrounding the rule in the context of inter-State applications is illustrated by an observation:107 Eustathiades, who served as the Greek member of the European Commission in the first two inter-State cases between Greece and the United Kingdom, argued in favor of the exhaustion of domestic remedies rule in the context of inter-State proceedings in 1955108 but turned against it in 1957.109 It is worthwhile to underline that the inter-State application under Article 33 echr differs in several key aspects from the traditional rules of diplomatic protection. First, the range of potential beneficiaries is not limited to the ­nationals of the applicant State: member States can use the inter-State application in favor of individuals regardless of their nationality. Individuals can be protected even against their own state of nationality.110 Thus, the inter-State application has a broader scope of application than the straitjacket of diplomatic protection, which is confined by nationality requirements.111 Unlike in 104 C Trindade, ‘Exhaustion of Local Remedies in the travaux préparatoires of the European Convention on Human Rights’ (1980) 58 Revue de Droit International 73, 83. 105 C Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures’ in N Boschiero et al. (eds), International Courts and the Development of International Law (2013) 561, 562. 106 A Robertson (ed), tp i, 186; see also C Trinidade (n 104) 73. 107 C Trinidade, ‘L’épuisement des voies de recours internes dans les affaires inter-étatiques’ (1978) 14 Cahiers de Droit Européen 139, 142. 108 C Eustathiades, ‘La Convention Européenne des Droits de l’Homme et le Statut du ­Conseil de l’Europe’ (1953–1955) 52 Die Friedenswarte 332, 354. 109 C Eustathiades, ‘Les Recours Individuels a la Commission Europeenne des Droits de l’Homme’ in D Constantopoulos et al. (eds), Grundprobleme des Internationalen Rechts, Festschrift für Jean Spiropoulos (1957) 111, 127. 110 Eg Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116. 111 I Risini, ‘The Inter-State Application Under the European Convention on Human Rights: More Than Diplomatic Protection’, in N Weiß, J-M Thouvenin (eds), The Influence of ­Human Rights on International Law (2015) 69.

56

Chapter 3

the law of diplomatic protection, standing derives from the promise to grant certain human rights to individuals, not from the legal fiction of damage to the home State.112 The departure from the law of diplomatic protection which was enshrined in the Convention as a human rights instrument was described in the emblematic Barcelona Traction judgment of 1970. In an obiter dictum, the International Court of Justice described, not without envy in the subtext, the characteristics and the potential of the inter-State application. […] on the universal level, the instruments which embody human rights do not confer on States the capacity to protect the victims of infringements of such rights irrespective of their nationality. It is therefore still on the regional level that a solution to this problem has had to be sought; thus, within the Council of Europe, of which Spain is not a member, the problem of admissibility encountered by the claim in the present case has been resolved by the European Convention on Human Rights, which entitles each State which is a party to the Convention to lodge a complaint against any other contracting State for violation of the Convention, irrespective of the nationality of the victim.113 The design of the inter-State application as a special, treaty-based mechanism has been described as logique inverse in comparison to the law of diplomatic protection.114 The requirement of the exhaustion of domestic remedies does not work against the protected individuals but aims at the implementation of international obligations on the national level. A citizen of a respondent State has an even greater interest in seeing the effective operation of domestic remedies than an individual who is an alien, given that human rights protection is ideally implemented before national courts.115 3.2.4.2.2 Inter-State Applications Addressing Legislative Measures In inter-State applications, the requirement of exhaustion of domestic remedies is dispensed with if the applicant State alleges that legislation contravenes 112 B Simma, ‘Fragen der Durchsetzung vertraglich vereinbarter Menschenrechte’, in I von Münch (ed), Festschrift für Hans-Jürgen Schlochauer (1981) 635, 644. 113 Case Concerning the Barcelona Traction, Light and Power Company (Belgium v Spain), judgment, icj Reports 1970, 3, 47. 114 H Labayle, ‘Article 24’, in L Pettiti et al. (eds) La Convention européenne des droits de l’homme: commentaire article par article (2nd ed, 1999) 571, 572. 115 F Amerasinghe, Local Remedies in International Law (2nd ed, 2004) 72.

International Dispute Settlement

57

the Convention, even absent a specific individual victim. On the national level, there is no domestic remedy to be exhausted for this type of inter-State application. For example, derogations under Article 15 echr, which take the shape of legal norms by national parliaments or governments, can be the object of inter-State applications. Inter-State applications are thus a ‘safety net’116 in the context of emergencies, where human rights are threatened most. Examples for this type of case include the very first inter-State case between Greece and the United Kingdom,117 the case of Denmark et al. v Greece,118 Ireland v United Kingdom119 and Denmark et al. v Turkey.120 Individuals can direct their applications under Article 34 echr against legislative measures, however, the applicant needs to fulfil the victim requirement.121 3.2.4.2.3 Inter-State Applications Addressing Administrative Practices in Contravention of the Convention Where an applicant State in inter-State proceedings alleges administrative practices in contravention of the Convention, domestic remedies do not need to be exhausted for the admissibility of the inter-State application. An ­administrative practice involves two distinct elements: a repetition of acts and ­official tolerance.122 The repetition of acts has been described as an accumulation of identical or analogous breaches which are sufficiently numerous and interconnected to amount not merely to isolated incidents or exceptions but to a pattern or system. By official tolerance is meant, for example in the realm of Article 3 echr, that while acts of torture and ill-treatment are plainly illegal, they are tolerated in the sense that the superiors of those immediately responsible, though cognizant of such acts, take no action to punish them or to prevent their repetition. Another possibility is that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation.123 116 C Tomuschat, ‘Individueller Rechtsschutz: das Herzstück des ,,ordre public européen“ nach der Europäischen Menschenrechtskonvention’ (2003) 30 EuGRZ 95, 97. 117 Greece v United Kingdom (i), no 176/56. 118 Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67. 119 Ireland v United Kingdom, no 531071. 120 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82. 121 V Starace, ‘Art. 33, Ricorsi Interstatali’, in S Bartole et al. (eds) Commentario alla Convenzione Europea per la Tutela dei Diritti dell’ Uomo e delle Libertà Fondamentali (2001) 553, 556. 122 Georgia v Russia (i), no 13255/07, 30 June 2009, (dec), §§ 40ff, with further references to the pertinent inter-State case law. 123 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940/44/82 admissibility decision, dr 35 (1984) 143, 165.

58

Chapter 3

The existence of an administrative practice is a threshold requirement. [I]t is not sufficient that the existence of an administrative practice is merely alleged. It is also necessary, in order to exclude the application of the rule requiring the exhaustion of domestic remedies, that the ­existence of the alleged practice is shown by means of substantial ­evidence. (…) The term ‘substantial evidence’, (…), cannot be understood as meaning full proof. The question whether the existence of an administrative practice is established or not can only be determined after an examination of the merits. At the stage of admissibility prima facie evidence, while required, must also be considered as sufficient … There is prima facie evidence of an alleged administrative practice where the allegations concerning individual cases are sufficiently substantiated, considered as a whole and in the light of the submissions of both the applicant and the respondent Party. (…).124 The requirement of prima facie evidence to substantiate the existence of an administrative practice serves the purpose to dispense with the requirement of the exhaustion of domestic remedies. Thus, it is a rule governing the burden of proof relevant for the admissibility of an inter-State application. If the Court is, prima facie, satisfied with the existence of an administrative practice, the merits of the inter-State proceedings are by no means pre-established. In ­other words, in cases where the applicant would fail to show the existence of an ­administrative practice, an application would not be declared to be manifestly ill-founded, but it would be inadmissible for the failure to exhaust ­domestic remedies. The requirement in terms of substantiation for prima facie evidence ­under Article 33 echr for the existence of an administrative practice is that of a ­genuine allegation.125 In Georgia v Russia (i), the Court held that the Court must ascertain (…) whether the allegations of the applicant Government are ‘wholly unsubstantiated’ (‘pas du tout étayées’) or are ‘lacking the requirements of a genuine allegation in the sense of

124 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940/44/82 admissibility decision, dr 35 (1984) 143, 166. 125 K Rogge, ‘Examining the merits of human rights applications – The legal issues’, in P ­Mahoney et al. (eds) Protecting Human Rights: The European Perspective (2000) 1215, 1216.

International Dispute Settlement

59

Article 33 of the Convention’ (‘feraient défaut les éléments constitutifs d’une véritable allégation au sens de l’article 33 de la Convention’).126 The Court has not excluded the possibility for individual applicants to rely on the concept of administrative practices.127 However, the test behind the requirement of the exhaustion of domestic remedies in individual applications is whether there were effective domestic remedies for the case at hand, not whether there was a systemic defect in a national legal order. During the Ireland v United Kingdom128 proceedings in the 1970s, the relationship between the finding of an administrative practice in inter-State ­proceedings and the requirement to exhaust domestic remedies in overlapping individual cases was tested in the context of the so-called ­Donnelly-cases. Initially, the Commission held the Donnelly cases admissible.129 However, the Commission ultimately dismissed the cases.130 Those cases in which the ­national proceedings for compensation were still under way were dismissed for the failure to exhaust domestic remedies. In those cases, in which compensation had been paid at the national level, the applicants had lost their status as victims.131 Interim Results: Collective Enforcement Functions as Added Value of the Inter-State Application Within echr Supervisory Framework The function of collective enforcement of human rights under the inter-State application becomes palpable when the inter-State application is directed against widespread human right abuses. For example, the added value of the inter-State mechanism is evident when States address legislative measures in the context of derogations under Article 15 echr, in situations when human rights are most endangered. Further, the mechanism allows administrative practices in contravention of the Convention to be addressed. These two possibilities distinguish the inter-State application from the stricter requirements of the individual application. The added value of the different admissibility

3.2.5

126 127 128 129

Georgia v Russia (i), no 13255/07 (dec), 30 June 2009, § 44. Aksoy v Turkey, no 21987/93, judgment, 18 December 1996, § 52f. Ireland v United Kingdom, no 5310/71. Donnelly and others v United Kingdom, nos 5577–83/72, admissibility decision, 5 April 1973, cd 41, 122. 130 The second decision of 15 December 1975 was published only in May 1976, thus, after the Irish government had referred the inter-State case to the Court, see H Krüger, (untitled comment to the Donnelly decision) (1976) 3 EuGRZ 378. 131 Donnelly and others v United Kingdom, nos 5577–83/72, admissibility decision, 15 ­December 1975, dr 4, 4, 88, 87.

60

Chapter 3

requirements is also a matter of timing: while individuals have to exhaust domestic remedies, as the Mercan v Turkey case illustrates in the context of the aftermath of the unrest in Turkey in the summer of 2016,132 a (hypothetical) inter-State application could be brought in a comparatively fast manner. If the High Contracting Parties brought an inter-State application directed against the derogation under Article 15 echr or in view of the practices of detaining individuals for political reasons in Turkey, as Ms Mercan alleged in her case, the inter-State application would have a good chance to reach the merits phase even if domestic remedies were not exhausted. The subchapter showed that that the inter-State application does not have a lot in common with the bilateral rules of diplomatic protection. The interState application is a versatile treaty-based mechanism, which is intended to safeguard citizens from their very own governments. The inter-State application should be rendered more attractive for States to use it. One way to achieve this would be to capture the notion of administrative practices more clearly, especially the standard of proof. Possibly, a clarification might be fruitful in other regional or universal human rights f­ rameworks. In the case of Nicaragua v Costa Rica, the inter-State application under the ­American Convention on Human Rights was found to be ­inadmissible because domestic remedies had not been exhausted. A practice of discrimination against the ­Nicaraguan migrant population could not be proven at the admissibility stage.133 In § 261 of its report, the Inter-American Commission on Human Rights explicitly referred to the case law under the European Convention on Human Rights in inter-State cases.134 Even if the requirement of the exhaustion of domestic remedies is a ‘porous obstacle rather than a dam’135 is it important to achieve legal certainty regarding the exceptions to the rule. The hidden strength of the inter-State application which allows the Court to deal with large-scale, systemic and widespread human rights issues could be turned into a more evident one. A more explicit 132 Mercan v Turkey, no 56511/16 (dec) 8 November 2016. 133 Nicaragua v Costa Rica, no 01/06, report n 11/07 of 8 March 2007, § 5, available at www .cidh.oas.org/annualrep/2007eng/interstatecase.eng.htm. 134 Ibid, § 261: ‘… the Commission adds that in order to invoke this exception it is necessary to demonstrate prima facie the existence of the alleged practice. On this point, the Commission concurs with the position of the former European Commission of Human Rights, according to which it is not sufficient that the existence of supposed legislative measures or administrative practices be simply alleged’. 135 C Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures’, in N Boschiero et al. (eds) International Courts and the Development of International Law (2013) 561, 564.

International Dispute Settlement

61

design of the inter-State application as a tool to deal with human rights issues that affect a large number of individuals, and a clearer definition of the object and purpose of the inter-State application would enable the potential of the inter-State application to be fully tapped. Moreover, it should be debated what role the Court should have in Europe, and which issues merit to be on the very top of the Court’s agenda in view of the aspiration to underline the Court’s subsidiary role with Protocol No 15 to the Convention. The subchapter has not dealt with the aspect of enforcement. However, a timely reaction from Strasbourg without the cumbersome exhaustion of ­domestic remedies, in view of a deepening crisis in a State, for example Turkey, might have a supervisory deterrent effect. Thus a fast reaction might discourage States from engaging in activities which are addressed by other States in Strasbourg on a preventive basis. 3.3

Results: The Inter-State Application between International Dispute Settlement and Collective Enforcement

The chapter contains two comparisons of the inter-State complaint under the European Court of Human Rights. Thus, the chapter has analyzed the jurisdiction of the European Court of Human Rights in inter-State applications, as well as the admissibility requirements that an inter-State application has to meet. 3.3.1 Dispute Settlement Functions, Jurisdiction and Yardstick First, the jurisdiction of the European Court of Human Rights was compared with the jurisdiction of the International Court of Justice. The European Court of Human Rights is equipped with compulsory jurisdiction in inter-State complaints under Article 33 echr. This is a unique feature in the international legal order, which is characterized by the absence of compulsory jurisdiction of international courts. Overall, this renders the Strasbourg Court attractive. The advantage of the inter-State application over the International Court of Justice is accessibility. More human rights litigation in Strasburg is explicitly welcomed here. The inter-State application performs valuable dispute settlement functions. The Court finds facts and reviews them by the yardstick of the European Convention on Human Rights. However, the Court finds itself challenged by large sets of proceedings like Georgia v Russia (ii). The same is true for the large-scale issues brought by Ukraine against Russia. Realistically, the jurisdictional situation of the two Courts scrutinized here will not fundamentally change over the next decades. What can be concluded is that the Strasbourg Court is currently dealing with cases that grew out of complex

62

Chapter 3

s­ ituations of conflict, while it has a limited yardstick at its disposal. Thus, a coping strategy for the Court to exercise its functions, including its dispute settlement functions, in a way that does not damage its credibility should be developed. It is not suggested here to change or broaden the Court’s material yardstick. 3.3.2 Collective Enforcement: Added Value of the Inter-State Application The inter-State application is a versatile remedy to collectively enforce human rights. The remedy’s strength, the added value within the European Convention’s supervisory framework, is the possibility to address large-scale human rights issues beyond an individual case. The inter-State application as a ­remedy is privileged when it comes to the requirement of the exhaustion of domestic remedies in comparison to individual applications. Unlike the jurisdictional situation, admissibility requirements can be adjusted in order to render the inter-State application even more attractive for those who are supposed to use it: States. The interpretation and application of the admissibility requirements contained in Articles 33 and 35 § 1 echr would benefit from a clearer definition of the object and purpose of the inter-State application. It would be especially helpful to render the notion of a­ dministrative practices more transparent. In a further perspective, it would be advisable to clarify the relationship between individual and inter-State application when they overlap in view of the strengths of the inter-State application and in order to use the Court’s ­resources efficiently.

Chapter 4

The Inter-State Case-Law under the European Convention on Human Rights: Approaching the Object and Purpose of the Inter-State Application in Practice The goal of this chapter is to approach the question of the object and purpose of the inter-State mechanism under Article 33 echr through the analysis of the inter-State case law, which expands over six decades. The inter-State cases are analyzed according to the leading question whether the inter-State application is a collective enforcement mechanism for the advancement of human rights or whether the mechanism is used to access a forum for international dispute settlement. The criteria for the case law analysis in view of the leading question have emerged from the previous chapters. They will be recalled briefly at the outset of this chapter. Accordingly, ‘collective enforcement’ and ‘international dispute settlement’ are used in this chapter as generic terms, which allow the grouping of certain functions of the inter-State application. As a general rule, the cases are documented in chronological order. By way of exception, cases that arose out of the same factual background or have an inherent relationship are analyzed together. The case law analysis provides the historical and political context of the respective cases. 4.1

Collective Enforcement Functions

4.1.1 Collective Enforcement beyond Individual Justice Individual justice has become one of the central features of the supervisory framework of the Convention, especially in view of the undeniable success of the individual application under Article 34 echr.1 As shown in the second chapter of this volume,2 individual justice was not always a central aim or 1 C Tomuschat, ‘Individueller Rechtsschutz: das Herzstück des “ordre public européen” nach der Europäischen Menschenrechtskonvention’ (2003) 30 EuGRZ 95, 97. 2 See Chapter 2, above: ‘From collective enforcement towards international dispute settlement – the inception and evolution of the inter-State application under the European Convention on Human Rights’.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_005

64

Chapter 4

­feature of the Convention. A systematic interpretation of the Convention suggests that the individual and the inter-State applications complement each other. While the individual application is a remedy designed primarily to provide individual justice, the inter-State application might be primarily intended to collectively enforce human rights for the benefit of more than one individual. The inter-State application, the default enforcement mechanism in the 1950 Convention, can be used to address the fate of a specific individual, thus, can provide individual justice. This feature of the inter-State application was important at a time the right to individual appplication was a mere option under ex-Article 25 echr. The inter-State application can, however, also be used to address systemic issues beyond an individual victim. The functions of collective enforcement are usually, but not exclusively, functions which distinguish the inter-State application from the individual application under Article 34 echr.3 One example is the possibility to complain about legislative measures, without and in abstraction from an affected victim. This possibility is for example relevant in the context of derogations under Article 15 echr: they are usually accompanied by legislative measures on the national level. Via the interState application, these legislative measures can be addressed relatively easily, even without the requirement of the exhaustion of domestic remedies. The ­function of collective enforcement is further relevant if the case has an impact beyond a specific individual case. Thus, from an outcome-perspective, a case is evidence of the collective enforcement function if the proceedings affect a larger group of persons, or have a systemic impact in as much as national laws are changed or repealed by the competent national authorities. 4.1.2 Public Interest Litigation The function of collective enforcement manifests itself when States have ‘something to lose and nothing to win’, thus when they pursue a public interest in the enforcement of human rights rather than a private one. Examples of this type of ‘altruistic’ litigation are when States or groups of States come together to address a coup d’état, especially its consequences for individuals. 4.1.3 Enforcement in the Specific Inter-State Context In terms of collective enforcement, the study analyzes what decisions the Strasbourg organs can take in the context of inter-State proceedings and whether 3 See Chapter 3.2, above: ‘The inter-State and the individual application under the European Convention on Human Rights – a comparison with a view to the function of collective enforcement’.

Inter-State Case-Law under the echr

65

they are binding. One example are interim measures. The study looks at the way the Strasbourg organs actually enforce the Convention. 4.1.4 More than Diplomatic Protection Another aspect of collective enforcement is the design of the mechanism: the jurisdiction of the Court and the admissibility requirements allow the situations of a wide range of beneficiaries to be addressed. Thus, the potential scope of the inter-State application has a collective dimension in as much as it leaves the straitjacket of the bilateral mechanism of diplomatic protection. 4.2

Dispute Settlement Functions

Judicial Review in Times of Crises: Proportionality and the Role of the Court in the Context of Inter-State Applications The study seeks to ask what role the Court can fulfil as an international h ­ uman rights Court in the specific context of inter-State proceedings. The actual exercise of judicial review is an important feature for the effective supervision of international human rights. The inter-State application allows for judicial review, including in times of crises, when human rights are most endangered. As early as in the first set of inter-State proceedings the now defunct Commission has asserted the power of judicial review and introduced the margin of appreciation into the Convention’s case law the context of derogations under Article 15 echr.4 Juidical review is in essence a proportionality test. In turn, the way the Court exercises its powers of review, how strict the review by the Court is, depends also on the object and purpose of the inter-State application. Derogations play a relatively prominent role in the inter-State case. In view of the derogation issued by Ukraine (2015), France (2015) and Turkey (2016), they continue to be relevant. Another aspect of international dispute settlement is timing. Noteworthy in this context is that the Convention’s supervisory system was reformed: instead of a cumbersome, multiphase proceeding with several organs (Commission, Court and Committee of Ministers), a single Court has been installed. This Court can provide faster, more efficient reactions than before the reform with Protocol No 11 to the Convention.5 However, it is not clear how the Court should fill this role in the specific context of inter-State applications. 4.2.1

4 Greece v United Kingdom (i), no 176/56, report of the Commission of 26 September 1958, ­reprinted in (1997) 18 hrlj 348, 385. 5 Protocol No 11 to the Convention (Chapter 1, n 3).

66

Chapter 4

One way to look at the Court’s role is one of a manager in situations of crises, equipped with the possibility to issue interim measures in inter-State cases and ideally, to bring to an end human rights violations which are ongoing, sometimes referred to as ‘judicial peacemaking’.6 4.2.2 Private Interest Litigation Many inter-State proceedings were driven by interests other than the safeguarding of human rights. For example, cases were litigated to further destabilize a colonial regime as in the first case, Greece v United Kingdom. Another example is kin-State litigation, where a State uses the mechanism to protect a related minority in another member State. It is important to note that the litigation for ‘private’ interests is not of an inferior quality than public interest litigation. Private interest litigation can help foster human rights and is equally acknowledged as enforcement of human rights. The combination of collective enforcement and dispute settlement functions, in fact, seems to be the key feature for the relative success of the inter-State mechanism under the Convention. 4.2.3 Fact-Finding, Adversarial, Inquisitorial, Cooperational A central judicial function in the context of inter-State applications is factfinding.7 It is imperative for the Strasbourg Court to be able to perform its duties with a sound factual basis; its authority rests on impartiality and the absence of a political agenda. To obtain evidence is tedious and resource consuming, the geographical remoteness of Strasbourg from the theatres of conflict is but one impediment for the proper administration of justice. At the same time, fact-finding is a cogent issue in the context of inter-State applications because often, the Court finds itself as a first instance forum because domestic remedies are not available or are not effective. 4.3

Carving Out the Potential and the Need for Reform of the InterState Application

The practice-oriented approach allows us to deduce from the case law analysis what features of the inter-State application merit further improvement within 6 A Spain, ‘Examining the International Judicial Function: International Courts as Dispute ­Resolvers’ (2011) 34 Loyola of Los Angeles International and Comparative Law Review 5; the idea can be traced back to H Kelsen, Peace through Law (1944). 7 A Riddell, ‘Evidence, Fact-Finding, and Experts’, in C Romano et al (eds) The Oxford Handbook of International Adjudication (2014) 848.

Inter-State Case-Law under the echr

67

the existing supervisory structure of the echr. The potential and the need for reform is summarized in the results section of the case law analysis. The reform considerations, which will be expanded on at the end of this volume, should be guided by a clear idea of what the object and purpose of the interState application should be. The results also highlight aspects that emerged from the inter-State case law, which should not be included for an eventual reform, especially the notion of a ‘public order of Europe’,8 a term wich appeared in the inter-State case law. 4.4

Greece v United Kingdom (1956–59)

The two cases between Greece and the United Kingdom were the very first inter-State cases to reach Strasbourg. The Commission still had to find its role, and human rights were still a new concept. The work of the S­ trasbourg organs took place in the uncharted territory between law and diplomacy. The States concerned equally faced an unprecedented situation. Apparently in search of an analytical tool, the British Foreign Office started to collect personal information about all members of the Commission. The evaluation of Commission member Irmgard Fuest was that ‘she is also something of an idealist. On the whole therefore it seems probable that she may be inclined to be rather theoretical and sentimental in her approach to the Cyprus question’.9 4.4.1 Overview In 1956 and 1957, respectively, Greece lodged two inter-State applications against the United Kingdom. The Greek government maintained that the formal and material requirements for the British derogation of the Convention under Article 15 echr concerning the situation in Cyprus were not met. In addition, Greece argued that a series of legislative measures in Cyprus were ­incompatible with Articles 3 and 5 of the Convention, especially collective punishments, curfews and whipping. The thrust of the allegations in the second inter-State case was brought under Article 3 echr.10 At the merits stage, the European Commission on Human Rights found no breach of the Convention, neither in the first nor in the second set of inter-State proceedings. The European Court of Human Rights, which was e­ stablished 8 9 10

Eg in Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116, 140. B Simpson, Human Rights and the End of Empire (2004) 941, quoting from unpublished materials of the British Public Records Office. Apparently, the Greek memorial failed to state what provisions of the Convention were relied on, see B Simpson (n 9) 1031.

68

Chapter 4

only in 1959, was not an available forum because the United Kingdom had not accepted its jurisdiction under ex-Article 46 echr, while Greece had agreed to an ad-hoc reference.11 Thus, the competent organ to deal with inter-State applications, after the report of the Commission was finalized, was the Committee of Ministers of the Council of Europe, a political organ. The Committee of Ministers put the first inter-State application at rest with a one-page resolution in April 1959 without an evaluation of the merits.12 The second application was ended in the same way in December 1959.13 In February 1959, the United Kingdom, Greece and Turkey had reached an agreement about the independence of Cyprus without the direct involvement of the Strasbourg organs.14 The ­arrangement brought no lasting peace to Cyprus.15 Neither Greece nor the United Kingdom had accepted the right of individual petition under ex-Article 25 echr at the material time. Thus, the inter-State application under ex-Article 24 echr was the only available remedy under the Convention.16 4.4.2 Documentation The two inter-State applications would have been joined if the United Kingdom had not objected to the Commission’s proposition in that respect. They overlapped in as much as the Commission issued a stay of the execution of one of the 49 individuals that were the subject of the second case in the framework of the first inter-State case.17 The stay of execution was issued in favor of Nicolas Sampson, who would be, in 1974, the president of Cyprus for eight days. It is worthwhile to note that the Commission did not use the names of the individuals in its documents; instead, the cases were numbered. The legal

11 Greek ad hoc reference, Yb 2 (1958–59), 174, 176. 12 Committee of Ministers, Resolution (59) 12, 20 April 1959, Yb 2 (1958–59), 186. 13 Committee of Ministers, Resolution (59) 39, 14 December 1959, Yb 2 (1958–59), 196. 14 The so-called Zurich and London agreements; subsequently, the Treaty Concerning the Establishment of the Republic of Cyprus (as part of the Zurich and London agreements) 16 August 1960, 382 unts 8, was concluded by the three parties; see also T Ehrlich, ‘­Cyprus, the ‘Warlike Isle’: Origins and Elements of the Current Crisis’ (1965/66) 18 Stanford Law Review 1021, 1031. 15 C Rumpf, ‘Die staats- und völkerrechtliche Lage Zyperns’ (1997) 24 EuGRZ 533. 16 For a table of ratifications and acceptances see E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 17 Greece v United Kingdom (i), no 176/56, report of the Commission of 26 September 1958, reprinted in (1997) 18 hrlj 348, 358 (the report is also available on hudoc; hereinafter, the report is cited as Greece v United Kingdom (i), 1958-report (1997) 18 hrlj 348.

Inter-State Case-Law under the echr

69

historian Brian Simpson connected the numbers to names with the materials of the British Public Records Office.18 4.4.2.1 Greece v United Kingdom (i) The Commission declared the first application admissible in June 1956.19 The admissibility decision in the inter-State case was the first admissibility decision in the history of the Convention.20 At the admissibility stage, the Greek government specifically targeted legislative measures and did not complain about concrete, individual cases. This approach did not require the exhaustion of domestic remedies. At the merits stage, the Commission undertook, among other factfinding efforts, a visit to Cyprus. The organ finalized a 420-page report under ex-Article 31 echr in September 1958.21 The report remained confidential until 1997 and was reprinted in full in the Human Rights Law Journal of the same year.22 In the Yearbook of 1958–59,23 some abstract information about the report was published. Not disclosed was whether or not the Commission had found a breach of the Convention. The Commission had not found breaches because it had chosen not to legally evaluate those measures which had been repealed or discontinued by the British government in Cypurs. The author of the 1976 monograph about the inter-State application, who had no access to the primary source, was drawn to the conlcusion that the Commission found violations of the Convention.24 4.4.2.2 Greece v United Kingdom (ii) In 1957, Greece lodged a second inter-State application against the United Kingdom. The alleged ill-treatment of 49 individuals in contravention of ­Article 3 echr, often in the context of interrogations, was subject to the second application.

18 19 20 21 22 23 24

B Simpson (n 9) 924 and 1022. Greece v United Kingdom (i), no 176/56, admissibility decision, 2 June 1956, Yb 2 (1958–59), 182. De Becker v Belgium, no 214/56, admissibility decision, 9 June 1958, Yb 2 (1958–59), 214 and Lawless v Ireland, admissibility decision, 30 August 1958, Yb 2 (1958–59) 308. Greece v United Kingdom (i), no 176/56, 1958-report (1997) 18 hrlj 348–467 (n 17). Greece v United Kingdom (i), no 176/56, Committee of Ministers, Resolution dh (97) 376, 17 September 1997. Note of information concerning Greece v United Kingdom (i), no 175/56, Yb 2 (1958–59), 174–199. P Hold von Zürich (Chapter 1, n 15) 90.

70

Chapter 4

The Commission declared the second application partly admissible in ­ ctober 1957 because not all of the 49 individuals had exhausted domestic O remedies as required under ex-Article 26 echr.25 The Commission’s 25-page report was finalized in July 1959. In the report, the Commission confined itself to summarizing the steps taken by the Strasbourg organs in the case in view of the ‘exceptional situation’ the case ­presented, which did ‘not appear to fall exactly within the terms of either Article 30 or of Article 31 of the Convention’.26 The Commission did not express an opinion about the merits of the case. The confidentiality of the Commission’s 1959 ­report was lifted in 2006.27 The 1959 report revealed that the governments of Greece and the United Kingdom had simultaneously requested the Commission to discontinue the proceedings in Strasbourg on the grounds that a final political solution had been found. The parties cited a ‘fundamental change’28 Cyprus underwent as a result of the Zurich and London agreements of 1959. The letters referred to the report of the Commission in the first inter-State proceedings, where the ­Commission had opined that ‘the full enjoyment of human rights in Cyprus is closely connected with the solution of the wider political problems relating to the constitutional status of the island’.29 The parties let it be known that imprisonment and detention of all persons in connection with the recent ­disturbances had been terminated and an amnesty had been granted.30 4.4.2.3 Context: United Kingdom Colonial Rule Over Cyprus At the time, the respondent government was the colonial power over the island of Cyprus. Cyprus had been part of the Ottoman Empire for over three 25

26

27

28 29 30

Greece v United Kingdom (ii), no 299/57, admissibility decision, 10 January 1958, Yb 2, 186; see also note of information concerning Greece v United Kingdom (i), no 175/56, Yb 2 (1958–59) 174, 178. Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission, 24. The report is available on hudoc as it secrecy has been lifted in 2006 by the Committee of Ministers, Resolution Res dh (2006) 24; hereinafter, Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission, the page numbers refer to the pagination of the report ­available on hudoc. Committee of Ministers, ‘Resolution Res dh (2006) 24 concerning the publication of the Commission’s report in the case of Greece against the United Kingdom (application No. 299/57)’, 5 April 2006. Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission (n 26) 18. Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission (n 26) 19. Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission (n 26) 19.

Inter-State Case-Law under the echr

71

c­enturies. In 1878, the island had been ceded to the United Kingdom in ­exchange for political support against the Russian Empire during the Congress of Berlin.31 The island is home to a Greek-Cypriot majority and a Turkish-­ Cypriot minority. The British government had consciously32 decided to extend the scope of application of the Convention to about forty of its dependencies in 1953, ­including Cyprus. The formal commitment to apply the echr in the colonies was not matched by other European colonial powers. France faced the ­Algerian War between 1954 and 1962, and ratified the Convention as late as 1974.33 The United Kingdom had, in late 1955, derogated from Article 5 echr with regard to Cyprus under Article 15 echr.34 Britain’s forceful response to the militant Cypriot resistance movement seeking self-determination and unification with Greece was at the center of the Strasbourg proceedings. After several Greek initiatives, the United Nations General Assembly allowed the situation of Cyprus to appear on its agenda in 1957.35 Also, the North Atlantic Treaty ­Organization (nato) was a forum where the Cyprus issue was discussed as early as March 1956.36 4.4.3 Collective Enforcement Functions 4.4.3.1 Taking Advantage of the Label of Collective Enforcement The fact that the cases were lodged was already a remarkable step towards the collective enforcement of human rights in Europe. The inter-State application did address human rights issues and filled the gap left by the law of diplomatic protection and the lack of the right of individual petition at the relevant time in Cyprus. Whether the protection of human rights in Cyprus was a central motivation for Greece to lodge an inter-State application cannot be said with certainty. Henri Rolin, who had participated in the drafting process of the Convention and would be President of the European Court of Human Rights, and 31 32

33 34 35 36

See A Taylor, The Struggle for Mastery in Europe: 1848–1918 (2001) 250. Declaration of extension under ex-Article 63 echr of the United Kingdom, Yb 1 (1955–­ 56–57) 46, 47, see also L Moor, B Simpson, ‘Ghosts of Colonialism in the European Convention on Human Rights’ (2005) 76 byil 121; C Walter: ‘Der gegenwärtige ­Wirkungsbereich der Rechtsschutzeinrichtungen der Europäischen Menschenrechtskonvention, Unterwerfungserklärungen Belgiens, Großbritanniens und Schwedens’ (1966) 26 hjil 325. List of ratifications in E Engel, N Engel (n 16) 572, 573. The text of the derogation is reprinted in Greece v United Kingdom (i), no 176/56, 1958report (1997) 18 hrlj 348, 378 (n 17). United Nations General Assembly Resolution 1013 (xi), 26 February 1957. R Holland, Britain and the Revolt in Cyprus 1954–1956 (1998) 125.

72

Chapter 4

who was at the time a professor of international law, was an agent for Greece. His participation lent weight and credibility to the application. The draconian use of the death penalty in May 1956 was seen as the immediate trigger for action against the United Kingdom.37 Plausibly, Greece was however ‘in reality trying to annex Cyprus, but had to try to present itself as merely acting on behalf of the Cypriots and of the international community’.38 The Greek population on the island was a further motivation for Greece to assert a ‘guardian’ role. Especially the Commission’s report in the second inter-State application shows that the fate of specific individuals was a secondary consideration during the proceedings as the Greek government never consulted with the victims about the conduct of the proceedings.39 4.4.3.2 The Interim Measure in Favor of a Specific Individual The request to stay the execution of Nicolas Sampson was the first interim measure from Strasbourg.40 At the time, there was no legal basis whatsoever for the Commission to issue interim measures, not even in the Rules of the Commission or of the Court. The respect by the British authorities for the stay of execution was, from a legal perspective, even more interesting, given that the Commission was not able to issue any binding decision at all outside of inadmissibility decisions. It seems the Commission saw its request in the context of an active attempt to secure a friendly settlement under ex-Article 28 echr. Despite the lack of binding force of the measure, the life of the individual concerned was saved. 4.4.3.3 Collective Enforcement but no Right to Self-Determination While the impact of the Strasbourg proceedings should not be overestimated, it is a fair assumption that the proceedings expedited an agreement about the independence of Cyprus, as they were part of mounting pressure upon Greece and the United Kingdom.41 Turkey as party to the Zurich and London ­agreements was not, however, party to the Strasbourg proceedings. What can be said with certainty is that the absence of the right to self-determination 37 38 39 40 41

B Simpson (n 9) 919, 929. B Simpson (n 9) 924; similarly P Hold von Zürich (Chapter 1, n 15) 90. B Simpson (n 9) 1032. Greece v United Kingdom (i), no 176/56, 1958-report (1997) 18 hrlj 348, 358 (n 17); see B Simpson (n 9) 973. B Ohms, ‘Artikel 33, Staatenbeschwerden’ (Chapter 1, n 18) mn 8; see also Engel et al, ­editors’ note to the publication of the Commission’s report in Greece v United Kingdom (i) of 1958 in (1997) 18 hrlj 348.

Inter-State Case-Law under the echr

73

in the Convention could not be compensated by the notion of collective enforcement. 4.4.3.4 Systemic Impact of the Case The inter-State proceedings between Greece and the United Kingdom had a systemic impact on the United Kingdom and its colonies. The wide impact was largely due to the fact that the first inter-State application targeted legislative measures and was not concerned with individual cases. The Untited Kingdom had entered derogations and used similar emergency legislation, for example collective punishments,42 in other colonies. The territorial scope of application of the echr included most African and Asian colonies of the United ­Kingdom via the so-called colonial clause, ex-Article 63 echr.43 As a consequence of the inter-State proceedings between Greece and the United Kingdom, the United Kingdom was forced to reconsider its measures in the colonial context. The United Kingdom Colonial Office was ‘partially disarmed in future colonial insurrections’,44 and ‘[l]ife was never to be quite the same again’.45 While the idea of denouncing the Convention was considered in ­London, leaving the Convention was held to be too embarrassing for the United Kingdom in the context of the beginning cold war.46 The case yielded concrete results: it appears that a system of record keeping in detention facilities was implemented by the United Kingdom in Cyprus as a response to the allegations of ill-treatment of prisoners.47 The general human rights situation arguably improved in Cyprus given that certain measures like collective punishments were revoked during the proceedings. 4.4.4 Dispute Settlement Functions It is noteworthy that, despite the secrecy of the proceedings, the admissibility decision was rendered public. The Commission considered that ‘[w]here its decisions concerned the admissibility of applications (…) it [the Commission] was fulfilling a judicial function and that the decisions, which did not bear

42 43 44 45 46 47

F Klose, Menschenrechte im Schatten kolonialer Gewalt, Die Dekolonisierungskriege in ­ enia und Algerien 1945–1962 (2009) 173, 174. K Today, the provision, formally unchanged, is contained in Article 56 echr under the heading ‘territorial application’ of the Convention. B Simpson (n 9) 962. B Simpson (n 9) 7. B Simpson (n 9) 982 f. B Simpson (n 9) 1027.

74

Chapter 4

upon the substance, could be published’.48 Thus, transparency was deemed an element of dispute settlement. 4.4.4.1 The Assertion of Judicial Review in the Context of Derogations At issue was if and how the Commission would exercise ‘judicial’ review of the derogation under Article 15 echr.49 The possibility to temporarily derogate from certain obligations under Article 15 echr has been central in inter-State cases. Derogations are, next to reservations, an important tool to accommodate the interests of States.50 With respect to the assertion of the power of review, the situation was compared to the 1803 Marbury v Madison decision of the United States Supreme Court, where the US Supreme Court asserted a power of judicial review over federal legislation.51 While asserting the power of review, the C ­ ommission found a markedly deferential way to assess the measures of the respondent.52 In words which ‘left something to be desired’,53 the Commission let it be known that ‘the Government should be able to exercise a certain measure of discretion in assessing the extent strictly required by the exigencies of the situation’.54 These rather Delphic words marked the entry of the margin of a­ ppreciation doctrine into the echr case law.55 4.4.4.2 No Judicial Review Concerning Revoked Legislative Measures The report prominently omits the legal evaluation of those incriminated measures that were revoked by the British government while the proceedings in Strasbourg were ongoing. One example was the deportation and detention of political and spiritual leaders.56 The outcome of the proceedings without an evaluation on the merits by the Committee of Ministers was seen as ‘a tribute to the effectiveness of the judicial provisions of the Convention and 48 49 50 51 52 53 54 55 56

Note of information concerning Greece v United Kingdom (i), no 175/56, Yb 2 (1958–59) 174, there footnote 3. Greece v United Kingdom (i), no 176/56, 1958-report (1997) 18 hrlj 348, 385 (n 17). Cf R Higgins, ‘Derogations under Human Rights Treaties’ (1976) 48 byil 281, 317. O Gross, ‘Once more unto the Breach: The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies’ (1998) 23 YaleJIL 437, 464. E Bates (Chapter 2, n 1) 198; B Simpson (n 9) 1019. R Higgins (n 50) 297. Note of information concerning Greece v United Kingdom (i), no 175/56, Yb 2 (1958–59) 174, 176. R Higgins (n 50) 296. B Simpson, ‘The exile of Archbishop Makarios iii’ (1996) 4 European Human Rights Law Review 391.

Inter-State Case-Law under the echr

75

­ revailing conditions that there has been no need to employ the enforcement p ­provisions’.57 One explanation for this deferential approach was the fear that the United Kingdom would leave the Convention’s system.58 4.4.4.3 Sustained Fact-Finding Effort A contemporary commentator underlined that the Strasbourg organs conducted the proceedings with great care.59 The fact-finding the Commission undertook, including a visit to Cyprus, was a remarkable effort and objectively documented the situation on the island. If the report, even in a brief version, had been published at the time, it would have been a source of serious embarrassment for the United Kingdom.60 Even if it was not published to a wider audience, and even if it was not binding and despite the absence of a legal evaluation of all aspects reported, the sustained fact-finding effort did not fail to have its impact on the respondent by the mere description of the incriminated conduct. 4.4.4.4 Settlement of the Case at the Parties’ Disposition The ‘final settlement’61 of the two applications was hard to reconcile with the legal framework of the echr. In particular, the outcome cannot be qualified as a friendly settlement within the meaning of ex-Article 28 echr, which would have required the publication of a (brief) report as well as a settlement ‘on the basis of respect for human rights as defined in this Convention’. The way the proceedings ended upon the request of the High Contracting Parties to the Convention shows that the proceedings were fully determined by the applicant and the respondent State, thus, the mechanism was used like a bilateral dispute settlement mechansim. The human rights issues raised, inter alia, by interrogation methods ‘worthy of the Inquisition’62 were ‘swept 57 58

59 60

61 62

G Weil, ‘The Evolution of the European Convention on Human Rights’ (1963) 57 ajil 804, 815. M Madsen, ‘The Protracted Institutionalization of the Strasbourg Court: From Legal ­Diplomacy to Integrationist Jurisprudence’, in J Christoffersen, M Rask Madsen (eds), The European Court of Human Rights between Law and Politics (2011) 43, 50. G Ténékidès, ‘La Condition Internationale de la République de Chypre’ (1960) 6 afdi 133, 145. E Bates (Chapter 2, n 1) 199; see also B Simpson, ‘Round up the usual suspects: the legacy of British colonialism and the European Convention on Human Rights’ (1995–96) 41 Loyola Law Review 629, 701. Wording taken from the Resolution of the Committee of Ministers (59) 12, 20 April 1959, Yb 2 (1958–59), 186. B Simpson (n 9) 931.

76

Chapter 4

under the c­ arpet for reasons of political expediency’63 once Cyprus attained independence. Humphrey Waldock, the British member of the Commission, stated ­extrajudicially, after mentioning the first three inter-State cases under the echr that ‘(…) the experience of the European system confirms that it is essential for the individual himself to have the right to bring his case before an international body if international guarantees of human rights are to be effective’.64 Evaluation: Incident Collective Enforcement, but Mainly Settling the Status of Cyprus Arguably, Greece litigated the case mainly out of its private interest in the island. The improvement of the human rights situation of its inhabitants, especially of the Greek majority, was a positive and welcome side effect. The case can be seen as an example of kin-State litigation, whereby a State asserts a guardian role for a related minority in another country. Even if Greece had its main motives beyond the protection of human rights, the case shows that private interest litigation can be helpful for the cause of human rights. The case was evidence of the function of collective enforcement in as much as Greece was able to start proceedings about the human rights situation in another country. The first case was structurally even more different from the law of diplomatic protection because no concrete individual was at the center of the case. The second case, which was more akin to a situation of diplomatic protection, closed the gap which the missing acceptance of the right of individual petition under ex-Article 25 echr had left for the 49 Cypriot individuals, even if the individuals affected were not recognized as victims or compensated. With a specific view on the right of self-determination, the function of collective enforcement does not add an additional layer of substantive rights to the Convention. In a way that is hard to quantify, the proceedings did, however, put pressure on the United Kingdom as colonial power. More accidentally than on purpose, the case had an impact on the way the United Kingdom used legislative measures to counter insurrections in other colonies. The function of international dispute settlement transpires throughout the case. The sustained fact-finding effort of the Commission needs to be recognized: the report in the first Greece v United Kingdom case is a remarkable

4.4.5

63 64

B Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (2010) 370. H Waldock, ‘General Course on Public International Law’ (1962) 106 RdC 5, 204.

Inter-State Case-Law under the echr

77

document, and up to that point, the most outstanding achievement of quasijudicial human rights protection. The omissions of a legal evaluation of measures which had been revoked or discontinued by the respondent was due to a flexible and pragmatic approach. Strasbourg was a convenient, easily accessible forum to discuss the situation in Cyprus. Especially the attempts of the Greek government to discuss the matter within the framework of the United Nations show the goal of the applicant government to exchange views about the situation in Greece on an international floor. Similar motivational patterns are prevalent also in more recent cases against Russia, which is a permanent member of the Security Council and thereby blocks any significant reaction to the situation in Georgia and Ukraine. 4.5

Austria v Italy (1960–1963)

The Austria v Italy application related to criminal proceedings brought against six Italian nationals in the Italian village of Pfunders, in South Tyrol. The men were convicted for the murder of an Italian customs officer in August 1956. The six defendants from Pfunders were part of the German-speaking minority in ­Italy. The term minority was used by the Austrian government.65 It is one of the few inter-State cases where no violation of a material guarantee of the Convention was found. The admissibility decision of Austria v Italy is one of the most notorious parts of the Convention’s case law. The explanation for the notoriety lies in the Commisson’s famous rhetoric about the ‘public order of Europe’.66 The Commission’s rhetoric seems out of scale in view of the immediate facts before the Commission, which concerned a criminal trial. The case has to be seen in the context of the minority issue at the heart of the affair. The Commission’s material yardstick did not allow for a legal evaluation of the treatment of the German-speaking inhabitants of South Tyrol within Italy as a minority. However, the subtext of the minority issue surfaces at times, for example the names of the individuals concerned are given in both Italian and in German in the documents of the Commission.

65

66

See also H Hannum, ‘The Concept and Definition of Minorities’, in M Weller (ed), Universal Minority Rights, A commentary on the Jurisprudence of International Courts and Treaty Bodies (2007) 49. Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116, 140.

78

Chapter 4

4.5.1 Overview and Documentation The third inter-State application under the Convention was brought by ­Austria against Italy in July 1960.67 Italy had ratified the Convention on 26 October 1955. Austria had acceded to the Convention on 3 September 1958, after the events leading up to the death of the Italian customs officer, who became the victim of the six men charged in South Tyrol.68 The Austrian government alleged certain irregularities at the criminal trial against the six men from Pfunders, and relied on Articles 6 § 1 2, 3 d) and 14 echr.69 The Commission declared the application admissible.70 In its 1963 report, the Commission found no violation of the Convention. The language of the report in this respect is noteworthy: ‘While it [the Commission] agrees that such conclusions might vary according to the national ­temperament and legal tradition of different countries, the Commission feels that the Court of ­Bolzano/Bozen did not violate Article 6 (2) of the Convention in this respect’.71 The Committee of Ministers seconded the view of the Commission at the ­merits stage.72 In a letter to the Foreign Ministers of Austria and Italy, the Committee of Ministers emphasized that ‘the Commission considered it desirable for humanitarian reasons, among which may be counted the youth of the ­prisoners, that measures of clemency be taken in their favor’.73 Italy had not yet accepted the right of individual petition under ex-Article 25 echr. Austria could not refer the case to the Court because Italy had not accepted the jurisdiction of the Court under ex-Article 46 echr at the material time.74

67 68 69 70 71 72 73 74

Austria v Italy, no 777/60, information note, Yb 3 (1960) 168–170. For a table of accessions to the echr see E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. Austria v Italy, no 777/60, information note, Yb 4 (1961) 112f. Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116f; hereinafter Austria v Italy (dec). Austria v Italy, no 777/60, report of the Commission of 30 March 1963, Yb 6 (1963) 754, 786 (emphasis added). Austria v Italy, no 777/60, Committee of Ministers, Resolution (63) dh 3, 23 October 1963, Yb 6 (1963) 796. Text of the letter by the Secretary-General of the Council of Europe to the Foreign Ministers of Austria and Italy, Yb 6 (1963) 800. Italy accepted the right of individual petition and the jurisdiction of the Court in 1973, Yb 16 (1973) 10, 14; see for a chronological list of ratifications and acceptances E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573.

Inter-State Case-Law under the echr

79

4.5.2 Context: The Situation of the German-Speaking Minority in Italy In the infancy years of the Convention, South Tyrol already looked back on decades of acute ethnic conflict. South Tyrol had been part of Italy since 1919. Before World War i, the region had been part of Austria-Hungary and its predecessors. With the 1919 Peace Treaty of Saint Germain, the German-speaking inhabitants became a minority within Italy. During the fascist rule, the region was targeted by Italianization.75 In 1946, Italy and Austria confirmed the 1919 border in return for an Italian guarantee of extensive autonomy of the Germanspeaking community.76 The 1946 agreement between Italy and Austria, granting certain autonomy rights to the German-speaking minority in South Tyrol, was reminiscent of the League of Nations system of minority protection.77 The implementation of the 1946 agreement between Austria and Italy, or the lack thereof, formed the central point of dispute between the two countries.78 The conflict persisted over decades.79 4.5.3 Collective Enforcement Functions 4.5.3.1 More than Bilateral Diplomatic Protection The individuals concerned were Italian nationals, not Austrians, a constellation not contemplated by the customary law of diplomatic protection. The possibility of a State to lodge an application in favor of nationals of the respondent State was what the drafters had in mind when they sought to draw up a system of collective enforcement of human rights in Europe. 4.5.3.2 Collective Enforcement as Individual-Centered Enforcement Austria had argued that the exhaustion of domestic remedies was not necessary for the admissibility of the application. To support the argument, Austria relied on the concept of a collective guarantee the Convention enshrined.80 Convincingly, the Commission argued that persons who are permanently 75 76

77

78 79 80

See R Steiniger, South Tyrol: A Minority Conflict of the Twentieth Century (2003). Provisions agreed upon by the Austrian and Italian governments (Gruber/de Gasperi agreement), signed 5 September 1946, Annex iv to the Treaty of Peace with Italy of 10 February 1947, 49 unts 184. See P Kovacs, ‘The protection of Minorities under the Auspices of the League of Nations’, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (2013) 324, 336. G Pallaver, ‘South Tyrol: Ethnic Winner of the Cold War’, in R Knight (ed), Ethnicity, ­Nationalism and the European Cold War (2012) 145, 146. A Gattini, ‘La chiusura della controversia italo-austriaca sull’Alto Adige’ (1992) 75 Rivista di diritto internazionale 349. Austria v Italy (dec) (n 70) 148.

80

Chapter 4

­exposed to a jurisdiction of a given State as nationals have an even greater interest than foreigners in effective domestic remedies. The notion of collective enforcement does not provide for ‘shortcuts’ on the procedural level. The approach of the Commission regarding the requirement of domestic remedies was perceived as ‘extrêmement rigide’81 in contemporary academia because individuals before national courts did not usually argue their cases with the intention to apply to the Commission at a later stage. Further, the requirement to exhaust domestic remedies under the supervisory framework of the echr was a feature which distinguised the C ­ onvention’s supervisory mechanism from the League of Nations complaint architecture.82 When States complained under the League of Nations system, on the basis of a bilateral treaty, they complained about direct injuries of their own rights. In such a context, the exhaustion of domestic remedies for direct injuries was a priori not possible. The bilateral agreements accorded no rights to individuals, they created obligations between States.83 Thus, the Austria v Italy case showed that the function of collective enforcement in fact referred to the enforcement of rights of individuals, and that accordingly, the procedural ­requirements of the inter-State application are individual-centered. 4.5.3.3 Collective Enforcement and the Public Order of Europe Austria’s accession to the Convention after the conduct in question took place in Italy is a special feature of the case. In its admissibility decision, the Commission did not, however, differentiate between standing and jurisdiction ratione temporis: while it asked whether Austria had the power to refer the alleged breaches to the Commission,84 it came to the conclusion that it had ratione temporis jurisdiction.85 Objections to jurisdiction relate to conditions ­affecting the parties’ consent to have a body decide a case at all.86 Standing refers to the right to appear as a party and to set a certain mechanism in motion.87 The way the case was laid out did not call into question the general consent of Italy to be bound by the Convention at the material time of the criminal p ­ roceedings in 81 82

83 84 85 86 87

N Antonopolus, La Jurisprudence des Organes de la Convention Européenne des Droits de l’Homme (1967) 71. P Kovacs, ‘The Protection of Minorities under the Auspices of the League of Nations’, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (2013) 324, 331; see also C Macartney, National States and National Minorities (1934) 297f. A Meijknecht, ‘Minority Protection System between Word War i and World War ii’ in R Wolfrum (ed), mpeil online (2010). Austria v Italy, (dec) (n 70) 136. Austria v Italy, (dec) (n 70) 144. J Crawford (Chapter 3, n 27) 693. C Tams, Enforcing Obligations Erga Omnes in International Law (2005) 25f.

Inter-State Case-Law under the echr

81

Pfunders. Ex-Article 24 echr authorized all High Contracting Parties to seize the Commission with any alleged breach, without a requirement of reciprocity. This interpretation of the wording of the Convention can be backed up by an argument e contrario: ex-Article 46 § 2 echr explicitly speaks of reciprocity in the context of the jurisdiction of the Court. In fact, this argument was submitted by Austria.88 Instead of following this line of legal reasoning, the Commission indulged in rhetoric. The organ referred to the preamble of the Convention, where governments had resolved to ‘take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’.89 The ­Commission went on to state that the ‘obligations undertaken by the High Contracting ­Parties in the Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves (…) a High Contracting Party, when it refers an alleged breach of the Convention to the Commission under Article 24, is not to be regarded as exercising a right of ­action for the purpose of enforcing its own rights, but rather as brining before the Commission an alleged violation of the public order of Europe’.90 While the reasoning is rhethorically persuasive, it was superfluous from a strictly ­legal point of view. 4.5.3.4 No Additional Substantial Rights The Austria v Italy case was lodged in favor of the six individuals indicted. The minority-issue in South Tyrol was the subtext of the proceedings in Strasbourg. However, the inter-State application was an unsuitable tool to address the ­situation of the German-speaking minority because minority rights are not protected by the echr.91 The function of collective enforcement does not add an additional layer of substantive rights in favor of groups or minorities. 4.5.4 International Dispute Settlement Functions The context of the case indicates that Austria and Italy were parties in a ­conflict that had persisted over decades. The General Assembly of the United Nations recommended in 1960 to use methods of peaceful dispute settlement 88 89 90 91

Austria v Italy, (dec) (n 70) 134. Austria v Italy, (dec) (n 70) 146. Austria v Italy, (dec) (n 70) 140. See also R Wolfrum, ‘Aspekte des Schutzes von Minderheiten unter dem Europäischen Menschenrechtsschutzsystem’, in J Bröhmer et al (eds), Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress (2005) 1109.

82

Chapter 4

to tackle the conflict.92 The Strasbourg proceedings have to be seen on this trajectory. This view on the proceedings can be substantiated by the fact that Austria was preparing a second inter-State application to Strasbourg in 1964 with allegations in the ambit of Article 3 echr. In view of the ongoing negotiations between Italy and Austria regarding certain autonomy privileges for the South Tyrol region, the application was not lodged.93 The Strasbourg inter-State application was an attractive and easily accessible forum, despite the limited yardstick of the Convention. Other fora, ­especially the International Court of Justice, were not available to deal with the Austro-Italian conflict because it had no jurisdiction. Specifically, the 1957 ­European Convention for the Peaceful Settlement of Disputes94 did not cover the dispute over the implementation of the 1946 agreement between Austria and Italy about the autonomy regime in South Tyrol ratione temporis.95 4.5.5 Evaluation: Strasbourg as a Forum for Kin-State Litigation In sum, the Austria v Italy case integrates functions of collective enforcement and international dispute settlement. The case dealt with one aspect of the ongoing dispute about South Tyrol and the situation of the German speaking minority in Italy. The inter-State application was a means to access an international forum and to generate a certain amount of international attention, mainly for the lack of another forum. Today, more than 50 years later, the lack of access to international courts without the consent of the respondent party is still an important feature of international law. The case shows that the notion of collective enforcement brought individuals of another State into the ambit of protection of the Convention, and was more than the bilateral straitjacket of diplomatic protection. At the time, this aspect of collective enforcement was important because the right of ­individual petition was an optional remedy, which Italy had not yet accepted.

92

93 94

95

United Nations General Assembly Res 1497 (xv), 31 October 1960, ‘The status of the German-speaking element in the Province of Bolzano (Bozen), implementation of the Paris agreement of 5 September 1946’. F Ermacora, ‘Über die Staatenbeschwerde in Fragen der Menschenrechte’, in Recueil de trauvaux publiés par la Faculté de Droit (ed), Mélanges Marcel Bridel (1968) 169, 188. European Convention for the Peaceful Settlement of Disputes, 29 April 1957, 320 unts 243; see also L Caflisch, ‘European Convention for the Peaceful Settlements of Disputes’, in R Wolfrum (ed), mpeil online (2007); K Oellers-Frahm, A Zimmermann, Dispute Settlement in Public International Law (2nd ed, 2001), 149. The text of Italy’s notification of the agreement of 31 July 1992 is reprinted in O Peterlini, Autonomie und Minderheitenschutz in Trentino-Südtirol (1996) 229.

Inter-State Case-Law under the echr

83

The ­requirement of the exhaustion of domestic remedies shows that the collective enforcement is in fact centered around individuals, not States. The attempts of the Commission to fill the notion of collective enforcement with life by referring to the ‘public order of Europe’ largely resounded in later decisions and academic writing. However, they did not add much to the contour of the function of collective enforcement. Rather, it leaves the question why the Commission tried to use rhetoric instead of neutral legal reasoning, that is, judicial craftsmanship. The case showed what collective enforcement was not: neither was it a shortcut to dispense with the requirement of the exhaustion of domestic remedies nor did it provide an additional layer of substantive rights in favor of groups or minorities. 4.6

Denmark et al. v Greece (1967–1976)

In 1967, Greece was the first member State of the European Convention on Human Rights to fall prey to a coup d’état. The case is a prime example of public interest litigation in as much as the appliants Denmark, Norway, Sweden and the Netherlands, joined forces to address the situation in the Hellenic peninsula. However, it became clear that neither the political mechanims at work at the level of the Council of Europe nor the inter-State application under the Convention prevented dictatorships from (re-)taking root in Europe. Greece denounced the echr and left the Council of Europe in 1969, an unparalleled development in Europe so far. 4.6.1 Overview Greece witnessed a coup d’état on 21 April 1967. Instead of elections, which had been scheduled for May 1967, mass arrests, martial law and censorship were imposed by the military. In May 1967, Greece informed the Secretary General of the Council of Europe of its derogation from the European Convention on Human Rights under Article 15 echr without specification what rights were derogated from. The Greek government referred to communist demonstrations and strikes, which allegedly had brought the country to ‘the brink of anarchy’.96 Greece had neither accepted the right of individual petition under ex-Article 25 echr nor the jurisdiction of the Court under ex-Article 46 echr at the material time.97 96 97

Greek note of derogation, 21 April 1967, Yb 10 (1967), 38. E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573.

84

Chapter 4

4.6.2 Documentation The military regime following the coup d’état in April 1967 was subject to two sets of inter-State proceedings under the Convention.98 Even though the Netherlands did not join the second set of inter-State proceedings, the two cases are discussed here together. 4.6.2.1 Denmark, Norway, Sweden and the Netherlands v Greece On 20 September 1967, the Danish, Norwegian and Swedish governments lodged an inter-State application against Greece. On 27 September 1967, the Netherlands lodged a further and in essence identical application. The applicants alleged violations of Articles 5, 6, 8, 9, 10, 11, 13 and 14 echr and targeted the legislative measures suspending parts of the Greek constitution. Further, the applicants contended that the respondent had failed to show that the conditions of Article 15 echr were fulfilled. The applications were declared admissible in January 1968.99 In May 1968, additional allegations in the ambit of Articles 3 and 7 echr, which were non-derogable, as well as Articles 1 and 3 of Protocol No 1 to the Convention100 raised by Denmark, Norway and Sweden were declared admissible.101 The applicants did not raise allegations under Article 2 echr. In its voluminous report, which runs over 1,100 pages and occupies a special edition of the 1969 Yearbook,102 and which was adopted in November 1969, the ­European Commission of Human Rights found numerous violations of the Convention, and opined that Greece could not avail itself of derogations u ­ nder Article 15 echr to justify the measures taken. For the first time, the Commission found that torture within the meaning of Article 3 echr had been practiced in a member state of the Convention.103 It appears that during the proceedings, the Commission requested Greece to adopt necessary ­measures 98 99 100 101 102

103

Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67 and ­Denmark, Norway and Sweden v Greece (ii), no 4448/70. Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67, first ­admissibility decision, 24 January 1968, Yb 11 (1968), 690f. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ets No 009. Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67, second admissibility decision, 31 May 1968, Yb 11 (1968), 730f. Indicated by the roman number ‘ii’; Denmark, Norway, Sweden and the Netherlands v Greece (i), report of the Commission of 5 November 1969, Yb 12 ii (1969). The total documents for the proceedings ran to over 20,000 pages; see also E Bates (Chapter 2, n 1) 265. See also J Becket, Barbarism in Greece (1970); Becket, who worked for Amnesty International, was also heard as a witness in the fact-finding proceedings before the Commission.

Inter-State Case-Law under the echr

85

to postpone the execution of Mr Panagoulis. His life was spared, while he remained in prison.104 Acting under ex-Article 31 § 3 echr, the Commission included ten proposals in its report.105 The non-binding proposals addressed the detention practices as  well as the independence of the judiciary, and called for compensation  for  the cases in which torture and ill-treatment were found. The Commission also ­proposed to hold free elections at the earliest date possible. On 15  April 1970, the Committee of Ministers decided in accordance with ­ex-Article 32 § 3 echr to publish the report of the European Commission on Human Rights.106 In November 1969, the final report of the Commission was leaked to the European press, Le Monde and The Sunday Times revealed its contents.107 In this tense environment, the Committee of Ministers met in December 1969 in order to discuss a possible suspension of Greece from the Council of Europe under Article 3 of the Statute of the Council of Europe (CoE-St). On 12 December 1969, the Greek foreign minister announced the Greek withdrawal from the Council of Europe under Article 7 CoE-St. Formally, Greece was a member of the Council of Europe until 31 December 1970. In practice, Greece was suspended from participation in the activities of the Council (suspension de fait).108 Greece also denounced the echr under ex-Article 65 echr.109 Greece ceased to be a member of the echr on 13 June 1970.110

104 See alsoY Haeck, C Burbano Herrera, ‘The Use of Interim Measures Issued by the European Court of Human Rights in Times of War or Internal Conflict’, in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 77, 88/89. 105 ‘Proposals made by the European Commission of Human Rights’, appendix to report of the Commission under Article 31 § 3 echr, Yb 12 (1969), 514, 515 (n 102). 106 Denmark, Norway, Sweden and the Netherlands v Greece (i), Committee of Ministers ­resolution dh (70) 1 of 15 April 1970, Yb 12 ii (1969), 511, 513 (n 102). 107 A Kiss, P Végléris ‘L’affaire grecque devant le Conseil de l’Europe et la Commission ­européenne des droits de l’homme’ (1971) 17 afdi 889, 902 ; see also J Becket (n 103) 107. 108 A Kiss, P Végléris (n 107) 904; the Committee of Ministers stated that the inter-State proceedings, which were pending before it, were not going to be affected by the denouncement of the Greek government, see also H Petzold, ‘Der Gegenwärtige Wirkungsbereich der Europäischen Menschenrechtskonvention und ihrer Zusatzprotokolle, der Konvention zur Beseitigung aller Formen von Rassendiskriminierung sowie der Menschenrechtspakte der Vereinten Nationen’ (1970) 30 hjil 400, 421, where the note verbale of 17 ­December 1969 of the Secretariat of the Council of Europe is reprinted. 109 See for a comprehensive documentation H Petzold (n 108) 417f. 110 See documentation in Yb 13 (1970), 4.

86

Chapter 4

Greece was readmitted to the Council of Europe and became a member of the echr in 1974, when democracy had been restored.111 The Committee of Ministers decided in November 1974 not to continue the examination of the 1967 inter-State application in view of the ‘fundamental changes’ that had ­occurred in Greece.112 4.6.2.2 Denmark, Norway and Sweden v Greece The second inter-State application concerning the situation in Greece was brought by Denmark, Norway and Sweden in April 1970. The Netherlands did not join the second set of proceedings. At issue were the criminal proceedings against 34 Greek individuals. They were tried before extraordinary courts ­martial in March and April 1970. The allegations concerned violations of ­Articles 3 and 6 echr. The application was brought two days after the public prosecution had requested the death penalty for one of the defendants.113 On 11 April 1970, the President of the Commission asked the Greek government to suspend the execution of any eventual death penalty while the proceedings in Strasbourg were pending.114 No death sentence was pronounced in the following. Greece refused to participate in the proceedings. As a consequence, the Commission opined that the lack of participation amounted to a waiver of the defense of the domestic remedies rule at the admissibility stage.115 In 1970, the Commission drafted an interim report, which has never been officially published.116 As transpired, the Commission declared that due to the refusal 111 See A Manin, ‘La Grèce et le Conseil de l’Europe (12 Décembre 1969–28 Novembre 1974)’ (1974) 20 afdi 875; see also B Wassenberg, History of the Council of Europe (2013) 109f. 112 Denmark, Norway, Sweden and the Netherlands v Greece (i), Committee of Ministers, Resolution dh 74 (2) of 26 November 1974. 113 Denmark, Norway and Sweden v Greece (ii), no 4448/70, admissibility decision of 26 May 1970, Yb 13 (1970), 108, 112. The death penalty itself was not contrary to the echr or the Protocols in force at the relevant time. Protocol no 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty was drawn up within the Council of Europe in the early 1980s and was opened for signature on 28 April 1983 (ets 114). 114 Denmark, Norway and Sweden v Greece (ii), no 4448/70, report of 4 October 1976, dr 6, 5, 6. 115 Denmark, Norway and Sweden v Greece (ii), (n 113) 134; G Nolte, S Oeter, ‘European Commission and Court of Human Rights, Inter-State Applications’, in R Bernhardt (ed), epil Vol ii (1992) 144, 148. 116 According to the Rules of the Commission’s Archives, the document is confidential until 2051.

Inter-State Case-Law under the echr

87

of the respondent to participate in the proceedings, it could not adequately continue its functions.117 In the 1976 Cyprus v Turkey (i) and (ii) report, the Commission quoted from the confidential report in the case at hand, stating that a ‘respondent party cannot evade the jurisdiction of a competent tribunal simply by refusing to take part in the proceedings instituted against it. It is a ­general p ­ rinciple of judicial procedure that a competent tribunal may give judgment by default. (…) The Commission would, however, have to ­satisfy i­ tself that the information before it is sufficient to express a well-founded opinion. There could be no question of automatically finding in favor of the applicant, irrespective of the circumstances of the case’.118 The Committee of Ministers took note of the 1970 interim report, but took no further steps. In 1976, after Greece had returned to democracy, the Commission struck the case off the list of cases at the request of all parties involved.119 4.6.3 Context: Greece Falling Prey to a coup d’état The events of April 1967 were preceded by a tumultuous period marked by political crises.120 Starting in April 1967, the Council of Europe’s Consultative Assembly dealt with the situation in Greece proprio motu and continued to do so when the European Commission on Human Rights dealt with the inter-State applications. Within the supervisory framework of the International Labour Organization (ilo), worker representatives121 filed complaints about certain measures of the Greek government allegedly curtailing the right of assembly and the right to organize collective bargaining in June 1968.122

117 Denmark, Norway and Sweden v Greece (ii), no 4448/70, report of 4 October 1976, dr 6, 5, 6. 118 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, report of the Commission of 10 July 1976, 23; (not reported, available on hudoc). 119 Denmark, Norway and Sweden v Greece (ii), no 4448/70, report of 4 October 1976, dr 6, 5–8. 120 See for a comprehensive factual account the Study by the International Commission of Jurists, States of Emergency, Their Impact on Human Rights (1983) 135f. 121 The representatives were from Germany, Poland, Czechoslovakia, Denmark, Sweden and Norway. 122 Report of the Commission of Inquiry appointed under Article 26 of the Constitution of the International Labour Organization to examine the complaints concerning the observance by Greece of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No 98), 14 October 1970, www.ilo.org/dyn/normlex/en/f?p=1000:50012:0::NO:50 012:P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:2508299,en:NO.

88

Chapter 4

The military dictatorship in Greece ended seven years after the coup d’état on 23 July 1974, after the Colonels engaged militarily in Cyprus. The Greek intervention in Cyprus in order to destabilize the left-leaning government of Archbishop Makarios and with a view to annexing Cyprus triggered a Turkish invasion in the north of the island. The events of the summer of 1974 led to ­decades of inter-State litigation between Cyprus and Turkey, which are, as of the summer of 2017, still pending before the Committee of Ministers. 4.6.4 Collective Enforcement Functions 4.6.4.1 Collective Enforcement: Something to Lose and Nothing to Gain In 1967, the four applicant governments joined forces to address the situation in Greece. There was no ethnic link that bonded the applicants and the ­population of the respondent state. It is, however, worthwhile to underline that it was left to the smaller States to litigate the case in Strasbourg. The ­Netherlands backed up the first set of allegations in September 1967. However, it did not support the allegations of torture under Article 3 echr. Likewise, it did not participate in the second case against Greece in 1970. Iceland, Belgium and Luxembourg stated in letters to the Secretary General of the Council of ­Europe that they supported the first application without formally associating themselves with it.123 Attempts to persuade the government of the United Kingdom to associate itself with the inter-State proceedings failed. Thornberry ­describes the effort to convince the British government as ‘trying to reason with a ­particularly blank brick wall’.124 What rendered the effort of lodging an inter-State application surmountable seems to have been the partnering with other applicant countries. All the more it is important to acknowledge the disadvantages the applicants had to face. It appears that ‘export companies (…) were raising hell’.125 In economic terms, the applicants had something to lose and nothing to gain because their goods were subjected to attempts to boycott them in the Greek market, a market where it appears they enjoyed a considerable surplus in their balance of

123 E Bates (Chapter 2, n 1) 269; J Fawcett, The Application of the European Convention on H ­ uman Rights (1969) 277; see also documentation in Yb 11 (1968), 690, 718. 124 C Thornberry, ‘Some Reflections on the Effectiveness of European Human Rights Techniques, in the Light of British Experience of the Application of the Right of Individual ­Petition’, in Actes de la Table Ronde organisée par la Faculté de Droit de l’Université de Bari  en  liaison avec le Conseil de l’Europe et l’Institut International des Droits de l’Homme, Les ­clauses facultatives de la Convention Européenne des Droits de l’Homme (1974) 147, 154. 125 S Leckie (Chapter 1, n 14) 295.

Inter-State Case-Law under the echr

89

trade.126 That the pressures were not negligible emerges from the role of the Netherlands: the country did not actively participate in the first case and did not take part in the second application. 4.6.4.2

The Modality of Judicial Review Concerning the Greek Derogation In the cases against Greece, the modalities of the takeover of the political power in Greece by the military could not be reviewed via the inter-State ­application. The Colonels were, a priori, granted the possibility to derogate from the echr under Article 15 echr. Their democratic legitimacy was not under scrutiny even though they had ‘suspended democracy’.127 The Commission did, however, exercise review about the question whether there was a public emergency within the meaning of Article 15 echr. For the first and so far only time in its history, the Commission came to the conclusion that the requirements for a derogation were not fulfilled. As a consequence, the body found a violation of the freedom of assembly as guaranteed by Article 11 echr, and opined that the developments pointed towards a ‘police state’ amounting to the ‘antithesis of democratic society’.128 Further, the Commission found the Greek government in breach of Article 3 of Protocol No 1 to the Convention because there had not even been a ­legal ­basis for free elections in Greece since April 1967.129 The echr’s preamble states that the fundamental freedoms of the Convention are ‘best maintained (…) by an effective political democracy’. The approach to interpret the Convention rather than taking a value-oriented approach to protect ‘democracy’ was convincing. Critical commentators opined that the Commission tried to see the trees, never the forest.130 A fundamental disagreement, which had not been overcome by the time the Protocol No 1 to the Convention was finalized in 1952, was what the role of the right to free elections should be – an individual right or a guarantee of 126 J Becket, ‘The Greek Case Before the European Human Rights Commission’ (1970–71) 1 Human Rights 91, 95. 127 P Mertens, ‘Les organes du conseil de l’Europe et le concept de démocratie dans le cadre des deux affaires grecques’ (1971) 7 rbdi 118, 137. 128 Denmark, Norway, Sweden and the Netherlands v Greece (i), report of the Commission, Yb 12 ii (1969), 171 (n 102). 129 The right to free elections in Article 3 of Protocol No 1 was a controversial matter during the drafting process of the echr, and ultimately had to be left for the First Protocol of 1954; see also M O’Boyle, ‘Electoral Disputes and the echr: an Overview’ (2009–2010) 30 hrlj 1; S Golubok, ‘Right to Free Elections: Emerging Guarantees or Two Layers of Protection?’ (2009) 27 nqhr 361, 364f. 130 A Kiss, P Végléris (n 107) 911.

90

Chapter 4

certain political structures affecting the organization of a State. The author of the so far only monographic study about the inter-State application was convinced that the right was only enforcable via the inter-State application, not by way of the indiviudal application.131 The nature of Article 3 of Protocol No 1 to the Convention is still controversial in the jurisprudence of the Court in the context of individual applications.132 In the case at hand, the Commission construed the right to free elections as a guarantee of institutional standards and with a dimension beyond the individual as a rights-bearer. The Commission also recommended to hold free elections.133 4.6.4.3 Collective Enforcement and Preventive Effects The proceedings in Strasbourg arguably constituted a restraint on the behavior of the Greek authorities. Even though caution must be applied with alternative history hypotheses, commentators stated that it was ‘most probable that fewer Greeks were tortured than otherwise might have been’.134 It is not clear whether the requests to stay the execution of the individuals had any effect on the proceedings in Greece. What is certain is that none of the indviduals subject to the measure were executed. What is documented is that the inter-State proceedings pushed the Greek government to agree to visits of the International Red Cross without further restraints; it was the first time that such an agreement has been signed by a sovereign state in times of peace.135 The incriminated practices were reduced in the year following the agreement with the International Red Cross.136 131 P Hold von Zürich (Chapter 1, n 15) 79. 132 Compare Hirst v United Kingdom (No. 2), [gc] judgment of 6 October 2005, § 56f, where the Court held that the right to free elections ‘guarantees individual rights, including the right to vote and to stand for election’. However, the Grand Chamber underlined the ‘relevance of Article 3 of Protocol No. 1 to the institutional order of the State, this provision is cast in very different terms from Articles 8 to 11 of the Convention. Article 3 of Protocol No. 1 is phrased in collective and general terms, although it has been interpreted by the Court as also implying specific individual rights’, Ždanoka v Latvia, [gc] judgment of 16 March 2006, § 115 (emphasis added); see also K Herndl, ‘The Case-Law of the Commission as regards the Right to Free Elections (Article 3 of Protocol)’ in M de Salvia, M Villiger (eds), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Noorgaard (1998) 91, 93. 133 ‘Proposals made by the European Commission of Human Rights’, appendix to report of the Commission under Article 31 § 3 echr, Yb 12 (1969), 514, 515 (n 105). 134 M Janis, R Kay, A Bradley, European Human Rights Law (2008) 67. 135 The text of the agreement between Greece and the International Red Cross is reprinted in Yb 12 i (1969), 62; J Becket (n 103) 106. 136 International Commission of Jurists, States of Emergency, Their Impact on Human Rights (1983), 147.

Inter-State Case-Law under the echr

91

4.6.5 Dispute Settlement Functions The objective and neutral exercise of certain judicial functions, especially fact-finding, were a key advantage of the proceedings over political pressures Greece faced in various fora. .

4.6.5.1

The Added Value of Quasi-Judicial Proceedings Compared to Political Mechanisms In its denouncement note of 12 December 1969, Greece complained that ‘political decisions should not override the normal quasi-judicial and judicial determination of the question of human rights violations’.137 The report of the Commission was heralded as a document with great authority and credibility, publicizing the extent of the human rights infringements in Greece. Contemporary commentators acknowledged the document by stating that it was ‘difficult to imagine how the Commission could have been more thorough in their examination of the cases they chose’.138 The report was judicial in tone, objective in its conclusions, and comprehensive. The horrific methods of torture and ill-treatment as well as the suffering of individuals at the hands of their tormentors emerge clearly. Judge O’Donoghue, who was a member of the C ­ ommission in the Greek case and had travelled to Greece, stated in his dissenting opinion in the later Ireland v United Kingdom case: ‘The value of hearing evidence in a local venue cannot be overestimated. (…) No written description, however colorful, could have been as informative as the visit to Bouboulinos Street in Athens’.139 The report’s authority derives from the sustained fact-finding effort undertaken. The Commission’s report dedicated more than 300 pages to the allegations under Article 3 echr. The body looked at 30 individual cases, using the standard of scrutiny of individual applications under ex-Article 25 echr. In the realm of Article 3 echr, 58 witnesses were heard, both in A ­ thens and Strasbourg. 21 of the detained witnesses were not made a­ vailable by Greece. Some witnesses could not travel to Strasbourg due to the withdrawal of their passports. A delegation of the Commission visited Greece in March 1969, inspected detention facilities and heard witnesses. An appendix to the ­Commission’s report contains a list of 213 alleged cases of torture and ill-treatment. Five persons who appear to have died at the hands of their torturers are listed as well.140 The Commission sought to use direct evidence to the largest extent possible. The credibility of its findings 137 Greek denouncement note of 12 December 1969, reprinted in Yb 12 i (1969), 80. 138 J Becket (n 126) 110. 139 Dissenting opinion of Judge O’Donoghue in Ireland v United Kingdom, no 5310/71(judgment), 18 January 1978, Series A No 25. 140 Denmark, Norway, Sweden and the Netherlands v Greece (i), Yb 12 ii (1969), 186–514.

92

Chapter 4

greatly ­benefitted from this ­approach. It did not rely directly on the evidence by third entities, such as the International Red Cross, journalists, the findings of the ­special ­rapporteur of the Consultative Assembly of the Council of Europe141 or the information members of the British Parliament, who had visited Greece.142 The standard of proof, beyond reasonable doubt, was deemed ‘very rigorous’.143 The work of the Commission also took into account the possibility of fabrication in the realm of Article 3 echr, and thus can be considered as objective. The case used up almost all the resources of the Commission as a parttime organ.144 Whether or not the report of the Commission or the further proceedings at the level of the Committee of Ministers could have had a positive impact in Greece and whether Greece would have held elections can be only subject to speculation. The non-binding recommendations of the Commission to the Greek government under ex-Article 31 § 3 echr were apparently added ­because it was hoped that the Committee of Ministers would be able to ­oversee the phased realization of the Commission’s proposals and that sanctions would be held in reserve.145 Max Sorensen, the President of the Commission, deplored the lost opportunity to remain in dialogue with Greece in a newspaper article in early 1970.146 The Greek withdrawal preempted any ­further results. 4.6.5.2

Proceedings Initiated by the Consultative Assembly of the Council of Europe: Cutting the Dialogue with Greece In June 1967, the Consultative Assembly, the deliberative organ established under Article 10 of the Statute of the Council of Europe (CoE-St), recommended that the governments of the echr member States refer the Greek case ­either separately or jointly to the European Commission of Human Rights in ­accordance with ex-Article 24 echr.147 Parallel to the inter-State proceedings, 141 Denmark, Norway, Sweden and the Netherlands v Greece (i), Yb 12 ii (1969), 189f. 142 The respondent government had relied on the reports of members of the British parliament who had visited Greece, Denmark, Norway, Sweden and the Netherlands v Greece (i), Yb 12 ii (1969), 188. 143 J Becket (n 126) 97. 144 See E Bates (Chapter 2, n 1) 239 and table on page 240. 145 E Bates (Chapter 2, n 1) 267. 146 H Coleman, ‘Greece and the Council of Europe – the International Legal Protection of Human Rights by the Political Process’ (1972) 2 Israel Yearbook on Human Rights 121, 138, President of the Commission Sorensen in the Danish newspaper Politiken of 5 January 1970. 147 Consultative Assembly Resolution 346 (1967), 23 June 1967, Yb 10 (1967), 94–96.

Inter-State Case-Law under the echr

93

the Consultative Assembly chose to initiate its own procedure on the basis of Article 23 of the CoE-St.148 On 29 January 1969, the Assembly decided ‘not to recognize the credentials of any Greek delegate purporting to represent the Greek parliament until such time as the Assembly is satisfied that the freedom of expression is restored and a free and representative parliament is elected in Greece’.149 This decision amounted to a de facto exclusion of the Greek representatives from the Consultative Assembly, which was hardly in conformity with Articles 8 and 9 of the Statute of the Council of Europe.150 The deliberative organ was not ready to await the report of the Commission and showed itself unwilling to defer an eventual decision about a suspension of Greece to the competent organ, the Committee of Ministers.151 In order to remedy the double-tracked approach before the Consultative Assembly and the Commission, the Consultative Assembly of the Council of Europe requested a protocol to the echr, which would authorize the Assembly to seize the Commission similarly as in inter-State cases.152 However, the idea to vest an organ of the Council of Europe with the right to trigger scrutiny by the Commission was not retained. 4.6.5.3

Proceedings in the Framework of the International Labour Organization: Less Confrontation, More Deference to Objective Fact-Finding The proceedings in the framework of the International Labour Organization indicate that less political pressure might have been a preferable way to deal

148 Article 23 CoE-St allows ‘to discuss and make recommendations upon any matter within the aim and scope of the Council of Europe as defined in Chapter i’. One motivation was that it was not likely that the Assembly would be able to see or discuss the findings of the Commission in the inter-State proceedings, as the report was to be discussed by the ­political body of the Council of Europe, the Committee of Ministers, not by the deliberative body, the Assembly, see H Coleman (n 146) 139, with reference to interviews with members of the Consultative Assembly. 149 Consultative Assembly Resolution of 547 (1969), 30 January 1969, Yb 12 (1969), 126. 150 Compare A Werbke, ‘Kann die Beratende Versammlung des Europarats einzelne Abgeordnete ausschließen?’ (1969) 29 hjil 356. Today, the Parliamentary Assembly of the Council of Europe takes similar steps in view of grave situations like the Russian annexation of Crimea; see eg Resolution of the Parliamentary Assembly of the Council of Europe 1990 (2014) ‘Reconsideration on substantive grounds of the previously ratified credentials of the Russian delegation’, 10 April 2014. 151 P Hold von Zürich (Chapter 1, n 15) 114. 152 Recommendation 513 (1968)‚ ‘Power to be conferred on the Assembly to refer alleged breaches of the Convention to the European Commission of Human Rights’ 31 January 1968.

94

Chapter 4

with the situation in Greece. During the military rule in Greece, worker representatives brought a case against Greece under the ilo Constitution.153 The Council of Europe and the echr can be compared to the ilo and its enforcement structure.154 The comparison here is focused on the parallel ­activities of the Council of Europe’s Consultative Assembly and the European Commission established under the European Convention on Human Rights on the one hand, and the activities of the ilo Governing Body and the Commission of Inquiry, which was set up ad hoc, on the other. The ilo has three principal organs: the General Conference of representatives of the member States, the Governing Body, composed of state, ­employer and worker representatives and the International Labour Office as secretariat.155 When a complaint under Article 26 ilo Constitution is lodged, the Governing Body can establish a Commission of Inquiry to investigate the complaint. At its discretion, however, it may decide to give the government complained against the opportunity to reply to the allegations before appointing the Commission of Inquiry, Article 26 § 2 ilo Constitution.156 In contrast to the Consultative Assembly of the Council of Europe, the Governing Body of the ilo found it to be inappropriate to discuss the matters underlying the complaint while the matter was under consideration by the Commission of Inquiry.157 The Commission of Inquiry found several breaches of the two Conventions invoked by the applicants in its report of October 1970. In January 1971, Greece showed its willingness to consider the Commission of Inquiry’s recommendations, even if it had not fully cooperated with the ­Commission during the proceedings.158 4.6.5.4

Lessons Learned: The Added Value of Quasi-Judicial Proceedings Compared to Political Mechanisms It is worthwhile to underline that the deplorable denouncement of the Greek government was not specifically triggered by the inter-State application under the Convention. Certainly, the report of the Commission built considerable

153 International Labour Organization Constitution, 9 October 1919, 15 unts 40. 154 E Landy, The Effectiveness of International Supervision (1966) 9f; see also J Diller, ‘Social Justice, Rights, and Labour’, in D Shelton (ed), The Oxford Handbook of International ­Human Rights Law (2013) 295. 155 R Mackenzie et al, Manual on International Courts and Tribunals (2010) 453, 454. 156 See also International Labour Standards Department, Handbook of procedures relating to International Labour Conventions and Recommendations (2006) 50. 157 K Hailbronner, ‘Das Verfahren gegen Griechenland als Beispielsfall einer Beschwerde im Rahmen der Internationalen Arbeitsorganisation’ (1971) 31 hjil 548, 555. 158 K Hailbronner (n 157) 564.

Inter-State Case-Law under the echr

95

political pressure. That is exactly what it was drafted for. However, it was a political responsibility at the level of the Council of Europe, specifically of the Committee of Ministers, to remain in a dialogue with Greece and to draw conclusions from the report. Even if expulsion under Article 3 CoE-St was contemplated, it was unlikely to achieve any useful long-range purpose.159 4.6.5.5 Ne Ultra Petita The Commission acted like a judicial organ in as much as it confined itself to allegations of the applicants.160 Given that no allegations under Article 2 echr had been brought, five dead persons, who appear to have died at the hands of their torturers, are mentioned in the appendix to its report,161 without, however, having ascertained the exact circumstances of their death and without passing an opinion. 4.6.6 Evaluation: Collective Enforcement Tested by Reality Overall, the reaction of the control system under the echr was regarded as ‘fairly satisfactory’162 in retrospect. The two inter-State applications against Greece are an example of a collective effort by European States to secure human rights in another member State. The fact that proceedings were under way did have a preventive effect in Greece, even if it is hard to quantify. 4.6.6.1

The Greek Denouncement and the Suspicious Absence of the Public Order of Europe The consensual nature of international law, including human rights treaties,163 became evident with the Greek denouncement. Strikingly absent in the context of this abrupt exit was the rhetoric about the public order of Europe as

159 For the previous practice within the League of Nations, the United Nations and regional organizations see L Sohn, ‘Expulsion or Forced Withdrawal from an International Organization’ (1963–64) 77 Harvard Law Review 1381. 160 Compare Becket (n 103) 107. 161 Denmark, Norway, Sweden and the Netherlands v Greece (i), Yb 12 ii (1969), 651. 162 M Nowak, ‘The European Convention on Human Rights and its Control System’ (1989) 7 nqhr 98, 99; cf T Buergenthal, ‘Proceedings against Greece under the European Convention on Human Rights’ (1968) 62 ajil 441, 450, ‘(…) even an advanced system for the international protection of human rights as the European Convention of Human Rights is doomed to fail whenever it must depend for its enforcement on disinterested governments’. 163 See E Klein, ‘Denunciation of Human Rights Treaties and the Principle of Reciprocity’ in U Fastenrath et al (eds) From Bilateralism to Community Interest, Essays in Honor of Judge Bruno Simma (2011) 477, 485.

96

Chapter 4

had been used in the Austria v Italy case. Likewise, the idea of objective regimes was not mentioned.164 The Greek case was the only instance where the echr was denounced under ex-Article 65 echr (today Article 58 echr). Very few other examples of denouncements have occurred in universal or regional human rights systems.165 From these cases can be deduced that States seek denouncement in extreme cases and in view of criticism by the supervisory organs and other member States.166 4.6.6.2 Fact-Finding as Fundamental Judicial Function The case shows the importance of (quasi-)judicial functions performed objectively. The Greek case marked the first inter-State case where violations of the Conventions were found at all, including violations of Article 3 echr.167 Given that the Greek government had hindered certain witnesses from travelling to Strasbourg, the applicants had to rely on either Greek exiles in Europe or foreigners. Two of the Greek witnesses sought the sanctuary of the Norwegian government after they escaped their guards.168 The need to render the fact-finding process less cumbersome can be seen in the 1969 Agreement Relating to Persons Participating in Proceedings of the European Commission and Court of Human Rights.169 Article 4 of the Agreement was important: it guaranteed the freedom of movement for witnesses.170 164 See W Kälin, ‘Menschenrechtsverträge als Gewährleistung einer objektiven Ordnung’ (1994) 33 BerDGVR 9, 10. 165 For a list of cases see B Hofmann, Beendigung menschenrechtlicher Verträge (2009) 22f; see also C Binder, Die Grenzen der Vertragstreue im Völkerrecht (2013) 546. For example, in 1998, Trinidad and Tobago denounced the American Convention of Human Rights under its Article 78, 22 November 1969, 1144 unts 144; the text of the denunciation is available at www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_sign .htm#Trinidad and Tobago. In 1997, North Korea attempted to denounce the iccpr; See un Human Rights Committee, ccpr General Comment No. 26: Continuity of Obligations, 8 December 1997, CCPR/C/21/Rev.1/Add.8/Rev.1, available at: ccprcentre.org/doc/ICCPR/ General%20Comments/CCPR.C.21.Rev1.Add8.Rev1_%28GC26%29_En.pdf. 166 C Binder, Die Grenzen der Vertragstreue im Völkerrecht (2013) 546. 167 E Bates (Chapter 2, n 1) 266; see also N Rodley, M Pollard, The Treatment of Prisoners under International Law (3rd ed, 2009) 83. 168 J Becket, ‘The Greek Case Before the European Human Rights Commission’ (1970–71) 1 Human Rights 91, 100. 169 Agreement Relating to Persons Participating in Proceedings of the European Commission and Court of Human Rights, 6 May 1969, 67 ets; the Argeement was replaced by the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights, 5 March 1996, ets 161. 170 A Robertson, ‘Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights’, in Melanges publies sous l’egide et avec

Inter-State Case-Law under the echr

97

4.6.6.3

The Role of the Commission: Between Dispute Settlement and Collective Enforcement When the inter-State applications were lodged, high hopes for the ­restoration of human rights were projected onto them.171 It became clear, however, that neither the Convention system nor the Council of Europe or the Commission could prevent or counter the establishment of a totalitarian regime in a Member state.172 One concern documented from the Dutch government’s ­perspective seems to have been that the procedure might take too long.173 This concern shows that the role of the Commission as either manager in a situation of crisis or an ex-post review organ was not settled. The Commission intervened on a provisional basis in the context of the criminal proceedings against individuals subject to the second case. 4.7

Ireland v United Kingdom (1971–1978 and 2014–Present)

The Ireland v United Kingdom174 proceedings dealt with the conflict in Northern Ireland. Ireland saw itself in a guardian role for the minority in the North. Thus, the case is an example of kin-state-litigation, in which States protect related minorities in other States. The Ireland v United Kingdom case is the only inter-State application that reached the Court under the supervisory framework prior to Protocol No 11 to the Convention.175 Central in the case was the evaluation of certain interrogation techniques under Article 3 echr. The 1978 judgment in the Ireland v United Kingdom case became a leading case for the interpretation of Article 3 echr. The Irish government requested to reopen the case in December 2014, the case was communicated in March 2016.176 Especially in view of the decade of litigation back in the 1970s and the Irish request to reopen the case, the question what contribution the inter-State application can provide for situations of protracted conflict must be answered in light of the object and purpose of the inter-State application.

171 172 173 174 175 176

l’appui du Centre interuniversitaire de Droit public et de l’Universite Libre de Bruxelles (ed), Miscellanea: W.J. Ganshof van der Meersch : studia ab discipulis amicisque in honorem egregii professoris edita (1972) 545, 558. U Griebeler, ‘Die griechische Militärregierung vor der Europäischen Menschenrechtskommission’ (1968) 21 döv 677, 682. E Bates (Chapter 2, n 1) 270. S Leckie (Chapter 1, n 14) 294. Ireland v United Kingdom, no 531071. Protocol No 11 to the Convention, above (Chapter 1, n 3). Ireland v United Kingdom, 5310/71, communication of 22 March 2016.

98

Chapter 4

4.7.1 Overview and Documentation For many years, Northern Ireland was the theater of bloody unrest between the Protestant majority of the population and the Catholic minority. The minority favored the integration of Northern Ireland into Ireland. In view of the growing intensity of the so-called ‘troubles’, the United Kingdom had entered derogations from the Convention under Article 15 echr in 1969 and 1971.177 In its inter-State application of December 1971, Ireland alleged breaches of Articles 1, 2, 3, 5, 6, 13, 14 and 15 echr.178 Further, the applicant alleged breaches of Article 7 echr in connection with the Northern Ireland Act of March 1972; these allegations were registered as a new inter-State application, but were struck off the list of cases before the case reached the merits phase.179 The British Attorney General had given assurances before the Commission that no one would be held guilty on the basis of the allegedly retroactive legislation in question. The applicant government agreed not to pursue the matter any further.180 The United Kingdom had accepted the right of individual petition under ex-Article 25 echr as well as the jurisdiction of the Court under ex-Article 46 echr in 1966. Ireland had accepted both options upon accession in 1953.181 For the first time, parallel to the inter-State proceedings, numerous individual applications against both countries were lodged.182 The relationship between the inter-State proceedings and overlapping individual cases was, as it is today, unclear. 4.7.1.1 The so-Called ‘five techniques’ and the Allegation of Torture Central were allegations in the ambit of Article 3 echr, which concerned interrogation methods. The so-called ‘five techniques’ that the British government employed aimed at sensory deprivation and disorientation. The first technique was to keep the detainees covered by a black hood except when being interrogated. The second method was to submit detainees to continuous 177 United Kingdom, note of derogation of 25 September 1969, Yb 12 (1969), 72; United Kingdom, note of derogation of 20 August 1971, Yb 14 (1971), 33. 178 Information note about the case Ireland v United Kingdom, Yb 14 (1971), 100. 179 Ireland v United Kingdom (ii), no 5451/72, see Yb 15 (1972), 76, 240f; for further background see B Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (2010) 212f. 180 Ireland v United Kingdom, no 5310/71, Yb Series B (1976–78) vol 23-i, 377f. 181 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 182 For a chronological list of individual applications including summaries see B Dickson (n 178) 377–396; see also B Dickson, ‘The European Convention on Human Rights and Northern Ireland’ in Présence du droit public et des droits de l’homme. Mélanges offerts à Jacques Velu (iii, 1992) 1407.

Inter-State Case-Law under the echr

99

and monotonous noise of a volume calculated to isolate them from communication. A third treatment was the deprivation of sleep. Further, detainees were deprived of food and water. A fifth treatment was making the detainees stand against a wall in a certain posture, facing the wall, legs apart, and with hands raised.183 The British government decided to discontinue the use of the ‘five techniques’ on 2 March 1972, at a time after the application had been lodged but before the Commission had rendered its admissibility decision. 4.7.1.2 The Long Way Though the Strasbourg Machinery The Commission declared the inter-State application admissible in October 1972.184 The Commission’s report was adopted in January 1976.185 The Commission found, that the ‘five techniques’ amounted to a practice of torture in contravention of Article 3 echr. Once the case was before the Court, the report of the Commission was rendered public on 2 September 1976, with the agreement of both governments and the Commission. The international media publicized the contents of the report, including the finding of torture.186 In March 1976, Ireland referred the case to the European Court of Human Rights. On 18 January 1978, the judicial organ delivered its first judgment in an inter-State case.187 The Court seconded the Commission to a large extent. However, the legal evaluation under Article 3 echr differed from that of the Commission, revealing a problematic double-track of the two organs.188 The practices complained of were deemed to be inhuman and degrading within the meaning 183 See the description in the Commissions report Ireland v United Kingdom, no 5310/71, report of the Commission, 9 February 1976, Yb 19 (1976) 512, 776f; see also M O’Boyle, ‘Torture and emergency powers under the European Convention on Human Rights: Ireland v The United Kingdom’ (1977) 71 ajil 674, 675; S Newbery, ‘Intelligence and Controversial British Interrogation Techniques: the Northern Ireland Case, 1971–2’ (2009) 20 Irish Studies in International Affairs 103, 105. 184 Ireland v United Kingdom, no 5310/71, admissibility decision, 1 October 1972, Yb 15 (1972) 76–258; Ireland v United Kingdom, no 5310/71(dec). 185 Ireland v United Kingdom, no 5310/71, report of the Commission, 9 February 1976, Yb 19 (1976) 512–949. 186 E Bates (Chapter 2, n 1) 274. 187 Ireland v United Kingdom, no 5310/71(judgment) 18 January 1978, Series A, no 25; Series B, Vol 23 i–iii; the judgment is also available on hudoc; references to the judgment are made to the single paragraphs of the judgment. 188 J Frowein ‘Die Rolle der Europäischen Menschenrechtskommission bei der Entwicklung der emrk’ (2015) 42 EuGRZ 269, 270; R Beddard, Human Rights in Europe, A study of the machinery of human rights protection of the Council of Europe (2nd ed, 1980) 130f; R Pelloux, ‘L’Affaire Irlandaise et l’Affaire Tyrer devant la Court Européenne des Droits de l’Homme’ (1978) 24 afdi 379, 381f.

100

Chapter 4

of Article 3 echr, however, not to amount to torture. The Committee of Ministers did not take any further steps after the publication of the judgment as it was satisfied with the measures that had already been taken during the proceedings.189 The ‘troubles’ in Northern Ireland were to continue for a long time after the inter-State proceedings in Strasbourg were put at rest. The Good Friday Agreement of 1998 ended the violence to a large degree.190 4.7.1.3 The Irish Request to Reopen the Inter-State Proceedings On 4 June 2014, Ireland’s national television and radio station Raidió Teilifís Éireann broadcast a documentary entitled ‘The Torture Files’.191 The documentary led the Irish government to request the European Court of Human Rights to revise its judgment in Ireland v United Kingdom under Rule 80 of the Rules of the Court on 4 December 2014. The request was made specifically with regard to the qualification of the ‘five techniques’ under Article 3 echr.192 Jochen Frowein, who was a member of the Commission in the Ireland v United Kingdom case, recently let it be known that he still is convinced about the Commission’s finding of torture within the meaning of Article 3 echr.193 For the first time, a government requested the reopening of inter-State proceedings. The authors of the 2014 documentary revealed that the ‘five techniques’ had been authorized at United Kingdom Cabinet level.194 Further, it emerges from the documentary that within the United Kingdom government, the use of the techniques was perceived as torture. What is more, the documents discovered by the journalists in the National Archives revealed that the 189 Committee of Ministers, resolution (78) 35 of 27 June 1978; see also the appendix to the resolution. 190 S Haines, ‘Northern Ireland 1968–1998’, in E Wilmshurst (ed), International Law and the Classification of Conflicts (2012) 117, 129. 191 Raidió Teilifís Éireann investigation unit, ‘The Torture Files’, documentary aired on 4 June 2014 and available at www.rte.ie/news/player/prime-time/2014/0604/. 192 Statement by Irish Minister Flanagan on the ‘Hooded men’ case, ‘The Government is aware of the suffering of the individual men and of their families, of the significance of this case, and of the weight of these allegations. The archival material which underlay the rté documentary was therefore taken very seriously by the Government and was subject to thorough legal analysis and advice. On the basis of the new material uncovered, it will be contended that the ill-treatment suffered by the Hooded Men should be recognised as torture’. www.dfa.ie/news-and-media/press-releases/press-release-archive/2014/ december/hooded-men-case-northern-ireland/. 193 J Frowein (n 188) 269, 271. 194 See also D Bonner, ‘Of outrage and misunderstanding: Ireland v United Kingdom – governmental perspectives on an inter-state application under the European Convention on Human Rights’ (2014) 34 Legal Studies 47, 70.

Inter-State Case-Law under the echr

101

United Kingdom government had withheld documents from the Commission and the Court.195 The Court comminucated the case to the United Kingdom in March 2016.196 4.7.2 Context: A Protracted, Multy-Layered Conflict In 1949, Ireland became an independent republic without constitutional ties to the United Kingdom.197 Northern Ireland remained part of the United Kingdom. It enjoyed significant devolved powers.198 It appears that an act of ­discrimination in the allocation of social housing sparked the flame of violence in Northern Ireland in the late 1960s. While in 1968, the protests were relatively minor, in 1969 there were bomb explosions, shootings and killings. The ­government of Northern Ireland responded heavy-handedly.199 It asked the British government for the deployment of British soldiers to Northern Ireland in August 1969. The soldiers soon became targets. In March 1972, London suspended the government in Northern Ireland and assumed full responsibilities for the region under what was known as ‘direct rule’. In essence, direct rule lasted until 1999. More British soldiers have been killed while on duty in Northern Ireland than in other conflicts, including the Falklands, the Gulf War, Kosovo, Afghanistan and Iraq.200 The scale of the ‘Ulster Problem’201 can be seen also by the way the situation in Northern Ireland affected the drafting of the Additional Protocols to the Geneva Conventions between 1974 and 1977.202 The British 195 P Leach, ‘Ireland v. uk: Revisiting the Treatment of the Hooded Men’, jurist, 6 December 2014, jurist.org/student/2014/12/Philip-Leach-Hooded-Men.php; D Coffey, Torture, Human Rights and the Northern Ireland Conflict, 11 December 2014, www.verfassungsblog .de/torture-human-rights-northern-ireland-conflict/; F de Londras, ‘Revisiting the Five Techniques in the European Court of Human Rights’, ejil:Talk!, 12 December 2014, www .ejiltalk.org/revisiting-the-five-techniques-in-the-european-court-of-human-rights/. 196 Ireland v United Kingdom, 5310/71, communication of 22 March 2016. 197 See for an overview B Dickson (n 178) 5f; for further background see also International Commission of Jurists, States of Emergency, Their Impact on Human Rights (1983) 219. 198 B Dickson (n 179) 9. 199 D Bonner (n 194) 49. 200 B Dickson (n 179) 12, with further references. 201 The expression is ascribed to Sir David Hughes-Morgan; the information derives from an interview with Professor Knut Ipsen on 25 June 2015. Professor Ipsen was part of the German delegation and head of delegation for the Third Committee (1974–1977); see also M Bothe, K Ipsen, K Partsch, ‘Die Genfer Konferenz über humanitäres Völkerrecht, Verlauf und Ergebnisse’ (1978) 38 hjil 1. 202 C Campbell, ‘Wars on Terror and Vicarious Hegemons: the uk, international law, and the Northern Ireland conflict’ (2005) 54 Int’lCLQ 321, 333; Protocol Additional to the Geneva

102

Chapter 4

delegation opposed the equation of combatants and members of clandestine liberation movements. The United Kingdom ratified the Additional Protocols to the Geneva Conventions on 28 January 1998, at a time when the Northern Ireland conflict came to a phase in which violence was not a major concern anymore.203 4.7.3 Collective Enforcement Functions 4.7.3.1 A Campaign against Torture, and More The effort of an inter-State application was credibly motivated by the quest to end the use of the ‘five techniques’. The idea to bring an inter-State application stemmed from Sean MacBride, who was a former Minister of External Affairs of Ireland and Chair of Amnesty International.204 In 1974, MacBride was awarded the Nobel Peace Prize. His efforts led to the 1975 un Declaration Against Torture.205 Ireland hoped that the Court would order the United Kingdom government to punish and prosecute the individuals involved in the use of the ‘five techniques’. In the operative part of the judgment, the Court unanimously held that ‘it cannot direct the respondent State to institute criminal or disciplinary proceedings against those members of the security forces who have committed the breaches of Article 3 found by the Court and against those who condoned or tolerated such breaches’.206 Ireland itself had no intention to assert criminal jurisdiction over the authors of the alleged acts of torture.207

203

204

205

206 207

Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), 8 June 1977, 1125 unts 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol ii) 8 June 1977, 1125 unts 609. S Haines (n 189) 117, 131; for the specific questions of the applicability of the Geneva Conventions to the case of Northern Ireland see J Frowein, ‘Probleme des allgemeinen Völkerrechts vor der Europäischen Kommission für Menschenrechte’ in I von Münch (ed), Festschrift für Hans-Jürgen Schlochauer (1981) 289, 296. W Schabas, A O’Sullivan, ‘Of politics and poor weather: how Ireland decided to sue the United Kingdom under the European Convention on Human Rights’ (2007) 2 Irish Yearbook of International Law 3. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 3452 (xxx) of 9 December 1975; see for the drafting process since 1973 N Rodley, M Pollard, The Treatment of Prisoners under International Law (3rd edn, 2009) 20, 21; both the Commission and the Court considered the document in their interpretation of Article 3 echr. Ireland v United Kingdom, no 5310/71(judgment) (Chapter 2, n 73) dispositif, para 10. Cf S Grover, The European Court of Human Rights as a Pathway to Impunity for International Crimes (2010) 43.

Inter-State Case-Law under the echr

103

4.7.3.2 The Request for Interim Measures, with No Avail The inadequacies perceived in the British response to the use of the ‘five techniques’ played a significant role in the Irish decision to set in motion the inter-State mechanism under ex-Article 24 echr.208 In March 1972, at a time prior to the admissibility decision, the Irish government requested interim measures, citing implied powers of the Commission in its judicial function.209 The applicant sought an undertaking from the respondent that ‘all such treatment of persons in custody as had been complained of in the application as constituting a breach of Article 3 echr should be discontinued’.210 The Irish government relied on a report of Amnesty International.211 The applicant also requested Commission-appointed observers to monitor the situation in detention facilities.212 The Commission decided that it did ‘not have the power, consistent with its functions under the Convention, to meet the request made’.213 4.7.3.3 Domestic Remedies: The Exceptions to the Rule In the case of Ireland v United Kingdom, the exceptions to the requirement of the exhaustion of domestic remedies played an important role. The Commission and the Court further refined their case law about administrative ­practices214 and the challenge of domestic legislation abstract of a specifc individual case215 as exceptions to the requirement of the exhaustion of domestic remedies. 4.7.3.4 Overlapping Individual Cases and Administrative Practices Closely related to the issue of the exhaustion of domestic remedies were the overlapping Donnelly and others v United Kingdom cases lodged under ex-Article 25 echr. Seven individual applicants alleged that, following their arrest in early 1972, they had been subjected to treatment in violation of Article 3 echr by members of the security forces of the respondent government. The applicants alleged that their treatment was part of an administrative practice contrary to Article 3 echr as was under scrutiny in the inter-State 208 Ireland v United Kingdom, no 5310/71, (report), Yb 19 (1976) 512, 516 (n 185); see also S Newbery (n 183). 209 Ireland v United Kingdom, no 5310/71, (dec), Yb 15 (1972), 82 (n 184). 210 Ireland v United Kingdom, no 5310/71, (dec), Yb 15 (1972), 84 (n 184). 211 Ibid, 82. 212 Ibid, 84. 213 Ibid, 88 (n 184). 214 Ireland v United Kingdom, no 5310/71, (report), Yb 19 (1976) 512, 760 (n 185). 215 Ireland v United Kingdom, no 5310/71, (judgment), §§ 239, 240 (Chapter 2, n 73).

104

Chapter 4

application. The individuals had not exhausted domestic remedies at the time the applications were lodged. Three applicants had initiated civil proceedings against the authorities with a view of obtaining damages before the cases were taken to Strasbourg. The other four applicants started civil proceedings in 1974. The individual applications were – to a certain extent – an academic exercise to clarify the relationship of the inter-State proceedings with overlapping individual applications. The applicants were represented by Kevin Boyle and Hurst Hannum, who were both employed at Queen’s University in Belfast at the time.216 The seven individual cases had been selected by Boyle and Hannum. They had been drawn from all over Northern Ireland in order to emphasize an alleged widespread practice of ill-treatment contrary to Article 3 echr. One of the police officers involved in the Donnelly cases had been prosecuted twice for offences against prisoners.217 Boyle and Hannum have commented on the proceedings academically.218 Initially, the Commission held the Donnelly cases admissible.219 However, the Commission dismissed the cases.220 Those cases in which the national proceedings for compensation were still under way were dismissed for the failure to exhaust domestic remedies. Those cases, in which compensation had been paid at the national level, the applicants had lost their status as victims within the meaning of ex-Article 25 echr.221 4.7.3.4.1

The First Donnelly Admissibility Decision of 1973: The Brief Appearance of the so-Called Ameliorative Effect In the first decision, the Commission found that the applicants had prima facie established the existence of an administrative practice in breach of

216 B Dickson (n 179) 142. 217 International Commission of Jurists, States of Emergency, Their Impact on Human Rights (1983) 230. 218 K Boyle, H Hannum, ‘Individual applications under the European Convention on Human Rights and the concept of administrative practice: the Donnelly case’ (1974) 68 ajil 440; H Hannum, K Boyle, ‘The Donnelly case, administrative practice and domestic remedies under the European Convention: one step forward and two steps back’ (1977) 71 ajil 316. 219 Donnelly and others v United Kingdom, nos 5577–83/72, admissibility decision, 5 April 1973, cd 41, 122. 220 The second decision of 15 December 1975 was published only in May 1976, thus, after the Irish government had referred the inter-State case to the Court, see H Krüger, (untitled comment to the Donnelly decision) (1976) 3 EuGRZ 378. 221 Donnelly and others v United Kingdom, nos 5577–83/72, admissibility decision, 15 December 1975, dr 4, 4, 88, 87.

Inter-State Case-Law under the echr

105

Article 3 echr.222 The question whether the applicants had to exhaust domestic remedies was joined to the merits.223 The Commission rebutted the respondent’s argument that general claims against legislation and administrative practices could only be raised in inter-State proceedings.224 The decision was taken approximately six months after the admissibility decision in the pertinent inter-State proceedings, where the Commission had found a prima facie administrative practice in breach of Article 3 echr.225 Allowing individual applicants to raise widespread human rights violations, what the Commission called ‘ameliorative effect’,226 was a remarkable step for the Commission and attracted contemporary academic comment.227 Boyle and Hannum welcomed the decision as the possible beginning of a ‘new era in human rights enforcement’.228 The two authors underlined the ‘inherent equality of the procedures under Articles 24 and 25 [echr]’ and contended that to apply an exception to the requirement of the exhaustion of domestic remedies only to one type of proceedings without a distinction in the text of the Convention would run ‘contrary to the generally accepted rules of interpretation of treaties’.229 The possibility for individuals to rely on an administrative practice meant that individuals could access Strasbourg much faster, without lengthy attempts to exhaust domestic remedies. Given that interim measures were not readily available and were considered not to be binding if a request was issued at all, the decision was important. Within the British government, the 1973 admissibility decision in the first Donnelly decision was seen as a liberalization of the case-law and as such resented.230 Brice Dickson, one of the leading experts 222 Donnelly and others v United Kingdom, nos 5577–5583/72, admissibility decision, 15 December 1975, dr 4, 4, 8. 223 Ibid, 9. 224 Donnelly and others v United Kingdom, nos 5577–83/72, admissibily decision, 5 April 1973, cd 41, 122, 129. 225 Ireland v United Kingdom, admissibility decision, 1 October 1972, Yb 15 (1972) 241, 246. 226 Donnelly and others v United Kingdom, nos 5577–83/72, admissibilty decision, 5 April 1973, cd 41, 122, 143. 227 C Trinidade, ‘Exhaustion of local remedies in relation to legislative measures and administrative practices – the European experience’ (1976) 18 Malaya Law Review, 257, 276. 228 K Boyle, H Hannum, ‘Individual applications under the European Convention on Human Rights and the concept of administrative practice: the Donnelly case’ (1974) 68 ajil 440. 229 Ibid, 450. 230 C Thornberry, ‘Some reflections on the effectiveness of European human rights techniques, in the light of British experience of the application of the right of individual petition’, in Actes de la Table Ronde organisée par la Faculté de Droit de l’Université de Bari

106

Chapter 4

of human rights law and the conflict in Northern Ireland, spoke of a ‘pyrrhic victory’231 in hindsight because the Commission approached the cases from a strictly individual point of view in its second admissibility decision. 4.7.3.4.2 The Second Donnelly Admissibility Decision of 1975: Back to a Strictly Individual Assessment After the first admissibility decision, the Commission heard over 40 witnesses. The main finding in the second Donnelly admissibility decision was that domestic remedies in Northern Ireland were not ineffective or inadequate.232 As a consequence, the Commission declared the seven applications inadmissible. The Commission’s test for the notion of ‘administrative practices’ in the context of individual cases had been refined to the question whether the individual concerned was in a position to get adequate redress on the national level. Rather than speaking of the reliance on ‘administrative practices’ in this regard, it would have been better to speak of the availability of an effective remedy. Hannum and Boyle interpreted the second decision as a setback in relation to the 1973 decision.233 4.7.3.5 Lessons Learned for the Meaning of Collective Enforcement The Commission’s approach was coherent in light of the different functions of the individual and the inter-State application.234 The individual application’s purpose is individual justice. The inter-State application aims at the collective enforcement of human rights, thus, can address widespread human rights issues beyond a specfic individual case. Central for the distinction is the v­ ictim requirement. If adequate redress is available on the national level, the appli­ cant loses the victim status. If the applicant has not exhausted domestic remedies, he or she has no victim status. An individual applicant can dispense with the requirement of the exhaustion of domestic remedies if there are no remedies available or the remedies are ineffective or inadequate. According to the settled case law under the Convention, the government bears the burden of

231 232 233 234

en liaison avec le Conseil de l’Europe et l’institut international des droits de l’homme, Les clauses facultatives de la Convention Européenne des Droits de l’Homme (1974) 147, 162. B Dickson (n 179) 144. Donnelly and others v United Kingdom, nos 5577–83/72, admissibility decision, 15 December 1975, dr 4, 4, 85. H Hannum, K Boyle, ‘The Donnelly case, administrative practice and domestic remedies under the European Convention: one step forward and two steps back’ (1977) 71 ajil 316. See also M O’Boyle, ‘Torture and emergency powers under the European Convention on Human Rights: Ireland v The United Kingdom’ (1977) 71 ajil 674, 691f.

Inter-State Case-Law under the echr

107

proving that the applicant has not used a remedy that was both effective and available if it claims non-exhaustion of domestic remedies. In view of the cases and the terminology about administrative practices the Commission sought to better define the concept of administrative pratices in its 1976 report.235 According to the Commission, the notion of administrative practices had, at the admissibility stage, a procedural function. The main idea of the notion of administrative practices is to dispense with the requirement of the exhaustion of domestic remedies where they are ineffective. At the merits stage, the level of official tolerance of the administrative practices, eg at prison authority level or at Cabinet level, determines how closely the Commission scrutinizes whether or not effective remedies would have been available. In other words, the Commission seeks to evaluate whether there is a systemic issue, which could not be resolved by individuals. What remained open after the second Donnelly decision was how inter-State applications and overlapping individual applications related to each other. 4.7.4 Dispute Settlement Functions 4.7.4.1 Strasbourg as a Lever towards a Power-Sharing Government Over Northern Ireland Ireland had sought to include the issue of Northern Ireland on the agenda of the United Nations General Assembly. The efforts were frustrated by the British reliance on Article 2 § 7 of the Charter of the United Nations.236 As military and governmental materials, which have been declassified recently, show, Ireland even contemplated military action in Northern Ireland.237 Parallel to the proceedings, talks were held on government levels between the United Kingdom and Ireland. The proceedings in Strasbourg were deemed a lever towards a power-sharing government over Northern Ireland.238 4.7.4.2 Judicial Review by the Commission The Commission reviewed the ‘five techniques’ and found that they amounted to torture in contravention of Article 3 echr. The Commission asserted 235 Ireland v United Kingdom, no 5310/71, (report) Yb 19 (1976), 512, 760f (n 185). 236 C Campbell (n 202) 330, without reference to primary sources; S Haines (n 190) 117, 130; see also D Williamson, ‘Taking the Troubles across the Atlantic: Ireland’s un Initiatives and Irish-us Diplomatic Relations in the Early Years of the Conflict in Northern Ireland, 1969–72’ (2007) 18 Irish Studies in International Affairs 175. 237 T Clonan, ‘Operation Armageddon would have been doomsday – for Irish aggressors’ Irish Times online, 31 August 2009, www.irishtimes.com/opinion/operation-armageddon -would-have-been-doomsday-for-irish-aggressors-1.728983. 238 D Bonner (n 199) 47, 59; cf B Dickson (n 179) 362.

108

Chapter 4

judicial review despite the fact that the British government had discontinued their use. This approach was markedly different from the first case between Greece and the United Kingdom, where the Commission had chosen to not evaluate measures that had been repealed or discontinued.239 The Commission argued that its function under Article 19 echr was to ‘ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention’.240 The Commission expressly placed its role as beyond of the disposition of the parties.241 Overall, the body came to the conclusion that ‘too many factors of a general character affecting the observance of the Convention have been left unresolved’.242 Another consideration might have been the fact that some of the individuals who had been subjected to the ‘five techniques’ had been awarded damages as a result of proceedings instituted by them before British courts.243 Not to deal with the breaches of Article 3 echr in the report might have given the impression that States can buy themselves out of allegations of torture. Whether or not some of the individuals concerned lost their victim status due to the payment of damages was irrelevant for the inter-State proceedings because it was not at issue whether certain individuals had been tortured but whether the ‘five techniques’ amounted to a practice in contravention of Article 3 echr. 4.7.4.3 Judicial Review by the Court Before the Court, the United Kingdom had conceded a breach of Article 3 echr ‘as found by the Commission’.244 The Court, however, came to the conclusion that the ‘five techniques’ amounted to inhuman and degrading treatment within the meaning of Article 3 echr; the Court did not share the Commission’s view that they amounted to torture. During the proceedings before the Court, the British government had solemnly undertaken not to use the ‘five techniques any further.245 The ­assurances 239 Ireland v United Kingdom, no 5310/71(report) Yb 19 (1976), 512, 772 (n 185), with reference to the Greece v United Kingdom case, discussed above. 240 Ireland v United Kingdom, no 5310/71, (report) Yb 19 (1976), 512, 776 (n 185). 241 Id. 242 Ibid, 778 (n 185). 243 See E Bates (n 1 in Chapter 2) 271. 244 Ireland v United Kingdom, no 5310/71, (judgment), § 152 (n 73 in Chapter 2); see R Pelloux (n 188) 382. 245 The wording is repoduced in full in Ireland v United Kingdom, no 5310/71, (judgment), § 153 (Chapter 2, n 73): ‘The Government of the United Kingdom have considered the question of the use of the ‘five techniques’ with very great care and with particular regard to Article 3 of the Convention. They now give this unqualified undertaking, that the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation’.

Inter-State Case-Law under the echr

109

given by the United Kingdom were similar to the unilateral declaration by France to discontinue their atmospheric nuclear testing in the Nuclear Tests case before the International Court of Justice.246 In its 1974 judgment, the International Court of Justice declined to exercise jurisdiction because the declaration by France to discontinue atmospheric nuclear testing had rendered the underlying legal issue moot.247 Arguably, the United Kingdom was hoping for a similar effect for its case in Strasbourg and argued that the Court could decline to exercise its jurisdiction ‘where the objective of an application has been accomplished or where adjudication on the merits would be devoid of purpose’.248 The Court took cognizance of the issues surrounding Article 3 echr and motivated this approach with the responsibilities assigned to it within the framework of the Convention, specifically with its role under Article 19 echr.249 The Court argued that it had the responsibility ‘to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties’.250 These statements contrasted with those by International Court of Justice in the Nuclear Tests Case, where it stated that it would not deal with issues ‘in abstracto’.251 The 1978 judgment became, for better or for worse, a leading case in the interpretation of Article 3 echr and similar provisions in other instruments. The inter-State judgment met with criticism.252 The judgment continues to be an important source in the context of the debate surrounding the coercive interrogation measures of the United States as well as the United Kingdom in their

246 Nuclear Tests Case (New Zealand v France) judgment, icj Reports 1974, 456. 247 Ibid, 476; see J Ruiz, ‘Mootness in International Adjudication: The Nuclear Tests Cases’ (1977) 20 gyil 358; New Zealand opposed nuclear tests in the South Pacific; France had declared not to conduct any further nuclear atmospheric testing; see also F Amerasinghe, Jurisdiction of Specific International Tribunals (2009) 48f. 248 Ireland v United Kingdom, no 5310/71(judgment) § 152 (Chapter 2, n 73). 249 Ireland v United Kingdom, no 5310/71(judgment) § 154 (Chapter 2, n 73); see also A Bleckmann, ‘Anmerkungen zum Nordirland-Fall des Europäischen Gerichtshofes für Menschenrechte’ (1979) 6 EuGRZ 188, 189. 250 Ireland v United Kingdom, no 5310/71(judgment) § 154 (Chapter 2, n 73). 251 Nuclear Tests Case (New Zealand v France) judgment, icj Reports 1974, 456, 470. 252 D Bonner, ‘Ireland v United Kingdom’ (1978) 27 Int’lCLQ 897, 901; L Doswald-Beck, ‘What does the prohibition of ‘torture or inhuman and degrading treatment or punishment’ mean? The interpretation of the European Commission and the Court of Human Rights (1978) Netherlands International Law Review 25, 24, 40; M Villiger, Handbuch der Europäischen Menschenrechtskonvention (2nd ed, 1999) mn 278.

110

Chapter 4

response to the events of 11 September 2001.253 The fact that the Court found no torture but ‘only’ inhumane and degrading treatment in 1978 arguably contributed to the relative obsolescence of the prohibition of the use of elements of the ‘five techniques’, which appear to have been used by British soldiers in Iraq.254 The relative small amount of legal reasoning in the judgment is even more unsatisfactory given that the Court must have known about the profound impact of the judgment.255 The hope was expressed that in the future, governments would be inspired not by the judgment, but by the Commission’s report.256 Parts of the definitions found in the 1978 judgment reverberate in various international instruments.257 4.7.4.4 Fact-Finding Overall, the Commission’s fact-finding task was herculean.258 Altogether, 119 witnesses were heard. One hundred of them gave evidence in relation to issues under Article 3 echr. The Commission had not been able to visit Northern Ireland because of security considerations raised by the respondent. Whether or not these security considerations were valid remains unclear. A police constable from Northern Ireland who was heard as a witness was killed only a few weeks after his interrogation. Whether or not his role as a witness was relevant for his death is not established.259 Witnesses were heard on a military base in 253 See for example S Bybee, Assistant Attorney General, us Department of Justice, Memorandum for Alberto Gonzales on the standards of conduct in interrogation of 1 August 2002, www.justice.gov/sites/default/files/olc/legacy/2010/08/05/memo-gonzales-aug2002.pdf; M Scheinin, ‘Counter-terrorism and human rights’. in S Sheeran, N Rodley (eds), Routledge Handbook of International Human Rights Law (2013) 581, 584. 254 W Gage, The Report of the Baha Mousa Inquiry (2011) Volume iii, para 270f, www.gov.uk/ government/publications/the-baha-mousa-public-inquiry-report. 255 R Spijut, ‘Torture under the European Convention on Human Rights’ (1979) 73 ajil 267, 270. 256 P Mertens, ‘L’Affaire Irlande contre Royaume-Uni devant la Commission Européenne des Droits de l’Homme’ (1977) 13 rbdi 10, 29 (the article was published in 1979). 257 Eg the United Nations Convention against Torture (Article 1), 10 December 1984, 1465 unts 85; Rome Statute of the International Criminal Court (Article 7 § 2 e), 17 July 1998, 2187 unts 3. 258 The British government openly admitted that it was believed to be an insurmountable task, J Frowein (n 187) 270, with reference to a statement made by Sir Basil Hall, who had been present during the witness hearings before the Commission. 259 J Frowein, ‘Fact-finding by the European Commission of Human Rights’ in R Lillich (ed), Fact-Finding before International Tribunals (1992) 237, 246.

Inter-State Case-Law under the echr

111

Norway. Torkel Opsahl, the Norwegian commissioner, was credited for this possibility by his fellow German commissioner, Jochen Frowein.260 The specific example of the divergent evaluation of the ‘five techniques’ as torture by the Commission and inhuman and degrading treatment by the Court raised the question whether a finding of torture was the result of an evaluation of a certain fact-pattern or amenable to a legal-judicial evaluation. 4.7.4.5 Effect of the Court’s Inter-State Judgment for Individual Cases In the dispositif in the 1978 inter-State judgment, the Court held that at the relevant time covered by the inter-State proceedings there existed in Northern Ireland a public emergency within the meaning of Article 15 echr. It further held that the incriminated measures had not violated Article 5, 6 or 14 echr against the background of the valid derogation.261 The Court’s findings were extended to individual applications under ex-Article 25 echr. After the Court had handed down its judgment in early 1978, the Commission decided three joined cases, X, Y and Z v the United Kingdom.262 The applications concerned allegations under Articles 5, 6, 14 and 15 echr and were brought by individuals who had been interned on the basis of emergency legislation under scrutiny in the inter-State proceedings. The cases had been adjourned until the judgment of the Court was published.263 The Commission declared the applications manifestly ill-founded under ex-Article 27 § 2 echr.264 The Commission relied on the inter-State judgment and reasoned that there was no merit in the individual applications given that the Court had found that the use of extra-judicial powers by the United Kingdom not to be in breach of Articles 5, 6 or 14 echr given that there was a public emergency within the meaning of Article 15 echr. 4.7.5 Evaluation: A Preponderance of Collective Enforcement Functions From an overall perspective, the impact of the Ireland v United Kingdom case has been labeled as ‘satisfactory’265 in comparison to the other inter-State cases under the Convention. 260 J Frowein (n 188) 270. 261 Ireland v United Kingdom, no 5310/71(judgment) 18 January 1978, Series A, no 25, dispostif. 262 X, Y and Z v the United Kingdom, nos 5727/72, 5744/72 and 5857/72, admissibility decision, 12 July 1978, dr 14, 5. 263 Ibid, 6. 264 Ibid, 8. 265 S Prebensen (Chapter 1, n 14) 454.

112

Chapter 4

4.7.5.1

The Inter-State Application as Tool to Address Widespread Human Rights Violations Ireland addressed widespread and serious human rights violations in Northern Ireland. The request for interim measures, even if not honored by the Commission, was intended to ensure that the ‘five techniques’ were discontinued. In a direct comparison with the binding inter-State judgment, the mere institution of proceedings in Strasbourg had considerable impact given that the use of the ‘five techniques’ was officially discontinued in early 1972, well before the Strasbourg machinery had issued any decision. However, materials by human rights organizations such as Amnesty International indicate that after the proceedings in Strasbourg ended, ill-treatment continued.266

4.7.5.2

The Difficult Relationship of Inter-State Proceedings and Individual Applications The added value of the inter-State application emerged more clearly, especially in contrast to the overlapping Donnelly-cases. The Court unequivocally clarified that inter-State proceedings could be directed against legislation. A further important aspect was that the Commission dealt in extenso with the notion of administrative practices. The possible legal effect of a judgment in inter-State proceedings for overlapping individual cases is a further important aspect of the case. The extension of a legal effect of inter-State cases can render the work of the Strasbourg organs more efficient, especially in view of the extensive fact-finding efforts, which often underlie inter-State cases. This is especially relevant in those cases where the respondent relies on derogations under Article 15 echr. A similar approach underlies the Court’s pilot judgment technique, which did not yet exist at the time in question. The case showed, however, that the relationship between individual and inter-State cases is unclear.

4.7.5.3

Role of the Strasbourg Organs and Object and Purpose of InterState Application Both the Commission and the Court sought to further define their own role by exercising judicial review about the ‘five techniques’ and did not limit themselves to settle a dispute between two High Contracting Parties. From today’s perspective, and against the background of the Irish request to reopen the case, the question what the Strasbourg machinery, specifically the interState application, can contribute in cases of entrenched conflicts remains

266 D Donahue, ‘Human Rights in Northern Ireland: Ireland v the United Kingdom’ (1980) 3 Boston College International and Comparative Law Review 377, 429.

Inter-State Case-Law under the echr

113

unanswered. The possible reopening of the case illustrates the need for better definition of the object and purpose of the inter-State application. 4.8

Cyprus v Turkey (1974–Present)

The four Cyprus v Turkey inter-State applications, which have kept the Strasbourg organs busy since 1974, are the most voluminous set of inter-State cases. At the same time, the fact that the execution of the 2001 judgment of the merits and the 2014 judgment on just satisfaction are still pending before the Committee of Ministers illustrates that the Cyprus-cases have had marginal impact on the human rights situation on the island. The protracted litigation revealed especially the shortcomings of political enforcement of human rights under the initial supervisory setup of the Convention. The way the first three cases were handled by the Committee of Ministers damaged the credibility of the inter-State application. These shortcomings have been remedied by the judicialization of the enforcement machinery with Protocol No 11 to the Convention.267 Unchanged to this date is, however, the uncooperative attitude of the respondent, Turkey. While it must be acknowledged that the binding judgments of 2001 and 2014 were certainly important signals, their impact for the affected individuals remains negligible. 4.8.1 Overview The protracted inter-State litigation arose out of the Turkish military operations in northern Cyprus in summer 1974 and the continuing division of the territory of Cyprus.268 4.8.1.1 Cyprus v Turkey (i), (ii) and (iii) The first two cases were brought in 1974 and 1975. They were joined and declared admissible in May 1975.269 Cyprus alleged ‘systematic conduct and adopted practice’ in violation of Articles 1, 2, 3, 4, 5, 6, 8, 13, 14 and 17 echr and Article 1 Protocol No 1 to the Convention in Cyprus and Turkey. Further, Cyprus complained that about 3,000 persons were missing. In addition, 200,000 Greek 267 See above Chapter 2 and Protocol No 11 to the Convention, above (Chapter 1, n 3). 268 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75; Cyprus v Turkey (iii), no 8007/77, Cyprus v Turkey (iv), no 25781/94. 269 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, admissibility decision, 26 May 1975, Yb 18 (1975), 82–127; also in dr 2, 125; hereinafter Cyprus v Turkey (i) and (ii), (dec), Yb 18 (1975).

114

Chapter 4

Cypriots had been expelled by the Turkish army from their homes in Northern Cyprus and were prevented from returning. Cyprus alleged that the ‘atrocities and criminal acts were directed against Greek Cypriots because of their ethnic origin, race and religion’.270 The Commission finalized a report according to ex-Article 31 echr in 1976.271 It found numerous violations of the Convention. The Committee of Ministers limited itself to urge for inter-communal talks and closed the first two cases on 20 January 1979 with a one-page resolution.272 Cyprus introduced a third inter-State application in September 1977. The applicant contended that Turkey continued to violate the Convention. The Commission declared the application admissible in 1978.273 Due to the lack of cooperation by Turkey, the Commission transmitted an interim report to the Committee of Ministers in 1980, which remains confidential. The final report under ex-Article 31 echr in the third Cyprus case was finalized in 1983.274 The Commission identified several violations of the Convention. In 1992, some nine years after the report was finalized, the Committee of Ministers’ only action with respect to the Cyprus v Turkey (iii) application was to decide to publish the report.275 4.8.1.2

The Fourth Inter-State Application and the Judicialization of Supervisory Framework of the Convention In 1994, Cyprus lodged a fourth inter-State application. The Commission declared the application admissible in 1996.276 Cyprus alleged that Turkey continued to commit ‘in the Turkish occupied area of Cyprus’ numerous breaches of the Convention. The ex-Article 31 echr-report of the Commission was

270 Cyprus v Turkey (i) and (ii), (dec) Yb 18 (1975), 82, 92 (n 269). 271 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, report of the Commission, 10 July 1976, 6, 7; (not reported), the page numbers refer to the pagination in the typewritten document available on hudoc. Hereinafter Cyprus v Turkey (i) and (ii), 1976 report, page number. 272 Cyprus v Turkey (i) and (ii), Committee of Ministers, dh (79) of 20 January 1979, Yb 22 (1979) 440. 273 Cyprus v Turkey (iii), no 8007/77, admissibility decision, 10 July 1978, Yb 21 (1978), 100. 274 Cyprus v Turkey (iii), no 8007/77, report of the Commission of 4 October 1983 (not reported), reprinted in (1992) 13 hrlj 154–174. 275 Cyprus v Turkey (iii), no 8007/77, Committee of Ministers, Resolution dh (92) 12 of 2 April 1992; reprinted in (1992) 13 hrlj 181. 276 Cyprus v Turkey (iv), no 25781/94, admissibility decision, 28 June 1996, dr 86A, 104.

Inter-State Case-Law under the echr

115

finalized in 1999.277 Cyprus and the Commission referred the case to the ­European Court of Human Rights. In 1990, Turkey had accepted the jurisdiction of the Court under ex-Article 46 echr.278 Turkey did not actively ­participate in the proceedings before the Court except for the initial stage of the proceedings, in which Turkey objected to the Cypriot judge Loucaides as member of the Grand Chamber. He had been senior counsel in the first two inter-State cases between Cyprus and Turkey. Upon these objections, the Grand Chamber requested Loucaides to withdraw from the case. Extrajudicially, Loucaides commented on the Cyprus proceedings.279 The Grand Chamber of the Court issued its judgment on the merits on 10 May 2001, finding numerous violations of the Convention.280 The execution of the judgment on the merits is, as of summer 2017, still under the supervision of the Committee of Ministers under Article 46 § 2 echr.281 On more than one occasion, the political body specified what kind of measures were necessary to comply with the 2001 judgment on the merits.282 The Grand Chamber of the Court rendered its judgment on just satisfaction in May 2014, awarding Euro 90 Million in non-pecuniary damages to the Cypriot government, to be distributed by the Cypriot government to the individual victims of violations.283 Turkish Prime Minister Davutoglu stated that ‘the terms of the grounds for this ruling, its method and the fact that it is considering a country that Turkey does not recognize as a counterpart, we see no necessity to make this payment’.284 277 Cyprus v Turkey (iv), no 25781/94, report of the Commission, 4 June 1999 (not reported) the report is available on hudoc and will be cited according to paragraphs; hereinafter, the report is cited as Cyprus v Turkey (iv), 1999 report, paragraph. 278 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573; see also C Rumpf, ‘Die Anerkennung der Zuständigkeit des Europäischen Gerichtshofes für Menschenrechte gem. Art. 46 emrk durch die Türkei’ (1990) 17 EuGRZ 53. 279 L Loucaides, ‘The Judgment of the European Court of Human Rights in the case of Cyprus v. Turkey’ (2002) 15 ljil 225. 280 Cyprus v Turkey (iv), no 25781/94, judgment (merits) [gc], 10 May 2001, echr 2001–iv; hereinafter, Cyprus v Turkey (iv) (merits, 2001) and the pertinent paragraph. 281 The current status of the execution of the judgment can be consulted online at www.coe .int/t/dghl/monitoring/execution/Default_en.asp. 282 Cyprus v Turkey (iv), Committee of Ministers, interim resolution dh(2005)44, 7 June 2005, and interim resolution dh(2007)25, 4 April 2007. 283 Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) [gc], 12 May 2014, reprinted in (2014) 34 hrlj 77–99; hereinafter, Cyprus v Turkey (iv) (just satisfaction), paragraph. 284 Cited after S Erkuş, ‘Turkey will ignore echr ruling to pay compensation to Greek Cyprus’, Hürriet Daily News online, 13 May 2014, www.hurriyetdailynews.com/turkey -will-not-pay-compensation-to-greek-cyprus-fm-davutoglu.aspx?pageID=238&nID= 66395&NewsCatID=510; see also I Risini, ‘Can’t get no just satisfaction? The Cyprus

116

Chapter 4

4.8.1.3 Disguised Inter-State Litigation in Loizidou v Turkey The situation in Northern Cyprus gave rise to numerous individual applications starting in 1987, when Turkey first accepted the right of individual petition under ex-Article 25 echr. The Loizidou v Turkey285 case was among the first individual cases dealing with the Cyprus issue that reached the Court. The individual case was a disguised inter-State case between Cyprus and Turkey because Cyprus made use of the right to intervene under Article 36 echr. The dissenting judges in Loizidou v Turkey286 as well as critics voiced their concern over the attempt to remedy major unresolved political questions via individual applications.287 Both the Commission and the Court relied on the Loizidou v Turkey case during the fourth set of inter-State proceedings. The Committee of Ministers supervises the execution of the 2001 inter-State judgment and the pertinent individual cases together where they overlap.288 4.8.2 Context: Cyprus as Object of Greek and Turkish Interests The history of Cyprus is sadly eventful.289 In 1960, Cyprus gained independence from British colonial rule with the so-called Zurich and London agreements, and became a sovereign state for the first time in its history.290

285 286 287 288

289

290

v. Turkey judgment of the European Court of Human Rights’ Cambridge Journal of International and Comparative Law blog, 23 May 2014, cjicl.org.uk/2014/05/23/cant -get-just-satisfaction-cyprus-v-turkey-judgment-european-court-human-rights/. Loizidou v Turkey, no 15318/89 (preliminary objections), 23 March 1995, Series A 310; Loizidou v Turkey no 15318/89 (merits), 18 December 1996, echr 1996–vi, 2216. See especially the dissenting opinions of judges Gölcüklü as well as Bernhardt joined by judge Lopes Rocha in the Loizidou v Turkey judgment on the merits (n 285). R White, ‘Tackling Political Disputes through Individual Applications’ (1998) 1 ehrlj 61. Department for the Execution of Judgments of the European Court of Human Rights, ‘Stock-taking concerning the violations established by the Court in the case Cyprus against Turkey and analysis of the impact of the judgment of 12 May 2014 on the just satisfaction’, 25 November 2014, H/Exec(2014)8, 2. See for further background F Hoffmeister, Legal Aspects of the Cyprus Problem (2006); for a Greek Cypriot view see K Chrysostomides, The Republic of Cyprus. A Study of International Law (2000); for a Turkish Cypriot perspective see Z Necatigil, The Cyprus Question and the Turkish Position in International Law (2nd ed, 1998); see also S Talmon, Kollektive Nichtanerkennung illegaler Staaten (2006) 11f. See also Greece v United Kingdom (i) and (ii), discussed above. Treaty Concerning the Establishment of the Republic of Cyprus (as part of the Zurich and London agreements) 16 August 1960, 382 unts 8; Treaty of Guarantee between the Republic of Cyprus and Greece, the United Kingdom and Turkey (as part of the Zurich and London agreements) 16 August 1960, 382 unts 3; G Tenekides, ‘La Condition Internationale de la République de Chypre’ (1960) 6 Annuaire Français de Droit International 133.

Inter-State Case-Law under the echr

117

Parties to the agreement were Greece, the United Kingdom and Turkey. Cyprus became a member of the Council of Europe in 1961 and ratified the echr in 1962.291 The independence of Cyprus could not overcome the distrust between Turkish and Greek inhabitants of the island.292 In 1963, civil war-like hostilities broke out between the two communities. The position of the Turkish-Cypriot population worsened after the 1963 incidents, many Turkish-Cypriot villages were destroyed and 25,000 Turkish Cypriots were internally displaced.293 The situation led the United Nations Security Council to establish a peacekeeping mission that has been present on the island since 1964.294 4.8.2.1

Turkish Intervention in Cyprus in 1974 Triggered by GreekSponsored Coup With the support of the Greek military regime that was in power since 1967, a coup d’état took place in Cyprus in mid-July 1974. The Greek coup in Cyprus was aimed at enosis, that is, uniting the island with the Greek ‘motherland’. The military dictatorship in Greece was in turn subject to inter-State proceedings since 1967.295 The events of the summer of 1974 led to the fall of the military regime in Greece. The Greek coup in Cyprus in 1974 was a turning point. The violence against the Turkish-Cypriot minority on the island triggered the Turkish military intervention in the northern part of Cyprus.296 The Turkish military intervention was seen as the reaction to several years of ‘subversive activity by Greece against the government of Cyprus’.297

291 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 292 T Ehrlich, ‘Cyprus, the ‘Warlike Isle’: Origins and Elements of the Current Crisis’ (1965/66) 18 Stanford Law Review 1021, 1033. 293 Z Necatigil (n 289) 36, with further references to un-materials. 294 Security Council Resolution 186, 4 March 1964. The mission in Cyprus it is one of the longest running peacekeeping missions in the history of the United Nations; see also www .unficyp.org; see for the legal basis of the Security Council’s action and the issue of consent S Talmon, ‘Impediments to Peacekeeping: The Case of Cyprus’ (2002) 8 International Peacekeeping: The Yearbook of International Peace Operations 33, 37. 295 Denmark, Norway, Sweden and the Netherlands v Greece (i), no 3321–23/67, 3344/67 and Denmark, Norway and Sweden v Greece (ii), no 4448/70, see above. 296 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, 1976 report (n 271) 6, 7; see also C Rumpf, ‘The Protection of Human Rights in Turkey and the Significance of International Human Rights Instruments’ (1993) 14 hrlj 394, 402. 297 V Coufoudakis, ‘Cyprus and the European Convention on Human Rights: The Law and Politics of Cyprus v Turkey, Applications 6780/4 and 6950/75’ (1982) 4 Human Rights Quarterly 450, 451.

118

Chapter 4

Whether or not the Turkish intervention was lawful has been discussed elsewhere, while the majority of commentators agreed that the intervention was a breach of Article 2 § 4 unc and that the treaty of guarantee of 1960 was no justification.298 The Security Council of the United Nations demanded the immediate end to the foreign military intervention in the Republic of Cyprus in July 1974 and deplored the outbreak of violence.299 4.8.2.2 Partition of the Island and Displacement of Population The effects of the events of summer 1974 were devastating and led to the partition of the island. The island had about 600,000 inhabitants at the time; an estimated 4,000 persons were killed, approximately 200,000 Greek-Cypriot individuals left the northern part of the island. During the conflict in 1974, about 3,000 persons went missing. The majority were Greek Cypriots. In 1981, Turkey and Cyprus established the so-called Committee on Missing Persons (cmp) under the auspices of the United Nations.300 According to information provided by Turkey in the Varnava case, 430 sets of remains had been located and 84 files of missing persons had been closed by November 2008, which corresponds to 5% of the missing persons.301 After the end of the hostilities in 1974, Turkey began a systematic effort to alter the population structure of Cyprus by permitting the immigration of large numbers of mainland Turks.302 Since 1974, Turkey maintains approximately 30,000 troops in Cyprus. Greek-Cypriot inhabitants of the north of the island are prevented from returning to their homes and property by the TurkishCypriot administration. Less than 500 Greek Cypriots still live in an enclaved peninsula in the north of the island, the so-called Karpas region. In 1983, the ‘Turkish Republic of Northern Cyprus’ (trnc) proclaimed its independence. The United Nations Security Council called upon all States not to recognize any Cypriot State other than the Republic of Cyprus.303 As of today, no State except Turkey has recognized the trnc. The international community continues to recognize the Republic of Cyprus as the only State in Cyprus and 298 Eg F Hoffmeister (n 289) 39f, S Talmon (n 289) 36f; A Epiney, U Haltern et al, Zypern in der Europäischen Union, Ausgewählte Völker- und Europarechtliche Aspekte (2008) 72f; for the minority opinion see Z Necatigil (n 289) 132. 299 Security Council Resolution 353, 20 July 1974. 300 See the cmp’s website at www.cmp-cyprus.org. 301 Varnava and Others v Turkey, no 16064/90, judgment (merits) [gc], 18 September 2009, § 87. 302 V Coufoudakis (n 297) 451. 303 Security Council Resolution 541, 18 November 1983, § 7; see also Security Council Resolution 550, 11 May 1984.

Inter-State Case-Law under the echr

119

its Greek-Cypriot controlled government as the government of the whole island, despite the fact that this government has not exercised any control over northern Cyprus since 1974. Factually, the trnc is a State because it exercises control over a territory and the people on it.304 4.8.2.3

Failure of the Annan Plan, Accession to European Union as Divided Island In May 2004, simultaneous referenda were held in both parts of the island on a comprehensive settlement plan, which had been elaborated under the auspices of un Secretary-General Kofi Annan. While 64,9% of the Turkish Cypriots approved the plan, 75,8% of the Greek Cypriots rejected it.305 The so-called Annan-plan had provided for the property rights of Greek Cypriots to be balanced against the rights of those now living in the homes or using the land in northern Cyprus.306 The Republic of Cyprus entered the European Union as a factually divided island on 1 May 2004.307 The non-recognition of Cyprus by Turkey continues to be one of the major impediments for the accession of Turkey to the European Union.308

4.8.3 Collective Enforcement Functions 4.8.3.1 Cyprus Left Alone with Collective Enforcement Turkey does not recognize the Cypriot government as a party to the echr. As a consequence, Turkey did not participate in the proceedings at the merits stage in the first three inter-State cases. In the fourth set of inter-State proceedings, Turkey initially refused to cooperate with the Commission, but later decided to participate. Turkey underlined that the participation in no way constituted recognition of the Greek Cypriot authorities.309 No other High Contracting Party joined the proceedings against Turkey, which would have rendered the main objection of Turkey, that of the lack of standing of Cyprus, obsolete. Commentators deplored in this context that there was no duty to invoke the inter-State procedure.310 Ms Loizidou’s individual application cut off the 304 C Rumpf, ‘Die staats- und völkerrechtliche Lage Zyperns’ (1997) 24 EuGRZ 533, 545. 305 F Hoffmeister (n 289) 180f. 306 See also Demopoulous and others v Turkey, no 46113/99, admissibility decision, [gc], 1 March 2010, § 8f. 307 F Hoffmeister (n 289) 185f. 308 S Talmon, ‘The European Union – Turkey Controversy over Cyprus or a Tale of Two Treaty Declarations’ (2006) 5 Chinese Journal of International Law 579, 580. 309 Cyprus v Turkey (iv), 1999 report (n 277) §§ 27–40. 310 M Kamminga, ‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’ (1994) 12 nqhr 153, 163.

120

Chapter 4

Turkish argument of non-recognition: Turkey could no longer deny the standing of the applicant. 4.8.3.2 The Failure of Political Collective Enforcement The European Court of Human Rights had no jurisdiction over the first three cases. Thus, the report of the Commission was destined for the Committee of Ministers, a political body. Under ex-Article 32 echr, the Committee of Minister’s task was to decide, by a majority of two-thirds, whether there has been a violation of the Convention, in a ‘confidential peer review procedure’.311 The three cases were marked by the failure of the Committee of Ministers to fulfill its functions. The way the duties under ex-Article 32 echr were to be discharged concerning the first two inter-State cases was subject to lengthy discussions within the political body.312 While Turkey had refused to cooperate in the proceedings on the merits before the Commission, it submitted a detailed memorial to the Committee of Ministers in May 1977.313 In October 1977, the Committee of Ministers took note of the Commission’s report and decided that the events in Cyprus constituted violations of the Convention. The Committee of Ministers, however, left open which State was responsible for the violations. The text of the decision remains confidential.314 The report of the Commission was rendered public after it had been leaked.315 It appears that the minister of foreign affairs of the Greek Cypriot administration had revealed passages 311 F Sundberg, ‘Control of Execution of Decisions under the European Convention on Human Rights – A Perspective on Democratic Security, Intergovernmental Cooperation, Unification and Individual Justice in Europe’ in G Alfredsson et al (eds), International Monitoring Mechanisms: Essays in Honor of Jacob Th. Möller (2nd ed, 2009) 465, 466; see also P Leuprecht, ‘The Protection of Human Rights by Political Bodies – The Example of the Committee of Ministers of the Council of Europe’ (1988) in M Nowak et al (eds), Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora, 95, 102 and 103. 312 See eg Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, Committee of Ministers, Del/ Concl(77)274 of 17 October 1977. 313 Memorandum of the Government of the Republic of Turkey on the Question of Human Rights in Cyprus, Doc cm (77) 11, 24 May 1977; the document remains confidential but see G Cohen Jonathan, J-P Jacqué, ‘Activité de la Commission Européenne des Droits de l’Homme’ (1979) 25 afdi 382, 389. 314 The contents of the decision is corroborated in Committee of Ministers resolution dh (79) (n 272). 315 The report was in part published by The Sunday Times in early 1977; the full report had been published by the private initiative ‘Friends of Cyprus’ in 1978, see H Bartsch, ‘Ministerkomitee des Europarats (mker), Straßburg’ (1979) 6 EuGRZ 86.

Inter-State Case-Law under the echr

121

of the Commission’s report in a speech before the United Nations Security Council.316 In January 1979, the Committee of Ministers urged the parties to resume inter-communal talks under the auspices of the Secretary General of the United Nations.317 The Committee’s Resolution of January 1979 met with stark criticism.318 The legal historian of Bates saw the decision of the political body as a ‘low point in the Convention’s history’.319 In more graphic terms, Dickson, an author whose research focus lies with entrenched conflicts and human rights, called the Commission ‘pusillanimous in face of serious human rights violations committed by one member state of the Council of Europe on the territory of another’.320 The criticism was unanimous except for a Turkish commentator, who opined that ‘…the Committee of Ministers, like the Commission of Human Rights in its Reports on the two Greek Applications against the United Kingdom, has very rightly made a practical and realistic approach to the matter by recognizing the inescapable fact that enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities, that is to say, by the finding of a political settlement of the Cyprus problem and not by protracted litigation in the human rights tribunals of the Council of Europe or other international fora’.321 Similarly as after the end of the proceedings in the first two inter-State applications between Cyprus and Turkey, the comments about the Committee of Ministers’ actions with respect to the third Cyprus cases were mainly negative.322 The Committee of Ministers published the 1983-report in 1992, during a time when the two groups on the island were making attempts to find a peaceful

316 M Ertekün, ‘Inter-State Applications and Article 27 (2) of the European Convention on Human Rights and Fundamental Freedoms’ (1980) 2 Turkish Yearbook of Human Rights 5, 8. 317 Committee of Ministers resolution dh (79) (n 272). 318 G Cohen Jonathan, J-P Jacqué (n 313) 390 ; J Velu, ‘Report on Responsibilities for States Parties to the European Convention’ in Proceedings of the Sixth International Colloquy about the European Convention on Human Rights organized by the Secretariat General of the Council of Europe (1988) 532, 612; L Zwaak, ‘Turkey and the European Convention on Human Rights’ in M Castermans et al (eds), The Role of the Nation State in the 21st Century (1998) 209, 211; V Coufoudakis (n 297) 468f. 319 E Bates (Chapter 2, n 1) 283. 320 B Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (2010) 371. 321 M Ertekün (n 316) 9. 322 M Nowak (n 311) 99; E Bates (Chapter 2, n 1) 283; M Kamminga (n 310) 157.

122

Chapter 4

settlement.323 Rumpf, who followed the Cyprus-issue academically over decades, critically asked ‘whether the political and juridical purpose of such a report (which contains a unilateral condemnation of one of the two parties in a continuing political dispute for which the other party is responsible at least to the same degree) is mistaken’.324 Tomuschat stated that ‘[t]he procedure under Article 24 is not meant to end up in a diplomatic communiqué which carefully accommodates the susceptibilities of the parties involved’.325 In its 2001 judgment in the Cyprus v Turkey (iv) case, the Court noted that ‘neither Resolution dh (79) 1 nor Resolution dh 92 (12) resulted in a ‘decision’ within the meaning of Article 32 § 1’.326 4.8.3.3

Collective Enforcement: Just Satisfaction in Inter-State Proceedings In May 2014, almost forty years after the events of summer 1974, the Court awarded 90 million euros in non-pecuniary damages in the fourth Cyprus v Turkey case. The size of the award is nominally the largest one in the history of the European Convention on Human Rights in terms of non-pecuniary damages.327 Thirty of the 90 million euros are earmarked for an unknown number of relatives of 1,456 missing persons. The other 60 million euros are destined for the enclaved Greek Cypriot residents of the Karpas peninsula in Northern Cyprus. Their number is likewise not clear. Cyprus also requested clarification about the binding character of the 2001 judgment on the merits.328 The Court did not examine the question in § 63 of the judgment, however, the issues raised by Cyprus point towards the issue of non-compliance and how the Court can contribute towards the execution of its own judgments.329

323 C Rumpf, ‘Nochmals: Zypern und Türkei vor den Straßburger Menschenrechtsorganen’ (1992) 19 EuGRZ 457. 324 C Rumpf, ‘The protection of Human Rights in Turkey, and the significance of International Human Rights Instruments’ (1993) 14 hrlj 394, 402. 325 C Tomuschat, ‘Quo Vadis, Argentoratum? The Success Story of the European Convention on Human Rights – and a Few Dark Stains’ (1992) 13 hrlj 401, 402. 326 Cyprus v Turkey (iv) (merits, 2001) § 67 (n 280). 327 In the case of oao Neftyanaya Kompaniya Yukos v Russia, no 14902/04, judgment (just satisfaction) 31 July 2014, the Court awarded 1,866,104,634 euros in pecuniary damages. 328 Cyprus requested the Court to declare that ‘(i) that Turkey is required by Article 46 to abide by the judgment in Cyprus Turkey by abstaining from permitting, participating or acquiescing or being otherwise complicit in, the unlawful sale and exploitation of Greek Cypriot homes and property in the northern part of Cyprus; (ii) that this obligation arising under Article 46 is not discharged by the Court’s admissibility decision in Demopoulos’. 329 Cyprus v Turkey (iv), no 25781/94, (just satisfaction) (n 283), § 63f; see also Department for the Execution of Judgments of the European Court of Human Rights, ‘Stock-taking

Inter-State Case-Law under the echr

123

4.8.3.4 Pilot Judgment Technique with Respect to Property Claims Cyprus did not raise any claims of just satisfaction in the ambit of violations of Article 1 Protocol No 1 to the Convention. Accordingly, the Court did not award pecuniary or non-pecuniary damages for the unlawful seizure of territory by Turkey.330 In the context of individual cases, the Court approached the matter of restitution of property guardedly.331 Specifically, in view of the inadequacy of declaratory relief the Court has started to direct States to amend or introduce legislation within a matter of months in so-called pilot judgments.332 Pilot judgments are a tool aimed at the resolution of large-scale, endemic dysfunctions and empowers the Court to identify the type of remedial measures which the Contracting State concerned is required to take at the domestic level by virtue of the operative provisions of the judgment. The Court is also empowered to impose binding time limits. The Xenides case is one of these instances.333 The Court derives these remedial powers of Article 46 echr. Since 2011, Article 61 of Rules of the Court contains provisions about pilot judgments. The majority of pilot judgments have been property-related cases. 4.8.3.5 Just Satisfaction in Inter-State Cases For the first time in inter-State proceedings and after decades of l­itigation in Strasbourg, in 2014, the Court awarded just satisfaction under ­Article 41 e chr.334 The Court held that awards of just satisfaction under Article 41 echr in inter-State cases are possible ‘as such’ while the provision of Article 41 echr concerning the violations established by the Court in the case Cyprus against Turkey and analysis of the impact of the judgment of 12 May 2014 on the just satisfaction’, 25 November 2014, H/Exec(2014)8, 6. 330 Cf T Grant, ‘International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms’ (2015) 16 Chicago Journal of International Law 1, 9. 331 E Proukaki, ‘The Right of Displaced Persons to Property and to Return Home after Demopoulos’ (2014) 14 Human Rights Law Review 701, 703. 332 P Leach, ‘No Longer Offering Mantras to a Parched Child? The European Court’s Developing Approach to Remedies’, in A Føllesdal et al (eds) Constituting Europe, The European Court of Human Rights in a National, European and Global Context (2013) 142; see also T Allen, ‘Restitution and Transitional Justice in the European Court of Human Rights’ (2006–2007) 13 Columbia Journal of European Law 1, 17. 333 Xenides-Arestis v Turkey, no 46347/99, judgment, 22 December 2005; some authors refer to the case also as quasi-pilot judgment because the Court has not identified the case as a pilot case, see P Leach et al, Responding to Systemic Human Rights Violations (2010) 156. 334 In Ireland v United Kingdom case litigated in the 1970s, the applicant did not bring a just satisfaction claim, see Ireland v United Kingdom, no 5310/71(judgment), 18 January 1978, Series B, Vol 23 i–iii, §§ 244, 245.

124

Chapter 4

retains its lex specialis status with respect to general international law.335 Thereby, the Court rejected the Turkish contention that ‘Article 33 basically corresponds to the classic logic of diplomatic protection’ whereby the respondent sought to argue that Article 41 echr did not apply to inter-State applications.336 Article 41 echr allows the Court to ‘(…) afford just satisfaction to the injured party’. It is not clear who the injured party is in inter-State proceedings. It emerges from the just satisfaction judgment that the affected individuals are beneficiaries of the award. The Court notes that Article 19 of the 2006 ilc Draft Articles on Diplomatic Protection ‘recommend’ the transfer of any compensation to the individuals affected, an approach which falls short of systemic integration within the meaning of Article 31 § 3 c) vclt.337 The Court made it clear that the individuals have no corresponding right to receive damages. In German, the distinction between Begünstigte und Berechtigte makes the difference clearer, with the caveat that German is not a working language of the Court.338 In general terms, the Court stated that not all claims that can be brought under the inter-State application can lead to a monetary award. The guiding factor in determining the appropriateness of an award of just satisfaction under Article 41 echr in inter-State cases is whether the victims can be individualized in a sufficiently precise and objective manner. Judge Casadevall opined that the proposed test should have led to the non-applicability of Article 41 echr to the inhabitants of the Karpas peninsula.339 4.8.3.6 Collective Enforcement, Not Collective ‘punishment’ Judges Pinto de Albuquerque and Vucinic stated in their concurring opinion that the Cyprus v. Turkey just satisfaction case is the most important contribution to peace in Europe in the history of the European Court of Human 335 Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) (n 283) § 43; cf O Ichim, Just Satisfaction under the European Convention on Human Rights (2015) 89. 336 Turkish submissions in Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) (n 283) at § 36. 337 I Risini, ‘An individual-centered decision seen in the historical and institutional context which led to Cyprus v Turkey (iv)/The 2014 just satisfaction judgment of the European Court of Human Rights’ (2014) 34 hrlj 18, 23. 338 I Risini, ‘Eine Annäherung der primären und sekundären Pflichten der emrk – Das Urteil des egmr zur gerechten Entschädigung in der Staatenbeschwerde Zypern gegen Türkei (iv) von 2014’ (2014) 41 EuGRZ 602, 607. 339 Partly concurring and partly dissenting opinion of Judge Casadevall, Cyprus v Turkey (iv) (just satisfaction), § 4 (n 283).

Inter-State Case-Law under the echr

125

Rights’.340 At the same time, they ascribed the 2014 judgment a flagrant punitive nature and rested their argument on an alleged incoherence with overlapping individual cases: the two concurring judges opined that if the just satisfaction claims under Article 41 echr had been brought in individual applications, they would have been time-barred according to the 2009 Varnava jurisprudence, which bars individual claims if they were brought after 1990.341 The argument of the two concurring judges is misconceived.342 While it is correct that the fourth set of inter-State proceedings was initiated in 1994, the previous three sets of inter-State proceedings illustrate the (frustrated) legal interest Cyprus had in the case. In addition, the question of ratione temporis jurisdiction was decided in 2001 in the judgment of the merits, and is res iudicata. In addition, the idea that peace in Europe can be established by the ‘punishment’ of States is not further explained by the two dissenters and is contradictory in a human rights framework based on the notion of collective enforcement rather than collective punishment. 4.8.4 Dispute Settlement Functions 4.8.4.1 Fact-Finding in View of an Uncooperative Respondent The fact-finding efforts by the Commission were limited by the Turkish refusal to cooperate. At the same time, the Commission faced the task to ascertain the facts akin to a Court of first instance. The Convention did not contain any rules for the case where a respondent State fails to cooperate in the Commission’s proceedings under ex-Article 28 a) echr to ascertain the facts. In the first two inter-State applications, which had been joined, the Commission prepared a report under ex-Article 31 echr because it held that the failure of a respondent State to cooperate could not prevent the Commission from doing so.343 In a footnote in the report, the Commission referred to four cases before the International Court of Justice, in which the respondent States had failed to appear. The footnote contains a citation to the judgment in the Nuclear Tests Case, in which the International Court of Justice explained that it proceeded to exercise its 340 Concurring opinion of Judges Pinto de Albuquerque and Vucinic, Cyprus v Turkey (iv) (just satisfaction), § 1 (n 283). 341 Concurring opinion of Judges Pinto de Albuquerque and Vucinic, Cyprus v Turkey (iv) (just satisfaction), § 13 (n 283) with reference to Varnava and Others v Turkey, no 16064/90, judgment (merits) [gc], 18 September 2009. 342 For further detail see I Risini, ‘An individual-centered decision seen in the historical and institutional context which led to Cyprus v Turkey (iv) – The 2014 just satisfaction judgment of the EurCourtHR’ (2014) 34 hrlj 18, 24. 343 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 22.

126

Chapter 4

judicial function without the assistance it might have derived from the arguments of the respondent, France.344 Turkey criticized the Commission’s approach in its (still confidential) memorial to the Committee of Ministers. Turkey contended that the Commission was only entitled to give an opinion, not to pass judgment akin to the International Court of Justice. This criticism was countered by the argument that the judicial character of the work of the Commission is not affected by the non-binding nature of the final report under ex-Article 31 echr.345 The Commission also referred to its previous practice in Denmark, Sweden and Norway v Greece (i).346 There, the Commission held that the ‘respondent party cannot evade the jurisdiction of a competent tribunal simply by refusing to take part in the proceedings instituted against it. It is a general principle of judicial procedure that a competent tribunal may give judgment by default. (…) The Commission would, however, have to satisfy itself that the information before it is sufficient to express a well-founded opinion. There could be no question of automatically finding in favor of the applicant, irrespective of the circumstances of the case’.347 In a separate opinion, Commissioner Busuttil expressed the view that the Commission was not empowered to render its report by default and that the matter should have been referred to the Committee of Ministers. In his view, the Commission was a ‘sui generis amorphous body which delivers functions – quasi-judicial, investigatory, political, and auxiliary’.348 The Commission stated explicitly that it ‘has refrained from drawing any conclusions from the fact that the respondent Government, despite every opportunity being offered to them, failed to make any statements, or to propose counter-evidence, on the applicant Government’s allegations’.349 The Commission also stated that ‘a full investigation of all the facts had not been possible’.350 The issue persisted also at the stage of the fourth set of proceedings.351 344 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 22. 345 G Cohen Jonathan, J-P Jacqué (n 313) 385. 346 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 23 with reference to the interim report of the Commission in Denmark, Sweden and Norway v Greece (ii), which remains confidential, but transpired in Denmark, Norway and Sweden v Greece (ii), no 4448/70, report of 4 October 1976, dr 6, 5, 6. 347 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 23. 348 Cyprus v Turkey (i) and (ii), 1976 report (n 271) Separate Opinion of Commissioner Busuttil, 184. 349 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 31. 350 Cyprus v Turkey (i) and (ii), 1976 report (n 271) 31. 351 P Tavernier, ‘En Marge de l’Arrêt Chypre contre la Turquie: l’Affaire Chypriote et les Droits de l’Homme devant la Cour de Strasbourg’ (2002) 52 Revue Trimestrielle des Droits de l’Homme 807, 811; Hoffmeister opined that the judgment represented ‘a well-balanced

Inter-State Case-Law under the echr

127

4.8.4.2 The Commission in Times of Crisis: A Finding by Default The first two inter-State applications dealt with the effects of and the immediate aftermath of armed conflict. The Strasbourg organs struggled to apply the appropriate yardstick. Given that Turkey had not formally entered any derogation under Article 15 echr with regard to the situation in Cyprus, the Commission held, in the context of the first two inter-State applications, that Article 15 ehcr was inapplicable.352 The approach was based on a formal argument, Christian Rumpf opined that ‘Article 15 echr (…) was obviously applicable in the case’.353 The non-­application of Article 15 echr bears a strong resemblance of an opinion ‘by default’. Had Turkey entered a derogation about Cyprus, it would have contradicted itself in as much as Turkey was of the opinion that it did not exercise jurisdiction in Cyprus within the meaning of Article 1 echr. Turkey, in its (confidential) memorial to the Committee of Ministers concerning the first two inter-State applications, had submitted that Article 15 echr as well as international humanitarian law should have been taken into consideration.354 Further, Turkey had entered derogations concerning all provinces near Cyprus.355 The dissenters, Commissioners Sperduti and Trechsel, found the approach of the Commission incoherent in view of previous practice.356 In the 1958 report of the Commission in the Greece v United Kingdom (i) case, the failure to comply with the formal duties under Article 15 § 3 echr was not sanctioned by the Commission. Further, the two dissenters saw Turkey as military occupant, a situation in which a state of emergency was inherent.357 Without drawing concrete conclusions the two stated that measures which are in themselves contrary to a provision of the European Convention but which are taken legitimately under international law applicable to an armed conflict are to be

352 353 354

355 356

357

contribution to four central issues in the ongoing political debate’, F Hoffmeister, ‘Cyprus v Turkey. App. No. 25781/94’ (2002) 96 ajil 445, 452. Cyprus v Turkey (i) and (ii), 1976 report (n 271) 162; cf the lengthy separate opinion by Commissioner Ermacora in this regard, Cyprus v Turkey (i) and (ii), 1976 report (n 271), 173–180. C Rumpf (n 324) 403. J Frowein, ‘Probleme des allgemeinen Völkerrechts vor der Europäischen Kommission für Menschenrechte’, in I von Münch, Staatsrecht, Völkerrecht, Europarecht, Festschrift für Hans-Jürgen Schlochauer (1981) 289, 295. Notes of derogation by Turkey for the year 1975, with further references to previous notes of derogation in Yb 18 (1975) 8f. Cyprus v Turkey (i) and (ii), 1976 report (n 271), separate opinion of Commissioners Sperduti and Trechsel, 168; see Greece v United Kingdom (i), report of the Commission of 26 September 1958, as reprinted in (1997) 18 hrlj 348, 395 and 396. Cyprus v Turkey (i) and (ii), 1976 report (n 271), separate opinion of Commissioners Sperduti and Trechsel, 170.

128

Chapter 4

considered as legitimate measures of derogation from the obligations flowing from the Convention.358 4.8.4.3 No Counterclaims In the first two cases between Cyprus and Turkey, the Commission underlined that alleged violations authored by Greek Cypriots in Cyprus against Turkish Cypriots could not be taken into account because Turkey had not raised them in an application under ex-Article 24 echr.359 Factually, Turkey barred itself from bringing an inter-State case against Cyprus for alleged violations of human rights of the Turkish Cypriot population by the Greek Cypriots between 1963 and 1974 because Turkey did not recognize the ­Cypriot government. It appears that Turkey prepared an inter-State application against Greece over the Greek intervention in Cyprus, but then opted to intervene militarily.360 The Turkish Commissioner Daver alleged that the Commission did not take into consideration the background of the Turkish intervention in Cyprus.361 The Turkish Commissioner’s criticism is, however, misplaced. It was not the Commission’s task to ‘arrive at a truer version of the events’362 by looking into the past of the conflict and the reasons for the outbreak of violence, possibly searching even for justifications for the Turkish intervention. Further, the Commission was limited to its yardstick, that of human rights enshrined in the echr. The Turkish Commissioner’s comments show that he saw inter-State applicaton as a dispute settlement mechanism. Evaluation: Neither Collective Enforcement nor Dispute Settlement: Learning from Past Mistakes The comments about the proceedings between Cyprus and Turkey are mostly negative. They have been described as ‘lengthy, counterproductive and ultimately ineffective’.363 The binding judgment of 2001 did not fundamentally change the protracted conflict. The prospects for the execution of the Cyprus v

4.8.5

358 Cyprus v Turkey (i) and (ii), 1976 report (n 296), separate opinion of Commissioners Sperduti and Trechsel, 171; similarly J Frowein (n 354) 295. 359 Cyprus v Turkey (i) and (ii), 1976 report (n 296) 32. 360 P Hold von Zürich (Chapter 1, n 15) 141 (without reference to primary sources). 361 Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, separate opinion of Commissioner Daver to the report of the Commission, 186, 188. 362 Cyprus v Turkey (i) and (ii), 1976 report (n 296), separate opinion of Commissioner Daver, 190. 363 D Harris et al, Law of the European Convention on Human Rights (2014, 3rd ed) 115.

Inter-State Case-Law under the echr

129

Turkey (iv) judgment on the merits were never overly optimistic.364 The question about the execution of the 2014 just satification judgment is unclear, ­similarly unsettled is the role of the Court at this stage.365 All the more, this rather unsatisfactory set of proceedings must be used to learn from past mistakes for the further development of the inter-State application under the Convention. In addition, it is important to manage realistic expectations about the human rights mechanism: it cannot resolve political deadlocks. If expectations are too high, the inter-State mechanism will be damaged and lose credibility. The need for clearer objectives can be seen in the way a Turkish commentator proposed to amend ex-Article 27 § 2 echr: the prohibition of the abuse of procedure should become applicable to interState proceedings.366 While such a proposition remains unparalleled in other inter-State proceedings, it was made apparently because the application contained, according to Turkey, accusations that had ‘nothing to do with the purpose of the Convention’.367 Thus, uncertainty about the object and purpose of the Convention will not inspire confidence or compliance. Similarly as in Ireland v United Kingdom, the protracted litigation about Cyprus begs the question what the inter-State application can be expected to achieve and whether its object and purpose is, inter alia, to help in the transition from conflict. In addition, the cases also show that the right of individual petition, which was accepted by Turkey in 1987, was and still is an important tool to induce change in Cyprus. What further emerges is that the relationship between individual cases and inter-State cases should be clarified. The Cyprus proceedings reveal that the Court’s remedial toolbox in interState applications leaves something to be desired and should be addressed by way of reform.

364 E Bates, ‘Supervising the Execution of Judgments Delivered by the European Court of Human Rights: The Challenges Facing the Committee of Ministers’ in T Christou, JP Raymond (eds), European Court of Human Rights, Remedies and Execution of Judgments (2005) 49, 97; see also P Tavernier, ‘En Marge de l’Arrêt Chypre contre la Turquie: l’Affaire Chypriote et les Droits de l’Homme devant la Cour de Strasbourg’ (2002) 52 Revue Trimestrielle des Droits de l’Homme 807, 834. 365 Department for the Execution of Judgments of the European Court of Human Rights, ‘Stock-taking concerning the violations established by the Court in the case Cyprus against Turkey and analysis of the impact of the judgment of 12 May 2014 on the just satisfaction’, 25 November 2014, H/Exec(2014)8, 6. 366 M Ertekün (n 316) 7. 367 Cyprus v Turkey (i) and (ii), (dec), Yb 18 (1975), 82, 98 (n 269).

130 4.9

Chapter 4

Denmark et al. v Turkey (1982–1985) and Denmark v Turkey (1997–2000)

The cases of Denmark, France, Norway, Sweden and the Netherlands v Turkey368 initiated in 1982 and the Denmark v Turkey369 inter-State application which was litigated between 1997 and 2000 are discussed here together because they are inherently linked: both cases dealt with violations of Article 3 echr and both cases have been ended by friendly settlements. In this specific context it is worth to underline that both cases discussed here have had a more significant impact on the human rights situation in Turkey than decades of litigation in the Cyprus-cases. The most important outcome of the first set of inter-State proceedings is that in 1987, Turkey accepted the right of individual petition under ex-Article 25 echr. Against the background of the worrisome events in Turkey in the summer of 2016 the cases are even more worthy of a closer look. 4.9.1 Overview and Documentation 4.9.1.1 Denmark, France, Norway, Sweden and the Netherlands v Turkey On 12 September 1980, the military seized governmental power in Turkey. On 1 July 1982, Denmark, France, Norway, Sweden and the Netherlands lodged an inter-State application against Turkey. Germany did not join the five applicant States because it considered that on the basis of their political contacts it had a better chance to promote human rights in Turkey.370 The five applicants complained of emergency legislation and practices in contravention of Articles 3, 5, 6, 9–11 and 15 § 3 echr. The applications were confined to the situation in Turkey between 12 September 1980 and 1 July 1982. Turkey had derogated from the Convention under Article 15 echr several times.371 A note of 12 September 1980 informed the Secretary General that ‘martial law’ was applicable in Turkey. The term martial law is better captured in the French expression état de siège, and is not connected to the existence of an armed conflict on the territory of the Turkish State; what is meant in substance is that there were exceptional circumstances.372

368 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82. 369 Denmark v Turkey, no 34382/97. 370 Printed matter of the German Parliament, 9th legislative period, reply of Secretary of State H Hamm-Brücher of 16 July 1982, Ds 9/1870, 2. 371 Consecutive notes of derogation referring to 1980, Yb 23 (1980), 10f. 372 C Rumpf, ‘Die gütliche Einigung im Staatenbeschwerdeverfahren gegen die Türkei’ (1986) 13 EuGRZ 177, 181, 182.

Inter-State Case-Law under the echr

131

Worth noting is that political pressure at the level of the Parliamentary Assembly of the Council of Europe was exercised more cautiously than in the case of Greece in the late 1960s, a country which equally had witnessed a coup d’état.373 As shown above, the confrontational political climate in the Greek case ultimately led to the alienation of Greece from the Council of Europe and the Convention by a double denouncement. Also, the Assembly showed a certain degree of deference towards the proceedings before the European Commission on Human Rights in the 1982-Turkey case.374 The Commission declared the applications admissible in 1983.375 The contentious proceedings were discontinued upon a friendly settlement in 1985.376 It was the first friendly settlement in inter-State proceedings under ex-Article 28 b) echr. The first two inter-State cases between Greece and the United Kingdom were ended amicably, however, not in accordance with the requirements of the Convention in as much as no report was published.377 The Convention provided in ex-Article 28 b) echr that the Commission ‘shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention’. Ex-Article 30 echr provided that if such a friendly settlement is effected the Commission ‘shall draw up a report which shall be sent to the States concerned, to the Committee of Ministers and to the Secretary-General of the Council of Europe for publication. This Report shall be confined to a brief statement of the facts and of the solution reached’. The report of 1985 is such a report. 4.9.1.2 The Terms of the Friendly Settlement The settlement in the proceedings which had been initiated in 1982 dealt with issues under Article 3 echr, and to a lesser extent to the rest of the allegations in the ambit of Article 15 echr. With regard to Turkey’s obligations under Article 3 echr, reporting obligations of Turkey to the Commission were laid down. The reports were going to be subject to a dialogue between ­Turkey 373 See J-P Pancracio, ‘La Turquie et les Organes Politiques du Conseil de L’Europe’ (1984) 30 afdi 161; see also W Kälin, ‘Die Vorbehalte der Türkei zu ihrer Erklärung gem. Art. 25 emrk’ (1987) 14 EuGRZ 421, in footnote 2; see also L Zwaak (n 318) 213. 374 Parliamentary Assembly, Resolution 822 (1984) adopted on 10 May 1984. 375 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, 6 December 1983, Yb 26 (1986), Pt ii, 1–32; dr 35 (1984), 143–170; partly reprinted in hjil 44 (1984) 350f; the applications were formally joined on 11 July 1983. 376 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, report of the Commission, 7 December 1985 (friendly settlement), dr 44 (1985), 31–53. 377 See Greece v United Kingdom, above.

132

Chapter 4

and the Commission. A final report of the implementation of this part of the settlement was to be prepared until 1 February 1987 by the participants of the dialogue. The final report was to be made available to representatives of the ­Contracting Parties to the Convention, but otherwise remains confidential. With regard to Article 15 echr, the Turkish Prime Minister’s declaration made on 4 April 1985 was cited, according to which the hope was expressed that martial law would be lifted within the following 18 months.378 However, it was not possible to induce the Turkish State to grant a general amnesty for politically motivated criminal cases.379 4.9.1.3

Acceptance of the Right of Individual Petition as Implicit Condition of Friendly Settlement At the time the application was lodged, Turkey had neither accepted the right of individual petition under ex-Article 25 echr nor the jurisdiction of the European Court of Human Rights under ex-Article 46 echr.380 Turkey accepted the right of individual petition under ex-Article 25 echr on 28 ­January 1987. While the acceptance was not explicitly part of the friendly settlement, it was seen as an implicit condition.381 The acceptance of the right of individual petition has also to be seen in the context of the ‘asymptotic’382 negotiations with the (at the time) European Economic Community, in which human rights considerations had played a role.383 In the ensuing individual case law, the ‘conditions’ attached to the acceptance were not held to be valid outside the temporal restriction contained in the declaration.384

378 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, report of the Commission, 7 December 1985 (friendly settlement), dr 44 (1985), 31, 39. 379 See C Rumpf (n 372) 183. 380 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 381 S Koopmans, Diplomatic Dispute Settlement, The Use of Inter-State Conciliation (2008) 191. 382 U Özsu, ‘Ottoman Empire’ in B Fassbender, A Peters (eds), The Oxford Handbook of History of International Law (2012) 429. 383 I Cameron, ‘Turkey and Article 25 of the European Convention on Human Rights’ (1988) 37 International and Comparative Law Quarterly 887, 888. 384 Chrysostomos et al v Turkey, no 15299/89, admissibility decision, 4 March 1991; see J Polakiewicz, ‘Anmerkung zur Zulässigkeitsentscheidung der Europäischen Kommission für Menschenrechte im Fall Chrysostomos u.a./Türkei vom 4. März 1991’ (1991) 51 hjil 145; see also C Rumpf, ‘Die Anerkennung des Individualbeschwerderechts gemäß Artikel 25 emrk durch die Türkei’ (1987) 47 hjil 778; W Kälin, ‘Die Vorbehalte der Türkei zu ihrer Erklärung gem. Art. 25 emrk’ (1987) 17 EuGRZ 421.

Inter-State Case-Law under the echr

133

4.9.1.4 Denmark v Turkey Denmark lodged an inter-State application against Turkey in January 1997, alleging the ill-treatment of a Danish citizen, Mr Kemal Koc, while in custody in Turkey, in contravention of Article 3 echr. The application referred to the time from 8 July to 16 August 1996. Further, Denmark alleged an administrative practice in Turkish detention facilities in contravention of Article 3 echr. The Court declared the application admissible on 8 June 1999.385 On 30 and 31 March 2000, respectively, the agents of the Danish and Turkish governments submitted formal declarations according to which they had reached a friendly settlement. The possibility for such settlements is contained in Article 39 echr. The text of the declarations is rendered in the Court’s judgment of 5 April 2000.386 The judgment was the only inter-State judgment so far, which was rendered by a Chamber instead of the Grand Chamber. The applicant government received an ex gratia payment of 450,000 Danish Kroner. The Turkish government expressed regret concerning ‘occasional and individual cases of torture and ill treatment’.387 Beyond the case of Mr Koc, Denmark and Turkey agreed that the best way to prevent inappropriate police interrogation techniques was training. For this purpose, Denmark promised to make a ‘significant financial contribution’ to a Council of Europe project which aims at better training of police staff. Further, Denmark and Turkey started a bilateral project dedicated to human rights training of police staff financed by the applicant. Moreover, Denmark and Turkey vowed to establish a continuous bilateral Danish-Turkish police dialogue. Human rights issues in individual cases as well as general issues were to be raised within that dialogue. 4.9.2 Context: A Coup d’état and Its Long-Term Consequences Turkey was invited to join the Council of Europe in 1949. Turkish parliamentarians attended the first session of the Consultative Assembly in August 1949.388 Turkey was a member of the Council of Europe since 1949 and a nato member since 1954. The respondent State operated the largest armed forces in Europe

385 The Denmark v Turkey, no 34382/97 admissibility decision, 8 June 1999, (not reported, available on hudoc). 386 Denmark v Turkey, no 34382/97, 5 April 2000, echr 2000 iv, §§ 21f. 387 Denmark v Turkey, no 34382/97 (n 386) § 21, para 3 of the friendly settlement declaration; see also documentation of the settlement in (2000) 21 hrlj 58. 388 B Wassenberg, History of the Council of Europe (2013) 31.

134

Chapter 4

and the second largest in nato after the United States at the time the applications were lodged.389 In 1982, two years after the military had seized power, a new constitution was confirmed by referendum. Contemporary commentators criticized the new constitution as a shell for the military regime in the country.390 The first elections to a new parliament were held in 1983. The country transitioned towards democracy. However, in 1983, the International Commission of Jurists, a non-governmental organization advocating for human rights, held the numbers of deaths in custody to be ‘frightening’.391 Mr Koc was born in Turkey and moved to Denmark. He acquired Danish citizenship in 1992 by naturalization. Mr Koc was a member of the Union of Kurdish Associations in Denmark. In July 1996, Mr Koc travelled to Turkey. Upon arrival, he was detained. After his six-week detention, he was allowed to leave the country. In criminal proceedings against Mr Koc, which were held in his absence, he was sentenced to a four-year prison term for offences against the Turkish State.392 The evidence used in the criminal proceedings appears to have been exclusively the ‘sincere statements made and explanations given by the defendant to the police’.393 Denmark submitted medical records as evidence, which indicated with ‘great certainty that he [Mr Koc] has been exposed to physical and mental torture while in the custody of the Turkish police’.394 These medical records were countered by medical opinions by Turkish doctors stating the opposite.395 On the instructions of the Danish embassy in Ankara, a Turkish lawyer filed a formal complaint of ill-treatment by the police.396 The complaint led to criminal proceedings against two Turkish police officers. In first instance, the two officers were acquitted; at the time the application was lodged the appeal had not come to a conclusion yet.397

389 D Ganser, ‘Terrorism in Western Europe: An Approach to nato’s Secret Stay Behind Armies’ (2005) 6 Whitehead Journal of Diplomacy and International Relations 69, 73. 390 W Damkowski, ‘Die neue türkische Verfassung – „Fahrplan zur Demokratie“?’ (1984) 11 EuGRZ 2f. 391 Study by the International Commission of Jurists, States of Emergency, Their Impact on Human Rights (1983) 330. 392 Denmark v Turkey, no 34382/97 admissibility decision (n 385) 18–20, the sentence was upheld on appeal. 393 Denmark v Turkey, no 34382/97 admissibility decision (n 385) 19. 394 Denmark v Turkey, no 34382/97 admissibility decision (n 385) 6. 395 Denmark v Turkey, no 34382/97 admissibility decision (n 385) 12f. 396 Denmark v Turkey, no 34382/97 admissibility decision (n 385) 20. 397 Denmark v Turkey, no 34382/97 admissibility decision (n 385), 25.

Inter-State Case-Law under the echr

135

4.9.3 Collective Enforcement Functions 4.9.3.1 Consolidation of the Notion of Administrative Practices In the inter-State proceedings, which were initiated in 1982, the Commission clarified the notion of administrative practices akin to a judicial body that consolidates its case law and aims for a coherent jurisprudence.398 The Commission found that there was an administrative practice in contravention of Article 3 echr at the admissibility stage because there was prima facie evidence of a repetition of acts and a corresponding official tolerance. It thereby provided more legal certainty for future applications. The disadvantage of the notion of administrative practices is that the establishment of prima facie evidence of administrative practices at the admissibility stage is time consuming.399 However, the alternative of the exhaustion of domestic remedies would equally take time. The 1997 inter-State application arguably benefitted from the clarification as Denmark successfully relied on the concept, using the case of Mr Koc as an illustrative case for a practice of ill-treatment in Turkish prisons. Noteworthy is that Mr Koc could have lodged an individual application under ex-Article 25 echr as Turkey had accepted the optional possibility back in 1987. The successful reliance of Denmark on the notion of administrative practices shows the added value of the inter-State application in comparison to the limited reach of the individual application in view of large-scale human rights violations. 4.9.3.2 Collective Enforcement Without Reciprocity With its instrument of ratification, France had entered a reservation regarding Article 15 echr in 1974, whereby it did not accept the right of the Convention organs to examine the measures taken by it in an emergency situation. Turkey submitted that France was estopped from bringing a case against Turkey in as much as the material issues covered by the applications fall within the ambit of France’s reservation. The Commission looked at the issue from the perspective of reciprocity, not estoppel. The Commission concluded that France was not barred from bringing a case against Turkey under ex-Article 24 echr.400 398 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, Yb 26 (1986), Pt ii, 1–25f; dr 35 (1984), 143, 165. 399 See also H Lindemann, ‘Die Zulässigkeitsentscheidung der Europäischen Menschenrechtskommission im Fall der Staatenbeschwerden Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei vom 6. Dezember 1983’ (1984) 44 hjil 346, 348; C Rumpf, ‘The Protection of Human Rights in Turkey and the Significance of International Human Rights Instruments’ (1993) 14 hrlj 394, 402. 400 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, Yb 26 (1986), Pt ii, 1–31; dr 35 (1984), 143, 169.

136

Chapter 4

The Commission stated that the general principle of reciprocity in international law and the rule, stated in Article 21 of the Vienna Convention on the Law of Treaties concerning bilateral relations under a multilateral treaty, do not apply to the obligations under the European Convention on Human Rights.401 Further, the Commission recalled that the enforcement machinery provided for in the Convention is founded upon the system of a collective guarantee. The High Contracting Parties were not to be regarded as exercising a right of action for the purpose of enforcing their own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe.402 4.9.4 International Dispute Settlement Functions 4.9.4.1 The 1985-Settlement: Weighing the Options The main achievement of the settlement in the first set of proceedings against Turkey was seen in the Turkish acceptance of the right of individual petition in the aftermath of the settlement.403 The international media interpreted the settlement as a Turkish victory.404 Christian Rumpf, an expert commentator about Turkey, had a positive outlook for the successful implementation of the agreement.405 Criticism concerned the lack of the possibility of enforcement, the passive role of the Commission406 and that the agreement was ‘wanting in terms of substantive results and assurances’.407 Likewise, the lack of compensation for individual victims was not received positively.408 Another consideration was that the dialogue between the States was to be confidential.409 401 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, Yb 26 (1986), Pt ii, 1–30; dr 35 (1984), 143, 169. 402 France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, Yb 26 (1986), Pt ii, 1–30, 31; dr 35 (1984), 143, 169. 403 S Koopmans (n 381) 191. 404 See R Kühner, ‘Die gütliche Einigung nach Art. 28 b) emrk vom 7. Dezember 1985 im Fall der Staatenbeschwerden Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei’ (1986) 46 hjil 75, with further references. 405 C Rumpf (n 372) 185; see also C Rumpf, ‘Die Anerkennung der Zuständigkeit des Europäischen Gerichtshofes für Menschenrechte gem. Ar. 46 emrk durch die Türkei’ (1990) 17 EuGRZ 53. 406 L Zwaak (n 318) 213. 407 S Leckie (Chapter 1, n 14) 293. 408 H Keller, M Forowicz, L Engi, Friendly Settlements before the European Court of Human Rights (2010) 74. 409 M Kamminga (n 310) 158.

Inter-State Case-Law under the echr

137

In the specific situation of Turkey, the settlement was arguably the best alternative to induce change in favor of individual human rights protection.410 The other options available at the relevant time were not very promising: during the first set of proceedings initiated in 1982, Turkey had neither accepted the Court’s jurisdiction under ex-Article 46 echr nor the right of individual petition under ex-Article 25 echr. The case would, after a (lengthy) factfinding effort by the Commission, end up before the Committee of Ministers. The (at the time) three inter-State applications of Cyprus against Turkey411 had shown that the Committee of Ministers, a political body, could not be expected to make a significant contribution to improve the human rights situation in Turkey. 4.9.4.2 Impact of the 1985-Friendly Settlement In hindsight, the widespread practice of ill-treatment in Turkey continued.412 In 1992, the European Committee for the Prevention of Torture (cpt) published ‘one of the most damning reports ever issued by a human rights body’413 about the situation in Turkey.414 The Commission’s decision of 1985 to approve the settlement has been contrasted with the outspokenness of the 1992 report by the cpt.415 Christian Rumpf commented in 1993 that ‘the friendly settlement did not cause any remarkable change in the main legal and administrative structures which render the full implementation of human rights and the effective prohibition of torture and ill-treatment impossible’.416

410 See also H Keller, M Forowicz, L Engi, Friendly Settlements before the European Court of Human Rights (2010) 74; A Kiss, ‘Conciliation’, in R Macdonald et al (eds) The European System for the Protection of Human Rights (1993) 703, 711. 411 Discussed above, Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75; Cyprus v Turkey (iii), no 8007/77. 412 Widespread violations of the echr occurred in the Southeast of Turkey with regard to the Kurdish minority in Turkey, see A Reidy, F Hampson, K Boyle, ‘Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’ (1997) 15 nqhr 161; see also S Prebensen (Chapter 1, n 14) 457. 413 M Kamminga (n 310) 159. 414 European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment, public statement on Turkey, 15 December 1995, reprinted in (1993) 14 hrlj 49. 415 M Kamminga (n 310) 159. 416 C Rumpf, ‘The Protection of Human Rights in Turkey and the Significance of International Human Rights Instruments’ (1993) 14 hrlj 394, 402.

138

Chapter 4

4.9.4.3

Oversight of Implementation: The Role of the Applicant States and the 1997 Follow-Up Case The Commission’s role in the supervision of the implementation of the first settlement of 1985 was problematic. On a formal level, the Commission had no competence for this task. Some argued in favor of an ancillary competence417 or a competence grounded in the agreement between the parties of the settlement.418 A supervision of the implementation of the friendly settlement agreement by the Committee of Ministers according to ex-Article 54 echr was rejected, even if an analogous application would have been desirable.419 Today, the Committee of Ministers supervises the execution of the terms of a friendly settlement according to Article 39 § 4 echr. Thus, this shortcoming was remedied by reform. At the time, the member States were in the position of (ultimate) supervisors of the agreement reached. This general responsibility also explains the second set of inter-State proceedings initiated in 1997, which by Denmark against Turkey. In that follow-up case, systemic issues in the ambit of Article 3 echr were at issue again. Evaluation: Friendly Settlements: Efficient for the Collective Enforcement of Human Rights, but Not Universal Remedies Especially the first set of proceedings was deemed to reflect ‘l’ésprit du recours’,420 illustrating the function of the procedure to address large-scale human rights issues without connected private ends.421 Friendly settlements are seen as evidence that the echr is not an adversarial instrument of accusation and prosecution of High Contracting States, but a collective fulfillment of their undertakings.422 Thus, the case shows that the

4.9.5

417 J Frowein, ‘Der freundschaftliche Ausgleich im Individualbeschwerdeverfahren nach der Menschenrechtskonvention und das deutsche Recht’ (1969) jz 213, 215, cf C Rumpf (n 371) 185. 418 R Kühner (n 404) 79; C Rumpf (n 372)185. 419 C Rumpf (n 372)185. 420 H Labayle, Article 24 in L Pettiti et al (eds) La Convention européenne des droits de l’homme: commentaire article par article (2nd ed, 1999) 571, 572. 421 Jd., simlarly F Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (2004) 148. 422 S Dollé, ‘Friendly settlement 14 years on in the European Commission on Human Rights’ in M da Silva, M Villiger (eds) The Birth of European Human Rights Law – Liber Amicorum Carl Aage Norgaard (1998) 243, 244.

Inter-State Case-Law under the echr

139

combination of flexibility and the idea of collective instead of adversarial litigation can be beneficial for the implementation of human rights. It is a pragmatic approach, which takes into account that the inter-State application as a remedy has its limits.423 Even if the settlements were not universal remedies, they reached into the future, thus, beyond the designated time subject to the initial application. Further, the settlements were less resource consuming than proceedings on the merits, with lengthy fact-finding efforts. Another resource-related aspect is that the second case was not referred to the Grand Chamber, but was dealt with by a Chamber. Ultimately, the applicants benefitted in as much as the friendly settlement reduced the risk that the application would fail in light of the Turkish derogation under Article 15 echr. Strasbourg had taken a very deferential approach in view of derogations before; the Greek inter-State case in the late 1960s was and remains the only case where a derogation was held to have been invalid. 4.10

Georgia v Russia (2008–Present)

The cases lodged by Georgia against Russia are part of a new ‘wave’424 of interState cases in Strasbourg. The proceedings show that the accession of the States from the former Soviet Union to the Convention and the Council of ­Europe brought along many frozen and not-so-frozen conflicts. Interim measures under Rule 39 of the Rules of the Court are considered with a special focus. Their legal nature is unclear. The Convention does not provide for any type of interim measure. The Court’s jurisprudence about the binding character of interim measures in individual applications under Article 34 echr425 cannot be translated to inter-State applications. The clarification of the object and purpose of the inter-State application under Article 33 echr should also include a statement about the role of the Court in view of acute conflict in order to preserve the credibility of the Court. 423 M Nowak, ‘The European Convention on Human Rights and its Control System’ (1989) 7 nqhr (n 142) 98, 99. 424 D Spielmann, ‘The European Court of Human Rights as guarantor of a peaceful public order in Europe’, Speech to Gray’s Inn, 7 November 2014, echr.coe.int/Documents/ Speech_20141107_Spielmann_GraysInn.pdf. 425 Mamatkulov and Askarov v Turkey nos 46827/99, 46951/99, judgment [gc] 4 February 2005.

140

Chapter 4

Georgia joined the Council of Europe and the echr in 1999.426 Russia ratified the echr in 1998. The Council of Europe had accepted Russia ‘inside the tent’ in 1996, despite the Chechen war, which was in full swing at the time.427 In 2000, when hostilities in Chechnya reached a further climax, the Parliamentary Assembly of the Council of Europe urged the High Contracting Parties to the Convention to make use of the inter-State application under Article 33 echr, however, with no avail.428 Russia has a sobering human rights record. Currently, of all pending individual cases before the Court, cases against Russia comprise roughly 13% of the Court’s caseload.429 Of the nine sets of interState application currently pending in Strasbourg, seven are against Russia. 4.10.1 Overview and Documentation Overall, Georgia brought three inter-State applications against Russia.430 4.10.1.1 Georgia v Russia (i) Georgia lodged the first inter-State application against Russia in March 2007. The case concerned the arrest, detention and expulsion of several thousand Georgian nationals from Russia in the context of tensions between the two countries at the end of 2006 and early 2007.431 The Court declared the application admissible in 2009.432 The Grand Chamber rendered a judgment on the 426 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 427 B Bowring, ‘Georgia, Russia and the Crisis of the Council of Europe: Inter-State Applications, Individual Complaints, and the Future of the Strasbourg Model of Human Rights Litigation’, in J Green, C Waters (eds) Conflict in the Caucasus – Implications for the International Legal Order (2010) 114, 117. 428 Parliamentary Assembly of the Council of Europe, Rec 1456 (2000), 6 April 2000, ‘Urgent appeal to member states ‘to make use of Art. 33’ echr (inter-state complaint) v. Russia/ Violation of human rights in the Chechen Republic’, reprinted in (2000) 21 hrlj 286. 429 Statistical information by the European Court of Human Rights, echr.coe.int/Documents/Stats_pending_2016_BIL.pdf; cases against Georgia amount to 3% of the Court’s overall caseload. 430 Georgia v Russia (i), no 13255/07; Georgia v Russia (ii), no 38263/08; Georgia v Russia (iii), no 61186/09. 431 Georgia v Russia (i), no 13255/07 raised issues under Articles 3 (prohibition of torture, inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 18 (limitation on use of ­restrictions on rights) of the Convention and under Articles 1 and 2 of Protocol No 1 (protection of property and right to education), Article 4 of Protocol No 4 (prohibition of collective expulsion of aliens) as well as under Article 1 of Protocol No 7 (procedural safeguards relating to expulsion of aliens). 432 Georgia v Russia (i), no 13255/07 (dec), 30 June 2009.

Inter-State Case-Law under the echr

141

merits in 2014.433 By a majority of 16 votes to one, the Court found that the expulsions of Georgian nationals from Russia had amounted to an administrative practice in contravention of Article 4 Protocol No 4 to the Convention, the prohibition of collective expulsions. Among other violations, the Court found, by the same majority, that the conditions of the detention of the Georgian nationals in Russia were both inhuman and degrading and amounted to an administrative practice in breach of Article 3 echr. It further found Russia in violation of the duty to cooperate with the Court as enshrined in Article 38 echr and placed the violation at the top of the operative part of the judgment. Article 38 echr provides that ‘[t]he Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities’. The French version of Article 38 echr,434 which is equally authoritative, refutes the argument that the shall in Article 38 echr would not contain a binding obligation of the High Contracting Parties to cooperate with the Court. The judges of the majority motivated their finding of a violation of Article 38 echr by Russia with the persistent refusal of the respondent government to provide two circulars, which set in motion the systematic expulsion of Georgian nationals.435 In § 140 of the judgment the Court stated ‘[…] that following its finding of a violation of Article 38 of the Convention, there is a strong presumption that the applicant Government’s allegations regarding the content of the circulars ordering the expulsion specifically of Georgian nationals are credible’. The case is pending with regard to just satisfaction under Article 41 echr. Under Article 34 echr, 23 individual applications have been lodged which factually overlap with the first set of inter-State proceedings. Three of the applicants were heard as witnesses in the inter-State case.436 4.10.1.2 Georgia v Russia (ii) The second inter-State case between Georgia and Russia concerns the armed conflict between the two countries in summer 2008. Georgia lodged the application on 11 August 2008, at the outbreak of hostilities. The application was 433 Georgia v Russia (i) [gc], no 13255/07, (judgment) 3 July 2014. 434 Article 38 echr: ‘La Cour examine l’affaire de façon contradictoire avec les représentants des parties et, s’il y a lieu, procède à une enquête pour la conduite efficace de laquelle les Hautes Parties contractantes intéressées fourniront toutes facilités nécessaires’. 435 Georgia v Russia (i) [gc], no 13255/07, § 96f (n 433). 436 Georgia v Russia (i) [gc], no 13255/07, § 79 (n 433).

142

Chapter 4

accompanied by a request for an interim measure under Rule 39 of the Rules of Court.437 On 12 August 2008, the President of the Court decided to apply Rule 39 of the Rules of the Court and called upon both Russia and Georgia to comply with their engagements under the Convention, particularly with respect to Articles 2 and 3 of the Convention. The application of Rule 39 of the Rules of the Court has been prolonged several times. Georgia alleged that Russia allowed or caused to develop, an administrative practice in violation of Articles 2, 3, 5, 8 and 13 of the Convention, and of Articles 1 and 2 of Protocol No 1 and of Article 2 of Protocol No 4 to the Convention through indiscriminate and disproportionate attacks against civilians and their property in the two autonomous regions of Georgia, Abkhazia and South Ossetia.438 Russia maintains that the armed forces of the Russian Federation did not launch attacks but defended the civilian population of South Ossetia and Abkhazia against Georgian offensives. The Court held the application admissible in 2011.439 The case is pending before the Court as of summer 2017. The Court has received a large number of individual applications in connection with the armed conflict in 2008. On Russia’s behalf,440 three lawyers from South Ossetia filed more than 3,300 individual complaints under Article 34 echr in the name of Russian soldiers. The Court has so far dismissed 1,549 of these cases for lack of response to requests for more information.441 The remaining cases appear to be pending. 4.10.1.3 Georgia v Russia (iii) The third set of inter-State proceedings concerned Russia’s alleged detention of four children in South Ossetia. Inter alia, Georgia had requested the Court to ‘demand the Russian Federation to comply with its obligations under the European Convention on Human Rights, including the decision of the

437 Press Release echr 291 (2011), 19 December 2011. 438 Georgia raises issues under Article 2 (right to life), 3 (prohibition of torture and of inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life) and 13 (right to an effective remedy) of the European Convention on Human Rights, as well as on Article 1 of Protocol No 1 (protection of property), Article 2 of Protocol No 1 (right to education) and Article 2 of Protocol No 4 (freedom of movement) to the Convention. 439 Georgia v Russia (ii), no 38263/08 (dec), 13 December 2011. 440 B Arp, ‘Georgia v. Russia (i)’ (2015) 109 ajil 167, 171. 441 Khetagurova and others v Georgia, nos 43253/08 et al, (dec) of 14 December 2010; Abayeva and others v Georgia, nos 52196/08 et al, (dec) 23 March 2010.

Inter-State Case-Law under the echr

143

Court of 12 August 2008 [(to apply Rule 39 of the Rules of the Court (interim measures)]’.442 Georgia withdrew the case in 2009. 4.10.2 Context: The Frozen and Not so Frozen Conflicts in the Aftermath of the Breakup of the Soviet Union During and after the disintegration of the Soviet Union, especially between 1989 and 1991, Georgia was torn by the self-ruling aspirations of South Ossetia and Abkhazia, which had enjoyed autonomous status during the Soviet rule. South Ossetia and Abkhazia were recognized as parts of Georgia after the breakup of the Soviet Union even tough Georgia had no control over the territories.443 The ensuing relationship of the Russian Federation and Georgia was marked by an anti-Russian attitude on the Georgian side. Georgia contends that Russia actively supports the separatist movements, for example through the distribution of Russian passports.444 The Russian Federation tried to secure its influence in Georgia by exploiting ethnic conflicts within Georgia.445 After a pro-Western change of power in Georgia in 2003, relations between Russia and Georgia deteriorated. In the summer of 2006, the political tensions between Georgia and Russia reached a climax with the arrest of four Russian officers in Tbilisi by Georgian authorities. Upon these events, the Russian Federation suspended, on 3 October 2006, all aerial, road, maritime, railway, postal and financial links with Georgia. The Russian Federation started to expel Georgian nationals from its territory in the time between September 2006 and January 2007. These circumstances suggest that the collective expulsion of Georgian nationals was one of many countermeasures against Georgia for the detention of the Russian servicemen.446 On 8 August 2008, the situation concerning South Ossetia erupted into a five-day military conflict.447 Georgia has tried to gain or regain control over the region and contributed to the escalation of the conflict.448 At the end of 442 Georgia v Russia (iii), no 61186/09, (dec) 16 March 2010. 443 A Nußberger, ‘Völkerrecht im Kaukasus – Postsowjetische Konflikte in Russland und in Georgien’ (2008) 35 EuGRZ 457; see also K Meesen, ‘Der territoriale Status quo als Quelle von Konflikt und Krieg’, 15 April 2009, Neue Züricher Zeitung, no 86, 5, 6. 444 J Green, ‘Passportisation, Peacekeepers and Proportionality: The Russian Claim of the Protection of Nationals Abroad in Self-Defence’, in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the International Legal Order (2010) 54, 55. 445 J Kranz, ‘Der Kampf um den Frieden und sein besonderer Facilitator’ (2008) 46 AvR 481. 446 Georgia v Russia (i) [gc], no 13255/07, § 22f (n 433). 447 See for further background P Leach, ‘South Ossetia, 2008’ in E Wilmshurst, International Law and the Classification of Conflicts (2012) 317ff. 448 O Luchterhandt, ‘Völkerrechtliche Aspekte des Georgien-Krieges’ (2008) 46 AvR 435, 450.

144

Chapter 4

August 2008, the Russian Federation recognized South Ossetia and the other separatist region, Abkhazia, as sovereign states. Their status is unclear.449 Georgia’s geographical situation east of the Black Sea in the South Caucasus is relevant for Europe as a transit country for energy.450 In summer 2008, Nicloas Sarkozy, the French President and the rotating president of the Council of the European Union at the time, brokered a ceasefire between Russia and Georgia. In December 2008, the Independent International Fact-Finding Mission on the Conflict in Georgia (iiffmcg) was established by the Council of the European Union.451 The iiffmcg’s report was finalized in September 2009.452 According to the report, about 850 persons died as a result of the armed conflict while more than 100,000 civilians fled their homes. 4.10.2.1 Parallel Proceedings before the International Court of Justice In the wake of the 2008-armed conflict, Georgia took action both in Strasbourg and The Hague. Georgia sought to use the compromissory clause of the International Convention on the Elimination of All Forms of Racial Discrimination to access the International Court of Justice. The icj granted interim measures under Article 41 icj-St in October 2008.453 It appears that Russia ‘blatantly failed to comply’454 with the interim request of the icj. In 2011, it dismissed the case. It found by ten votes to six that it had no jurisdiction because the procedural requirements of Article 22 cerd were not met.455 449 A Nußberger, ‘South Ossetia’ (2013) mpeil, § 1; A Nußberger, ‘The war between Russia and Georgia – Consequences and Unresolved Questions’ (2009) 2 GoJIL 341; see also R ­McCorquodale, K Hausler, ‘Caucuses in the Caucasus: The Application of the Right of Self-Determination’ in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the International Legal Order (2010) 26. 450 P Schulze, ‘Geopolitics at work: the Georgian-Russian Conflict’ (2009) 2 GoJIL 329, 332. 451 Council Decision 2008/901/CFSP of 2 December 2008 concerning an independent international fact-finding mission on the conflict in Georgia, oj L 323, 3 December 2008, 66. 452 The three volumes of the iiffmcg report of 30 September 2009 are archived at www .mpil.de/en/pub/publications/archive/independent_international_fact.cfm. 453 See for further background S Ghandi, ‘The International Court of Justice and the Provisional Measures Order in the Georgia v Russian Federation case’, in J Green, C Waters (eds) Conflict in the Caucasus – Implications for the International Legal Order (2010) 80; T Thienel, ‘Provisional Measures in the ‘Case Concerning Application of the International Convention on the Elimination of All forms of Racial Discrimination’ (Georgia v. Russian Federation)’ (2009) 1 GoJIL 143. 454 E Leonhardsen, ‘Trials of Ordeal in the International Court of Justice: Why States seek provisional measures when non-compliance is to be expected’ (2014) 1 jids 1, 3. 455 Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Preliminary Objections,

Inter-State Case-Law under the echr

145

4.10.2.2 Investigations at the International Criminal Tribunal In October 2015, after eight years of investigation, the Office of the Prosecutor at the International Criminal Court in The Hague requested on its own initiative an authorization from the Pre-Trial Chamber pursuant to Article 15(3) of the Rome Statute,456 to proceed with an investigation into the situation in Georgia covering the period from 1 July 2008 to 10 October 2008, for war crimes and crimes against humanity allegedly committed in and around South Ossetia.457 Georgia had ratified the Rome Statute in 2003. The Pre-Trial chamber at the Court authorized the investigations in January 2016.458 Russia had been a signatory, but never was a member. In November 2016, Russia announced to withdraw its signature. 4.10.3 Collective Enforcement Functions 4.10.3.1 Administrative Practices In the admissibility decision of Georgia v Russia (i), the Court further clarified the notion of administrative practices in the context of the allegations of mass expulsions.459 The notion of administrative practices is important because if the Court is satisfied, prima facie, that an administrative practice in contravention of the Convention or to its Protocols exists, the requirement of the exhaustion of domestic remedies is dispensed with. For the standard of prima facie evidence the Court was satisfied with a 2007 report of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (pace).460 The use of the report in order for the application to reach the merits stage shows how political and judicial enforcement mechanisms can complement each other. It is worthwhile to underline that decision on the admissibility does not prejudge the merits. Thus, the use of materials from third entities at the admissibility

456 457 458 459 460

Judgment, 1 April 2011; icj Reports 2011, 70; see A Zimmermann, ‘Zuständigkeit des Internationalen Gerichtshofs und Treaty Bodies’ in M Breuer et al (eds) Der Staat im Recht, Festschrift für Eckart Klein zum 70. Geburstag (2013) 953 (Zimmermann was counsel for the Russian Federation in the proceedings before the International Court of Justice). Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 3. International Criminal Court, Office of the Prosecutor, 16 October 2015, ‘Situation in Georgia’, Doc no ICC-01/15, www.icc-cpi.int/iccdocs/doc/doc2090710.pdf. International Criminal Court, Pre-Trial Chamber i, 27 January 2016, ‘Situation in Georgia’, Doc no ICC-01/15, www.icc-cpi.int/CourtRecords/CR2016_00608.pdf. Georgia v Russia (i), no 13255/07 (dec), 30 June 2009, §§ 40f. Monitoring Committee of the Parliamentary Assembly of the Council of Europe ‘Current tensions between Georgia and Russia’, 22 January 2007, As/Mon(2006)40 rev. The report is also relevant in the judgment of the merits.

146

Chapter 4

stage is a matter of efficiency, above all the timely administration of justice. The approach is also in line with the design of the inter-State application and its very low admissibility ‘hurdles’. The Court is not dispensed with the task to ascertain the facts at the merits stage of the proceedings, where the standard of proof is beyond reasonable doubt. At the merits stage, the Court underlined that in the context of the determination whether there existed an administrative practice, it would not rely on the concept of burden of proof, but rather studied all materials before it, ‘from whatever source it originates’.461 The Court also relied on data from non-governmental organizations.462 In addition, it considered the conduct of the parties in relation to the Court’s efforts to obtain evidence and found that Russia had not complied with its procedural obligation under Article 38 echr.463 4.10.3.2 The Interim Measure in View of an Armed Conflict The interim measure in the Georgia v Russia (ii) inter-State application was ‘like no other Rule 39 request ever submitted’.464 The Court requested information and reminded both parties to live up to their obligations undertaken with the Convention. The fact that the measure was addressed to both countries was seen as evidence of the actio popularis character of the inter-State application.465 However, Rule 39 § 1 of the Rules of the Court explicitly provides for the possibility to request interim measures ex officio, also in individual applications. 4.10.3.3 The Interim Request for Information It appears that both Russia and Georgia complied with the request for information of the Court in its provisional measures order of summer 2008.466 The legal basis for the request is Rule 39 § 3 of the Rules of the Court. A legal obligation

461 462 463 464

Georgia v Russia (i) [gc], no 13255/07, § 95 (n 433). Georgia v Russia (i) [gc], no 13255/07, § 29 (n 433). Georgia v Russia (i) [gc], no 13255/07, § 95 (n 433). E Myjer, ‘The European Court of Human Rights and armed conflicts between high contracting parties: some general remarks’, in Mélanges en l’honneur de Jean-Paul Costa, La conscience des droits (2011) 461, 462. 465 A Saccucci, ‘Le misure provvisorie della Corte europea dei diritti umani nell’ambito della procedura di ricorso interstatale Georgia c. Russia’ (2009) 3 Rivista quadrimestirale diritti umani e diritto internazionale 129, 137. 466 Georgia v Russia (ii), no 38263/08 (dec), 13 December 2011, §§ 6f, see also editors’ note in (2008) 35 EuGRZ 556.

Inter-State Case-Law under the echr

147

to cooperate with the Court at the level of the Convention is enshrined in ­Article 38 echr.467 Article 38 echr states that ‘[t]he Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities’. The French version of the text,468 which is equally authoritative, is slightly more vigorous. It thereby refutes the argument that the ‘shall’ in Article 38 echr would not contain a binding obligation to cooperate. The procedural obligations incumbent on all member states extend to the time before the Court has reached an admissibility decision, thus also to interim phase of proceedings. In this context, attention needs to be drawn to the change Article 38 echr underwent with Protocol No 14 to the Convention,469 which entered into force in 2010. The protocol amended the Convention in as much as the obligation of member states to cooperate with the Court is no longer limited to the post-admissibility phase. The explanatory report to Protocol No 14 states in § 90: The changes are intended to allow the Court to examine cases together with the Parties’ representatives […]. Since this provision applies even before the decision on admissibility has been taken, High Contracting Parties are required to provide the Court with all necessary facilities prior to that decision. The Parties’ obligations in this area are thus reinforced.470 467 An overview about the sparse academic comment about procedural obligations can be found in H De Vylder, Y Haeck, ‘The Duty to Cooperation of the Respondent State During the Proceedings Before the European Court of Human Rights’, in Y Haeck, E Brems (eds), Human Rights and Civil Liberties in the 21st Century (2014) 37; O Chernishova, N Vajic, ‘The Court’s evolving response to the states’ failure to cooperate’, in D Spielmann et al (eds) The European Convention on Human Rights, a living instrument, Essays in honor of Christos L. Rozakis (2011) 47; see also L Damrosch, ‘Obligations of Cooperation in International Protection of Human Rights’ in J Delbrück, U Heinz (eds), International Law of Cooperation and State Sovereignty (2002) 15. 468 ‘La Cour examine l’affaire de façon contradictoire avec les représentants des parties et, s’il y a lieu, procède à une enquête pour la conduite efficace de laquelle les Hautes Parties contractantes intéressées fourniront toutes facilités nécessaires’. 469 Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention, 13 May 2004, cets No 194. 470 The explanatory report to Protocol No 14 is available at conventions.coe.int/Treaty/EN/ Reports/Html/194.htm.

148

Chapter 4

4.10.3.4 Supervisory Deterrent Effect of Interim Measure The Court admonished both Georgia and Russia to live up to their obligations under the Convention. The measure was not aimed to preserve the situation. Rather, the Court sought to safeguard human rights, which were endangered by both Georgia and Russia. It can only be hoped that the measure, together with the request for information, unfolded a certain degree of supervisory deterrent effect, however, to measure and document such an effect goes beyond the possibilities of the present study. Judge Myjer, writing extrajudicially, saw the interim measure as a ‘paper tiger’ and doubted ‘that interim measure had the slightest effect on the leaders of the two Contracting States, who were at the moment involved in serious armed hostilities’.471 During the third set of inter-State proceedings between Georgia and Russia, which was later withdrawn, Georgia sought to enforce the interim measure.472 The Georgia approach indicates the need of an authoritative containment of the events. The case begs the question whether (legally binding) interim measures in the context of inter-State proceedings by the European Court of Human Rights are an appropriate means to deal with an ongoing armed conflict. 4.10.4 Dispute Settlement Functions 4.10.4.1 Strasbourg as an Attractive Forum The Georgia v Russia (ii) case shows that the functions sought by Georgia in The Hague and Strasbourg are not dissimilar because both Courts were approached. Strasbourg has a decisive advantage over The Hague: while the latter’s operation is dependent on consent,473 the former equipped with compulsory jurisdiction and thus easily accessible. The Strasbourg court performs certain judicial functions, even if it operates with the limited yardstick of the Convention. The yardstick of the Strasbourg Court is not a disadvantage over the International Court of Justice: in the hypothetical case that the compromissory clause’s requirements were met, the icj would have been limited to the four corners of the cerd, similarly as the Strasbourg Court is limited to the echr. 471 E Myjer, ‘Human Rights without Peace? The European Court of Human Rights and Conflicts Between High Contracting Parties’ in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 1, 32. 472 Georgia v Russia (iii), no 61186/09, (dec) 16 March 2010. 473 P Okowa, ‘The International Court of Justice and the Georgia/Russia Dispute’ (2011) 11 hrlr 739, 757.

Inter-State Case-Law under the echr

149

From the point of view of the Convention, neither Article 55 echr nor Article 35 § 2 b) echr bar Georgia’s strategy to access several fora. Article 35 § 2 b) echr only applies to individual applications. The collision norm of Article 55 echr is limited to disputes ‘arising out of the interpretation or application of this Convention’. It is worthwhile to note, however, that Strasbourg Court held the Georgia v Russia (ii) application admissible after the International Court of Justice had decided not to proceed to the merits of the case. 4.10.4.2

Mass Channeling of Individual Complaints Instead of Counterclaims The Strasbourg Court has its limitations in the context of dispute settlement in as much as it cannot take into consideration counterclaims by the respondent State. In Georgia v Russia (i), the Strasbourg Court noted that the collective expulsion of Georgian nationals by Russia was most likely a countermeasure for previous Georgian conduct, however, could not draw any conclusions from this finding. The missing possibility of the advancement of counterclaims in inter-State proceedings is one possible explanation why Russia took recourse to use mass individual applications against Georgia in the context of the second inter-State case. One commentator labeled this strategy as ‘mass channeling of human rights complaints’.474 The Russian approach shows the need to clarify the relationship of individual and inter-State cases if they relate to the same set of facts. 4.10.4.3 The Challenge of Fact-Finding Fact-finding is a central tool of international human rights bodies to perform their supervisory functions.475 However, it is a resource-consuming task. For example, in Georgia v Russia (i), the Court appointed a delegation of five judges to hear witnesses from 31 January to 4 February 2011.476 In Georgia v Russia (ii), seven judges took evidence from witnesses from 6 to 17 June 2016.477 474 C Waters, ‘The Caucasus Conflict and the Role of Law’ in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the International Legal Order (2010) 8, 18; see also B Arp, ‘Georgia v. Russia (i)’ (2015) 109 ajil 167, 171. 475 K Rogge, ‘Fact-finding’ in R Macdonald et al (eds), The European System of the Protection of Human Rights (1993) 677; R Wolfrum, ‘The Taking and Assessment of Evidence by the European Court of Human Rights’, in S Breitenmoser et al (eds), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber (2007) 915. 476 Georgia v Russia (i) [gc], no 13255/07, § 79 (n 433), annex to the judgment. 477 Press Release echr 211, 17 June 2016.

150

Chapter 4

In comparison to individual cases under Article 34 echr, the Court finds itself more often in a position akin to a Court of first instance in inter-State cases due to the fact that more exceptions to the requirement of the exhaustion of domestic remedies are available. In Georgia v Russia (ii), the additional difficulty arises out of the challenge to ascertain the factual basis for territorial jurisdiction within the meaning of Article 1 echr in the regions of South Ossetia and Abkhazia. The overall task is even bigger if the respondent is recalcitrant. In view of scare resources, considerable backlogs478 and complex conflicts before the Court, the function of fact-finding of the judicial organ is a difficult one: the Court must preserve its objectivity and impartiality.479 At the same time, the task to ascertain widespread and grave human rights violations in the context of an armed conflict is daunting. One way to approach the fact-finding process is the reliance on materials from third entities, such as human rights organizations and other stakeholders. The Court has used materials in the Georgia v Russia cases, both at the admissibility and the merits stage.480 Another aspect is the duty to cooperate with the Court as well as adequate sanctions for non-cooperation on the level of burden and standard of proof via Article 38 echr. The Court has started to focus on the duty to cooperate with the Court under Article 38 echr, both in Georgia v Russia (i) and individual cases.481 How they can be best employed for the individual-centered protection of human rights should be subject to reform considerations. The object and purpose of the inter-State application should inform the interpretation of Article 38 echr: after all, States have agreed to the judicial supervision of their obligations under the Convention. Unfortunately, judgments by default will not be an appropriate method to improve the situation of individuals. 478 According to statistical information provided by the Court, as of summer 2016, more than 70,000 individual cases are pending before the Court in Strasbourg, echr.coe.int/Documents/Stats_pending_2016_BIL.pdf. 479 R Wolfrum, ‘The Taking and Assessment of Evidence by the European Court of Human Rights’ in S Breitenmoser et al (eds), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber (2007) 915, 916. 480 See eg Georgia v Russia (i) [gc], no 13255/07, § 23f (n 433). 481 Janowiec and others v Russia, nos 55508/07 et al, (judgment) [gc], 21 October 2013, § 203; see also H De Vylder, Y Haeck, ‘The Duty to Cooperation of the Respondent State During the Proceedings Before the European Court of Human Rights’, in Y Haeck, E Brems (eds), Human Rights and Civil Liberties in the 21st Century (2014) 37; O Chernishova, N Vajic, ‘The Court’s evolving response to the states’ failure to cooperate’, in D Spielmann et al (eds) The European Convention on Human Rights, a living instrument, Essays in honor of Christos L. Rozakis (2011) 47.

Inter-State Case-Law under the echr

151

4.10.5 Evaluation: Strasbourg as Appropriate Forum for the Settlement of a Complex Conflict? The Georgia v Russia (ii) case dealing with the armed conflict between two former members of the Soviet Union poses a considerable challenge to the Court. The challenge repeats itself in the cases Ukraine brought against Russia. The cases beg the question what role the Court should have and what the object and purpose of the inter-State application under Article 33 echr should be: should the Court be an active arbiter quelling impending or ongoing conflict, as it tried to be with the interim measure of summer 2008? Or should the Court review, ex post, human rights violations in and after an armed conflict – possibly in order to facilitate the transition into a peaceful future? A more fundamental question is what an international human rights court can possibly achieve in such a situation of crisis. Specifically, the question about the binding nature of interim measures should be subject to reform considerations. Further, the notion of collective enforcement is scrutinized: The 2008 effort within the European Union in the framework of the Common Security and Defence Policy to address the conflict in Georgia is remarkable, including the setting up of the fact-finding mission. No State has, however, joined Georgia’s effort to address the conflict in Strasbourg. A further open question is how the Court shall deal with the implications of international humanitarian law in Georgia v Russia (ii).482 4.11

Ukraine v Russia (2014–Present)

The events in Crimea and Eastern Ukraine since February 2014 gave rise to several Ukrainian inter-State applications against Russia in Strasbourg, five of which are pending before the Court as of summer 2017.483 One of the interState applications has been withdrawn by Ukraine due to a parallel individual

482 U Karpenstein, ‘Von Belfast bis Tiflis – Die emrk im bewaffneten Konflikt’ in S LeutheusserSchnarrenberger (ed), Vom Recht auf Menschenwürde – 60 Jahre Europäische Menschenrechtskonvention (2013) 209, 216. 483 Ukraine v Russia (i), no 20958/14; Ukraine v Russia (ii), no 43800/14; Ukraine v Russia (iii), no 49537/14; Ukraine v Russia (iv), no 42410/15; see press release echr 296 (2015), 1 October 2015; see also press release echr 345 (2014), 26 November 2014; press release echr 122 (2015), 13 April 2015; Ukraine v Russia (iv), no 42410/15.

152

Chapter 4

application under Article 34 echr.484 In February 2016, the Court decided to divide the first inter-State application according to geographical criteria: all the complaints related to the events in Crimea up to September 2014 are currently registered under the case number 20958/14; the complaints concerning the events in Eastern Ukraine up to September 2014 are now registered under the Ukraine v Russia (v), no 8019/16; the same rule was applied in respect of Ukraine v Russia (iv), no 42410/15. Following the Court’s decision of 25 November 2016 all the complaints related to the events in Crimea from September 2014 onwards are currently registered under the case no 42410/15, Ukraine v. Russia (iv); the complaints concerning the events in Eastern Ukraine from September 2014 are now registered under the case no 70856/16, Ukraine v Russia (vi). The Court has not rendered any decision about the admissibility or the merits of the applications yet. This state of the proceedings places the focus of the analysis on the interim measures under Rule 39 of the Rules of the Court.485 Ukraine joined the Council of Europe in 1995. It ratified the Convention in 1997. Russia ratified the echr in 1998 after it had joined the Council of E ­ urope in 1996.486 It is remarkable that both Russia and Ukraine have, by sheer statistics, a sobering human rights record in Strasbourg. Currently, of all pending cases before the Court, cases against Russia comprise roughly 13% of the Court’s caseload. Even more remarkable is that Ukraine seeks judicial action in Strasbourg notwithstanding the fact that in almost 25% of all individual cases lodged with Strasbourg, Ukraine is the respondent State.487 4.11.1 Overview and Documentation As of summer 2017, the Court has issued only press releases about the Ukrainian inter-State cases.488 The primary sources, that is, texts of the actual 484 Ukraine v Russia (iii), no 49537/14, the case was struck off the list of the Court’s cases in September 2015 after the Ukrainian government had informed the Court that they did not wish to pursue the application, press release echr 296 (2015), 1 October 2015). 485 See also S Kirchner, ‘Interim measures in inter-State proceedings before the European Court of Human Rights: Ukraine v Russia’ (2014) 3 University of Baltimore Journal of International Law 33, 52; F Kollmar, ‘In the interim in Strasbourg re: the crisis in Crimea’, Cambridge Journal of International and Comparative Law blog, 27 March 2014, cjicl.org. uk/2014/03/27/interim-strasbourg-re-crisis-crimea/. 486 E Engel, N Engel (eds) egmr-e 1 (2008) 572, 573. 487 Statistical information by the echr, www.echr.coe.int/Documents/Stats_pending_2016_ BIL.pdf. 488 Press release echr 073 (2014), 13 March 2014; press release echr 345 (2014), 26 November 2014.

Inter-State Case-Law under the echr

153

interim requests are, however, confidential. According to the Council of ­Europe’s Steering Committee for Human Rights ‘[t]he Court does not currently (…) give reasons for imposing interim measures. It was discussed whether this practice should change to allow States to better understand what amounts to irreparable harm, to address necessary issues at the domestic level and to ­enable States to more appropriately challenge the imposition of interim measures. The Registry [of the Court] responded to this by explaining that for cases subject to immediate communication this would amount to duplication. ­However, it could be envisaged in exceptional circumstances, on an ad hoc ­basis. Furthermore, the Registry indicated that any supplementary f­ ormulation of reasoning would amount to further work for the Court’.489 The press releases are not documents amenable to legal interpretation. Despite the lack of primary sources, some considerations are offered. In addition to the three pending inter-State applications, as of summer 2017, approximately 3,700 individual cases against Russia and Ukraine are pending before the Court which are related to the events in Crimea or Eastern Ukraine.490 Ukraine is not a member state of the Rome Statute of the International Criminal Court. However, Ukraine has lodged a declaration under Article 12 §3 of the Rome Statute accepting the exercise of jurisdiction by the icc in relation to alleged crimes committed on its territory after November 2013.491 4.11.1.1 Ukraine v Russia (i) and (iv) The first inter-State application was lodged on 13 March 2014. It concerns the events leading up to and following the assumption of control by the Russian Federation over the Crimean peninsula and similar developments in Eastern Ukraine from March 2014 up to the beginning of September 2014. Ukraine maintains that Russia has exercised and continues to exercise effective control over certain regions, including Crimea and parts of Eastern Ukraine. The first and the fourth set of inter-State proceedings are closely related. The fourth application was lodged on 27 August 2015 and deals with the same allegations as in the time after September 2014. 489 Council of Europe, Steering Committee for Human Rights (cddh), Report on interim measures under Rule 39 of the Rules of Court, cddh(2013)R77 Addendum iii, 22 March 2013. 490 Press country profile Russia, updated in July 2017; see also press release echr 263 (2016), 28 July 2016. 491 For further background see Office of the Procecutor at the International Criminal Court, Report on Preliminary Examination Activities, 14 November 2016, § 146f, www.icc-cpi.int/ iccdocs/otp/161114-otp-rep-PE_ENG.pdf.

154

Chapter 4

In March 2014, the Court issued an interim measure under Rule 39 of the Rules of the Court in the context of the first inter-State application. The Court indicated to the Russian government to ‘refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.492 Both States were asked to inform the Court as soon as possible of the measures taken to ensure that the Convention is fully complied with. 4.11.1.2 Ukraine v Russia (ii) The second set of inter-State proceedings was lodged in June 2014.493 The case concerns the alleged abduction of three groups of children in Eastern Ukraine and their temporary transfer to Russia on three occasions between June and August 2014. 4.11.1.3 Ukraine v Russia (iii) The third inter-State case was struck off the list of the Court’s cases in September 2015 after the Ukrainian government had informed the Court that they did not wish to pursue the application further, given that an individual application under Article 34 echr concerning the same subject matter was pending before the Court.494 4.11.2 Context: Competing Interests Over Ukraine – East vs West Reloaded Ukraine’s latest history is marked by uncertainty and changes of government and their agendas concerning the relationship with Russia and the European Union. Since November 2013, Kiev witnessed protests in the context of the so-called Euromaidan movement. The unrest erupted after the Ukrainian government had suspended preparations for signing the Association Agreement between Ukraine and the European Union. President Viktor Yanukovych was ousted in February 2014. Following a referendum, the Ukrainian territory of Crimea was incorporated into the Russian Federation on 18 March 2014.495 The referendum and the ensuring incorporation were preceded by a military intervention by Russia in 492 Press release echr 973 (2014), 13 March 2014. 493 Ukraine v Russia (ii), no 43800/14. 494 Ukraine v Russia (iii), no 49537/14; Dzhemilov v Ukraine and Russia, no 49522/14; see press release echr 286 (2015), 24 September 2015. 495 For the present study it is not decisive whether the Russian conduct was unlawful under international law; see for a detailed legal analysis of the events C Marxsen, ‘The Crimea Crisis – an international law perspective’ 74 hjil (2014) 367. It will be the Court’s task to find out which State is responsible under Article 1 echr concerning the human rights situation in the territories in question.

Inter-State Case-Law under the echr

155

Crimea, which took place in the aftermath of the 2014 Ukrainian ‘revolution’ and were part of wider unrest across Eastern Ukraine. Further, it appears that starting in February and March 2014, Russian forces took effective control in certain regions of Eastern Ukraine. The controversial Association Agreement between Ukraine and the European Union was approved by the Ukrainian and the European Parliament in September 2014. Important parts of the Association Agreement have been applied provisionally since 1 November 2014.496 On 9 June 2015, more than one year after the hostilities began, the Secretariat of the Council of Europe registered a declaration by the Government of Ukraine to the effect that it exercises its right of derogation under Article 15 echr.497 The derogation concerns Ukrainian obligations under Articles 5, 6, 8 and 13 echr in respect of those areas in the Donetsk and Luhansk regions where Ukrainian authorities have been conducting ‘antiterrorist operations’ in view of the hostilities there.498 In January 2016, the Secretary General of the Council of Europe, Thorbjørn Jagland, sent a Human Rights delegation to Crimea, having taken into account the various calls from the Committee of Ministers, the Parliamentary Assembly and from individual member States of the Council of Europe to review the human rights situation in Crimea. According to the report following the delegation’s visit, the ‘the main overriding conclusion (…) is the need to re-open the Peninsula for the Council of Europe monitoring structures and other relevant international mechanisms, and to identify viable solutions, allowing for their effective functioning under the present circumstances (…). It is indeed neither normal, nor acceptable, that a population of 2.5 million people should be kept beyond the reach of the human rights mechanisms established to protect all Europeans. In this context, many interlocutors, in particular from the Crimean Tatar community, expressed the hope that the visit of this delegation would not be a one-off visit and that the Council of Europe monitoring structures would soon be allowed back’.499 496 Updated information is available on the website of the European Union at eeas.europa .eu/delegations/ukraine/eu_ukraine/association_agreement/index_en.htm. 497 Derogation note by Ukraine of June 2015 wcd.coe.int/com.instranet.InstraServlet? command=com.instranet.CmdBlobGet&InstranetImage=2833408&SecMode=1& DocId=2278178&Usage=2. 498 M Milanovic, ‘Ukraine derogates from the iccpr and the echr, Files Fourth Interstate Application against Russia’, ejil:Talk!, 5 October 2015, www.ejiltalk.org/ukraine-derogates -from-the-iccpr-and-the-echr-files-fourth-interstate-application-against-russia/. 499 Report to the Secretary General of the Council of Europe by Ambassador Gérard Stoudmann on his human rights visit to Crimea (25–31 January 2016) 11 April 2016, rm.coe.int/

156

Chapter 4

4.11.3 Collective Enforcement Functions: Focus on Interim Measures In view of the early stage of the inter-State applications brought by Ukraine against Russia, the different interim measures will be analyzed more in detail. 4.11.3.1 Declaratory Interim Measures In the interim measure in Ukraine v Russia (i), the Court requested, inter alia, that both Russia and Ukraine ‘should refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.500 If this interim measure is read as a request of cessation of conduct in violation of existing obligations under the Convention, the measure does not contain any new obligations. The obligation of cessation of conduct in the realm of human rights concerns the status negativus of the rights concerned. The obligation of cessation of wrongful conduct is, moreover, recognized under customary international law.501 4.11.3.2 Interim Measures Requesting Information In line with Rule 39 § 3 of the Rules of the Court the Court requested information from the parties about the measures taken to ensure the Convention is fully complied with. It is submitted here that this type of interim measure is binding because the High Contracting Parties are under a duty to cooperate as enshrined in Article 38 echr.502 In recent case law, the Court found violations of Article 38 echr both in individual cases503 and in the inter-State case of Georgia v Russia (i).504 In that case, the Court put the violation of Article 38 echr at the very top of the operative part of the judgment, thereby underlining the bottleneck character of the norm. 4.11.3.3 Interim Measure in Favour of Specific Individual The Ukraine v Russia (iii) case concerned a specific individual. The individual concerned simultaneously filed an individual application under Article 34 echr. CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680 64211f. 500 Press release echr 073 (2014), 13 March 2014. 501 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Advisory Opinion, icj Reports 2004, 136, para 150; Draft articles on Responsibility of States for Internationally Wrongful Acts, ilc Yb 2001/II2, 30, Article 30. 502 See also above the section about Georgia v Russia. 503 Eg Janowiec and others v Russia, judgment [gc], nos. 55508/07 and 29520/09, 21 October 2013, § 203. 504 Georgia v Russia (i), judgment [gc], no. 13255/07, 3 July 2014.

Inter-State Case-Law under the echr

157

In substance, the case concerns the deprivation of liberty and the alleged ill-treatment of a Ukrainian national belonging to the Crimean Tatars ethnic group in the context of criminal proceedings conducted against him by the Russian authorities. The Court had decided to indicate to both Russia and Ukraine under Rule 39 of the Rules of the Court to ensure respect for the Convention rights of the individual concerned. In parallel, the Court issued an interim measure under Rule 39 of the Rules of the Court to the same effect in the context of the individual application lodged under Article 34 echr against both Russia and Ukraine. With the withdrawal of the inter-State application, the first interim measure came to an end, without prejudice to the interim measure issued in the context of the individual application.505 In 2005, the Court held, that the failure to honor an interim request was a violation of the right of individual petition contained in Article 34 echr and thus construed the binding character of interim measures.506 The legal reasoning of the Court does not apply to inter-State applications. This incoherence in the jurisprudence of the Court is all the more reason to reform the Court’s toolbox and to clearly indicate the object and purpose of inter-State applications. 4.11.4 Dispute Settlement Functions in View of Ukrainian Multi-Forum Litigation Strategy Ukraine has announced the intention to lodge an application with the International Court of Justice in The Hague.507 In addition, Ukraine is preparing to launch a proceeding under the United Nations Convention on the Law of the Sea.508 In September 2015, Ukraine recognized the jurisdiction of the 505 Press release echr 286 (2015), 24 September 2015. 506 Mamatkulov and Askarov v Turkey nos 46827/99, 46951/99, judgment [gc] 4 February 2005; see K Oellers-Frahm, ‘Verbindlichkeit einstweiliger Maßnahmen: Der egmr vollzieht – endlich – die erforderliche Wende’ (2003) 30 EuGRZ 689; K Oellers-Frahm, ‘Verbindlichkeit einstweiliger Anordnungen des egmr – Epilog’ (2005) 32 EuGRZ 347. 507 G Nuridzhanyan, ‘Ukraine v. Russia in International Courts and Tribunals’, ejil:Talk!,  9 March 2016, www.ejiltalk.org/ukraine-versus-russia-in-international-courts-and -tribunals/; Ukraine announced that it intended to use the compromissory clauses of the International Convention for the Suppression of the Financing of Terrorism and the clause in the International Convention on the Elimination of All Forms of Racial Discrimination. 508 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 396; G Nuridzhanyan, ‘Ukraine v. Russia in International Courts and Tribunals’, ejil:Talk!, 9 March 2016, www.ejiltalk.org/ukraine-versus-russia-in-international-courts-and-tribunals/.

158

Chapter 4

International Criminal Court under Article 12 (3) of the Rome Statute509 as of 20 February 2014.510 In order to get to the core of the issue, whether it was lawful for Russia to intervene militarily in Ukraine, the only viable route511 seems to be that Ukraine lobbies in favor of a request for an advisory opinion under Article 96 of the Charter of the United Nations512 and Article 65 icj-St513 within the General Assembly of the United Nations. On 27 March 2014, the United Nations General Assembly adopted a non-binding resolution,514 declaring its support for Ukraine’s territorial integrity.515 The majority in that resolution could be a viable point of departure for an advisory opinion.516 However, in the Kosovo advisory opinion,517 which the General Assembly had requested, the Court has shown that it is not keen on dealing with politically loaded questions, even if the opinions are not formally binding like judgments.518 Ukraine invited an osce fact-finding mission on 3 March 2014.519 The Russian Republic of Tatarstan has filed a claim under the Bilateral Investment Treaty between Russia and Ukraine over the state’s alleged complicity in the takeover of an oil refinery, as claims brought against Russia by Ukrainian investors in Crimea progress in The Hague.520 509 The Rome Statute of the International Criminal Court, 17 July 1998, 2187 unts 3. 510 Letter of the Foreign Minister of Ukraine, P Klimkin, as available on the icc website at www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf. 511 Assuming that Russia does not consent to the contentious jurisdiction of the icj under Article 36 icj-St. 512 Charter of the United Nations, 26 June 1945, 1 unts xvi. 513 Statute of the International Court of Justice, 26 June 1945, 1 unts 993. 514 General Assembly Resolution A/68/L 39, ‘Territorial Integrity of Ukraine’, 27 March 2014. 515 Unlike in the case of Cyprus, the Security Council did not issue a binding resolution concerning the non-recognition of the change of territory; Russia is a permanent member of the Security Council. 516 The United Nations Security Council has discussed the matter of Ukraine various times, has however, not taken any action, see A Douhan, ‘International Organizations and Settlement of the Conflict in Ukraine’ (2015) 75 hjil 195, 199 with further references to documents produced by the United Nations about Ukraine. 517 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, icj Reports 2010, 403. 518 S Oeter, ‘The Kosovo Case – An Unfortunate Precedent’ (2014) 75 hjil 51, 54. 519 osce Human Rights Assessment Mission in Ukraine, report of May 2014, www.osce.org/ odihr/118476?download=true; see also M Brunner, ‘Die Rolle der Organisation für Sicherheit und Zusammenarbeit in Europa während der Ukraine-Krise’ (2014) 27 Journal of International Law of Peace and Armed Conflict 181, 188, with further references. 520 D Thomson, ‘Russian Republic brings treaty claim against Ukraine’, Global Arbitration Review, 5 May 2016 globalarbitrationreview.com/article/1036307/russian-republic-brings -treaty-claim-against-ukraine.

Inter-State Case-Law under the echr

159

4.11.5 Evaluation: Open Questions about the Role of the Strasbourg Court Few things are certain in view of the still ongoing conflict in Ukraine. What emerges is that the Ukraine cases pose a substantial challenge for the Court.521 Should the Court ‘intervene’522 in a conflict by issuing interim measures? What remedial possibilities does the Court have in its toolbox?523 Judgments in inter-State cases require fact-finding and are thus a slow means to react in view of on-going crises; the interim measures gain importance against this background. Whether or not the Court should be equipped with formally binding interim measures is further elaborated in the context of reform considerations. Ukraine stated that the first inter-State application and the request for interim measures were ‘aimed at resolving the situation on the territory of Crimea and Ukraine on the whole’.524 Further, the impression has been transported that the Court would have the possibility to hold Russia to pay reparation for the unlawful seizure of territory in the context of the individual protection of property under Protocol No 1.525 The expectations are, thus, high. It has been suggested that an armed conflict between member States of the Council of Europe is ‘a moment when European states should come together to invoke the inter-state process in Strasbourg’.526 However, Ukraine has not been joined by another High Contracting Party. The way the Court will deal with the law of armed conflict remains to be seen, another aspect will be the extraterritorial application of the Convention. A further unresolved question is how the Court will deal with overlapping individual application in an efficient manner. 521 The cases associated with the Ukraine conflict have been described as being part of ‘one of the most significant challenges that the Court has ever had to face on how the Convention should apply to armed conflict’, M Milanovic, ‘Ukraine derogates from the iccpr and the echr, Files Fourth Interstate Application against Russia, ejil:Talk!, 5 October 2015, www.ejiltalk.org/ukraine-derogates-from-the-iccpr-and-the-echr-files-fourth-interstate -application-against-russia/. 522 M Breuer, ‘The ECtHR – torn between Russia and Ukraine?’ Verfassungsblog, 18 March 2014, verfassungsblog.de/egmr-zerrieben-im-konflikt-russland-ukraine/. 523 T Grant, ‘Crimea after Cyprus v Turkey: Just Satisfaction for Unlawful Annexation?’ ejil:Talk!, 19 May 2014, www.ejiltalk.org/crimea-after-cyprus-v-turkey-just-satisfaction-for -unlawful-annexation/. 524 Letter from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council, S/2014/196, 17 March 2014. 525 T Grant, International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms’ (2015) 16 Chicago Journal of International Law 1, 9. 526 P Leach, Ukraine, Russia and Crimea in the European Court of Human Rights, ejil:Talk!, 19 March 2014, www.ejiltalk.org/ukraine-russia-and-crimea-in-the-european-court-of -human-rights/.

160

Chapter 4

The Ukraine cases provide, furthermore, food for thought in as much as they beg the question what role Russia can possibly have as a member of the Convention and the Council of Europe. The questions, however, outreach the framework of the inter-State complaint and the present study. 4.12

Results from the Analysis of Inter-State Case Law

The goal of the case law analysis was to approach the object and purpose of the inter-State application under Article 33 of the European Convention of Human Rights. The leading question for the analysis was whether the inter-State application is a mechanism for the collective enforcement of human rights or whether it is used as a forum for international dispute settlement. To conclude the analyitical chapter, the results of the case law analysis briefly highlight where the inter-State application has shown its potential and its need of reform. It also emerges from the case law analysis which properties and aspects of the inter-State application should not be changed. The latter aspect is elaborated more in depth here. Concrete and comprehensive reform considerations are offered at the very end of the volume. 4.12.1 Collective Enforcement Functions 4.12.1.1 Beyond Individual Justice: The Strengths of the Inter-State Application The case law analysis has shown that the inter-State application has been a crucial means in addressing widespread, systemic human rights issues and crises, including armed conflict.527 The possibility to address legislative measures and administrative practices is a central feature of inter-State applications. 4.12.1.2 Much More than Diplomatic Protection Historically, the inter-State application was an important emancipation from the bilateral enforcement structure of diplomatic protection. The interState cases dealing with specific individuals were, however, few, eg Austria v Italy,528 Denmark v Turkey529 and Ukraine v Russia (iii).530 The development in the supervisory architecture of the Convention explains this finding. Today, the individual-specific inter-State cases compete with the right to 527 528 529 530

See also S Prebensen (Chapter 1, n 14) 444. Austria v Italy, no 777/60. Denmark v Turkey, no 34382/97. Ukraine v Russia (iii), no 49537/14.

Inter-State Case-Law under the echr

161

individual petition under Article 34 echr. The right to individual petition is no longer an optional remedy. In Ukraine v Russia (iii),531 Ukraine withdrew the inter-State application because a parallel individual application under Article 34 echr had been lodged. Now that the right of individual petition is no more an exception, but the rule, individual-specific inter-State applications seem especially worthy if the possibility to address the fate of a specific individual is used in the way Denmark v Turkey exemplifies: to illustrate a more widespread issue or a systemic defect and to induce change beyond the individual case. 4.12.1.3 Enforcement in the Specific Inter-State Context 4.12.1.4 Adherence Instead of Enforcement Inter-State applications yielded results before a formal decision by the Convention’s organs was taken, even if not in all cases. For example, certain interrogation techniques were no longer applied in the context of the proceedings of Ireland v United Kingdom.532 Certain types of punishments were no longer used in Cyprus upon the initiation of the proceedings between Greece v United Kingdom.533 Thus, this adherence to the standards of the Convention rendered formal enforcement measures unnecessary. Often, the beneficial effects would extend beyond an individual case. This effect of some of the inter-State applications is not diminished by the fact that in situations of entrenched conflict, as for example the Cyprus cases, the inter-State application yielded only limited results. 4.12.1.5

Role of the Court in the Context of Enforcement of Judgments and Decisions The High Contracting States are under a formal obligation under Article 46 § 1 echr to abide by judgments of the Court. The Cypriot request for a ‘declaratory’ judgment at the just satisfaction stage in Cyprus v Turkey (iv)534 about the execution of the 2001 judgment on the merits reflects the challenge for the Court.535 Another similar example can be seen in the Georgian attempt to

531 532 533 534 535

Ukraine v Russia (iii), no 49537/14. Ireland v United Kingdom, no 5310/71. Greece v United Kingdom, no 176/56. Cyprus v Turkey (iv), no 25781/94. Department for the Execution of Judgments of the European Court of Human Rights, ‘Stock-taking concerning the violations established by the Court in the case Cyprus against Turkey and analysis of the impact of the judgment of 12 May 2014 on the just satisfaction’, 25 November 2014, H/Exec(2014)8, 6.

162

Chapter 4

‘enforce’ an interim measure by way of a new set of inter-State application against Russia.536 The Court’s role in the execution of its own decisions and judgments should be clarified. 4.12.1.6 Interim Measures in Inter-State Applications Interim measures have been important tools in the context of inter-State applications. In the more recent cases against Russia, both Georgia and Ukraine sought interim measures, and the Court granted them. However, the Convention itself does not contain a legal basis for binding interim measures. Possibly, the interim measures have a supervisory deterrent effect. Together with the duty to cooperate with the Court under Article 38 echr, States are under an obligation to provide information about how they honor their primary treaty obligations enshrined in the Convention. This state of affairs blends into the question what the object and purpose of the inter-State application is in view of acute crises: should the Court be an active and interventionist body, trying to quell conflicts? Should it be vested with the possibility to issue binding interim measures? What are the limitations of the Court as an international human rights body, and where is its credibility at stake? 4.12.1.7

Enforcement and the Notion of ‘public order of Europe’: Expendable Rhetoric For the present volume, the term collective enforcement of human rights was chosen consciously in distinction to the notion of a public order of Europe. Unlike the term of collective enforcement, which appears in the fifth recital of the preamble of the Convention, the notion of a public order of Europe is a child of the inter-State case law.537 The notion, which had theoretical repercussions in the concept of erga omnes obligations538 and whose rhetoric appeal is uncontested539 merits some

536 In the third set of inter-State proceedings between Georgia and Russia, Georgia had requested the Court to ‘demand the Russian Federation to comply with its obligations under the European Convention on Human Rights, including the decision of the Court of 12 August 2008 [(to apply Rule 39 of the Rules of the Court (interim measures)]’, Georgia v Russia (iii), no 61186/09, (dec) 16 March 2010. 537 Austria v Italy (dec) (n 70) 140. 538 L-A Sicilianos, ‘L’influence des droits de l’homme sur la structure du droit international’ (2012) 116 Revue générale de droit international public 5, 11f. 539 See eg J Frowein, ‘The European Convention on Human rights as the Public Order of Europe’, in A Clapham, F Emmert (eds), Collected Courses of the Academy of European

Inter-State Case-Law under the echr

163

critical remarks at this point. The reason why the notion is discussed in more detail here is the quest to exclude it from any possible reform of the inter-State application. The discussion here is, moreover, intended to clarify that a successful human rights protection via a judicial process depends decisively on the collaboration of the respondent State. Thus, the more in depth analysis of the case law with a view of the public order of Europe is also intended to be read as criticism about the academic debate concerning the ‘constitutionalization’540 of the Convention towards a value-oriented legal framework, which would give guidance with respect to abstract concepts like democracy and the rule of law. The related notion of the Convention as objective order will be revisited as well. When the term public order of Europe made its appearance in the admissibility decision of Austria v Italy, it already had been used over centuries.541 The iridescent phrase was coined by Garbiel Bonnot de Mably during the enlightenment.542 Back in the 18th century, the term was understood as a treatybased legal order created by States. The concept stood for the emancipation from natural justice and absolutism, articulating a development towards a secular normative order.543 In 1950, Carl Schmitt used the Latin term jus publicum europaeum with reference to a legal framework in which (­European) States were the central actors.544 It remains, however, unclear what the Commission had in mind when it used the phrase for the first time in the 1960s. Why did the Commission embark on the notion of public order at all? One motivation of the Commission for this rhetoric was possibly the appeasement of Italy. The respondent had not yet accepted the optional jurisdiction of the Court under ex-Article 46 echr and the optional right of individual petition under ex-Article 25 echr.545 Another way to read the Commission’s general statements about the public order of Europe is as a participation in an

540 541

542 543 544 545

Law 1990 (vol i-2, 1992) 267, 281; F Ermacora, ‘Menschenrechtskonvention – jus publicum europaeum’ (1968) 83 DVBl 961, 962. Eg Erika de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 ljil 611. A von Bogdandy, S Hinghofer-Szalkay, ‘Das etwas unheimliche Ius Publicum Europaeum, Begriffsgeschichtliche Analysen im Spannungsfeld von europäischem Rechtsraum, droit public de l’Europe und Carl Schmitt’ (2013) 73 hjil 209. G Bonnot de Mably, Le Droit Public de L’Europe: Fonde Sur Les Traites (1776) (reprint, 2010). M Koskenniemi, ‘The Public Law of Europe, Reflections on a French 18th century debate’, in H Lindemann et al (eds), Erzählungen vom Konstitutionalismus (2012) 43. C Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (1950) 112. Acceptances of Italy under ex-Articles 25 and 46 echr reprinted in Yb 16 (1973) 10, 14.

164

Chapter 4

academic discourse.546 The reasons why the Commission chose to use the term the public order of Europe are all the more intriguing in view of the fact that it could have done without: the inter-State application by Austria was plainly admissible.547 The way the term the public order of Europe was employed in the later case law under the Convention was as a rhetorical figure rather than a legal argument. In the 1967 case between Denmark, Norway, Sweden and the ­Netherlands v Greece (i), the Commission referred to the concept of a public order of Europe in its second admissibility decision.548 The notion was used in order to rule out the Greek allegation of an abuse of the inter-State application for political ends by the applicants.549 This result could have been derived easily from the plain wording of Article 35 § 3 echr,550 which explicitly limits the notion of abuse of procedure to individual applications. More strategically, the notion of the public order of Europe was used by the Commission and the Court in instances in which member States had sought to limit the jurisdiction of the Convention organs ratione loci with reservations, namely in the 1991 joined cases of Chrysostomos and Loizidou v Turkey.551 These cases are included in the present analysis because they were disguised interState cases: Cyprus used its right to intervene as a third party in the ­proceedings under Article 36 echr. At the heart of the dispute was the Cyprus-issue. The rhetorical figure was expendable also in the Cyprus context. The application of Article 1 echr in order to establish Turkey’s responsibility under the Convention concerning certain parts of the island of Cyprus would have been more convincing than the reference to a rather vague concept, which has never been properly defined. Similarly as the Austria v Italy case, the disguised inter-State applications in the Cyprus context received much academic attention and triggered a long

546 Eg M McDougal, H Lasswell, ‘The identification and appraisal of diverse systems of public order’ (1959) 53 ajil 1. 547 See above, Chapter 4.5, analysis of Austria v Italy, no 777/60. 548 The second admissibility decision in Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67 of 31 May 1968 is fully reprinted in Yb 11 (1968) 730f, see also below Part two, Chapter 3. 549 Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67, second admissibility decision, 31 May 1968, Yb 11 (1968), 730, 762. 550 At the time the provision was contained in ex-Article 27 echr. 551 Chrysostomos v Turkey, 4 March 1991, Yb 34 (1991), § 22; see also J Polakiewicz, ‘Anmerkung zur Zulässigkeitsentscheidung der Europäischen Kommission für Menschenrechte im Fall Chrysostomos u.a. / Türkei vom 4. März 1991’ (1991) 51 hjil 145.

Inter-State Case-Law under the echr

165

debate552 about whether the regime of the Vienna Convention on the Law of Treaties applied to reservations to human rights treaties.553 It appears that the International Law Commission did not find it necessary to propose different guidelines for human rights treaties and ‘normal’ treaties under international law.554 4.12.1.8

The Convention as Ordinary Treaty under International Law Instead of an Objective Order The Austria v Italy admissibility decision of 1961 is identified as the birthplace for the concept of objective orders in international law.555 The concept of objective order, which none of the parties seems to have relied on, is most likely been introduced by the British Commissioner Humphrey Waldock. When he was Special Rapporteur for the International Law Commission concerning the codification of the law of treaties in 1964, thus shortly after the Austria v Italy case, Waldock defined objective regimes as a set of rules which were universally valid.556 The 1969 Vienna Convention on the Law of Treaties, however, does not contain a category of treaties that establish objective regimes. The ilc feared to compromise the egalitarian structure of international law and instead confirmed the consensual nature of international law in Article 34 vclt.557

552 According to A Pellet, the ‘dialogue of the deaf’, 2nd Report on reservations to treaties (1996) un Docs A/CN.4/477, para 115, 60. 553 F Vanneste, General International Law Before Human Rights Courts, Assessing the Speciality Claims of International Human Rights Law (2010) 69f; C Binder, ‘The European Court of Human Rights and the Law of Treaties – Sign of Fragmentation or Unity?’ in C Binder, K Lachmayer (eds), The European Court of Human Rights and Public International Law, Fragmentation or Unity? (2014) 41, 56. 554 Guide to Practice on Reservations to Treaties, Yb ilc (2011), ii Part 2, Guideline 3.1.5.6; see I Ziemele, L Liede, ‘Reservations to Human Rights Treaties – From Draft Guideline 3.1.12 to Guideline 3.1.5.6’ (2013) 24 ejil 1135. 555 Austria v Italy, decision of admissibility, 11 January 1961, Yb 4 (1961) 116, 140; W Kälin, ‘Menschenrechtsverträge als Gewährleistung einer objektiven Ordnung, Aktuelle Probleme des Menschenrechtsschutzes’, 33 Berichte der deutschen Gesellschaft für Völkerrecht (1994) 9. 556 ‘A treaty establishes an objective regime when it appears from its terms and from the circumstances of its conclusion that the intention of the parties is to create in the general interest general obligations and rights relating to a particular region (…)’, H Waldock, Third Report on the Law of Treaties, ilc Yb 1964/II, 26. 557 F Salerno, ‘Treaties establishing objective regimes’ in E Cannizzaro, The Law of Treaties beyond the Vienna Convention (2011) 225, 227.

166

Chapter 4

A further reason why it is plausible that Waldock was involved with the concept of objective regimes is the background to the advisory opinion rendered by the International Court of Justice regarding the reservations to the Prevention and Punishment of the Crime of Genocide Convention of 1950. The British delegation had submitted that the Genocide Convention created no reciprocal obligations whatsoever between the parties,558 a view the icj did not find persuasive in its advisory opinion.559 Noteworthy is what the Commission did not do in order to construe the objective character of the Convention in its Austria v Italy decsion: it did not rely on ex-Article 28 b) echr, today’s Article 39 echr. The norm restricts the disposition of the parties if a friendly settlement is reached, and is thus the most evident anchor for the idea of an objective order of the echr.560 Another argument which was glaringly absent in the Austria v Italy decision is the possibility to denounce the Convention under ex-Article 65 echr. The Commission did not offer a viable construct on how to reconcile the contractual basis for the rights enshrined in the Convention and said objective order.561 That the possibility to denounce the echr was not only a theoretical possibility was shown in the so-called Greek case, when Greece denounced the echr in 1969. In the 1978 Ireland v United Kingdom judgment, the Court felt prompted to ‘clarify the nature of the engagements placed under its supervision’.562 The Court tried to reinvigorate the idea of reciprocity with a ‘certaine dose de synallagmatisme’.563 The Court stated: ‘unlike international treaties of the classic kind, the Convention comprises more than reciprocal engagements 558 See the pleadings of Hartley Shawcross on behalf of the United Kingdom, of 13 April 1951 in the advisory proceedings concerning reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, at 387/388, www.icj-cij.org/docket/ files/12/11765.pdf. 559 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, icj Reports 1951, eg at 24; the Hague Court was persuaded that States were not entirely free to make reservations to the Genocide Convention, but recogized that the structure of obligations created was essentially between States. 560 H Walter, Die Europäische Menschenrechtsordnung, Individualrechte, Staatenverpflichtungen und ordre public nach der Europäischen Menschenrechtskonvention (1970) 104. 561 E Klein, ‘Denunciation of Human Rights Treaties and the Principle of Reciprocity’ in U Fastenrath et al (eds) From Bilateralism to Community Interest, Essays in Honor of Judge Bruno Simma (2011) 477, 483. 562 Ireland v United Kingdom, no 5310/71(judgment) (Chapter 2, n 73) § 239. 563 F Voeffray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (2004), 142.

Inter-State Case-Law under the echr

167

between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations’.564 The subtle change with respect to reciprocity shows that the echr remains anchored in general international law. The sweeping theory of human rights treaties as aliud with respect to ‘ordinary’ treaties under international law was recognized as too extreme.565 4.12.2 Dispute Settlement Functions For the purposes of this volume dispute settlement functions have been designated as the exercise of judicial review and fact-finding. 4.12.2.1 Judicial Review in Situations of Crisis What many inter-State cases under the European Convention on Human Rights have in common is their context: except for the Austria v Italy case, they concern acute or protracted conflict involving derogations from the Convention under Article 15 echr. In the cases of Georgia v Russia, formal derogations were not entered, however, the armed conflict between two High Contracting Parties amounts to a situation of crisis. The actual exercise of judicial review over derogations and in situations of crises is an important function of the inter-State application. It is times of crises when human rights are most endangered. Not so clear is how the exercise of judicial review in the context of crises is to be performed. Should the task be approached with a view to establish historic truths, or in order to help a society to transition from conflict towards peace? Which criteria determine the proportionality test behind the very concept of judicial review? The doctrine of the margin of appreciation is a child of the very first set of inter-State proceedings between Greece and the United Kingdom. How does the doctrine inform the Court’s role in today’s conflicts, in view of recalcitrant States? Proportionality is an element that favors the expansion of judicial power.566 How can the powers of review be translated into meaningful protection of human rights and take into account the very limited possibilities of enforcement the Court possesses? For these questions, the Convention as an international treaty should provide guidance. This guidance should be provided by delineating

564 Ireland v United Kingdom, 18 January 1978, Series A no. 25, 90, § 239. 565 B Simma, ‘From Bilateralism to Community Interest in International Law’ RdC (1994) 217, 368. 566 S Stone Sweet, J Mathews, ‘Proportionality, Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 77, 161.

168

Chapter 4

more clearly what the object and purpose of the inter-State application under Article 33 echr is. 4.12.2.2 Fact-Finding In the context of inter-State applications, often domestic remedies cannot be exhausted, a constellation which puts the Court in a position akin to a Court of first instance. It is imperative for the Court to be able to perform its duties with a sound factual basis. To obtain evidence is, however, a tedious and often expensive affair because an international court is geographically remote from the actual theater of conflict. Thus, fact-finding is difficult, expensive and time-consuming. Whether or to what extent the facts in inter-State proceedings should be established in the course of strictly adversarial proceedings or in the alternative in proceedings which are characterized by cooperation duties in face of an inquisitive Court is one aspect which deserves more attention. The object and purpose of the inter-State proceedings should inform the way the Court gathers evidence. In light of the Court’s more recent judgment in the Georgia v Russia (i) case, the duty to cooperate with the Court under Article 38 echr gains importance. The more recent cases against Russia indicate that the role of the High Contracting Parties in inter-State proceedings likewise needs to be carved out more clearly. The Court’s use of material provided by ngos and amici curiae should be defined more clearly, without, however, taking away the Court’s flexibility. 4.12.3 Grouping of Inter-State Case Law: Private and Public Interest Litigation The criterion of public or private interest litigation is intended to carve out whether the inter-State application is a mechanism for the collective enforcement of human rights, thus a tool for the public interest litigation, or whether it is a forum to advance private interests other than the protection of human rights. Most of the inter-State cases under the Convention can be seen as a combination of public and private interest litigation. For example the Ireland v United Kingdom567 case was litigated to end the employment of certain interrogation techniques. The application had also the dimension to pressure the United Kingdom over Northern Ireland towards a power sharing government. 567 Ireland v United Kingdom, no 5310/71.

Inter-State Case-Law under the echr

169

Another example is the litigation between Greece and the United Kingdom:568 Greece was hoping for an annexation of the island of Cyprus, but the litigation also improved the human rights situation in Cyprus and elsewhere in the fading British Empire. These instances show that litigation in Strasbourg driven by other purposes than the protection of human rights is not per se invaluable or unworthy.569 This type of litigation can yield improvements of the human rights situation. The proceedings against Greece in the late 1960s and the proceedings against Turkey in the early 1980s are prime examples of public interest litigation. Also the case of Denmark v Turkey in 1997 is in essence a case of public interest litigation because of its reach beyond the fate of the individual concerned. This ‘pure’ form of public interest litigation had a positive impact for the respective human rights situation. In comparison to those cases which were litigated also for private interests, the concrete results for the human rights situation are not markedly different or of a better quality. 4.12.4 Between Collective Enforcement and International Dispute Settlement One main result of the inter-State case law analysis is that the object and purpose of inter-State application is unclear. In the more recent case law, a trend towards dispute settlement can be discerned: this trend rests upon the compulsory jurisdiction of the Court in inter-State cases, a feature which distinguishes the Strasbourg forum from the International Court of Justice in The Hague. States use Strasbourg to access an international court to litigate the human rights aspects of a more comprehensive conflict. While the trend towards more human rights litigation is to be welcomed, the challenges attached to the new cases should be tackled. The recent cases by Georgia and Ukraine against Russia require the Strasbourg Court to deal with large-scale conflicts while the judicial body is limited to its subject matter jurisdiction, the Convention. This type of litigation reinforces the need for the definition of the tasks and role of the Court in the specific context of inter-State litigation. It is essential for the credibility of the Court to find a way to deal with the context of these cases in a sound and coherent manner. What emerges from the considerations in this 568 Greece v United Kingdom, no 176/56. 569 Cf K Vasak, Egoisme et droits de l’homme (esquisse pour un procès)’, in Mélanges offerts à Polys Modinos, Problémes des Droits de l’Homme et de l’unification Européenne (1968) 357, 368.

170

Chapter 4

chapter is that the inter-State application contributes best to the protection of human rights when it integrates certain aspects of international d­ ispute settlement and collective enforcement. A balanced combination of certain functions will render the tool attractive for those who are expected to use it: States. Accordingly, the results are translated into concrete recommendations for reform of the mechanism at the end of the volume.

Chapter 5

Reform Considerations: The Inter-State Application between Collective Enforcement and Dispute Settlement This volume has analyzed the inter-State application under Article 33 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The mechanism performs functions of the collective enforcement of human rights and functions of international dispute settlement. Its object and purpose appear to be not clearly defined. The reform considerations build on the strengths of the inter-State application. First and foremost it is worthwhile to retain and to develop the inter-State application further. It is by no means a redundant feature of the supervisory structure of the echr. The comparison with the individual application under Article 34 echr has shown the added value the inter-State application brings to the Convention.1 The case law analysis in Chapter 4 carved out that the mechanism improved the human rights situations, even if not invariably successfully. Thus, the inter-State application is not a failure,2 but has dormant potential to be untapped. What emerges from this volume is that the interState application contributes best to the protection of human rights when it integrates certain functions of international dispute settlement and collective enforcement. 5.1

General Reform Considerations for the Inter-State Application

The guiding principles for the reform considerations are clarity and simplicity. As argued above, the term the ‘public order of Europe’ will be avoided for

1 See above, Chapter 3.2 – The inter-State and the individual application under the European Convention on Human Rights – a comparison with a view to the function of collective enforcement. 2 Cf F Sudre, Droit Européen et International des Droits de l’Homme (12th ed, 2015) 290, who speaks of a manifest failure of the inter-State application (‘faillte du recours interétatique est manifeste’).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_006

172

Chapter 5

reform considerations.3 The concept of actio popularis, which has been used occasionally to describe the inter-State application4 is avoided because it carries many pre-understandings.5 The reform considerations deal with the corridor of issues raised by the inter-State case law. They seek to integrate the aspects dealt with in the previous chapters. The considerations are made in order to render the mechanism attractive and predictable for those who are intended to make use of its wideranging possibilities: the High Contracting Parties of the European Convention on Human Rights. Current reform considerations of the echr which have already been translated into additional protocols, No 15 and No 16 to the Convention, and which are not yet in force, have been woven into the considerations offered here. An eventual reform of the inter-State application necessarily involves a protocol to the Convention. The possible wording of additions to the text of the Convention will be suggested where approriate. Considerations to provide the Court with a Statue as a normative layer between the Convention and the Rules of the Court have already been advanced6 and are seconded here. Such a Statute could be adapted more easily than the Convention itself, and could clarify certain matters, eg the exceptions of the requirement of the exhaustion of domestic remedies, and still ensure a high degree of flexibility for the Court. However, the considerations offered here necessarily depend on the consensus of the High Contracting Parties. A focus of the reform considerations will be on the remedial toolbox of the Court in inter-State applications. Currently, the level of legitimacy concerning the Court’s remedial toolbox in inter-State proceedings varies. ­Legitimacy refers to the strategic authorization of international courts to issue decisions, which affect important State interests.7 When it comes to the possible 3 See above, Chapter 4.12.1.7, Enforcement and the notion of ‘public order of Europe’: expendable rhetoric. 4 C Grabenwarter, K Pabel, Europäische Menschenrechtskonvention (2016) 52; A Saccucci, ‘Le misure provvisorie della Corte europea dei diritti umani nell’ambito della procedura di ricorso interstatale Georgia c. Russia’ (2009) 3 Rivista quadrimestirale diritti umani e diritto internazionale 129, 137. 5 F Voeffray, Actio popularis ou la défense des interêt collectif devant les juridictions internationals (2004) 7f. 6 H Keller, D Kühne, A Fischer, ‘Statut-Entwurf für den Europäischen Gerichtshof für Menschenrechte – Ein Beitrag zur Reform des Konventionssystems’ (2011) 38 EuGRZ 341; Report of the Group of Wise Persons to the Committee of Ministers, 15 November 2006, CM(2006)203, § 44f. 7 Y Shany, ‘No longer a weak department of power? Reflections on the emergence of a new international judiciary’ (2009) 20 ejil 74, 89.

Reform Considerations

173

r­ emedies the Court can dispose of, a clear definition of goals is indispensable: is the object and purpose of the inter-State application about condemnation and sanctioning, societal transition or individual justice? Is it about having the moral upper hand or is the Court supposed to manage an unfolding situation of crisis with interim measures? Is the mechanism oriented towards the future or about the past?8 And how do these possible goals combine with the postulate for subsidiarity? The reform considerations take, where appropriate, into account what solutions other human rights regimes have developed by way of comparison. The reform considerations are further made in the conviction that more inter-State litigation about human rights is desirable and beneficial for the protection of human rights in Europe. The High Contracting Parties have not used the inter-State application very often, even though in some instances, calls for the mechanism were made.9 Currently, the situation in Turkey after the attempted coup in summer 2016 is another instance where the inter-State application could unfold some of its beneficial potential. Thus, it is not the lack of necessity, but the lack of State’s initiative that appears to be a limiting factor for the inter-State application. To postulate a duty to lodge an inter-State proceeding is, however, explicitly not seconded here.10 5.2

Spelling Out the Object and Purpose of the Inter-State Application

The heterogeneous inter-State case law indicates that the motives, expectations and interests of the applicant States that use the inter-State mechanism transcend what is laid down in the Convention. An eventual reform of the inter-State application under the Convention should be guided by an understanding of the core object and purpose of the inter-State application, in order to balance the two functions of the mechanism in the best possible manner. Admittedly, the inter-State application has, in the past, been used in a wide variety of contexts, and thus needs a high degree of abstraction and flexibility to cover many types of inter-State applications. Thus, the text of Article 33 echr

8 9

10

See also V Lowe, ‘The Function of Litigation in International Society’ (2012) 209, 219. Eg with regard to the war in Chechnya in 2000, see Parliamentary Assembly of the Council of Europe, Rec 1456 (2000), 6 April 2000, ‘Urgent appeal to member states ‘to make use of Art. 33’ echr (inter-state complaint) v. Russia/Violation of human rights in the Chechen Republic’, reprinted in (2000) 21 hrlj 286. Cf M Kamminga (n 310 in Chapter 4) 163.

174

Chapter 5

should not be changed as such. However, the object and purpose could be captured in the preamble of the Convention, with an additional recital. ‘The object and purpose of the inter-State application goes beyond the quest for individual justice and shall enable the High Contracting Parties to address systemic human rights issues for the benefit of all affected individuals. Further, the inter-State application’s aim is to provide for individual-oriented but in essence subsidiary structural remedies within the legal framework of the Convention, which is dependent on the cooperation of the High Contracting Parties’. The clear orientation such a recital allows to keep the formal changes to the Convention at a minimum. 5.3

Dispute Settlement Functions

While the inter-State application performs certain dispute settlement functions, it is important to raise awareness of the limitations of the mechanism. 5.3.1 No Broader Yardstick and No Counterclaims The inter-State case law and its contextual analysis show that the Convention organs usually dealt with the human rights aspect of a larger conflict beyond the yardstick of the Convention. The present study explicitly does not suggest broadening the material yardstick for the Court in order to include international humanitarian law or general international law. It is also not suggested to add more human rights guarantees to the echr, eg minority rights or the right to self-determination. On a procedural level, the Convention’s inter-State application should not be equipped with the possibility for the respondent States to raise counterclaims because they would require a yardstick outside of the Convention. Moreover, there is no procedural need for counterclaims in a type of proceeding that is in fact not designed to settle contentious disputes between States. High Contracting Parties are free to lodge inter-State applications with the mere allegation of a breach of the Convention. If a responded in inter-State proceedings is of the opinion that the applicant State has likewise breached the Convention, these allegations can be raised relatively easily in a further inter-State application. Overall, the rather restrictive stance regarding the yardstick is necessary because the general need for a more reliable and more committed international dispute settlement by judicial processes cannot be solved in Strasbourg alone.

Reform Considerations

175

In essence, the limitation to the yardstick of the Convention is already contained in the wording of Article 33 echr. In addition, counterclaims could be excluded expressly. ‘In view of the object and purpose of the inter-State application under the European Convention on Human Rights, counterclaims to inter-State applications are outside the purview of the Court’. 5.3.1.1

Contextual Interpretation of the Given Yardstick in Light of the Object and Purpose of the Inter-State Application The volume showed that there is a need to find better mechanisms for the Court to cope with full complexity of a case without changing the material yardstick it applies. The brief considerations here are intended to underline the existing potential of the Convention on the level of interpretation and application of substantive provisions of the Convention. Article 15 § 1 echr states that ‘[i]n 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’.11 The clause has been described as ‘gateway to general international law’.12 Schreuer has argued that the a ‘broader reading of the this provision must include the question of whether there was a violation of the use of force expressed in Article 2 (4) of the u.n. Charter’.13 Macdonald disagreed with this reading of Article 15 echr and opined that ‘the issue is instrinsically political and too far removed from the main task with the Convntion is concerned’.14 It would go too far for the scope of the present volume to determine the exact legal purview of the Court under Article 15 echr and the related question how the Convention and general international law interact or form fragmented bodies of law.15 What can be deduced, however, from the last part of Article 15 echr is the legal principle of

11 12 13

14 15

Emphasis added. J Allain, ‘Derogation from the European Convention of Human Rights in Light of “Other Obligations under International Law”’ (2005) ehrlr 480, 491. C Schreuer, ‘Derogation of Human Rights in Situations of Public Emergency: The Experience of the European Convention on Human Rights’ (1982–1983) The Yale Journal of World Public Order 113, 130. R MacDonald, ‘Derogations under Article 15 of the European Convention on Human Rights’ (1998) Columbia Journal of Transnational Law 225, 247. L Wildhaber, ‘The European Convention on Human Rights and International Law’ (2007) International and Comparative Law Quarterly 217.

176

Chapter 5

consisentcy, which is also reflected in the requirement of systemic integration in Article 31 § 1 c) vclt.16 It is suggested here not to leave the existing potential of the Convention itself to ‘slumber’17 but to exploit it in light of the object and purpose of the Convention and specifically in the object and purpose of inter-State applications. The latter should be conceptualized as the limit of an interpretation of the Convention.18 5.3.1.2 Optional Referral to the Interantional Court of Justice Desipte its limited yardstick, the expectations towards the Strasbourg Court are considerable in the specific context of inter-State applications. Ukraine, for example, stated that the first inter-State application lodged in 2014 and its request for interim measures were ‘aimed at resolving the situation on the territory of Crimea and Ukraine on the whole’.19 The actual functions performed by the Court in the specific context of interState applications do not match these aspirations. The inability of the Strasbourg Court to deal with the context of a case due to its narrow subject matter jurisdiction can be a disincentive for the use of the mechanism because the Court is unable to deal with the actual underlying causes for the dispute at hand.20 Instead of overburdening the Strasbourg Court with questions of general international law and international humanitarian law, an optional referral mechanism to the International Court of Justice could open up a path for a more comprehensive legal scrutiny at the yardstick of general international law. The Court’s registry or the Committee of Ministers of the Council of Europe could encourage the parties to access the principal judicial organ of the United Nations via a compromis, on an ad hoc basis. In fact, the Committee of Ministers of the Council of Europe recommended to their 16

17

18

19 20

M Villiger, ‘Articles 31 and 32 of the Vienna Convention on the Law of Treaties in the CaseLaw of the European Court of Human Rights’, in J Bröhmer et al (eds), Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress zum 70. Geburtstag am 21. Januar 2005 (2005) 315, 326. R Macdonald, ‘Protecting Human Rights in emergency situations: Making Article 15 echr work’, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective (2000) 817, 834. C Binder, ‘The European Court of Human Rights and the Law of Treaties – Sign of Fragmentation or Unity?’ in C Binder, K Lachmayer (eds), The European Court of Human Rights and Public International Law, Fragmentation or Unity? (2014) 41, 47. Letter from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council, S/2014/196, 17 March 2014. R Bilder, ‘Some limitations of adjudication as an International Dispute Settlement Technique’ (1982–83) 23 Virginia Journal of International Law 1, 4.

Reform Considerations

177

Member States to consider the acceptance of the jurisdiction of the icj under Article 36 § 2 icj-Statute.21 Certainly the European Convention on Human Rights is not the back door to introduce general compulsory jurisdiction to the Court in The Hague over all disputes between the 47 High Contracting Parties to the Convention.22 At this point it also must be recalled that previous endeavours to provide the International Court of Justice with jurisdiction over disputes in Europe gained little acceptance. The 1957 European Convention on the Pacific Settlement of Disputes,23 which inter alia provides for the jurisdiction of the International Court of Justice under Article 36 § 1 icj-Statute, was conluded within the Council of Europe. As of summer 2017, only 14 States have ratified the instrument. A referral would not take away the Strasbourg Court’s jurisdiction nor end inter-State applications in favor of individual human rights. The intention would be to use the existing consensus for inter-State proceedings before the Strasbourg Court as a basis for a comprehensive judicial review in The Hague. ‘Parties of inter-State applications shall be asked by the Court to opt expressly, after the admissibility of an inter-State application has been established, to refer to the International Court of Justice those legal matters falling outside of the subject-matter jurisdiction of the European Court of Human Rights.’ 5.3.1.3 Against a Political Agenda of the Court Decaux suggested that the Court should overcome its ‘pointillism of case by case solutions and to gain not only juridical vision, but also political  ambi­ tion’.24 However, a closer look at the inter-State case law reveals that it is ­essential for the Strasbourg machinery to perform its functions in an objective manner. In fact, the judicialization of the mechanism with Protocol No 11 to the Convention reduced the political influence over the outcome of the proceedings.25 The objectification of the proceedings was regarded as an

21 22 23 24

25

Recommendation CM/Rec(2008)8 of the Committee of Ministers to member states on the acceptance of the jurisdiction of the International Court of Justice, 2 July 2008. Similarly R Higgins, ‘The icj, the ecj and the Integrity of International Law’ (2003) 52 International and Comparative Law Quarterly 1, 15. European Convention on the Pacific Settlement of Disputes, ets 023, 29 April 1957. E Decaux, ‘The Future of Inter-State Dispute Settlement Within the Council of Europe’ (1996) 9 ljil 397, 410; E Decaux, ‘L’avenir du règlement des différends interétatiques au Sein du Conseil de l’Europe’, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in Memory of Rolv Ryssdal (2000) 387, 396. See above, Chapter 2, ‘From collective enforcement towards international dispute settlement – the inception and evolution of the inter-State application under the European Convention on Human Rights’.

178

Chapter 5

asset of the inter-State application.26 The danger for the Court to lose credibility might lead to a fate which seems to befall the International Criminal Court these days. Member States like South Africa and Burundi denounce the Rome Statute and feel the institution is not exercising its powers in a uniform and coherent manner.27 Russia has withdrawn its signature; while the withdrawal is legally irrelevant, the perception by Russia is alarming and should not be left unnoticed in Strasbourg. A further argument against a political agenda of the Court is the principle of disposition of the parties. It is the applicant that sets the mechanism in motion and determines the subject matter of a given inter-State application. The utmost openness about the parties’ submissions, as foreseen by Rule 33 of the Rules for the Court, makes it clear that it is not the Court itself to decide what issues are before it. The public character of all documents relating to inter-State proceedings is even more important where the materials of a case have not become public during domestic proceedings, thus in cases where the requirement of the exhaustion of domestic remedies is dispensed with. The Court has in its inter-State judgments, eg in the Georgia v Russia (i) case,28 dedicated a large portion of the judgment (from §§ 21 to 80) to the context of a case, and has reiterated what the parties have submitted to it. This practice is to be welcomed.29 5.3.2 Broadening the Court’s Advisory Jurisdiction under Article 47 echr It is suggested here to broaden the advisory jurisdiction of the Strasbourg Court under Article 47 echr. The possibility is considered in more detail in order to exploit the strengths of the existing inter-State application by combining them, namely the possibility to collectively enforce human rights in favor of a large number of individuals with methods such as objective fact-finding and judicial review. The request of an advisory opinion by the Court would not be dependent on the exhaustion of domestic remedies. Thus, it would allow for a fast reaction. A disincentive for States to lodge inter-State applications are derogations 26

27

28 29

F Matscher, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der emrk’, in B Funk et al (eds), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburtstag (2002) 417, 428. D Akande, ‘South African Withdrawal from the International Criminal Court – Does the icc Statute Lead to Violations of Other International Obligations?’, 22 October 2016, ejil:Talk!, www.ejiltalk.org/south-african-withdrawal-from-the-international-criminal-court/. Georgia v Russia (i), no 13255/07. T Neumann, B Simma, ‘Transparency in International Adjudication’, in A Bianchi, A Peters (eds), Transparency in International Law (2013) 436, 440.

Reform Considerations

179

­ nder Article 15 echr. Such a derogation was, for example, declared by Turkey u in the wake of the coup d’état in July 2016.30 The Strasbourg organs have, as the case law evidences, taken a deferential approach in the context of derogations. Only once in more than six decades and 20 inter-State cases, the existence of a public emergency was questioned by the now defunct Commission, namely in the case against the military regime in Greece.31 States which would lodge inter-State proceedings under Article 33 echr would need to take the risk of failure in as much as the Court might find that measures by the respondent State might be justified in light of a public emergency threatening the life of the nation. This means that in those contexts where judicial review is needed most, when human rights are endangered most, the inter-State application is not a very attractive tool to address a possible systemic human rights issue. The proposal to broaden the Court’s advisory jurisdiction merges and adapts proposals to vest the Parliamentary Assembly of the Council of Europe with a right to initiate proceedings32 and to a lesser extent, to provide for an independent body equipped with the right to initiate inter-State proceedings.33 Not seconded are calls to enable the Court to initiate proceedings proprio motu34 because such a power would render the mechanism too political. In the course of reform considerations of the echr supervisory framework, it has been argued in the Wise Persons’ Report of 2006 that an extended advisory jurisdiction would enhance the Court’s constitutional role.35 In view of the already quite far-reaching jurisdiction of the Court in inter-State cases, the advisory jurisdiction would not be used in order to circumvent the requirement

30

31 32

33

34 35

The note verbale of the Turkish derogation of 22 July 2016 is available at https://wcd.coe .int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImag e=2929966&SecMode=1&DocId=2380676&Usage=2. See above, Chapter 4.6, Denmark et al v Greece. See Recommendation 513 (1968)‚ ‘Power to be conferred on the Assembly to refer alleged breaches of the Convention to the European Commission of Human Rights’ 31 January 1968. W Schabas reports that during the negotiations of the Rome Statute, some delegates pondered about the possibility to introduce a right of an independent body or prosecutor to initiate inter-State proceedings before the European Court of Human Rights. These considerations were made reportedly because of the small number of inter-State proceedings; W Schabas, ‘Article 33 Inter-State cases’, in The European Convention on Human Rights, A Commentary (2015) 723. M Kamminga (n 310 in Chapter 4) 164. Report of the Group of Wise Persons to the Committee of Ministers, 15 November 2006, CM(2006)203, § 81.

180

Chapter 5

of consent to jurisdiction or statehood, as it is the case at times before the International Court of Justice.36 The current Article 47 echr provides for a narrow scope of the advisory jurisdiction. Protocol No 16 to the European Convention of Human Rights, which was opened for signature in 2013 and is not yet in force, introduces the possibility for the highest national courts to ask the European Court for an advisory opinion.37 The instrument was welcomed as a ‘paradigm shift whereby the predominant individual justice approach is complemented by a constitutional one’.38 The right for organs of the Council of Europe, the Committee of Ministers and the Parliamentary Assembly, to request a non-binding advisory opinion by the Court could be similar to the possibilities within the framework of the United Nations. For example, the Committee of Ministers could be authorized by a certain majority to request the Court to issue an advisory opinion in light of human rights problems of a systemic nature.39 This right could be triggered for example if the Court starts receiving a large number of individual applications form a certain region. It is worthwhile to underline that advisory opinions would further increase the workload of the Court. However, this increase of workload might be accompanied by a decrease of the number of individual applications if largescale human rights issues are addressed in a comparatively fast manner. Thus, it is suggested to reformulate Article 47 echr. § 1 The Court may, at the request of the Committee of Ministers or the Parliamentary Assembly, give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto. § 2 Advisory opinions can deal with any question relating to the content or scope of the rights or freedoms defined in Section i of the Convention, especially in the context of possible systemic human rights violations evidenced by large numbers of individual applications under Article 34 echr. 36

37 38 39

C Romano, ‘The shift from the consensual to the compulsory paradigm in international adjudication: elements for a theory of consent’ (2006–2007) New York University Journal of International Law and Politics 792, 826. Protocol No 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, cets 214, 2 October 2013 (not yet in force). J Jahn, ‘Normative Guidance form Strasbourg Through Advisory Opinions’ (2014) 74 hjil 821, 822. Advisory opinions upon the request of the Committee of Ministers were also suggested by H Keller et al, ‘Statut-Entwurf für den Europäischen Gerichtshof für Menschenrechte – Ein Beitrag zur Reform des Konventionssystems’ (2011) 38 EuGRZ 341, 352.

Reform Considerations

181

§ 3 Decisions of the Committee of Ministers to request an advisory opinion of the Court shall require a majority vote of the representatives entitled to sit on the committee. Decisions of the Parliamentary Assembly to request an advisory opinion of the Court shall require a two-thirds majority vote of the representatives entitled to sit in the Assembly. 5.3.3 Fact-Finding Fact-finding is a central judicial function of the Strasbourg Court in the context of inter-State proceedings. Fact-finding can be defined as a method of ascertaining facts through the evaluation and compilation of various information sources. It serves to illuminate the circumstances, causes and consequences of a given event in time. Facts must be distinguished from opinions and legal rules which can be applied to the facts once established.40 The requirement of the exhaustion of domestic remedies is a tool to ‘subsidiarize’ the fact-finding effort to the national level. In the majority of individual cases, the Court can reach a judgment on the basis of the decisions made and documents created in the course of domestic proceedings.41 Due to the wide exceptions to the requirement of the exhaustion of domestic remedies, the Court finds itself often in a position as a Court of first instance in inter-State proceedings. This situation begs the question on how the Court can best allocate its scarce resources and how it can overcome obstacles.42 5.3.3.1 Telos-Orientation of Fact-Finding in Inter-State Contexts Fact-finding is carried out in a ‘relative’ manner, thus, in the context of a particular function of the entity conducting fact-finding.43 In the specific context of inter-State proceedings, fact-finding efforts should be valorized via a clearer definition of the object and purpose of the inter-State application.

40 41

42

43

A Riddel, ‘Evidence, fact-finding, and experts’, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 848, 851. P Leach, C Paraskeva, G Uzelac, International Human Rights & Fact-Finding, An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights (2009) 23. For a table comparing nine international judicial bodies budget T Ingadottir, ‘The Financing of International Adjudication’ in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 595, 600. P Leach, C Paraskeva, G Uzelac, International Human Rights & Fact-Finding, An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights (2009) 22.

182

Chapter 5

5.3.3.1.1 Fact-Finding and the Duty to Cooperate The proceedings before the Strasbourg Court are between inquisitorial and adversarial in character.44 There is no formal burden of proof.45 Moreover, the Court is free in its assessment of evidence.46 While the duty to cooperate under Article 38 echr applies to both individual and inter-State proceedings under the Convention, it is particularly relevant for inter-State proceedings. It is suggested here that the inter-State proceedings before the Strasbourg should be best described as cooperational. The new recital in the preamble of the Convention would combine with the existing Article 38 echr of the Convention. According to Article 38 echr, ‘[t]he Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities’. The French version of the text of Article 38 echr,47 which is equally authoritative, is slightly more vigorous. It refutes the argument that the shall in Article 38 echr would not contain a binding duty to cooperate. States have agreed to be supervised by a judicial body and are under a duty to facilitate the performance of judicial duties.48

44 45

46 47

48

J Frowein, ‘Artikel 38 emrk – Prüfung der Rechtssache und gütliche Einigung’, in J Frowein, W Peuerkt, emrk-Kommentar, (3rd ed, 2009) mn 2. ‘[T]he Court would emphasise that Convention proceedings do not in all cases lend themselves to rigorous application of the principle of affirmanti incumbit probatio (he who alleges something must prove that allegation). The Court has previously held that it is of the utmost importance for the effective operation of the system of individual petition instituted under former Article 25 of the Convention (now replaced by Article 34) that States should furnish all necessary facilities to make possible a proper and effective examination of applications’, Timurtaş v Turkey, no. 23531/94, judgment of 13 June 2000, § 66. Georgia v Russia (i), judgment [GC], no. 13255/07, 3 July 2014, § 94. Article 38 § 1 echr: La Cour examine l’affaire de façon contradictoire avec les représentants des parties et, s’il y a lieu, procède à une enquête pour la conduite efficace de laquelle les Hautes Parties contractantes intéressées fourniront toutes facilités nécessaires. Cf J Delbrück, ‘The international obligation to cooperate – an empty shell or a hard law principle of international law? A critical look at a much debated paradigm of modern international law’ in H Hestermayer et al (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (2012) 3, 8 (the echr ‘led to the creation of a “machinery of collective enforcement through the Convention organs on the basis of individual or State application” that in order to be effective – implicitly obligates the states parties to the Convention to cooperate with the European Court of Human Rights’).

Reform Considerations

183

5.3.3.1.2 Dealing with Recalcitrant and Non-cooperative States In 1976, the European Commission faced a situation in which Turkey refused to participate in proceedings initiated by Cyprus. In its report, the Commission ‘refrained from drawing any conclusions from the fact that the responded Government, despite every opportunity begin offered to them, failed to make any statements, or to propose counter-evidence on the applicant Government’s allegations.49 Almost 40 years later, in the Georgia v Russia (i) judgment of July 2014 the Court stated: ‘A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention’.50 In the operative part of the judgment, the Court found a violation of Article 38 echr. It also drew inferences against the respondent government, which had refused to produce certain pieces of written evidence. In Georgia v Russia (i) the Court put the violation of Article 38 echr at the very top of the operative part of the judgment, thereby underlining the bottleneck character of the norm. The Strasbourg organs have witnessed non-participation, intimidation of witnesses, some cases might even call into question the general assumption of good faith of the respondent state. At the other end of the spectrum are unintentional failures or delays. Not all of these phenomena can be dealt with a global formula in the context of Article 38 echr. The principle of free evaluation of evidence thus permits to take into consideration breaches of Article 38 echr on a sliding scale. In extreme cases, the norm might be applied together with Article 18 echr in order to influence the exacting standard of proof the Court applies concerning allegations of bad faith. 5.3.3.1.3 Duty of Non-frustration of Inter-State Proceedings Treaty based human rights obligations are a leap of faith of member States that other member States will comply with the obligations undertaken in favor of individuals within their respective jurisdictions. The process of verification if a given conduct of a member state is in violation of the obligations undertaken with the Convention via the inter-State application is one in which the respondent State must participate. The duty of cooperation is also important as a duty of non-frustration of adjudication, as a duty to appear before the 49 50

Cyprus v Turkey (i) and (ii), 1976 report (n 271 of Chapter 4) 31. Georgia v Russia (i), judgment [GC], no 13255/07, 3 July 2014, § 99.

184

Chapter 5

Strasbourg Court. Ideally, such a duty should be laid down positively. The least consequence is that non-appearance and non-cooperation does not end a proceeding automatically, als already forseen in Rule 65 of the Rules of the Court. Peters observed that in the context of the icj, ‘the icj-Statute’s response to non-appearance oscillates between sovereignty-consciousness and the idea of non-frustration. It depends on the Vorverständnis of the observer which of both competing and antagonistic elements rans in the foreground’.51 Rule 65 of the Rules of the European Court refers to the proper administration of justice. It would be beneficial to spell out more clearly what object and purpose the administration of justice has in the context of inter-State applications in order to avoid the use of an undefined pre-understanding. An example which illustrates the need for a clarification is the concurring opinion of Judges Pinto de Albuquerque and Vucinic, in the Cyprus v Turkey (iv) just satisfaction judgment.52 There, the damages awarded where deemed to be of a flagrant punitive nature,53 possibly in view of the non-cooperative approach by Turkey. In order to find a solution for the echr, the Vorverständnis should be made explicit, ideally in the object and purpose of inter-State proceedings as nonantagonistic and non-adversarial forum for the protection of human rights instead of a forum for head-on controversies. 5.3.3.1.4 Evidence and Reopening of Cases Clear standards for the possible reopening of a set of inter-State proceedings are desirable. One such request was made in late 2014 in the Ireland v United Kingdom. In order to reopen a case, Rule 80 § 1 of the Rules of the Court requires the discovery of a fact which might by its nature have a decisive influence and which, when the judgment was delivered, was unknown to the Court and could not reasonably have been known to the party requesting the reopening of the case. The provision should be applied in light of the object and purpose of the inter-State application in order to determine whether newly discovered facts have a ‘decisive influence’. The Irish judge O’Donoghue deplored in his separate opinion to the interState judgment of 1978 that he found ‘nothing even approaching disapproval by the Court at the non-cooperative attitude of the respondent Government. It would be lacking in candour if I did not state that there is much in the 51 52 53

A Peters, ‘Cooperation in International Dispute Settlement’ in J Delbrück (ed) International Law of Cooperation and State Sovereignty (2002) 107, 144. Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) [GC], 12 May 2014. Concurring opinion of Judges Pinto de Albuquerque and Vucinic, Cyprus v Turkey (iv) (just satisfaction), § 13.

Reform Considerations

185

tone and general approach of the judgment that must discourage member States from invoking Article 24. The concept of this being a collective guarantee in that Article to secure observance of human rights had been severely damaged’.54 The argument put forward here is not to ‘punish’ a respondent State for an alleged failure to cooperate with the Strasbourg organs by the reopening of the proceedings decades after a judgment was rendered. Rather, it is proposed to interpret Article 80 § 1 of the Rules of the Court in light of the duty to cooperate as laid down in the Convention and in light of the object and purpose of inter-State proceedings. Further, it is proposed to take into consideration that inter-State proceedings are characterized by low formal hurdles in order to set the proceedings in motion. 5.3.3.2 Amici Curiae, Third Parties and Neutrality The inter-State application serves the purpose of the collective enforcement of human rights. Third parties and amici curiae can inform the court of interests not presented by the parties in inter-State proceedings.55 A more constitutional role of the Court could ensue.56 The participation of third parties and amici curiae can be one avenue to ensure a comprehensive factual and legal basis for the question at issue and possibly serve the proper administration of justice with their expertise.57 Further, materials by third parties can help to alleviate the Court’s workload. However, the extensive participation of third parties might ‘open the floodgates to what might be a vast amount of proffered assistance’.58 Today, Article 36 echr and Rule 44 of the Rules of the Court cover the matter. It is suggested here to derive guidance for the application of the norms from the object and purpose of the inter-State application. Where High Contracting Parties join individual proceedings under Article 36 echr, the proceedings approach the functions of inter-State applications, thus, amount to disguised inter-State litigation. If the Council of Europe wants to add weight to 54 55 56 57 58

Separate opinion of Judge O’Donoghue to Ireland v United Kingdom, no 5310/71(judgment). C Grabenwarter, ‘Third Parties im Verfahren vor dem Europäischen Gerichtshof für Menschenrechte’, in M Breuer (ed), Staat im Recht, Festschrift für Eckart Klein (2013) 1057, 1061. C Grabenwarter, ‘Third Parties im Verfahren vor dem Europäischen Gerichtshof für Menschenrechte’, in M Breuer (ed), Staat im Recht, Festschrift für Eckart Klein (2013) 1057, 1064. Y Ronen, Y Naggan, Third Parties, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 807. A Lester, ‘Amici curiae: third party interventions before the European Court of Human Rights’, in Protecting Human Rights: the European Dimension, Studies in Honour of Gérard J. Wiarda (1988) 341, 350.

186

Chapter 5

individual proceedings before the Court, the High Commissioner has the right to intervene as a third party under Article 36 § 2 echr. The suggestion made here is to use the existing legal framework concerning third parties in a manner to render transparent and explicit to the largest possible extent where materials the Court uses come from and for what purpose they were submitted to it. Further, it is suggested to clearly designate cases where States join individual proceeidngs. 5.4

Collective Enforcement

The following considerations focus on admissibility requirements and the remedial toolbox of the Court in the context of inter-State applications. The possible accession of the European Union to the Convention is discussed here as a potential curtailment of the admissibility of inter-State applications. The Accession of the European Union to the echr and the Looming Admissibility Restrictions for the Inter-State Application The present subchapter deals with the eventual consequences for interState applications under Article 33 echr among member States of the European Union for the case the eu joins the European Convention of Human Rights.59

5.4.1

5.4.1.1 Overview Since the Lisbon Treaty, Article 6 § 2 of the Treaty of the European Union (teu)60 contains the mandate to for the eu to accede the echr. In December 2014, in its Opinion 2/13,61 the European Court of Justice blocked the projected accession of the eu to the Convention under the then-negotiated conditions under Article 218 § 11 teu. The reasons for the rejection of the 2013 draft negotiation agreement by the Luxembourg Court are manifold, and need not to be discussed at length here.62 59

60 61 62

See also I Risini, ‘The accession of the European Union to the echr and the inter-state application under Article 33 echr’, in S Lorenzmeier (ed), Contemporary Issues of Human Rights Protection in International and National Settings (2018). Consolidated Version of the Treaty on European Union, OJ C 326, 13–36 (26 October 2012). cjeu Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454; the opinion should be read together with the view of GA J Kokott, 13 June 2014, ECLI:EU:C:2014:2475. For a detailed discussion see C Tomuschat, ‘Der Streit um die Auslegungshoheit: Die Autonomie der eu als Heiliger Grahl/das EuGH-Gutachten gegen den Beitritt der eu zur

Reform Considerations

187

The European Court of Justice has proposed the ‘express exclusion of the ECtHR’s jurisdiction under Article 33 of the echr over disputes between member States or between member States and the eu in relation to the application of the echr within the scope ratione materiae of eu law’.63 The considerations offered here focus on the constellation of eu member States as parties in inter-State proceedings under the echr because this type of proceedings is currently possible, its loss should be avoided. 5.4.1.2

For a Preservation of Inter-State Applications between eu Member States It is argued here to preserve the possibly of the inter-State application under Article 33 echr for those States which are both eu members and High Contracting Parties to the echr. In other words, the accession of the European Union to the echr should not come at the price that inter-State applications between eu member States become inadmissible. The current example of the 2016 inter-State application of Slovenia against Croatia,64 which are both eu members, shows that there is a need for the inter-State application under Article 33 echr among eu member States. The Luxembourg Court opined that the 2013 draft accession agreement, which did not exclude inter-State litigation under Article 33 ehcr of eu member States was incompatible with Article 344 Treaty on the Functioning of the European Union (tfeu).65 It is argued that the autonomy of eu law as enshrined in Article 344 tfeu should not bar or substantially restrict inter-State applications between eu member States under the European Convention of Human Rights. This line of arguments rests on a weighing process: the valuable functions of the collective enforcement of human rights and international dispute settlement the inter-State application offers outweigh the eventual curtailment of the autonomy of the Luxemburg court.

63 64

65

emrk’ (2015) 42 EuGRZ 133, 137; D Halberstam, ‘It’s the autonomy, stupid!’ (2015) 16 German Law Journal 106, 111. cjeu Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, § 213. Slovenia v Croatia no 54 155/16; Press release ECHR 340 (2016) of 20 October 2016, J Hojink, ­‘Slovenia v. Croatia: The First eu Inter-State Case before the ECtHR’, 17 October 2016, ejil: Talk!, www.ejiltalk.org/slovenia-v-croatia-the-first-eu-inter-state-case-before-the-ecthr/. Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 47–390 (26 October 2012); cjeu Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, §§ 201ff.

188

Chapter 5

5.4.1.3

The Autonomy of the eu Legal Order Threatened by the Inter-State Application: Taking Stock According to Article 344 tfeu, ‘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 provision is a prohibition addressed to eu member States to submit any dispute about the interpretation of the law, including the echr in a post accession scenario, of the European Union to settlement by an entity other than the Luxembourg Court.66 The autonomy of the European legal order is an aspiration, which is nurtured by the need of coherence and uniformity of eu law.67 The 2013 draft accession agreement avoided the matter.68 What exactly the autonomy of the eu legal order as enshrined in Article 344 tfeu entails has not emerged clearly from past jurisprudence. The Luxembourg Court’s statement in § 208 of Opinion 2/13 that ‘the very existence of such a possibility [the possibility that the eu or Member States might submit an application to the ECtHR] undermined the requirement set out in Article 344 tfeu’ is an extreme interpretation of the norm. The eu legal order, with its wide-ranging competences in external relations, according to the interpretation in Opinion 2/13, would exclude the accession of the eu to an international treaty or a mixed agreement which comes with a dispute resolution mechanism. The Luxemburg Court goes on in § 210 to state that ‘Article 344 tfeu is specifically intended to preserve the exclusive nature of the procedure for settling those disputes within the eu, and in particular of the jurisdiction of the Court of Justice in that respect, and thus precluded any prior or subsequent external control’. These statements are not easy to reconcile with Article 6 teu and its mandate for the eu to access the echr. While this volume is not the appropriate space to clarify the concept of autonomy as enshrined in Article 344 tfeu,69 the line of argument put forward by the Court in Opinion 2/13 does not convincingly justify to cut back the right to initiate inter-State 66

W Obwexer, ‘Der Beitritt der eu zur emrk: Rechtsgrundlagen, Rechtsfragen und Rechtsfolgen’ (2012) EuR 115, 121. 67 E Vranes, ‘Die Staatenbeschwerde im Verhältnis von egmr, internationalen Gerichten und EuGH’ (2014) 69 Zeitschrift für öffentliches Recht 257, 260, with further references. 68 Appendix v of document 47+1(2013)008rev2 of the Council of Europe concerning the accession negotiations of 10 June 2013, which contains a ‘Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’10 June 2013, § 72. 69 S Oby Johansen, ‘The reinterpretation of tfeu Article 344 in Opinion 2/13 and its potential consequences’ (2015) German Law Journal 169, 174.

Reform Considerations

189

proceedings under Article 33 echr by eu member States against other eu member States. 5.4.1.4 The ceju’s Proposition ‘ratione materiae’: A Chilling Effect for the Inter-State Application The ceju’s proposition to exclude the inter-State application between eu member States ‘over disputes (…) in relation to the application of the echr within the scope ratione materiae of eu law’70 would factually exclude a wide range of applications because eu law permeates a large part of national legislation. More importantly, it would discourage States from lodging inter-State applications. Often, it is not clear where the ratione materiae scope of eu law ends. Moreover, such a clause would require the Strasbourg Court to interpret eu law, which in turn, would be again contrary to eu law.71 AG Kokott suggested in her view that the eu and its member States should declare ‘their intention not to initiate proceedings against each other before the ECtHR pursuant to Article 33 echr in respect of alleged violations of the echr when the subject-matter of the dispute falls within the scope of eu law’.72 However, such a declaration would not help to clarify the admissibility of an eventual inter-State application between eu member States. 5.4.1.5

Infringement Proceedings under the tfeu: a Valuable Tool, However not as Effective as Inter-State Applications under the echr The need for the inter-State application before the echr is not balanced out by the possibility of infringement proceedings under Articles 258 and 259 tfeu. The eu has no general mandate ‘to police gay rights in Ireland or minority rights in Corsica’.73 Concededly, infringement proceedings have been used to address issues with a human rights dimension: the situation in Hungary,74 as well as the cases of France have been tackled with treaty infringement proceedings under Article 259 tfeu, or the threat of proceedings by the 70 71

72 73 74

cjeu Opinion 2/13 (Full Court), 18 December 2014, ECLI:EU:C:2014:2454, § 213. J Polakiewicz, ‘Accession to the European Convention on Human Rights (echr) – An insider’s view addressing one by one the cjeu’s objections in Opinion 2/13’ (2016) 36 hrlj 10, 18. View of GA J Kokott, 13 June 2014, ECLI:EU:C:2014:2475, § 120. A von Bogdandy, ‘The European Union as a Human Rights organization? Human Rights and the core of the European Union’ (2000) 37 cmlr 1307. Commission v Hungary, ECLI:EU:C:2012:687; M Dawson and E Muir, ‘Hungary and the Indirect Protection of eu Fundamental Rights and the Rule of Law’ (2013) 14 glj 1959.

190

Chapter 5

­Commission.75 Under Article 258 tfeu, only few cases were litigated before the Court.76 Very few 258 tfeu-interstate cases have a human rights dimension. The case of Spain v United Kingdom77 was a follow-up case to Matthews v United Kingdom of the Grand Chamber of the European Court of Human Rights.78 The possibility treaty infringement proceedings under Articles 258 and 259 tfeu is recognized as a valuable tool here. However, these possibilities are not equal to the possibilities under the inter-State application under the echr. Granted, States seem to be concerned about the possible penalties resulting from an infringement action.79 However, under the eu treaties as they stand today, human rights issues can only be addressed within treaty infringement proceedings as long as the conduct of the State is within the realm of eu law. 5.4.1.6

Result: Inter-State Application’s Functions Outweigh Interest in Preservation of Autonomy under Article 344 tfeu It is argued here that the possibility of eu member States to lodge inter-State applications against other eu member States before the Strasbourg Court should not be cut back in the context of a possible accession of the eu to the echr. The arguments put forward second the explanatory report to the 2013 draft accession agreement, which stated that ‘[t]he current control mechanism of the Convention should, as far as possible, be preserved and applied to the eu in the same way as to other High Contracting Parties, by making only those adaptations that are strictly necessary’.80 Even if the inter-State application under the echr would curtail the autonomy of the eu legal order, it would be worthwhile to keep the inter-State application rather than to pursue the elusive goal of the preservation of the autonomy of the eu legal order. An accession of the eu to the echr that would weaken the level of protection of the echr in Europe would not be an undertaking worthwhile to pursue. The object and purpose of the mandate of

75

M Dawson and E Muir, ‘Institutional and Collective Vigilance in Protecting Fundamental Rights in the eu: Lessons from the Roma’ (2011) 48 cmlr 751. 76 France v United Kingdom, ECLI:EU:C:1979:225; Belgium v Spain, ECLI:EU:C:2000:244; Kingdom of Spain v United Kingdom ECLI:EU:C:2006:543; Hungary v Slovakia, ECLI:EU:C:2012:630. 77 Kingdom of Spain v United Kingdom ECLI:EU:C:2006:543. 78 Matthews v United Kingdom [GC], no 24833/94 echr 1999-i. 79 P Wennerås, ‘Sanctions against Member States under Article 260 tfeu: Alive, but not kicking?’ (2012) 49 cmlr 145 80 Appendix v of document 47+1(2013)008rev2 of the Council of Europe concerning the accession negotiations of 10 June 2013, which contains a ‘Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’10 June 2013, § 7.

Reform Considerations

191

the eu to access the echr in Article 6 teu was not to weaken human rights protection in Europe, but to strengthen it. In view of the current situations in, eg, Poland and Hungary, the inter-State application before the echr should be retained. The weighing of options also should take into consideration a possible accession has to be satisfactory for all parties involved in the accession agreement.81 A possible solution will also have to take into consideration the other High Contracting Parties to the echr that are not eu member States. To create a double standard within the echr, allowing for certain member States to use the inter-State application freely and to curtail the right for others, would stretch the benefit of the eu’s accession to the echr too far. 5.4.2 The Exhaustion of Domestic Remedies and the Exceptions The requirement of the exhaustion of domestic remedies under Article 35 § 1 echr in inter-State application is necessary in order to preserve the subsidiary role of the Strasbourg Court. However, the requirement should be clarified in those contexts where the inter-State application addresses systemic issues beyond an individual victim. The clarification of the notion of administrative practices, especially the standard of proof at the level of the admissibility of inter-State applications, seems to be worthwhile. The standard of proof relates to the measure against which the value of each piece of evidence as well as the overall value of the evidence in a given case should be weighted and determined.82 In international litigation, issues of standard of proof are among the most controversial because the common and civil legal traditions have different approach to the matter.83 There is no room here to suggest an all-encompassing theory of standard of proof before the echr. For the specific requirement of prima facie evidence for the existence of administrative practices at the level of admissibility, it would be advisable to specify the probative value of reports of third parties, amici curiae and the like at the stage of admissibility when allegations of administrative practices are voiced. At this level of the proceedings, the Court would not need to fully rely on materials of third parties, because at the admissibility level, the merits 81

82 83

Ibid, § 8; F Tulkens, ‘La protection des droits fondamentaux en Europe et l’adhesion de l’Union européenne à la Convention des droits de l’homme’ (2012) 1 Critical Quarterly for Legislation and Law 14, 20. A Riddel, ‘Evidence, fact-finding, and experts’ in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 848, 860. R Wolfrum, ‘The Taking and Assessment of Evidence by the European Court of Human Rights’, in S Breitenmoser et al (eds) Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber (2007) 915, 924.

192

Chapter 5

of the case are not predetermined. To allow the use of third party materials at this stage in a more lenient manner would mean to take away some of the burden of the Court and to allow for a timely evaluation of the merits of the case with a stricter standard of proof. The Court could take advantage of the proliferation of fact-finding bodies and approaches in the context of human rights protection.84 A provision in Article 35 echr could be added, stipulating that for interState applications, third party material at the level of the admissibility can fulfill the standard of prima facie evidence. The Court’s Remedial Toolbox in Light of the Object and Purpose of the Inter-State Application The issue of the consequences of large-scale human rights violations for individuals is one of the most controversial ones outside of the European Convention on Human Rights.85 In this subchapter, the remedial powers of the Court in the specific context of inter-State applications are considered. The considerations are offered with a view to systemic human rights issues, which seem to be especially worthwhile to be tackled in the context of inter-State applications. The object and purpose of the inter-State application is of special importance when it comes to the possible legal consequences such a proceeding entails. Leach has argued that ‘gross and systematic human rights violations arguably justify a significant step-up in terms of the remedial response by an international court’.86 The general approach for reform considerations it is not

5.4.3

84

85

86

P Alston, S Knuckey, ‘The transformation of human rights fact-finding, challenged and opportunities’, in P Alston, S Knuckey (eds) The transformation of human rights factfinding (2016) 3, 5. D Shelton, Remedies in International Human Rights Law (3rd ed, 2015); P d’Argent, ‘Des règlements collectifs aux reglements individuels (collectivisés?), La question des réparations en cas de violation massive des droits de l’homme’ (2003) 5 International Law Forum du Droit international 10, 13; C Tomuschat, ‘Individual reparation claims in instances of grave human rights violations: the position under general international law’, in A Randelzhofer, C Tomuschat (eds) State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (1999) 1, 25; C Tomuschat, Reparation for Victims of Grave Human Rights Violations’ (2002) 10 Tulane Journal of International and Comparative Law 157, 173; D Shelton, ‘Roles of the Court’, in The long-term future of the European Court of Human Rights, Proceedings, of the MultiRights Annual Conference organised by PluriCourts under the auspices of the Council of Europe, 7–8 April 2014 (2014) 113, 123. P Leach, ‘No longer offering fine mantras to a parched child? The European Court’s developing approach to remedies’, in A Follesdahl et al (eds), Constituting Europe Constituting

Reform Considerations

193

driven by the quest to equip the Court with more coercive enforcement powers. Proposals of vesting the Court with the power to issue sanctions similar to those in the legal order of the European Union are not seconded here.87 5.4.3.1 Overview With Article 46 echr, the High Contracting Parties have undertaken to abide by the final judgment of the court in any case to which they are parties. The provision imposes on the respondent State an obligation to put an end to the breach, thus, refers to the obligation of cessation, a primary obligation deriving directly from the Convention. As a rule, it falls on the respondent State how to implement the binding but declaratory judgments. The choice of means reconciles the principle of subsidiarity with the collective guarantee of the rights and freedoms protected in the Convention.88 Under Article 46 § 2 echr, the Committee of Ministers of the Council of Europe supervises the execution of the judgment. The political organ may request further information as to the implementation of a judgment, a power which has been compared to an ‘accountancy exercise’89 and continues to be a cause for concern in the context of reform considerations.90 The implementation of the judgments of the Court has been ‘increasingly subjected to judicialization’,91 the division of labor between the Committee of Ministers and the Court, and to some degree also the Parliamentary Assembly, has begun to change.92 The obligation under Article 46 echr is distinct from a

87

88 89

90 91 92

Europe: the European Court of Human Rights in a national, European and global context (2013) 142, 172. A Drzemczwewski, ‘Introduction of a system of financial sanctions or astreintes on states who fail to implement judgments of the Strasbourg Court’, Memorandum on the Parliamentary Assembly’s proposal to introduce a system of financial sanctions or astreitens on states who fail to implement judgments of the Strasbourg Court, CT-GDR_E(2013)002, 30 April 2013; European Commission for Democracy through Law (Venice Commission) Opinion on the Implementation of the Judgments of the European Court of Human Rights, 13–14 December 2002, CDL-AD(2002)34, § 78f. Partly concurring opinion Judge Costa, Assanidze v Georgia, no 71503/01, judgment (GC), 8 April 2004, § 4. M Villiger, ‘Binding effect and declaratory Nature of the Judgments of the European Court of Human Rights: An Overview’, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 33, 34. Brighton Declaration, 20 April 2012, § 26–29. H Keller, C Marti, ‘Reconceptualizing Implementation: The Judicialization of the Execution of the European Court of Human Rights’ Judgments’ (2015) 26 ejil 829, 831. E Lambert-Abdelgawad, ‘The Court as a part of the Council of Europe: the Parliamentary Assembly and the Committee of Ministers’, in A Follesdal, B Peters, G Ulfstein (eds),

194

Chapter 5

possible obligation under Article 41 echr, the award of just satisfaction, which can be imposed on the respondent on a discretionary basis by the Court. It has been pointed out that while the Court has developed its jurisprudence under Article 46 echr, the role of just satisfaction under Article 41 echr has been somewhat neglected.93 5.4.3.2

A More Active, Managerial Court with Respect to Implementation and Execution of Judgments It is argued here that the method of pilot judgments94 should be used also in the context of inter-State applications, which address systemic human rights violations. The pilot judgment approach allows addressing large-scale human rights violations through managerial methods, thus, in a cooperative and sovereignty-preserving manner rather than with sanctions.95 It is argued that a constructive legal dialogue is a worthwhile option and thus should be open to the Court in inter-State cases. Certainly, the methodology should not be the only means for the Court. In 2004, the Committee of Ministers explicitly invited the Court ‘to identify, in its judgments finding a violation of the Convention, what it considers to be an underlying systemic problem and the source of this problem (…)’.96 Since 2011, Article 61 of Rules of the Court since contains specific rules about pilot

93

94

95 96

Constituting Europe, The European Court of Human Rights in a National, European and Global Context (2013) 263, 282. L-A Sicilianos, ‘The Role of the European Court of Human Rights in the Execution of its own judgments: reflections on Article 46 echr’, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 285. E Lambert-Abdelgawad, ‘Is there a need to advance the jurisprudence of the European Court of Human Rights with regard to the award of damages?’ in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 115, 118. L Wildhaber, ‘Pilot Judgments in Cases of Structural or Systemic Problems on the National Level’ in R Wolfrum, U Deutsch (eds), The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions (2009) 69; P Leach et al, Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level (2010) 9; A Buyse, ‘Airborne or Bound to Crash? The rise of Pilot Judgments and their Appeal as a Tool to Deal with the Aftermath of Conflict’ in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 175 Cf P Leach et al, Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level (2010) 32. Committee of Ministers, Resolution(2004)3 on Judgments revealing an underlying systemic problem, 12 May 2004.

Reform Considerations

195

judgments. The Court does not only decide whether a violation of the echr occurred in a specific case, but gives clear indications of the type of ­remedial measures needed to resolve the underlying issue, including measures of a general character such as legislative amendments and the modification of administrative practices.97 Other, similar cases are adjourned for a period of time in order to enable the respondent State to adopt measures on the n ­ ational l­ evel.98 The developments can be described as ‘participatory model of accountability’99 in response to legitimacy concerns.100 Criticism about the approach centers on the issue of individual justice.101 In the context of the Cyprus v Turkey inter-State proceedings, the pilot judgment technique yielded considerable results which support the postulate for the use of the technique in inter-State applications. The Court induced change in Cyprus by way of the pilot judgment technique, while decades of interState litigation have brought about no tangible results. In the Xenides-Arestis v Turkey pilot judgment of December 2005, the Court considered that the respondent State must introduce a remedy in the Turkish Republic of Northern Cyprus which secures genuinely effective redress for the Convention violations identified in the judgment.102 In response to the Xenides judgment, the Turkish Republic of Northern Cyprus set up the so-called Immovable Property

97

L-A Sicilianos, ‘The Role of the European Court of Human Rights in the Execution of its own judgments: reflections on Article 46 echr’, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 285, 290. 98 See also factsheet pilot judgments prepared by the press unit of the European Court of Human Rights in November 201w available at www.echr.coe.int/Documents/FS_Pilot _judgments_ENG.pdf. 99 J Jahn, ‘Ruling (In-)directly through individual measures? Effect and Legitimacy of the ECtHR’s new Remedial Power’ (2014) 74 hjil 1. 100 L-A Sicilianos, ‘The Role of the European Court of Human Rights in the Execution of its own judgments: reflections on Article 46 echr’, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 285, 305; G Malinverni, ‘La compétence de la Cour pour surveiller l’exécution de ses propres arrêts’, in D Spielman et al (eds), La convention européenne des droits de l’homme, un instrument vivant, Mélanges en l’honneur de Christos L. Rozakis (2011) 361. 101 A Gattini, Mass Claims at the European Court of Human Rights in S Breitenmoser et al (eds), Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber (2007) 271, 283. 102 Xenides-Arestis v Turkey, no 46347/99, judgment of 22 December 2005, § 40 and para 5 of the dispositive; some authors refer to the case also as quasi-pilot judgment because the Court has not identified the case as a pilot case, P Leach et al, Responding to Systemic Human Rights Violations (2010) 156.

196

Chapter 5

Commission (ipc). The ipc started its work in March 2006. In its admissibility decision in the case of Demopoulos and others v Turkey, the Grand Chamber found in 2010, that the ipc provides for an effective remedy and dismissed property-related complaints emanating from Cyprus for the non-exhaustion of domestic remedies.103 The Court argued that it had a subsidiary role in the protection of human rights as enshrined in the Convention.104 The proposed change involves a reformulation of Rule 61 of the Rules of the Court to include inter-State applications. It is further suggested to elevate Rule 61 of the Rules of the Court, at least in part, to the level of the Convention, eg in a future Article 46a echr, in order to provide a sound legal basis at the level of the Convention. The possibility to adjourn individual applications which overlap with inter-State proceedings would render the judicial process in Strasbourg more efficient even if less individual-oriented. Article 46a echr § 1 The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications. § 2 Inter-State applications can be treated as a pilot case by the Court. Where individual applications overlap, and the inter-State application was identified as a pilot proceeding, the individual applications can be adjourned. § 3 Further details to the proceedings will be dealt with at the level of the Rules of the Court/the Statute of the Court. 5.4.3.3

Just Satisfaction in Light of the Object and Purpose of Inter-State Applications Especially where large-scale human rights violations have occurred, balanced solutions are hard to find on the basis of a system of individual reparation claims. The economic capacity of the wrongdoing State is furthermore a factor to be taken into account.105 The recognition of the suffering of many individuals or a group of individuals is an important aspect of judicial proceedings under Article 33 echr. The award of just satisfaction in cases of large-scale human rights violation should remain an option and used in extreme cases, like

103 Demopoulos and Others v Turkey [GC], nos 46113/99 et al (dec), 1 March 2010; the Court’s approach was confirmed in Meleagrou and Others v Turkey, no 14434/09, 2 April 2013. 104 Ibid, § 69. 105 C Tomuschat, Reparation for Victims of Grave Human Rights Violations’ (2002) 10 Tulane Journal of International and Comparative Law 157, 180.

Reform Considerations

197

in Cyprus v Turkey. Examples outside of the legal framework of the Convention have proven that the redress of large-scale wrongs is not impossible.106 5.4.3.3.1 Reducing Complexity in the Wording of Article 41 echr From the perspective of the Convention, the Court’s jurisprudence under Article 41 echr has been characterized as ‘intriguing subject’107 in general and as ‘delicate and complicated question’108 in the specific context of inter-State applications. The text of Article 41 echr ‘does not permit the reader to derive many clear answers concerning the scope and the meaning of the rule’.109 Article 41 echr allows for the recovery of three categories of claims: compensation for material damage compensation for immaterial damage and remuneration for costs and expenses. As a general rule, financial compensation is seen as a subsidiary remedy.110 The wording of Article 41 echr speaks of ‘injured party’, which gave rise to speculations of who the injured party was in the context of inter-State applications because under the Convention, the duty to provide reparation for the breach is not owed primarily to the other High Contracting Parties but to the injured individual.111 In Cyprus v Turkey (iv), the Court cleared persisting doubts112 about the applicability of the provision to inter-State proceedings. It is suggested here to reformulate Article 41 echr in a manner that clarifies its applicability in the context of inter-State applications by leaving out the last part of the current wording ‘to the injured party’. 106 H Das, ‘The concept of mass claims and the specificity of mass claims resolution’ in The International Bureau of the Permanent Court of Arbitration (ed), Redressing Injustices Through Mass Claims Processes (2006) 3; J Crook, ‘Mass Claims Processes: Lessons Learned Over Twenty-Five Years’, in International Bureau of the Permanent Court of Arbitration (ed), Redressing Injustices Through Mass Claims Process, Innovative Responses to Unique Challenges (2006) 41, 55, M Indlekofer, International Arbitration and the Permanent Court of Arbitration (2013) 203f, with further references. 107 J Laffranque, ‘Can’t get Just Satisfaction’ in A Seibert Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 75. 108 Ibid, 106. 109 C Tomuschat, ‘Just satisfaction under Article 50 of the European Convention on Human Rights’ in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in Memory of Rolv Ryssdal (2000) 1409, 1410. 110 R Bernhardt, ‘Just satisfaction under the European Convention on Human Rights’ in M Ragazzi (ed), International Responsibility Today (2005) 243, 251. 111 M Pellonpää, ‘Individual Reparation Claims under the European Convention on Human Rights’ in A Randelzhofer, C Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (1999) 109, 110. 112 O Ichim, Just Satisfaction under the European Convention on Human Rights (2015) 89.

198

Chapter 5

5.4.3.3.2 Transparency Instead of Entitlements Under the current design of the Convention, there is no legal entitlement to a remedy under Article 41 echr. This state of affairs has been perceived as unsatisfactory because an award of damages under Article 41 echr could be an ‘act of charity’113 by the Court and was compared to a ‘lottery ticket’.114 In view of this criticism calls for more transparency are seconded here, which means for the Court to render the motivations for an award more explicit.115 A further sentence in Article 41 echr could stipulate for the Court to motivate its awards. In addition, it should be made clear at the level of the Convention that if the Court awards just satisfaction under Article 41 echr the applicant State is under a legal obligation to distribute the award, and thus explicitly regulate what Article 19 of the Draft Articles on Diplomatic Protection116 seems to see as a ripening rule of customary international law. As a consequence, it must be clear what purpose the award serves, in order to develop criteria to individualize those persons for whom the award is intended. 5.4.3.3.3 Article 41 echr, Discretion and Subsidiarity Article 41 echr in itself is not a legal basis for the award of just satisfaction. Rather, the material norm which was breached determines the legal consequences of a breach. It is further suggested for the Court to use its discretionary powers under Article 41 echr in line with general international law and in light of the object and purpose of the inter-State application. For example, the award of compensation under Article 41 echr for the loss of property might be seen as tantamount to accepting that a wrongdoing State may be allowed, by the payment of compensation, to purchase the benefits of breaches of rules of

113 D Shelton, ‘Roles of the Court’ in The long-term future of the European Court of Human Rights, Proceedings, of the MultiRights Annual Conference organised by PluriCourts under the auspices of the Council of Europe, 7–8 April 2014 (2014) 113, 119. 114 A Buyse, ‘Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law’ (2008) 68 hjil 129, 151. 115 E Lambert-Abdelgawad, ‘Is there a need to advance the jurisprudence of the European Court of Human Rights with regard to the award of damages?’ in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 115, 126; C Tomuschat, ‘Just satisfaction under Article 50 of the European Convention on Human Rights’ in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in Memory of Rolv Ryssdal (2000) 1409, 1429. 116 Draft Articles on Diplomatic Protection with Commentaries, YB Int’l L Comm, 2006, vol. ii, Part Two.

Reform Considerations

199

international law, thus possibly endorsing the original wrong and entrenching the situation.117 In the context of a possible reform, the explanatory report could detail the following: The award of just satisfaction in the context of inter-State cases has no punitive dimension. The award is oriented at past wrongs and with a view of reconciliation. Awards of just satisfaction in inter-State applications are a subsidiary means to fulfill the object and purpose of the inter-State application. Before an award of just satisfaction is made, the States involved should be asked to enter into negotiations or to find a mechanism on the national level to deal with the issue of compensation. Only if these efforts fail, the Court can award just satisfaction. An award of just satisfaction does not dispense a High Contracting Party to perform its primary duties under the Convention, to abide by a binding and final judgment of the Court under Article 46 echr and to live up to its other obligations under international law. 5.4.3.4 Interim Measures in the Context of Inter-State Proceedings Interim measures form an integral part of the Court’s remedial toolbox in inter-State proceedings. More recently, interim measures based on Rule 39 of the Rules of the Court have been used in the context of situations of extreme gravity and urgency, including times of armed conflict.118 In general, interim measures are applied where there is an imminent risk of irreparable harm. Such measures are decided in connection with proceedings before the Court without prejudging any subsequent decisions on the

117 L Loucaides, ‘The Protection of the right to property in occupied territories’ (2004) 53 International and Comparative Law Quarterly 677, 685. 118 Eg press release echr 073 (2014), Ukraine v Russia (i), no 20958/14; press release 581 (2008), Georgia v Russia (ii), no 38263/08; according to statistical information provided by the Court’s press unit (Factsheet on Interim Measures (last updated in September 2016), which is a non-binding explanatory report www.echr.coe.int/Documents/FS _Interim_measures_ENG.pdf; in 2015, 39% of interim requests granted in the context of individual applications under Article 34 echr are linked to the conflict in Ukraine; see also S Kirchner, ‘Interim Measures in Inter-State Proceedings before the European Court of Human Rights: Ukraine v. Russia’ (2014) 3 University of Baltimore Journal of International Law 33; F Kollmar, ‘In the interim in Strasbourg re: the crisis in Crimea’ Cambridge Journal of International and Comparative Law blog, 27 March 2014, cjicl.org.uk/2014/03/27/ interim-strasbourg-re-crisis-crimea/.

200

Chapter 5

admissibility or merits of the case in question.119 Interim measures are ancillary to the function the judicial body is intended to carry out. The E ­ uropean Convention on Human Rights itself does not provide for (binding) interim measures, neither in individual nor in inter-State applications. The limits of functional legitimation cannot be pushed very far if the object and purpose of inter-State proceedings is not clear. Interim measures by the Court are a considerable inroad to the State’s sovereignty. Thus, the expansive use of interim measures without a conventional basis is problematic.120 Several attempts to include provisional measures at the Conventional level have not come to fruition.121 Early drafts of the Convention contained a rule inspired by Article 41 icjStatute.122 The travaux préparatoires do not, however, answer the question why the draft was not retained.123 Noorgard and Krüger explained this omission as ‘not surprising’ because system was not conceived to operate in the practical way it operates today.124 5.4.3.4.1 Interim Measures in Individual Cases Today, Rule 39 of the Rules of the Court contains the pertinent provision about interim measures.125 Formally, the provision applies to both individual and 119 Definition taken from the Factsheet on Interim Measures (last updated in September 2016), which is a non-binding explanatory report prepared by the Press Unit of the ­European Court of Human Rights, available at www.echr.coe.int/Documents/FS_Interim _measures_ENG.pdf; see generally E Rieter, Preventing Irreparable Harm, Provisional Measures in International Human Rights Adjudication (2010). 120 K Oellers-Frahm, ‘Expanding the Competence to Issue Provisional Measures – Strengthening the International Judicial Function’ (2011) 12 glj 1279, 1283. 121 A Spielmann, D Spielmann, ‘La Cour unique et permanente et les mesures provisioires’, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal (2000) 1347, 1356; T Buergenthal, ‘The European and InterAmerican Human Rights Courts: Beneficial Interaction’, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal (2000) 123, 130; an account of the efforts to reform the Convention is contained in the joint partly dissenting opinion of Judges Caflisch, Türmen and Kovler in Mamatkulov and Askarov v Turkey nos 46827/99, 46951/99, judgment [GC] of 4 February 2005, § 157f. 122 A Robertson (ed) TP i, 314. 123 C Burbano, Y Haeck, ‘Letting states off the hook? The paradox of legal consequences following state non-compliance with provisional measures in the inter-American and European human rights systems’ (2010) 28 nqhr 332, 337. 124 C Noorgard, H Krüger, ‘Interim and Conservatory Measures under the European System of Protection of Human Rights’ in M Nowak et al (eds), Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora (1988) 109, 110. 125 Rule 39 of the Rules of the Court: 1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the

Reform Considerations

201

inter-State complaints.126 The Commission introduced the predecessor rule in 1974, and thereby codified the existing informal practice of interim requests.127 The Court introduced a similar provision in its Rules in 1982.128 In an express overturn of previous jurisprudence,129 the Court held, in 2005, that the failure to honor an interim request was a violation of the right of individual application contained in Article 34 echr.130 The three dissenters, Judges Caflisch, Türmen and Kovler, criticized the inspiration of the Court drawn from the LaGrand 131 case before the International Court of Justice, where the latter found that its interim measures under Article 41 icj-Statute were binding.132 The three judges pointed out the essential difference between

126

127

128 129

130

131 132

request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. (…). The Court relies on Rule 39 of the Rules of the Court according the pertinent press releases, eg echr 581 (2008) of 12 August 2008; echr 073 (2014) of 13 March 2014; echr 345 (2014) of 26 November 2014. The predecessor of the provision was codified in 1974 as Rule 36 of the Rules of the Commission, see M Boer-Buquicchio, ‘Interim measures by the European Commission on Human Rights’, in The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard, M de Saliva, M Villiger (1998) 229, 230; see also C Norgaard, H Krüger, ‘Interim and conservatory measures under the European System of Protection of Human Rights’ in M Nowak et al (eds), Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora (1988) 109, 111. Preventing Irreparable Harm, Provisional Measures in International Human Rights Adjudication (2010) 174. Cruz Varas and Others v Sweden, no 15576/89 [GC], 20 March 1991; A Mowbray, ‘A new Strasbourg approach to the Legal Consequences of Interim Measures’ (2005) 5 hrlr 377, 385. Mamatkulov (n 121); K Oellers-Frahm, ‘Verbindlichkeit einstweiliger Maßnahmen: Der egmr vollzieht – endlich – die erforderliche Wende’ (2003) 30 EuGRZ 689; K OellersFrahm, ‘Verbindlichkeit einstweiliger Anordnungen des egmr – Epilog’ (2005) 32 EuGRZ 347; for the following jurisprudence see C Burbano Herrera, Y Haeck, ‘Letting States off the Hook? The Paradox of the legal consequences following State non-compliance with Hook provisional measures in the Inter-American and European Human Rights Systems’ (2010) 28 nqhr 332, 349f. La Grand (Germany v United States), Judgment, icj Reports 2001, 466, 497. Mamatkulov (n 121), joint partly dissenting opinion of Judges Caflisch, Türmen and Kovler, §§ 147.

202

Chapter 5

Article 41 icj-Statute as integral part of the United Nations Charter, and Rule 39 of the Rules of the Court, which are not a treaty but derived law.133 Systematically, the approach to use Article 34 echr to construe the binding force of interim measures is incoherent because the reasoning cannot be transcribed to the inter-state application under Article 33 echr.134 5.4.3.4.2 Interim Measures in Inter-State Cases The measures the former Commission and the Court have issued in the context of inter-State cases can be grouped into three different categories: individualspecific interim measures, declaratory measures and requests for information. The Court does not publish or motivate interim requests.135 Instead, it issues press releases.136 Press releases are not documents amenable to legal interpretation. Despite these difficulties, some reform considerations are offered in light of the practice of the Strasbourg organs. 5.4.3.4.3 Individual-Specific Interim Measures The Court (and the now defunct Commission) have requested interim measures in individual-specific inter-State cases, thus in cases which were lodged in favor of a specific individual or a specific group if individuals.137 133 Ibid, §§ 147, 148. 134 Mamatkulov (n 120) joint partly dissenting opinion of Judges Caflisch, Türmen and Kovler, § 146; N Vajic, ‘Interim measures and the Mamatkulov Judgment of the European Court of Human Rights’ in M Kohen (ed), Promoting Justice, Human Rights and Conflict Resolution through International Law (2007) 601, 619. 135 Council of Europe, Steering Committee for Human Rights (cddh), Report on interim measures under Rule 39 of the Rules of the Court, CDDH(2013)R77, Addendum iii, 22 March 2013: ‘The Court does not currently as a matter of course give reasons for imposing interim measures. It was discussed whether this practice should change to allow States to better understand what amounts to irreparable harm, to address necessary issues at the domestic level and to enable States to more appropriately challenge the imposition of interim measures. The Registry responded to this by explaining that for cases subject to immediate communication this would amount to duplication. However, it could be envisaged in exceptional circumstances, on an ad hoc basis. Furthermore, the Registry indicated that any supplementary formulation of reasoning would amount to further work for the Court’. 136 Eg with regard to the Ukraine cases, press release echr 073 (2014), 13 March 2014; press release echr 345 (2014), 26 November 2014. 137 Greece v United Kingdom (i), no 176/56, reprinted in (1998) 18 hrlj 348–467, at 358, § 41. Denmark, Norway, Sweden and the Netherlands v Greece (i), no. 3321–23/67 and 3344/67, Yb 11, 691, report in Yb 12 ii Denmark, Norway and Sweden v Greece (ii), no. 4448/70, Yb 13, 109, report of 4 October 1976, available on hudoc; Press release echr 286 (2015) of 24

Reform Considerations

203

5.4.3.4.4 Declaratory Measures In the context of Georgia v Russia (ii), the President of the Court, citing Rule 39 of the Rules of the Court, called upon both Russia and Georgia to comply with their engagements under the Convention, particularly in respect of Articles 2 and 3 of the Convention.138 In the case of Georgia v Russia (iii), Georgia sought to ‘enforce’ the interim measure requesting the Court to ‘demand the Russian Federation (…) to comply with its obligations under the European Convention on Human Rights, including the decision of the Court of 12 August 2008 [to apply rule 39 of the Rules of Court (interim measures)]’.139 In the interim measure requested in the ambit of Ukraine v Russia (i), the Court indicated, inter alia, that both Russia and Ukraine ‘should refrain from measures which might threaten the life and health of the civilian population on the territory of Ukraine’.140 It is questionable whether this type of interim request can give rise to separate obligations under the Convention because of the lack of their specificity. One commentator described the Georgia v Russia (ii) interim measure cited above as ‘politically motivated cry for support rather than a genuine request for an interim measure’.141 The measure can be seen as a reminder of the existing obligations under the Convention, and the addressee of the interim measure is under a duty to comply with the primary obligations undertaken with the Convention. If a State engages in behavior in contravention of the Convention, it is under the obligation of cessation of the wrongful conduct.142 However, the Georgian attempt

138 139 140 141

142

September 2015; Y Haeck, C Burbano Herrera, ‘The Use of interim measures issued by the European Court of Human Rights in times of war or internal conflict’, in Antoine Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 77, 88/89. Press Release echr 291 (2011) of 19 December 2011. Georgia v Russia (iii), no 61186/09, (dec) 16 March 2010. Press release echr 073 (2014), 13 March 2014. E Myjer, ‘The European Court of Human Rights and Armed Conflicts between High Contracting Parties; some general remarks’ in La conscience des droits, Mélanges en l’honneur de Jean-Paul Costa (2011) 461, 472. See the reasoning in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Advisory Opinion, icj Reports 2004, 136, para 150; Draft articles on Responsibility of States for Internationally Wrongful Acts, ilc Yb 2001/II2, 30, Article 30; P d’Argent, ‘Compliance, cessation, reparation and restitution in the Wall Advisory Opinion’ in P-M Dupuy (ed), Völkerrecht als Wertordnung, Essays in Honour of Christian Tomuschat (2006) 463, 466.

204

Chapter 5

to ‘enforce’ the interim measure indicates the need for clarification of the legal relevance of this type of declaratory interim measure. 5.4.3.4.5 Requests for Information In 1972, Ireland lodged case against the United Kingdom alleging violations of Article 3 echr in the context of interrogations and detentions of alleged terrorist. The Irish government also requested interim measures.143 The applicant sought an undertaking from the respondent that ‘all such treatment of persons in custody as had been complained of in the application as constituting a breach of Article 3 echr should be discontinued’.144 For the power to grant interim measures, Ireland cited implied powers of the Commission in its judicial function.145 The applicant also requested Commission-appointed observers to monitor the situation detention facilities.146 The Commission decided that it did ‘not have the power, consistent with its functions under the Convention, to meet the request made’.147 The Court approaches the need for information differently in its recent practice. The interim request in Ukraine v Russia (i) stipulates that both States are to ‘inform the Court as soon as possible of the measures taken to ensure that the Convention is fully complied with’.148 Rule 39 § 3 of the Rules of the Court provides for such requests. At the level of the Convention, the obligation to provide information to the Court is contained in Article 38 echr and is thus binding.149 The procedural obligations incumbent on all member states extend to the time before the Court has reached an admissibility decision, thus also to interim phase of proceedings. In this context, attention needs to be drawn to the change Article 38 echr underwent with Protocol No 14 to the Convention,150 143 Yb 15 (1972), 82. 144 Ireland v United Kingdom, no 5310/71, admissibility decision, 1 October 1972, Yb 15 (1972) 84. 145 Id, 82. 146 Id, 84. 147 Id, 88. 148 Press Release echr 073 (2014). 149 See also H De Vylder, Y Haeck, ‘The Duty to Cooperation of the Respondent State During the Proceedings Before the European Court of Human Rights’, in Y Haeck, E Brems (eds), Human Rights and Civil Liberties in the 21st Century (2014) 37; O Chernishova, N Vajic, ‘The Court’s evolving response to the states’ failure to cooperate’, in D Spielmann et al (eds), The European Convention on Human Rights, a living instrument, Essays in honor of Christos L. Rozakis (2011) 47. 150 Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention, 13 May 2004, cets No 194.

Reform Considerations

205

which entered into force in 2010. The protocol amended the Convention in as much as the obligation of member states to cooperate with the Court is no longer limited to the post-admissibility phase. The explanatory report to Protocol No 14 states in § 90: Since this provision applies even before the decision on admissibility has been taken, High Contracting Parties are required to provide the Court with all necessary facilities prior to that decision. The Parties’ obligations in this area are thus reinforced.151 In systemic inter-State cases, this type of interim measure has the (concededly theoretical) potential of deterring large scale human rights violations by rendering the conduct of the states in question transparent.152 5.4.3.4.6 Drawing Inspiration from Other Inter-State Proceedings The common denominator of interim requests by international bodies in the realm of human rights is to avoid irreparable damage.153 Under the American Convention on Human Rights (achr)154 there is no practice regarding interim measures in inter-State proceedings. However, Article 63 § 2 achr confers the power to request interim measures to the Inter-American Court of Human Rights. Thus, the power to issue provisional measures is contained in the constituent document itself. The Inter-American Court’s interim measures are deemed to be binding.155 The preventive nature is underlined.156 Given that Article 63 § 2 achr does not distinguish between individual and inter-State applications, the power to issue binding interim measures extends also to inter-State proceedings. The inter-American Court publishes and motivates its interim measures.157 151 Explanatory report to Protocol No 14 to the Convention, conventions.coe.int/Treaty/EN/ Reports/Html/194.htm. 152 Similarly: chilling effect, J Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38 Vanderbilt Journal of Transnational Law 1, 7. 153 H Keller, C Marti, ‘Interim Relief Compared: Use of interim measures by he un Human Rights Committee and the European Court of Human Rights’ (2013) 73 hjil 325, 339. 154 American Convention on Human Rights, 22 November 1969, 1144 unts 123. 155 C Burbano Herrera, Y Haeck, ‘Letting States off the Hock? The Paradox of the legal consequences following State non-compliance with provisional measures in the InterAmerican and European Human Rights Systems’ (2010) 28 nqhr 332, 336. 156 C Trinidade, ‘Die Entwicklung des interamerikanischen Systems zum Schutz der Menschenrechte’ (2010) 70 hjil 629, 671; R Macdonald, ‘Interim Measures in International Law, with special reference tot he European System fort he Protection of Human Rights’ (1992) 52 hjil 703, 722. 157 Preventing Irreparable Harm, Provisional Measures in International Human Rights Adjudication (2010) 190.

206

Chapter 5

It is suggested to elevate Rule 39 of the Rules of the Court to the level of the Convention, taking after the model of the American Convention on Human Rights. This way, the Court’s use of interim measures under Article 34 echr and in individual-specific inter-State applications would be coherent. It is suggested further to require a brief motivation for those interim measures which do not concern specific individuals. 5.4.3.5 Results for the Reform of the Court’s Remedial Toolbox The Court’s role in the implementation of the Convention and the execution of judgments should be anchored in the text of the Convention, possibly in a new Article 46a echr. Further, it is argued here that the award of just satisfaction under Article 41 echr in inter-State cases should continue to be an option for the Court. In the context of reform considerations, it should be highlighted that individual justice is not a primary purpose of inter-State proceedings under the echr. The considerations point away from a monetarisation of human rights and towards a constructive model for the improvement of human rights conditions. Calls for class actions under the echr158 are not seconded here. With respect to interim measures, it is argued to anchor the formal power to issue binding interim measures in inter-State cases at the level of the Convention. Overall, the clear indication of the object and purpose of inter-State proceedings would be especially worthile in the context of remedial powers. 5.4.3.6 Friendly Settlements Friendly settlements are part of the judicial process.159 Article 39 echr provides for settlements of cases before the Court, including inter-State applications.160 Friendly settlements are seen as evidence that the echr is not an 158 J-P Costa, Memorandum of the President of the European Court of Human Rights to the States with a view to preparing the Interlaken Conference, 3 July 2009, 7, www.echr.coe .int/Documents/Speech_20090703_Costa_Interlaken_ENG.pdf; A Gattini, Mass Claims at the European Court of Human Rights in S Breitenmoser et al (eds), Human Rights, Democracy and the Rule of Law, Liber amicorum Luzius Wildhaber (2007) 271, 290. 159 H Krüger, C Nørgaard, ‘Reflections concerning friendly settlements under the European Convention on Human Rights’ in F Matscher, H Petzold (eds), Protecting Human Rights: The European Dimension, Studies in Honour of Gérard J Wiarda (1988) 329, 333. 160 Article 39 echr provides: ‘At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto. 2. Proceedings conducted under paragraph 1 shall be confidential. 3. If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the ­solution

Reform Considerations

207

instrument of accusation and prosecution of Contracting States, but a collective fulfillment of their undertakings.161 States should enjoy flexibility to end an inter-State complaint via settlements instead of becoming its hostage.162 In turn, this possibility makes the mechanism more attractive for States to use. The possibility of a settlement should be evaluated on a case-by-case basis. For example, in the specific situation of Denmark v Turkey163 the settlement was arguably the best alternative to induce change.164 Kiss has considered that a conciliatory role of the Strasbourg organs and a friendly settlement ‘may lead to the same practical result as would a more or less lengthy procedure’.165 If a friendly settlement is reached, the applicant States are potentially exposed to heavy criticism from non-governmental organizations and public opinion. In the case of Denmark et al v Turkey,166 ‘it must have seemed unfair that they [the applicant States] were generally praised for initiating the procedure and now were generally blamed for discontinuing the procedure, in spite of what they considered to be real progress’.167 This criticism should be seen against the background of possible advantages. A settlement may dispense the Court from a lengthy fact-finding effort. Instead, collaboration by the respondent State might bring about more change in favor of individual human rights

161

162

163 164 165 166 167

reached. 4. This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision’. S Dollé, ‘Friendly settlement 14 years on in the European Commission on Human Rights’ in M da Silva, M Villiger (eds), The Birth of European Human Rights Law – Liber Amicorum Carl Aage Norgaard (1998) 243, 244; T Opsahl, S Dollé, ‘Written Communication on ‘Settlement Based on Respect for Human Rights under the European Convention on Human Rights’ in Proceedings of the Sixth International Colloquy about the European Convention on Human Rights (no editor, 1986) 966. P Kooijmans, ‘Inter-State dispute settlement in the field of human rights’ in M Brus et al (eds) The United Nations Decade of International Law – Reflections on International Dispute Settlement (1991) 97, 90; R Kühner, ‘Die gütliche Einigung nach Art. 28 b) emrk vom 7. Dezember 1985 im Fall der Staatenbeschwerden Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei‘ (1986) 46 hjil 75, 76. Denmark v Turkey, no 34382/97. H Keller et al, Friendly Settlements before the European Court of Human Rights (2010) 74. A Kiss, ‘Conciliation’, in R Macdonald et al (eds), The European System for the Protection of Human Rights, (1993) 703, 711. France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82. P Kooijmans, ‘Inter-State Dispute Settlement in the Field of Human Rights’ (1990) 3 ljil 87, 90.

208

Chapter 5

protecting than a binding judgment after years of litigation. In addition, States are likely to fulfill what they agreed to do, so that supervision of the enforcement might likewise be easier. In the context of friendly settlements, inevitably the question of redress and individual justice is an issue. It must be determined on the level of the object and purpose of the inter-State application whether an inter-State application is an instrument to induce change beyond the individual case or whether it is aimed at full individual redress. Full individual redress should not be part of the object and purpose of inter-State proceedings where they address systemic issues. This rather restrictive stance does not exclude to set up, at the national level, a compensation mechanism. 5.5

Cross-Cutting: Relationship of Individual and Inter-State Applications

What emerges from the case law since Ireland v United Kingdom is that the relationship of inter-State proceedings and overlapping individual cases is unsettled. The Convention does not give any guidance about their relationship. The silence of the Convention stems from the Convention’s original supervisory architecture, where the right to individual application was a mere optional remedy under ex-Article 25 echr. Thus, there was no need to ­define the relationship between the two types of proceedings. First and foremost, the two types of proceedings do not exclude each other. For a comprehensive theory of the relationship between the inter-State and the individual application, one question must be decided for the Convention as a whole: in what way the Court is intended to provide individual justice and to what extent it is supposed to perform constitutional functions. This question exceeds the scope of the current volume. However, in brief, some considerations are offered. First and foremost, both types of applications should not exlude each other. At the level of admissibility of individual applications it should be clear how overlapping individual applications are treated. Are individual applications admissible where the Court found an administrative practice and the admissibility level in inter-State proceedings? The jurisprudence in the matter points towards an individual justice direction. It would be advisable to rethink the consequences of an admissible inter-State application and individual application where they overlap, also as a matter of efficiency. A further question

Reform Considerations

209

is whether a finding of the existence of an emergency within the meaning of Article 15 echr in inter-State proceedings should be extended to individual applications. Overall, it is suggested to use the methodology of pilot judgments for inter-State applications and overlapping individual applications in order to use the resources of the Court in an efficient manner, even if this comes at the price of cutting back the aspect of individual justice.

Appendix : Convention for the Protection of Human Rights and Fundamental Freedoms as Finalized in Rome on 4 November 1950 in Rome (ets 005) The Governments signatory hereto, being Members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared; Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms; Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend; Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration; Have agreed as follows:



Article 1

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section i of this Convention.



1.

Section i Article 2

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.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_007

212

Appendix

2.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: • (a) in defence of any person from unlawful violence; • (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; • (c) in action lawfully taken for the purpose of quelling a riot or insurrection.



Article 3



Article 4

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

1. 2. 3.



1.

No one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: • (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; • (b) any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; • (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; • (d) any work or service which forms part of normal civic obligations.

Article 5

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: • (a) the lawful detention of a person after conviction by a competent court; • (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; • (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

Appendix

2. 3.

4.

5.



1.

2. 3.

213

• (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; • (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; • (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Article 6

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. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest 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 the extent strictly necessary in the ­opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: • (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; • (b) to have adequate time and the facilities for the preparation of his defence;

214

Appendix • (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; • (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; • (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.



1.

2.



1. 2.



1.

2.



1.

Article 7

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. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.

Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence. 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 e­ conomic ­well-being 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.

Article 9

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. 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 the protection of the rights and freedoms of others.

Article 10

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

Appendix

2.



1.

2.

215

i­ nterference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 11

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. 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.



Article 12



Article 13



Article 14

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.

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.

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.



1.

Article 15

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

216

2.

3.

Appendix 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. 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. 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 therefor. 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 16



Article 17



Article 18



Section ii



Article 19

Nothing in Articles 10, 11, and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

To ensure the observance of the engagements undertaken by the High Contracting Parties in the present Convention, there shall be set up: 1. 2.

A European Commission of Human Rights hereinafter referred to as ‘the Commission’; A European Court of Human Rights, hereinafter referred to as ‘the Court’.

Appendix



Section iii



Article 20



Article 21

217

The Commission shall consist of a number of members equal to that of the High Contracting Parties. No two members of the Commission may be nationals of the same state.

1.

2.



1.

2.

3. 4.

The members of the Commission shall be elected by the Committee of Ministers by an absolute majority of votes, from a list of names drawn up by the Bureau of the Consultative Assembly; each group of the Representatives of the High Contracting Parties in the Consultative Assembly shall put forward three candidates, of whom two at least shall be its nationals. As far as applicable, the same procedure shall be followed to complete the Commission in the event of other States subsequently becoming Parties to this Convention, and in filing casual vacancies.

Article 22

The members of the Commission shall be elected for a period of six years. They may be re-elected. However, of the members elected at the first election, the terms of seven members shall expire at the end of three years. The members whose terms are to expire at the end of the initial period of three years shall be chosen by lot by the Secretary-General of the Council of Europe immediately after the first election has been completed. A member of the Commission elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term. The members of the Commission shall hold office until replaced. After having been replaced, they shall continue to deal with such cases as they already have under consideration.



Article 23



Article 24

The members of the Commission shall sit on the Commission in their individual capacity.

Any High Contracting Party may refer to the Commission, through the SecretaryGeneral of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.

218

1.

2. 3.

4.



Appendix

Article 25

The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organization or group of individuals claiming to the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognizes the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right. Such declarations may be made for a specific period. The declarations shall be deposited with the Secretary-General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties and publish them. The Commission shall only exercise the powers provided for in this article when at least six High Contracting Parties are bound by declarations made in accordance with the preceding paragraphs.

Article 26

The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.



1.

2.

3.



Article 27

the Commission shall not deal with any petition submitted under Article 25 which • (a) is anonymous, or • (b) is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure or international investigation or settlement and if it contains no relevant new information. The Commission shall consider inadmissible any petition submitted under ­Article 25 which it considers incompatible with the provisions of the present Convention, manifestly ill-founded, or an abuse of the right of petition. The Commission shall reject any petition referred to it which it considers inadmissible under Article 26.

Article 28

In the event of the Commission accepting a petition referred to it: • (a) it shall, with a view to ascertaining the facts undertake together with the representatives of the parties and examination of the petition and, if need be, an

Appendix

219

i­ nvestigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission; • (b) it shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention.



1. 2. 3.



1.



1.

2. 3.



1.

2.

Article 29

The Commission shall perform the functions set out in Article 28 by means of a Sub-Commission consisting of seven members of the Commission. Each of the parties concerned may appoint as members of this Sub-Commission a person of its choice. The remaining members shall be chosen by lot in accordance with arrangements prescribed in the Rules of Procedure of the Commission.

Article 30

If the Sub-Commission succeeds in effecting a friendly settlement in accordance with Article 28, it shall draw up a Report which shall be sent to the States concerned, to the Committee of Ministers and to the Secretary-General of the Council of Europe for publication. This Report shall be confined to a brief statement of the facts and of the solution reached.

Article 31

If a solution is not reached, the Commission shall draw up a Report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. The opinions of all the members of the Commission on this point may be stated in the Report. The Report shall be transmitted to the Committee of Ministers. It shall also be transmitted to the States concerned, who shall not be at liberty to publish it. In transmitting the Report to the Committee of Ministers the Commission may make such proposals as it thinks fit.

Article 32

If the question is not referred to the Court in accordance with Article 48 of this Convention within a period of three months from the date of the transmission of the Report to the Committee of Ministers, the Committee of Ministers shall decide by a majority of two-thirds of the members entitled to sit on the Committee whether there has been a violation of the Convention. In the affirmative case the Committee of Ministers shall prescribe a period during which the Contracting Party concerned must take the measures required by the decision of the Committee of Ministers.

220 3.

4.

Appendix If the High Contracting Party concerned has not taken satisfactory measures within the prescribed period, the Committee of Ministers shall decide by the majority provided for in paragraph 1 above what effect shall be given to its original decision and shall publish the Report. The High Contracting Parties undertake to regard as binding on them any decision which the Committee of Ministers may take in application of the preceding paragraphs.



Article 33



Article 34



Article 35



Article 36



Article 37



Section iv



Article 38



Article 39

The Commission shall meet ‘in camera’.

The Commission shall take its decision by a majority of the Members present and voting; the Sub-Commission shall take its decisions by a majority of its members.

The Commission shall meet as the circumstances require. The meetings shall be convened by the Secretary-General of the Council of Europe.

The Commission shall draw up its own rules of procedure.

The secretariat of The Commission shall be provided by the Secretary-General of the Council of Europe.

The European Court of Human Rights shall consist of a number of judges equal to that of the Members of the Council of Europe. No two judges may be nationals of the State.

1.

The members of the Court shall be elected by the Consultative Assembly by a majority of the votes cast from a list of persons nominated by Members of the Council of Europe; each Member shall nominate three candidates, of whom two at least shall be its nationals.

Appendix 2.

3.



1.

2.

3. 4.

221

As far as applicable, the same procedure shall be followed to complete the Court in the event of the admission of new members of the Council of Europe, and in filling casual vacancies. The candidates shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence.

Article 40

The members of the Court shall be elected for a period of nine years. They may be re-elected. However, of the members elected at the first election the terms of four members shall expire at the end of three years, and the terms of four more members shall expire at the end of six years. The members whose terms are to expire at the end of the initial periods of three and six years shall be chosen by lot by the Secretary-General immediately after the first election has been completed. A member of the Court elected to replace a member whose term of office has not expired shall hold office for the remainder of his predecessor’s term. The members of the Court shall hold office until replaced. After having been replaced, they shall continue to deal with such cases as they already have under consideration.



Article 41



Article 42



Article 43



Article 44

The Court shall elect the President and Vice-President for a period of three years. They may be re-elected.

The members of the Court shall receive for each day of duty a compensation to be determined by the Committee of Ministers.

For the consideration of each case brought before it the Court shall consist of a Chamber composed of seven judges. There shall sit as an ‘ex officio’ member of the Chamber the judge who is a national of any State party concerned, or, if there is none, a person of its choice who shall sit in the capacity of judge; the names of the other judges shall be chosen by lot by the President before the opening of the case.

Only the High Contracting Parties and the Commission shall have the right to bring a case before the Court.

222

Appendix

Article 45

The jurisdiction of the Court shall extend to all cases concerning the interpretation and application of the present Convention which the High Contracting Parties or the Commission shall refer to it in accordance with Article 48.



1.

2.

3.

Article 46

Any of the High Contracting Parties may at any time declare that it recognizes as compulsory ‘ipso facto’ and without special agreement the jurisdiction of the Court in all matters concerning the interpretation and application of the present Convention. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain other High Contracting Parties or for a specified period. These declarations shall be deposited with the Secretary-General of the Council of Europe who shall transmit copies thereof to the High Contracting Parties.



Article 47



Article 48



Article 49



Article 50

The Court may only deal with a case after the Commission has acknowledged the failure of efforts for a friendly settlement and within the period of three months provided for in Article 32.

The following may bring a case before the Court, provided that the High Contracting Party concerned, if there is only one, or the High Contracting Parties concerned, if there is more than one, are subject to the compulsory jurisdiction of the Court, or failing that, with the consent of the High Contracting Party concerned, if there is only one, or of the High Contracting Parties concerned if there is more than one: • (a) the Commission; • (b) a High Contracting Party whose national is alleged to be a victim; • (c) a High Contracting Party which referred the case to the Commission; • (d) a High Contracting Party against which the complaint has been lodged.

In the event of dispute as to whither the Court has the jurisdiction, the matter shall be settled by the decision of the Court.

If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party, is completely or partially in conflict with the obligations arising from the present convention, and if the internal law of the said

Appendix

223

Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.



1. 2.

Article 51

Reasons shall be given for the judgement of the Court. If the judgement does not represent in whole or in part the unanimous opinion of the judges, any judges shall be entitled to deliver a separate opinion.



Article 52



Article 53



Article 54



Article 55

The judgement of the Court shall be final.

The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.

The judgement of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution.

The Court shall draw up its own rules and shall determine its own procedure.



1.

2.

Article 56

The first election of the members of the Court shall take place after the declarations by the High Contracting Parties mentioned in Article 46 have reached a total of eight. No case can be brought before the Court before this election.



Section v



Article 57



Article 58

On receipt of a request from the Secretary-General of the Council of Europe any High Contracting Party shall furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of this Convention.

The expenses of the Commission and the Court shall be borne by the Council of Europe.

224

Appendix



Article 59



Article 60



Article 61



Article 62

The members of the Commission and of the Court shall be entitled, during the discharge of their functions, to the privileges and immunities provided for in Article 40 of the Statute of the Council of Europe and in the agreements made thereunder.

Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party.

Nothing in this Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.

The High Contracting Parties agree that, except by special agreement, they will not avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention.



1.

2.

3. 4.



1.

Article 63

Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary-General of the Council of Europe that the present Convention shall extend to all or any of the territories for whose international relations it is responsible. The Convention shall extend to the territory or territories named in the notification as from the thirtieth day after the receipt of this notification by the ­Secretary-General of the Council of Europe. The provisions of this Convention shall be applied in such territories with due regard, however, to local requirements. Any State which has made a declaration in accordance with paragraph 1 of this article may at any time thereafter declare on behalf of one or more of the ­territories to which the declaration relates that it accepts the competence of the Commission to receive petitions from individuals, non-governmental organizations or groups of individuals in accordance with Article 25 of the present Convention.

Article 64

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

Appendix

2.



1.

2.

3. 4.



1.

2. 3. 4.

225

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. Any reservation made under this article shall contain a brief statement of the law concerned.

Article 65

A High Contracting Party may denounce the present Convention only after the expiry of five years from the date of which it became a Party to it and after six months’ notice contained in a notification addressed to the Secretary-General of the Council of Europe, who shall inform the other High Contracting Parties. Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective. Any High Contracting Party which shall cease to be a Member of the Council of Europe shall cease to be a Party to this Convention under the same conditions. The Convention may be denounced in accordance with the provisions of the preceding paragraphs in respect of any territory to which it has been declared to extend under the terms Article 63.

Article 66

This Convention shall be open to the signature of the Members of the Council of Europe. It shall be ratified. Ratifications shall be deposited with the SecretaryGeneral of the Council of Europe. The present Convention shall come into force after the deposit of ten instruments of ratification. As regards any signatory ratifying subsequently, the Convention shall come into force at the date of the deposit of ist instrument of ratification. The Secretary-General of the Council of Europe shall notify all the Members of the Council of Europe of the entry into force of the Convention, the names of the High Contracting Parties who have ratified it, and the deposit of all instruments of ratification which may be effected subsequently.

Index of Authorities The legal citation in the present volume follows the Australian Guide to Legal Citation (3rd ed). Where the idiosyncrasies of sources coming from different legal cultures required so, the citation was adapted in order to achieve accessibility, comprehensiveness and coherence. The present volume follows the spelling in American English. However, when original texts (primary sources, decisions and judgments as well as secondary sources) in British English are cited in direct quotes, their original spelling maintained. All online resources were last accessed in August 2017.

Treaties Agreement Relating to Persons Participating in Proceedings of the European Commission and Court of Human Rights American Convention on Human Rights American Convention on Human Rights Charter of the Organisation of American States Charter of the United Nations Consolidated Version of the Treaty on ­European Union Consolidated version of the Treaty on the Functioning of the European Union Convention for the Protection of Human Rights and Fundamental Freedoms European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights European Charter for Regional or Minority Languages Framework Convention for the Protection of National Minorities Geneva Convention Relative to the Protection of Civilian Persons in Time of War International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Civil and Political Rights

6 May 1969, ets 67

22 November 1969, 1144 unts 123 22 November 1969, 1144 unts 123 30 April 1948, 3 unts 47 24 October 1945, 1 unts 16 26 October 2012, oj C 326, 13–36 26 October 2012, oj C 326, 47–390 4 November 1950, ets 5 5 March 1996, ets 161

5 November 1992, ets 148 1 February 1995, ets 157 12 August 1949, 75 unts 287 21 December 1965, 660 unts 195 16 December 1966, 999 unts 171

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004357266_008

227

Index of Authorities International Covenant on Economic, Social and Cultural Rights International Labour Organization Constitution Optional Protocol to the International ­Covenant on Economic, Social and Cultural Rights Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol ii) Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, restructuring the control machinery established thereby Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms amending the control system of the Convention Protocol No 15 amending the Convention for the Protection of Human Rights and ­Fundamental Freedoms Protocol No 16 to the Convention for the Protection of Human Rights and Fundamental Freedom Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Protocol No 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms Rome Statute of the International Criminal Court Statute of the Council of Europe Treaty Concerning the Establishment of the Republic of Cyprus

16 December 1966, 993 unts 3 9 October 1919, 15 unts 40 24 September 2009, adopted by the General Assembly, 5 March 2009, A/RES/63/117 8 June 1977, 1125 unts 609

11 May 1994, ets no 155

4 November 2000, ets No 177

13 May 2004, cets No 194

24 June 2013, cets no 213

2 October 2016, cets no 214

28 April 1983, ets 114

6 November 1990, ets 140

17 July 1998, 2187 unts 3 5 May 1949, ets 001 16 August 1960, 382 unts 8

228

Index of Authorities

Treaty of Guarantee between the Republic of Cyprus and Greece, the United Kingdom and Turkey United Nations Convention against Torture Vienna Convention on the Law of Treaties



16 August 1960, 382 unts 3

10 December 1984, 1465 unts 85 23 May 1969, 1155 unts 331

Inter-State Cases under the Convention, in Chronological Order

Greece v United Kindgom - Greece v United Kingdom (i), no 176/56, admissibility decision, 2 June 1956, Yb 2 (1958–59), 182 - Greece v United Kingdom (i), no 176/56, report of the Commission of 26 September 1958, reprinted in (1997) 18 hrlj 348–467 (the report is also available on hudoc, but has never been published in a collection) - Greece v United Kingdom (ii), no 299/57, admissibility decision of 10 January 1958, Yb 2, 186. - Greece v United Kingdom (ii), no 299/57, 1959 report of the Commission (the report is available on hudoc, it has never been reprinted in a collection or in a journal) - Note of information, Yb 2 (1958–59) 174–199 Austria v Italy - Austria v Italy, no 777/60, admissibility decision, 11 January 1961, Yb 4 (1961) 116 - Austria v Italy, no 777/60, report of the Commission, 30 March 1963, Yb 6 (1963) 754 - Austria v Italy, no 777/60, Committee of Ministers, Resolution (63) dh 3 of 23 October 1963, Yb 6 (1963) 796 - Austria v Italy, no 777/60, information note, Yb 3 (1960), 168 - Austria v Italy, no 777/60, information note, Yb 4 (1961), 112 Denmark et al v Greece - First admissibility decision, Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67, 24 January 1968, Yb 11 (1968), 690f - Second admissibility decision, Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67 of 31 May 1968 is fully reprinted in Yb 11 (1968), 730f

Index of Authorities

Ireland v United Kingdom

Cyprus v Turkey

229 - Denmark, Norway, Sweden and the Netherlands v Greece (i), nos 3321–23, 3344/67, report of the Commission, 5 November 1969, Yb 12 ii (1969) - Denmark, Norway, Sweden and the Netherlands v Greece (i), Committee of Ministers resolution dh (70) 1 of 15 April 1970, Yb 12 ii (1969), 511 - Denmark, Norway, Sweden and the Netherlands v Greece (i), Committee of Ministers, Resolution dh 74 (2), 26 November 1974 - Denmark, Norway and Sweden v Greece (ii), no 4448/70, admissibility decision of 26 May 1970, Yb 13 (1970), 108 - Denmark, Norway and Sweden v Greece (ii), no 4448/70, report of the Commission, 4 October 1976, dr 6, 5 - Ireland v United Kingdom, no 5310/71 (admissibility decision) 1 October 1972, Yb 15 (1972) 76 - Ireland v United Kingdom, no 5310/71, report of the Commission, 9 February 1976, Yb 19 (1976) 512 - Ireland v United Kingdom, no 5310/71 (judgment) 18 January 1978, Series A, no 25; Series B, Vol 23 i–iii - Ireland v United Kingdom (ii) (5451/72), Yb 15 (1972), 76 - Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, admissibility decision, 26 May 1975, Yb 18 (1975) 82 - Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, report of the Commission, 10 July 1976 (not reported, available on hudoc) - Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, Committee of Ministers, Del/Concl(77)274, 17 October 1977 - Cyprus v Turkey (i) and (ii), nos 6780/74, 6950/75, Committee of Ministers, resolution dh (79), 20 January 1979, Yb 22 (1979) - Cyprus v Turkey (iii), no 8007/77, admissibility decision, 10 July 1978, Yb 21 (1978), 100 - Cyprus v Turkey (iii), no 8007/77, report of the Commission, 4 October 1983, (not reported), reprinted in (1992) 13 hrlj 154 - Cyprus v Turkey (iii), no 8007/77, Committee of ­Ministers, Resolution dh (92) 12, 2 April 1992

230

Denmark et al v Turkey

Georgia v Russia

Ukraine v Russia

Slovenia v Croatia

Index of Authorities - Cyprus v Turkey (iv), no 25781/94, admissibility ­decision, 28 June 1996, dr 86A - Cyprus v Turkey (iv), no 25781/94, report of the Commission, 4 June 1999 (not reported, available on hudoc) - Cyprus v Turkey (iv), no 25781/94, judgment (merits) [gc], 10 May 2001, echr 2001–iv - Cyprus v Turkey (iv), Committee of Ministers, interim resolution dh(2005)44, 7 June 2005 - Cyprus v Turkey (iv), Committee of Ministers, interim resolution dh(2007)25, 4 April 2007 - Cyprus v Turkey (iv), no 25781/94, judgment (just satisfaction) [gc], 12 May 2014 - France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, admissibility decision, 6 December 1983, Yb 26 (1986), pt ii, 1 - France, Norway, Denmark, Sweden and the Netherlands v Turkey, nos 9940–44/82, report of the Commission, 7 December 1985 (friendly settlement), dr 44 (1985), 31 - Denmark v Turkey, no 34382/97 admissibility decision, 8 June 1999 (not reported, available on hudoc) - Denmark v Turkey, no 34382/97, 5 April 2000, echr 2000 iv - Georgia v Russia (i), no 13255/07 (dec) 30 June 2009 - Georgia v Russia (i) [gc], no 13255/07, (judgment) 3 July 2014 - Georgia v Russia (ii), no 38263/08 (dec), 13 December 2011 - Georgia v Russia (iii), no 61186/09, (dec) 16 March 2010 - Ukraine v Russia (i), no 20958/14 - Ukraine v Russia (ii), no 43800/14 - Ukraine v Russia (iii), no 49537/14 - Ukraine v Russia (iv), no 42410/15 - Ukraine v Russia (v), no 8019/16 - Ukraine v Russia (vi), no 70856/16 - no 54155/16 (no decision available yet, see press release echr 340 (2016) of 20 October 2016)

231

Index of Authorities



Cases and Advisory Opinions of the International Court of Justice and the Permanent Court of International Justice

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v Uganda) Avena and Other Mexican Nationals (Mexico v United States of America) Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Case Concerning the Barcelona Traction, Light and Power Company (Belgium v Spain) LaGrand (Germany v United States of America) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Mavrommatis Palestine Concessions (Greece v United Kingdom) Nuclear Tests Case (New Zealand v France) Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom)

Advisory Opinion, 22 July 2010, icj Reports 2010, 403 Judgment, 24 March 2006, ICJ-Reports 2007, 582 Judgment, 19 December 2005, icj Reports 2005, 168 Judgment, 31 March 2004, icj Reports 2004, 12 Preliminary Objections, Judgment, 1 April 2011, icj Reports 2011, 70

Jurisdiction, 26 November 1984, icj Reports 1984, 392 Judgment, 5 February 1970, icj Reports 1970, 3 Judgment, 27 June 2001, icj Reports 2001, 466 Advisory Opinion, 9 July 2004, icj Reports 2004, 136 Advisory Opinion, icj Reports 2004, 136 Jurisdiction, Judgment, 30 August 1924, pcij Ser A no 2, 11 Judgment, icj Reports 1974, 456 Judgment, Preliminary Objections, 5 October 2016 (not yet reported in the ICJ-Reports)

232

Index of Authorities

Cases under the echr

Abayeva and others v Georgia, Advisory Opinion no 1 [gc] on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights Advisory Opinion no 2 [gc] on certain legal questions concerning the lists of candidates submitted with a view to the election of judges to the European Court of Human Rights Aksoy v Turkey Ališić and Others v Bosnia And Herzegovina, Croatia, Serbia, Slovenia and The Former Yugoslav Republic Of Macedonia, Assanidze v Georgia

nos 52196/08 et al, (dec) 23 March 2010 (no number), 12 February 2008

(no number), 22 January 2010

no 21987/93, judgment, 18 December 1996 no 60642/0, judgment [gc], 16 July 2014

no 71503/01, judgment [gc], 8 April 2004 Bankovic and Others v Belgium no 52207/99 Chiragov and Others v Armenia no 13216/05 Chrysostomos et al v Turkey no 15299/89, (dec), 4 March 1991 Cruz Varas and Others v Sweden no 15576/89, [gc], 20 March 1991 De Becker v Belgium No 214/56, (dec), 9 June 1958, Yb 2, 214 Decision on the Competence of the Court (no number) [gc] 2 June 2004 to Give an Advisory Opinion Demopoulos and Others v Turkey nos 46113/99, [gc], et al, (dec), 1 March 2010 Donnelly and others v United Kingdom nos 5577–83/72 (dec) 5 April 1973, cd 41, 122; (dec)15 December 1975, dr 4, 4, 88, 87. Dzhemilov v Ukraine and Russia, no 49522/14 Golder v United Kingdom no 4451/70, judgment, 21 February 1975, Series A no 18, 1 ehrr (1979–1980) 524 Hirst v United Kingdom (No. 2), [gc] judgment of 6 October 2005 Janowiec and others v Russia nos 55508/07 et al, (judgment) [gc], 21 October 2013

233

Index of Authorities Khetagurova and others v Georgia Lawless v Ireland Lawless v Ireland Ljubljanska banka d.d. v Croatia Loizidou v Turkey Loizidou v Turkey Mamatkulov and Askarov v Turkey Matthews v United Kingdom Meleagrou and Others v Turkey Mercan v Turkey Sargsyan v Azerbaijan Timurtaş v Turkey Varnava and Others v Turkey X, Y and Z v the United Kingdom Xenides-Arestis v Turkey Ždanoka v Latvia

no 43253/08, (dec) 14 December 2010; admissibility decision of 30 August 1958, Yb 2, 308 no 332/57 (judgment)1 July 1961, Series A, no 3 no 29003/07 (dec) 12 May 2015 no 15318/89, 18 December 1996, echr 1996 – vi, 2216 (merits) no 15318/89, 23 March 1995, Series A 310, (preliminary objections) nos 46827/99, 46951/99, judgment [gc] of 4 February 2005 no 24833/94 no 14434/09, 2 April 2013 no 56511/16 (dec) 8 November 2016 no 40167/06 no 23531/94 no 16064/90 nos 5727/72, 5744/72 and 5857/72, 12 July 1978, dr 14, 5 no 46347/99, judgment of 22 December 2005 58278/00, [gc] judgment of 16 March 2006 nos 71412/01, 78166/01

Behrami and Saramati v France, Germany and Norway Al-Skeini and Others v the United Kingdom no 55721/07 Al-Jedda v The United Kingdom no 27021/08



Press Releases of the European Court of Human Rights

echr 122 (2015) echr 291 (2011) echr 296 (2015) echr 345 (2014) echr 581 (2008) echr 073 (2014) echr 183 (2015) echr 263 (2016)

13 April 2015 19 December 2011 1 October 2015 26 November 2014. 12 August 2008 13 March 2014 4 June 2015 28 July 2016

234

Index of Authorities

echr 286 (2015) 24 September 2015 echr 340 (2016) 20 October 2016 Akande, D South African Withdrawal from the International Criminal Court – Does the icc Statute Lead to Violations of Other International Obligations?, 22 October 2016, ejil:Talk!, www.ejiltalk.org/southafrican-withdrawal-from-theinternational-criminal-court/. Alston, P, Knuckey, S The transformation of human rights factfinding, challenged and opportunities, in P Alston, S Knuckey (eds) The transformation of human rights fact-finding (2016) 3 Alvarez, J What are international judges for? The main functions of ­international adjudication, in C Romano et al (eds), The O ­ xford Handbook of International Adjudication (2014) 158. Amerasinghe, F Jurisdiction of Specific International Tribunals (2009) Amerasinghe, F Local Remedies in International Law (2nd ed, 2004) Antonopolous, C Counterclaims before the International Court of Justice (2011) Antonopolus, N La Jurisprudence des Organes de la Convention Européenne des Droits de l’Homme (1967) Arp, B Georgia v. Russia (i) (2015) 109 ajil 167 Aust, A Modern Treaty Law and Practice (3rd ed, 2013) Bartole, S et al (eds) Commentario alla Convenzione Europea per la Tutela dei Diritti dell’Uomo e delle Libertà Fondamentali (2001) Bartsch, H Ministerkomitee des Europarats (mker), Straßburg (1979) 6 EuGRZ 86 Bates, E The Evolution of the European Convention on Human Rights (2010) Bates, E Supervising the Execution of Judgments Delivered by the European Court of Human Rights: The Challenges Facing the

Index of Authorities

235

Committee of Ministers, in T Christou, J P Raymond (eds), European Court of Human Rights, Remedies and Execution of Judgments (2005) 49 Becket, J Barbarism in Greece (1970) Becket, J The Greek Case Before the European Human Rights Commission’ (1970–71) 1 Human Rights 91 Beddard, R Human Rights in Europe, A study of the machinery of human rights protection of the Council of Europe (2nd ed, 1980) Bernhardt, R Reform of the Control Machinery under the European Convention on Human Rights: Protocol No. 11 (1995) 89 ajil 145 Bernhardt, R Just satisfaction under the European Convention on Human Rights’ in M Ragazzi (ed), International Responsibility Today (2005) 243 Binder, C Die Grenzen der Vertragstreue im Völkerrecht (2013) Blackburn, R The Institutions and Processes of the Convention, in R Blackburn, J Polakiewicz (eds), Fundamental Rights in Europe, The European Convention on Human Rights and its Member States, 1950–2000 (2002) 3 Bleckmann, A Anmerkungen zum Nordirland-Fall des Europäischen Gerichtshofes für Menschenrechte (1979) 6 EuGRZ 188 Boer-Buquicchio, M Interim measures by the European Commission on Human Rights, in M de Saliva, M Villiger (eds), The Birth of European Human Rights Law, Liber Amicorum Carl Aage Nørgaard (1998) 229 Bonner, D Of outrage and misunderstanding: Ireland v United Kingdom – governmental perspectives on an inter-state application under the European Convention on Human Rights (2014) 34 Legal Studies 47 Bonner, D Ireland v United Kingdom (1978) 27 Int’lCLQ 897

236

Index of Authorities

Bothe, M et al Die Genfer Konferenz über humanitäres Völkerrecht, Verlauf und Ergebnisse (1978) 38 hjil 1 Bowring, B Georgia, Russia and the Crisis of the Council of Europe: Inter-State Applications, Individual Complaints, and the Future of the Strasbourg Model of Human Rights Litigation, in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the International Legal Order (2010) 114 Boyle, K, Hannum, H Individual applications under the European Convention on Human Rights and the concept of administrative practice: the Donnelly case (1974) 68 ajil 440 Boyle, K, Hannum, H The Donnelly case, administrative practice and domestic remedies under the European Convention: one step forward and two steps back (1977) 71 ajil 316 Breuer, M The ECtHR – torn between Russia and Ukraine?, Verfassungsblog, 18 March 2014, verfassungsblog.de/egmr-zerrieben-im -konflikt-russland-ukraine/ Brown, C The inherent powers of international courts and tribunals (2005) 76 byil 159 Buergenthal, T Proliferation of International Courts and Tribunals: Is it good or bad? (2001) 14 ljil 267 Buergenthal, T Proceedings against Greece under the European ­Convention on Human Rights (1968) 62 ajil 441 Buergenthal, T The European and Inter-American Human Rights Courts: Beneficial Interaction, in P Mahoney et al (eds), Protecting Human Rights: The ­European P­ erspective, Studies in memory of Rolv ­Ryssdal (2000) 123 Burbano Herrera, C, Haeck, Y Letting States off the Hock? The Paradox f the legal consequences following State non-compliance with provisional measures in the Inter-American and European Human Rights Systems (2010) 28 nqhr 332

Index of Authorities

237

Buyse, A Airborne or Bound to Crash? The Rise of Pilot Judgments and their Appeal as a Tool to Deal with the Aftermath of Conflict, in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 175 Buyse, A Lost and Regained? Restitution as a Remedy for Human Rights Violations in the Context of International Law (2008) 68 hjil 129 Caflisch, L European Convention for the Peaceful Settlements of Disputes, in R Wolfrum (ed), mpeil online (2007) Cameron, I Turkey and Article 25 of the European Convention on Human Rights (1988) 37 International and Comparative Law Quarterly 887 Campbell, C Wars on Terror and Vicarious Hegemons: the uk, international law, and the Northern Ireland conflict (2005) 54 Int’lCLQ 321 Carstens, K Das Recht des Europarats (1956) Chernishova, O, Vajic, N The Court’s evolving response to the states’ failure to cooperate, in D S­ pielmann et al (eds), The European Convention on Human Rights, a living instrument, ­Essays in honor of Christos L. Rozakis (2011) 47 Chrysostomides, K The Republic of Cyprus. A Study of International Law (2000) Coffey, D Torture, Human Rights and the Northern Ireland Conflict, Verfassungsblog, 11 December 2014, www.verfassungsblog.de/ torture-human-rights-northern-ireland -conflict/ Coleman, H Greece and the Council of Europe – the International Legal Protection of Human Rights by the Political Process (1972) 2 Israel Yearbook on Human Rights 121 Coufoudakis, V Cyprus and the European Convention on Human Rights: The Law and Politics of Cyprus v Turkey, Applications 6780/4

238

Index of Authorities

and 6950/75 (1982) 4 Human Rights Q ­ uarterly 450 Crawford, J Brownlie’s Principles of Public International Law (8th ed, 2012) Crook, J Mass Claims Processes: Lessons Learned Over Twenty-Five Years, in International Bureau of the Permanent Court of ­Arbitration (ed), Redressing Injustices Through Mass Claims Process, Innovative Responses to Unique Challenges (2006) 41 d’Argent, P Des règlements collectifs aux reglements individuels (collectivisés?), La question des réparations en cas de violation massive des droits de l’homme (2003) 5 International Law Forum du droit international 10 d’Argent, P Compliance, cessation, reparation and restitution in the Wall Advisory Opinion, in P-M Dupuy (ed) Völkerrecht als Wertordnung, Essays in Honour of Christian Tomuschat (2006) 463 Damrosch, L Obligations of Cooperation in International Protection of ­Human Rights, in J Delbrück, U Heinz (ed), International Law of Cooperation and State Sovereignty (2002) 15 Das, H The concept of mass claims and the specificity of mass claims resolution, in The International Bureau of the Permanent Court of Arbitration (ed), Redressing Injustices Through Mass Claims Processes (2006) 3 Dawson, M, Muir, E Hungary and the Indirect Protection of eu Fundamental Rights and the Rule of Law (2013) 14 glj 1959 Dawson, M, Muir, E Institutional and Collective Vigilance in Protecting Fundamental Rights in the eu: Lessons from the Roma (2011) 48 cmlr 751 De Londras, F Revisiting the Five Techniques in the European Court of ­Human Rights, 12 December 2014, ejil:Talk!, www.ejiltalk.

Index of Authorities

239

org/revisiting-the-five-techniques-in-theeuropean-court-of-human-rights De Vylder, H Haeck, Y The Duty to Cooperation of the Respondent State During the Proceedings Before the European Court of Human Rights, in Y Haeck, E Brems (eds), Human Rights and Civil Liberties in the 21st Century (2014) 37 Delbrück, J The international obligation to cooperate – an empty shell or a hard law principle of international law? A critical look at a much debated paradigm of modern ­international law’, in H Hestermayer et al (eds), Coexistence, ­Cooperation and ­Solidarity: Liber Amicorum Rüdiger Wolfrum (2012) 3 di Fabio, U Grundrechte als Wertordnung (2004) 59 jz 1 Dickson, B The European Convention on Human Rights and the Conflict in Northern Ireland (2010) Dickson, B The European Convention on Human Rights and Northern Ireland, in Présence du droit public et des droits de l’homme. Mélanges offerts à Jacques Velu (iii, 1992) 1407 Diller, J Social Justice, Rights, and Labour, in D Shelton (ed), The ­Oxford Handbook of International Human Rights Law (2013) 295 Dollé, S Friendly settlement 14 years on in the European Commission on Human Rights, in M da Silva, M Villiger (eds), The Birth of European Human Rights Law – Liber Amicorum Carl Aage Norgaard (1998) 243 Donahue, D Human Rights in Northern Ireland: Ireland v the United Kingdom (1980) 3 Boston College International and Comparative Law Review 377 Doswald-Beck, L What does the prohibition of ‘torture or inhuman and degrading treatment or punishment’ mean? The interpretation of the European Commission and the Court

240

Index of Authorities

of Human Rights (1978) 25 Netherlands International Law Review 24 Douhan, A International Organizations and Settlement of the Conflict in Ukraine (2015) 75 hjil 195 Ehrlich, T Cyprus, the ‘Warlike Isle’: Origins and Elements of the Current Crisis (1965/66) 18 Stanford Law Review 1021 Eide, A The Framework Convention in Historical and Global Perspective, in M Weller (ed), The Rights of Minorities in Europe (2005) 25 Engel, E, Engel, N (eds) Europäischer Gerichtshof für Menschenrechte, Deutschsprachige Sammlung, Band 1 (egmr-E 1) (2008) Engel, N, et al Editors’ note to the publication of the Commission’s report in Greece v United Kingdom (i) of 1958 in (1997) 18 hrlj 348 Epiney, A, Haltern, U Zypern in der Europäischen Union, Ausgewählte Völker- und Europarechtliche Aspekte (2008) Ermacora, F Über die Staatenbeschwerde in Fragen der Menschenrechte, in Recueil de travaux publiés par la faculté de droit (no editor), Mélanges Marcel Bridel (1968) 169 Ertekün, M Inter-State Applications and Article 27 (2) of the European Convention on Human Rights and ­Fundamental Freedoms (1980) 2 Turkish Yearbook of Human Rights 5 Eustathiades, C La Convention Européenne des Droits de l’Homme et le Statut du Conseil de l’Europe (1953–1955) 52 Die Friedenswarte 332, 354 Eustathiades, C Les Recours Individuels a la Commission Europeenne des Droits de l’Homme, in D Constantopoulos et al (eds) Grundprobleme des Internationalen Rechts, Festschrift für Jean Spiropoulos (1957) 111 Evans, M, Morgan, R The European Convention for the prevention of ­Torture: Operational practice (1992) 41 International and Comparative Law Quarterly 590

Index of Authorities

241

Fawcett, J The Application of the European Convention on ­Human Rights (1969) Fribergh, E, Villiger, M The European Commission of Human Rights, in R Macdonald et al (eds), The ­European System for the Protection of H ­ uman Rights (1993) 605 Frowein, J Die Rolle der Europäischen Menschenrechtskommission bei der Entwicklung der emrk (2015) 42 E­ uGRZ 269 Frowein, J Probleme des allgemeinen Völkerrechts vor der Europäischen Kommission für Menschenrechte, in I von Münch (ed), Festschrift für Hans-Jürgen Schlochauer (1981) 289 Frowein, J Fact-finding by the European Commission of Human Rights, in R Lillich (ed), Fact-Finding before International Tribunals (1992) 237 Frowein, J Der freundschaftliche Ausgleich im Individualbeschwerdeverfahren nach der Menschenrechtskonvention und das deutsche Recht (1969) jz 213 G Cohen Jonathan, J-P Jacqué Activité de la Commission Européenne des Droits de l’Homme (1979) 25 afdi 382 Gattini, A La chiusura della controversia italoaustriaca sull’ Alto Adige (1992) 75 Rivista di diritto internazionale 349. Gattini, A Mass Claims at the European Court of Human Rights in S Breitenmoser et al (eds) Human Rights, Democracy and the Rule of Law, Liber Amicorum Luzius Wildhaber (2007) 271 Ghandi, S The International Court of Justice and the Provisional Measures Order in the Georgia v Russian Federation case, in J Green, C Waters (eds) Conflict in the Caucasus – ­Implications for the International Legal Order (2010) 80 Golsong, H Das Rechtsschutzsystem der Europäischen Menschenrechtskonvention (1958)

242

Index of Authorities

Golsong, H Interpreting the European Convention on Human Rights Beyond the Confines of the Vienna Convention on the Law of Treaties, in R Macdonald et al (eds), The European System for the Protection of Human Rights (1993) 145 Golsong, H Die eigenartige Rolle des mk des Europarates als eine der beiden Entscheidungsinstanzen im Rahmen der mrk (1975) 2 EuGRZ 448 Golubok, S Right to Free Elections: Emerging Guarantees or Two Layers of Protection? (2009) 27 nqhr 361 Grabenwarter, C Third Parties im Verfahren vor dem Europäischen Gerichtshof für Menschenrechte, in M Breuer (ed), Staat im Recht, Festschrift für Eckart Klein (2013) 1057 Grabenwarter, C (ed) European Convention on Human Rights, Commentary (2014) Grabenwarter, C, Pabel, K Europäische Menschenrechtskonvention (2016) Grabitz, E et al Das Recht der Europäischen Union, euv, aeuv (loseleaf) Grant, T Crimea after Cyprus v Turkey: Just Satisfaction for ­Unlawful Annexation?’, ejil:Talk!, 19 May 2014, www.ejiltalk.org/ crimea-after-cyprus-v-turkey-justsatisfaction-for-unlawful-annexation/ Grant, T International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms’ (2015) 16 Chicago Journal of International Law 1 Green, J Passportisation, Peacekeepers and Proportionality: The Russian Claim of the Protection of Nationals Abroad in Self-Defence, in J Green, C Waters (eds), Conflict in Caucasus, Implications for International Legal Order (2010) 54 Greer, S, Wildhaber, L Revisting the Debate about ‘constitutionalising’ the ­European Court of

Index of Authorities

243

Human Rights (2013) Human Rights Law Review 655 Griebeler, U Die griechische Militärregierung vor der Europäischen Menschenrechtskommission (1968) 21 döv 677 Gross, O Once more unto the Breach: The Systemic Failure of ­Applying the European Convention on Human Rights to Entrenched Emergencies (1998) 23 YaleJIL 437 Grover, S The European Court of Human Rights as a Pathway to ­Impunity for International Crimes (2010) H Krüger C Norgaard The Right of Application, in R McDonald et al (eds), The European System for the Protection of Human Rights (1993) 657 Haeck, Y, Burbano Herrera, C The use of interim measures issued by the European Court of Human Rights in times of war or internal conflict, in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 77 Hailbronner, K Das Verfahren gegen Griechenland als Beispielsfall einer Beschwerde im Rahmen der Internationalen ­Arbeitsorganisation (1971) 31 hjil 31 Haines, S Northern Ireland 1968–1998, in E Wilmshurst (ed), I­ nternational Law and the Classification of Conflicts (2012) 117 Halberstam, D It’s the autonomy, stupid! (2015) 16 German Law Journal 106 Hannum, H The Concept and Definition of Minorities, in M Weller (ed), Universal Minority Rights, A commentary on the Jurisprudence of International Courts and Treaty Bodies (2007) 49 Harris, D et al Law of the European Convention on Human Rights (3rd ed, 2014) Herndl, K The Case-Law of the Commission as regards the Right to Free Elections (Article 3 of Protocol), in M de Salvia, M Villiger (eds), The Birth of European Human Rights

244

Index of Authorities

Law, Liber Amicorum Carl Aage Noorgaard (1998) 91 Higgins, R Interim Measures for the Protection of Human Rights, in R Higgins (ed), Themes and Theories, Selected Essays, Speeches, and Writings in International Law (2009) 604 Higgins, R Problems & Process – International Law and how we use it (1994) Higgins, R Derogations under Human Rights Treaties (1976) 48 byil 281 Hoffmeister, F Legal Aspects of the Cyprus Problem (2006) Hoffmeister, F Cyprus v Turkey. App. No. 25781/94 (2002) 96 ajil 445 Hofman, R Rahmenübereinkommen zum Schutz nationaler Minderheiten (2015) Hofmann, B Beendigung menschenrechtlicher Verträge (2009) Hojink, J Slovenia v. Croatia: The First eu InterState Case before the ECtHR, ejil:Talk!, 17 October 2016, www.ejiltalk .org/slovenia-v-croatia-the-first-euinter-state-case-before-the-ecthr/ Hold von Zürich, P Die Staatenbeschwerde im Rahmen der Europäischen Menschenrechtskonvention – rechtliche und politische Probleme (1976) Holland, R Britain and the Revolt in Cyprus 1954–1956 (1998) Holterhus, T, Kornack, D Die Materielle Struktur der Unionsgrundwerte, Auslegung und Anwendung des Art. 2 euv im Lichte aktueller Entwicklungen in Rumänien und Ungarn (2014) 41 EuGRZ 389 Ichim, O Just Satisfaction under the European ­Convention on Human Rights (2015) Indlekofer, M International Arbitration and the ­Permanent Court of Arbitration (2013) Ingadottir, T The Financing of International ­Adjudication, in C Romano et al (eds), The Oxford Handbook of International A ­ djudication (2014) 595

Index of Authorities

245

International Commission of Jurists States of Emergency, Their Impact on H ­ uman Rights (1983) Ipsen, K Die Funktionen des Völkerrechts, in E Menzel et al (eds), Völkerrecht (6th ed, 2014), § 3 J Frowein, W Peukert EMRK-Kommentar (3rd ed, 2009) Jahn, J Ruling (In-)directly through individual measures? Effect and Legitimacy of the ECtHR’s new Remedial Power (2014) 74 hjil 1 Jahn, J Normative Guidance form Strasbourg Through Advisory Opinions (2014) 74 hjil 821 Janis, M, et al European Human Rights Law (2008) K Oellers-Frahm, A Zimmermann (eds) Dispute Settlement in Public International Law (2nd ed, 2001) Kälin, W Menschenrechtsverträge als Gewährleistung einer objektiven Ordnung, in Berichte der Deutschen Gesellschaft für Völkerrecht (vol 33), (1994) 149 Kälin, W Die Vorbehalte der Türkei zu ihrer ­Erklärung gem. Art. 25 emrk (1987) 17 EuGRZ 421 Kälin, W, Künzli, J Universeller Menschenrechtsschutz (2013) Kamminga, M Inter-State Accountability for Violations of Human Rights (1992) Kamminga, M Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations? (1994) 12 nqhr 153 Karpenstein, U Von Belfast bis Tiflis – Die emrk im bewaffneten Konflikt, in S LeutheusserSchnarrenberger (ed), Vom Recht auf Menschenwürde – 60 Jahre Europäische Menschenrechtskonvention (2013) 209 Karpenstein, U, Mayer, C (eds) emrk Kommentar (2nd ed, 2015) Keller, H et al Friendly Settlements before the European Court of ­Human Rights, Theory and Practice (2010) Keller, H et al Statut-Entwurf für den Europäischen Gerichtshof für Menschenrechte – Ein Beitrag

246

Index of Authorities

zur Reform des Konventionssystems (2011) 38 EuGRZ 341 Keller, H, Marti, C Interim Relief Compared: Use of interim measures by he un Human Rights Committee and the European Court of Human Rights’ (2013) 73 hjil 325 Keller, H, Marti, C Reconceptualizing Implementation: The Judicialization of the Execution of the ­European Court of ­Human Rights’ Judgments (2015) 26 ejil 829 Kelsen, H Peace through Law (1944) Kingsbury, B International Courts: Uneven Judicialization in Global Order, in J Crawford, M Koskenniemi (eds), The Cambridge Companion to International Law (2012) 203 Kirchner, S Interim measures in inter-State proceedings before the European Court of Human Rights: Ukraine v Russia (2014) 33 University of Baltimore Journal of International Law 52 Kiss, A Conciliation, in R Macdonald et al (eds), The European System for the Protection of Human Rights (1993) 703 Kiss, A, Végléris, P L’affaire grecque devant le Conseil de l’Europe et la Commission européenne des droits de l’homme (1971) 17 afdi 889. Klein, E 50 Jahre Europarat, Seine Leistungen beim Ausbau des Menschenrechtsschutzes (2001) 39 avr 121. Klein, E Denunciation of Human Rights Treaties and the Principle of Reciprocity, in U Fastenrath et al (eds), From Bilateralism to Community Interest, Essays in Honor of Judge Bruno Simma (2011) 477 Klein, N Who litigates and why, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 567 Kleinsorge, T Council of Europe (2010) Klose, F Menschenrechte im Schatten kolonialer Gewalt, Die Dekolonisierungskriege in Kenia und Algerien 1945–1962 (2009)

Index of Authorities

247

Knight, R Western Perspectives on Ethnic Politics, in R Knight (ed), E­ thnicity, Nationalism and the European Cold War (2012) 13 Kollmar, K In the interim in Strasbourg re: the crisis in Crimea, C ­ ambridge Journal of International and ­Comparative Law blog, 27 March 2014, cjicl.org.uk/2014/03/27/ interim-strasbourg-re-crisis-crimea/ Kooijmans, P Inter-State dispute settlement in the field of human rights, in M Brus et al (eds), The United Nations Decade of International Law – Reflections on International Dispute Settlement (1991) 97 Kooijmans, P Inter-State Dispute Settlement in the Field of Human Rights (1990) 3 ljil 87 Koopmans, S Diplomatic Dispute Settlement, The Use of Inter-State Conciliation (2008) Korinek, K Österreichisches Bundesverfassungsrecht, Kommentar ii/1 (loseleaf) Koskenniemi, M The Gentle Civilizer of Nations, The Rise and Fall of International Law 1870–1960 (2001) Koskenniemi, M A History of International Law Histories, in A Peters, B Fassbender (eds), The Oxford Handbook of History of International Law (2012) 943 Kovacs, P The Protection of Minorities under the Auspices of the League of Nations’, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (2013) 297 Kranz, J Der Kampf um den Frieden und sein besonderer Facilitator (2008) 46 AdV 481 Krüger, H Untitled comment to the Donnelly decision (1976) 3 EuGRZ 378 Krüger, H, Nørgaard C Reflections concerning friendly settlements under the European Convention on Human Rights, in F Matscher, H Petzold (eds), Protecting Human Rights: The European Dimension, Studies in Honour of Gérard J Wiarda (1988) 329 Kühner, R Die gütliche Einigung nach Art. 28 b) emrk vom 7. Dezember 1985 im Fall

248

Index of Authorities

der Staatenbeschwerden Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei (1986) 46 hjil 75 Laffranque, J Can’t get Just Satisfaction, in A Seibert Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 75 Lambert Abdelgawad, E Is there a need to advance the jurisprudence of the European Court of Human Rights with regard to the award of damages?, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 115 Lambert Abdelgawad, E The Court as a part of the Council of Europe: the Parliamentary Assembly and the Committee of Ministers, in A Follesdal et al (eds), Constituting Europe, The European Court of Human Rights in a National, European and Global Context (2013) 263 Landy, E The Effectiveness of International Supervision (1966) Langenfeld, C Minderheitenschutz, in D Merten, H-J Papier (eds), Handbuch der Grundrechte vi/2, Europäische Grundrechte ii, Universelle Menschenrechte (2009) 599 Lauren, P The Evolution of International Human Rights, Visions Seen (3rd ed, 2011) Lauterpacht, H International Law and Human Rights (1950) Lauterpacht, H An International Bill of Rights of Man (1945) Leach, P Ireland v. uk: Revisiting the Treatment of the Hooded Men, jurist, 6 December 2014, jurist.org/student/2014/12/­PhilipLeach-Hooded-Men.php Leach, P Taking a case to the European Court of Human Rights (3rd ed, 2011) Leach, P Ireland v. uk: Revisiting the Treatment of the Hooded Men, jurist, 6 December

Index of Authorities

249

2014, jurist.org/student/2014/12/­PhilipLeach-Hooded-Men.php Leach, P Ukraine, Russia and Crimea in the European Court of ­Human Rights, 19 March 2014, ejil:Talk!, http://www.ejiltalk.org/ ukraine-russia-and-crimea-in-the -european-court-of-human-rights/. Leach, P South Ossetia, 2008, in E Wilmshurst, International Law and the Classification of Conflicts (2012) 317 Leach, P No longer offering fine mantras to a parched child? The European Court’s developing approach to remedies, in A Follesdahl et al (eds) Constituting Europe Constituting Europe: the European Court of Human Rights in a national, European and global context (2013) 142 Leach, P et al Responding to systemic human rights violations: an analysis of pilot judgments of the European Court of Human Rights and their impact at national level (2010) Leach, P et al International Human Rights & FactFinding, An analysis of the fact-finding missions conducted by the European Commission and Court of Human Rights (2009) Leckie, S The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking? (1987–88) 10 Human Rights Quarterly 249 Lester, A Amici curiae: third party interventions before the European Court of Human Rights’, in F Matscher et al (eds), Protecting Human Rights: the European Dimension, Studies in Honour of Gérard J. Wiarda (1988) 341 Letsas, G Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer (2010) 21 ejil 509 Leuprecht, P The Protection of Human Rights by Political Bodies – The Example of the Committee of Ministers of the Council of Europe,

250

Index of Authorities

in M Nowak et al (eds), Progress in the Spirit of Human Rights, Festschrift für Felix Ermacora (1988) 95 Lindemann, H Die Zulässigkeitsentscheidung der Europäischen Menschenrechtskommission im Fall der Staatenbeschwerden ­Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei vom 6. Dezember 1983 (1984) 44 hjil 346 Lopes Pegna, O Counter-claims and Obligations erga omnes before the International Court of Justice (1998) 9 ejil 724 Loucaides, L The Judgment of the European Court of Human Rights in the case of Cyprus v. Turkey (2002) 15 ljil 225 Loucaides, L The Protection of the right to property in occupied territories (2004) 53 International and Comparative Law Quarterly 677 Lovat, H, Shany, Y The European Court of Human Rights, in Y Shany (ed), Assessing the Effectiveness of International Courts (2014) 251 Lowe, V The Function of Litigation in International Society (2012) 209 Macartney, C National States and National Minorities (1934) Macdonald, R Interim Measures in International Law, with special reference tot he European System fort he Protection of Human Rights (1992) 52 hjil 703 Mackenzie, R et al Manual on International Courts and Tribunals (2nd ed, 2010) Madsen, M The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence, in J Christoffersen, M Madsen (eds) The European Court of ­Human Rights between Law and Politics (2011) 43 Mahoney, P Reconciling Universality of Human Rights and Local Democracy – the European

Index of Authorities

251

Experience, in C Hohmann-Dennhardt et al (eds), Grundrechte und Solidarität, Durchsetzung und Verfahren (2011) 147 Malinverni, G La compétence de la Cour pour surveiller l’exécution de ses propres arrêts’, in D Spielman et al (eds), La convention européenne des droits de l’homme, un instrument vivant, Mélanges en l’honneur de Christos L. Rozakis (2011) 361 Manin, A La Grèce et le Conseil de l’Europe (1974) 20 afdi 875 Marxsen, C The Crimea Crisis – an international law perspective (2014) 74 hjil 367 Mas, M The right to compensation under Article 50, in R Macdonald et al (eds), The European System for the Protection of Human Rights (1993) 775 Matscher, F Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der emrk, in B Funk et al (eds), Der Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich zum 70. Geburstag (2002) 417 Matscher, F Betrachtungen über das Verfahren der Straßburger Konventionsorgane, in M Nowak et al (eds), Fortschritt im ­Bewußtsein der Grund- und ­Menschenrechte – ­Festschrift für Felix Ermacora (1988) 79 McCorquodale, R, Hausler, K Caucuses in the Caucasus: The Application of the Right of Self-Determination, in J Green, C Waters (eds), Conflict in the Caucasus – Implications for the International Legal Order (2010) 26 Meijknecht, A Minority Protection System between Word War I and World War ii, in R Wolfrum (ed), mpeil online (2010) Merrils, J, Robertson, A Human Rights in Europe (2001) Mertens, P Les organes du conseil de l’Europe et le concept de démocratie dans le cadre des deux affaires grecques (1971) 7 rbdi 118

252

Index of Authorities

Mertens, P L’Affaire Irlande contre Royaume-Uni devant la Commission Européenne des Droits de l’Homme’ (1977) 13 rbdi 10, 29 Milanovic, M Ukraine derogates from the iccpr and the echr, Files Fourth Interstate Application against Russia, ejil: Talk!, 5 October 2015, www.ejiltalk.org/ukraine-derogates -from-the-iccpr-and-the-echr-files-fourth -­interstate-application-against-russia/ Milanovic, M Extraterritorial Application of Human Rights Treaties, Law, Principles, and Policy (2011) Moor, L, Simpson, B Ghosts of Colonialism in the European Convention on ­Human Rights (2005) 76 byil 121 Mosler, H Organisation und Verfahren des Europäischen Gerichtshofes für Menschenrechte (1959–60) 20 hjil 415 Mowbray, A A new Strasbourg approach to the Legal Consequences of ­Interim Measures (2005) 5 hrlr 377, 385 Moyn, S The last Utopia: Human Rights in History (2010) Myjer, E The European Court of Human Rights and armed conflicts between high contracting parties: some general remarks, in Mélanges en l’Honneur de Jean-Paul Costa, La Conscience des Droits (2011) 461 Myjer, E Human Rights without Peace? The European Court of Human Rights and Conflicts Between High Contracting ­Parties, in A Buyse (ed), Margins of Conflict, The echr and Transitions to and from Armed Conflict (2011) 1 Myjer, E The European Court of Human Rights and Armed Conflicts between High Contracting Parties; some general remarks, in La conscience des droits, Mélanges en l’honneur de Jean-Paul Costa (2011) 461 Necatigil, Z The Cyprus Question and the Turkish Position in International Law (2nd ed, 1998)

Index of Authorities

253

Neumann, T, Simma, B Transparency in International Adjudication, in A Bianchi, ­Peters, A (ed), Transparency in International Law (2013) 436 Newbery, S Intelligence and Controversial British Interrogation Techniques: the Northern Ireland Case, 1971–2 (2009) 20 Irish Studies in International Affairs 103 Nolte, G, Oeter, S European Commission and Court of Human Rights, Inter-State Applications, in R Bernhardt (ed), epil Vol ii (1992) 144 Norgaard, C, Krüger, H Interim and conservatory measures under the European ­System of Protection of Human Rights, in M Nowak et al (eds) Progress in the Spirit of Human Rights, Festschrift für ­Felix Ermacora (1988) 109 Nowak, M u.n. Covenant on Civil and Political Rights Commentary (2005) Nowak, M The European Convention on Human Rights and its Control System (1989) 7 nqhr 98 Nuridzhanyan, G Ukraine v. Russia in International Courts and Tribunals’, 9 March 2016, EJIL:Talk!, www.ejiltalk.org/ukraine-versus-russia-in -international-courts-and-tribunals/ Nußberger, A Völkerrecht im Kaukasus – Postsowjetische Konflikte in Russland und in Georgien (2008) 35 EuGRZ 457 Nußberger, A The war between Russia and Georgia – Consequences and Unresolved Questions’ (2009) 2 GoJIL 341 O’Boyle, M Electoral Disputes and the echr: an Overview (2009–2010) 30 hrlj 1 O’Boyle, M Torture and emergency powers under the European Convention on Human Rights: Ireland v The United Kingdom (1977) 71 ajil 674 Oberleitner, G Humanitarian Law as a Source of Human Rights Law, in D Shelton (2013), The Oxford Handbook of International Human Rights Law (2013) 275.

254

Index of Authorities

Obwexer, W Der Beitritt der eu zur emrk: Rechtsgrundlagen, Rechtsfragen und Rechtsfolgen (2012) EuR 115 Oby Johansen, S The reinterpretation of tfeu Article 344 in Opinion 2/13 and its potential consequences (2015) German Law ­Journal 169 Oellers-Frahm, K Nowhere to go? The obligation to settle disputes peacefully in the absence of compulsory jurisdiction, in T Giegerich, U Heinz (eds), A wiser century? Judicial dispute settlement, disarmament and the laws of war 100 years after the second Hague Peace Conference (2009) 435 Oellers-Frahm, K Expanding the Competence to Issue Provisional Measures – Strengthening the International Judicial ­Function (2011) 12 glj 1279, 1283 Oellers-Frahm, K Verbindlichkeit einstweiliger Maßnahmen: Der egmr vollzieht – endlich – die erforderliche Wende (2003) 30 EuGRZ 68 Oellers-Frahm, K Verbindlichkeit einstweiliger Anordnungen des egmr – Epilog (2005) 32 EuGRZ 347 Oellers-Frahm, K et al (eds) The Statute of the International Court of Justice, A Commentary (2012) Oeter, S The European Charter for Regional or Minority Languages, in Council of Europe Publishing (ed), Mechanisms for the Implementation of Minority Rights (2004) 131 Oeter, S Vielfalt der Gerichte – Einheit des Prozessrechts?, in Berichte der Deutschen Gesellschaft für Völkerrecht (vol 42), Die Rechtskontrolle von Organen der Staatengemeinschaft (2005) 149 Okowa, P The International Court of Justice and the Georgia/Russia ­Dispute’ (2011) 11 hrlr 739 Opsahl, T, Dollé, S ‘Settlement Based on Respect for Human Rights under the European Convention on Human Rights,’ in Proceedings of the Sixth International Colloquy about the European

Index of Authorities

255

Convention on Human Rights (no editor, 1986) 966 Özsu, U Ottoman Empire, in B Fassbender, A Peters (eds), The Oxford Handbook of History of International Law (2012) 429 Pallaver, G South Tyrol: Ethnic Winner of the Cold War, in R Knight (ed), Ethnicity, Nationalism and the European Cold War (2012) Pancracio, J-P La Turquie et les Organes Politiques du Conseil de L’Europe (1984) 30 afdi 161 Partsch, K-J Die Entstehung der europäischen Menschenrechtskonvention (1954) 15 hjil 631 Pasqualucci, J Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38 Vanderbilt Journal of Transnational Law 1 Paulus, A Reciprocity Revisited, in U Fastenrath et al (eds), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011) 113 Pellonpää, M Individual Reparation Claims under the European Convention on Human Rights, in A Randelzhofer, C Tomuschat (eds) State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (1999) 109 Pelloux, R L’Affaire Irlandaise et l’Affaire Tyrer devant la Court Européenne des Droits de l’Homme (1978) 24 afdi 379 Peterlini, O Autonomie und Minderheitenschutz in Trentino-Südtirol (1996) Peters, A International Dispute Settlement: A Network of Cooperational Duties (2003) 14 ejil 1 Peters, A Cooperation in International Dispute Settlement, in J ­Delbrück (ed), International Law of Cooperation and State Sovereignty (2002) 107 Peters, A Die Anwendbarkeit der emrk in Zeiten komplexer Hoheitsgewalt und das Prinzip der Grundrechtstoleranz (2010) 48 AvR 1

256

Index of Authorities

Pettiti, L-E Le système de Strasbourg – Les recours interétatiques dans le système de la Convention Européenne des Droits de l’Homme, in D Bardonnet (ed), Le règelement pacifique des différends internationaux en Europe: Perspectives d’avenir (1991) 331 Pettiti, L-E et al (eds) La Convention Européenne des Droits de l’Homme, commentaire article par article (1999) Petzold, H Der Gegenwärtige Wirkungsbereich der Europäischen ­Menschenrechtskonvention und ihrer Zusatzprotokolle, der Konvention zur Beseitigung aller Formen von Rassendiskriminierung sowie der Menschenrechtspakte der Vereinten ­Nationen (1970) 30 hjil 400 Polakiewicz, J Anmerkung zur Zulässigkeitsentscheidung der Europäischen Kommission für Menschenrechte im Fall Chrysostomos u.a./ Türkei vom 4. März 1991, (1991) 51 hjil 145 Polakiewicz, J Accession to the European Convention on Human Rights (echr) – An insider’s view addressing one by one the cjeu’s objections in Opinion 2/13 (2016) 36 hrlj 10 Prebensen, S Inter-State Complaints under Treaty Provisions – The ­experience under the European Convention on Human Rights, in G Alfredsson et al (eds), International Monitoring Mechanisms: Essays in Honor of Jacob Th. Möller (2nd ed, 2009) 441 Two previous versions of the article were not cited in the volume: Inter-State Complaints under Treaty Provisions – The experience under the European Convention on Human Rights (1999) 20 hrlj 446; Inter-State Complaints under Treaty Provisions – The experience under the European Convention on ­Human Rights, in G Alfredsson et al (eds), I­ nternational Monitoring Mechanisms: Essays in Honor of Jacob Th. Möller (2001) 533

Index of Authorities

257

Proukaki, E The Right of Displaced Persons to Property and to Return Home after Demopoulos (2014) 14 Human Rights Law Review 701 R Kühner Die gütliche Einigung nach Art. 28 b) emrk vom 7. Dezember 1985 im Fall der Staatenbeschwerden Frankreichs, Norwegens, Dänemarks, Schwedens und der Niederlande gegen die Türkei (1986) 46 hjil 75 Reidy, A et al Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey (1997) 15 nqhr 161 Riddel, A Evidence, Fact-Finding, and Experts, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 848 Rieter, E Preventing Irreparable Harm, Provisional Measures in ­International Human Rights Adjudication (2010) Risini, I The Accession of the European Union to the echr and the Inter-State Complaint under Article 33 echr, in S ­Lorenzmeier (ed), Contemporary Issues of Human Rights Protection in International and National Settings (forthcoming, 2017) Risini, I The Inter-State Application Under the European Convention on Human Rights: More Than Diplomatic Protection, in N Weiß, J-M Thouvenin (eds), The Influence of Human Rights on International Law (2015) 69 Risini, I An individual-centered decision seen in the historical and institutional context which led to Cyprus v. Turkey (iv)/The 2014 just satisfaction judgment of the European Court of Human Rights (2014) 34 hrlj 18 Risini, I Can’t get no just satisfaction? The Cyprus v. Turkey judgment of the European Court

258

Index of Authorities

of Human Rights, Cambridge Journal of International and Comparative Law blog, 23 May 2014, cjicl.org.uk/2014/05/23/cant -get-just-satisfaction-cyprus-v-turkey -judgment-european-court-human-rights/ Risini, I Eine Annäherung der primären und sekundären Pflichten der emrk – Das Urteil des egmr zur gerechten Entschädigung in der Staatenbeschwerde Zypern gegen Türkei (iv) von 2014 (2014) 41 EuGRZ 602 Robertson, A Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights, volumes i–viii (1975–1985) Robertson, A The Council of Europe, Its Structure, Functions and Achievements (1956) Robertson, A Human Rights in Europe (1963) Robertson, A The European Convention for the Protection of Human Rights (1950) 27 byil 145 Robertson, A Agreement relating to persons participating in proceedings of the European Commission and Court of Human Rights, in (no editor) Melanges publies sous l’egide et avec l’appui du Centre interuniversitaire de Droit public et de l’Universite Libre de Bruxelles, Miscellanea : W.J. Ganshof van der Meersch: studia ab discipulis amicisque in honorem egregii professoris edita (1972) 545 Rodley, N, Pollard, M The Treatment of Prisoners under International Law (3rd ed, 2009) Rogge, K Inter-State cases under Article 33 of the European Convention on Human Rights, in H Hartig (ed), Trente ans de droit européen des droits de l’homme, Etudes à la mémoire de Wolfang Strasser (2007) 289 A previous version of the article was not cited in the volume: The Inter-State Application under Article 24 of the European Convention on

Index of Authorities

259

Human Rights, in S Busuttil (ed), Mainly ­Human Rights, Studies in Honour of J.J. Cremona (1996) 221 Rogge, K Der Rechtschutz der Europäischen ­Menschenrechtskonvention (1975) 1/2 EuGRZ 117 Rogge, K The European Commission of Human Rights, in M de Salvia, M Villiger (eds), The Birth of European Human Rights Law, ­Studies in Honour of Carl Aage Norgaard (1998) 5 Rogge, K Examining the merits of human rights applications – The legal issues, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective (2000) 1215 Rogge, K Fact-finding, in R Macdonald et al (eds), The European System of the Protection of Human Rights (1993) 677 Rolin, H Has the European Court of Human Rights a Future? (1965) 11 Howard Law Journal 11 Romano, C International Courts and Tribunals: Price, Financing and Output, in S Voigt and others (eds), International Conflict Resolution (2006) 189 Romano, C Trial and Error in International Judicialization, in C Romano et al (eds), The Oxford Handbook of ­International Adjudication (2014) 111 Romano, C The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in Inter­ national Human Rights Procedures, in N Boschiero et al (eds), International Courts and the Development of International Law, ­Essays in Honour of Tullio Treves (2013) 561 Romano, C The shift from the consensual to the compulsory paradigm in international adjudication: elements for a theory of consent (2006–2007) New York University Journal of International Law and Politics 792

260

Index of Authorities

Romano, C, Alter, K, Shany, Y Mapping international adjudicative bodies, the issues and players, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 3 Ronen, Y, Naggan, Y Third Parties, in C Romano et al (eds), The Oxford Handbook of International Adjudication (2014) 807 Rosenne, S The International Court of Justice: Revision of Articles 79 and 80 Rules of the Court (2001) 14 ljil 77 Ruiz, J Mootness in International Adjudication: The Nuclear Tests Cases (1977) 20 gyil 358 Rumpf, C Die Staats- und Völkerrechtliche Lage Zyperns (1997) 24 EuGRZ 533 Rumpf, C Die gütliche Einigung im Staatenbeschwerdeverfahren ­gegen die Türkei (1986) 13 EuGRZ 177 Rumpf, C Die Anerkennung des Individualbeschwerderechts gemäß Artikel 25 emrk durch die Türkei (1987) 47 hjil 778 Rumpf, C Die Anerkennung der Zuständigkeit des Europäischen Gerichtshofes für Menschenrechte gem. Art. 46 emrk durch die Türkei (1990) 17 EuGRZ 53 Rumpf, C The Protection of Human Rights in ­Turkey and the Significance of International Human Rights Instruments (1993) 14 HRLJ 394 Rumpf, C Nochmals: Zypern und Türkei vor den Straßburger Menschenrechtsorganen (1992) 19 EuGRZ 457 Ryssdall, R The Coming of Age of the European ­Convention on ­Human Rights (1996) 1 EHRLR 18. Saccucci, A Le misure provvisorie della Corte europea dei diritti umani nell’ambito della procedura di ricorso interstatale Georgia c. Russia (2009) 3 Rivista quadrimestirale diritti umani e diritto internazionale 129

Index of Authorities

261

Schabas, W The European Convention on Human Rights, A Commentary (2015) Schabas, W, O’Sullivan, A Of politics and poor weather: how Ireland decided to sue the United Kingdom under the European Convention on Human Rights (2007) 2 Irish Yearbook of International Law 3 Scheinin, M Counter-terrorism and human rights, in S Sheeran, N Rodley (eds), Routledge Handbook of International Human Rights Law (2013) 581 Schlette, V Das neue Rechtsschutzsystem der Europäischen Menschenrechtskonvention (1996) 56 HJIL 905 Schulte, C Compliance with decisions of the International Court of ­Justice (2004) Schulze, P Geopolitics at work: the Georgian-Russian Conflict (2009) 2 GoJIL 329 Serini, K Sanktionen der Europäischen Union bei Verstoß eines Mitgliedsstaates gegen das Demokratie- oder Rechtsstaatsprinzip (2009) Shany, Y No longer a weak department of power? Reflections on the emergence of a new international judiciary (2009) 20 EJIL 74, 89 Shany, Y Jurisdiction and Admissibility, in R Cesare et al (eds), The Oxford Handbook of International Adjudication (2014) 779 Sharpe, J The Conscience of Europe: 50 Years of the European Court of ­Human Rights (2000) Shelton, D Regional Protection of Human Rights (2010) Shelton, D Form, Function, and the Powers of International Courts (2008–09) 9 Chicago Journal of International Law 537 Shelton, D Remedies in International Human Rights Law (3rd ed, 2015) Shelton, D Roles of the Court, in The long-term future of the European Court of Human Rights, Proceedings, of the MultiRights Annual Conference organised by PluriCourts under

262

Index of Authorities

the auspices of the Council of Europe, 7–8 April 2014 (2014) 113 Sicilianos, L-A The Role of the European Court of Human Rights in the Execution of its own judgments: reflections on Article 46 echr’, in A Seibert-Fohr, M Villiger (eds), Judgments of the European Court of Human Rights – Effects and Implementation (2014) 285 Simma, B International Human Rights and ­General International Law: A Comparative ­Analysis, Collected Courses of the ­Academy of European Law (Vol iv 2) The Protection of Human Rights in Europe (1995) 153 Simma, B From Bilateralism to Community Interest in International Law (1993) 217 RdC 229 Simma, B Human Rights before the International Court of Justice: Community interest ­coming to life?, in H Hestermeyer et al (eds), Coexistence, Cooperation and ­Solidarity: Liber Amicorum Rüdiger W ­ olfrum (2011) 577 Simma, B Fragen der Durchsetzung vertraglich vereinbarter Menschenrechte, in i von Münch (ed), Festschrift für Hans-Jürgen Schlochauer (1981) 635 Simma, B et al (eds) The Charter of the United Nations, A Commentary (2012) Simpson, B Human Rights and the End of Empire (2004) Simpson, B The exile of Archbishop Makarios iii (1996) 4 European ­Human Rights Law Review 391 Simpson, B Round up the usual suspects: the legacy of British colonialism and the European Convention on Human Rights (1995–96) 41 Loyola Law Review 629 Sohn, L Expulsion or Forced Withdrawal from an International ­Organization (1963–64) 77 Harvard Law Review 1381

Index of Authorities

263

Spain, A Examining the International Judicial Function: International Courts as Dispute Resolvers (2011) 34 Loyola of Los Angeles ­International and Comparative Law Review 5 Spielmann, A, Spielmann, D La Cour unique et permanente et les mesures provisioires, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective, Studies in memory of Rolv Ryssdal (2000) 1347 Spijut, R Torture under the European Convention on Human Rights (1979) 73 ajil 267 Steiger, D Zur Struktur der Kontroll- und Durchsetzungsverfahren gegenüber Mitgliedsstaaten einer Internationalen ­Organisation, in i von Münch (ed), Festschrift für HansJürgen Schlochauer (1981) 649 Steiniger, R South Tyrol: A Minority Conflict of the Twentieth Century (2003) Sudre, F Droit Européen et International des Droits de l’Homme (12th ed, 2015) Sundberg, F Control of Execution of Decisions under the European Convention on Human Rights – A Perspective on Democratic Security, Intergovernmental Cooperation, Unification and Individual Justice in ­Europe, in G Alfredsson et al (eds), ­International Monitoring Mechanisms: ­Essays in Honor of Jacob Th. Möller (2nd ed, 2009) 465 Svandize, E The European Convention for the Prevention of Torture, in G Alfredsson et al (eds) International Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller (2nd ed, 2009) 439 Talmon, S Kollektive Nichtanerkennung illegaler Staaten (2006) Talmon, S Impediments to Peacekeeping: The Case of Cyprus (2002) 8 International Peacekeeping: The Yearbook of ­International Peace Operations 33

264

Index of Authorities

Talmon, S The European Union – Turkey Controversy over Cyprus or a Tale of Two Treaty Declarations (2006) 5 Chinese Journal of International Law 579 Tams, C Enforcing Obligations Erga Omnes in International Law (2010) Tams, C Individual States as Guardians of Community Interests, in U Fastenrath et al (eds), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011) 379 Tams, C No dispute about Nuclear Weapons?’, ejil:talk!, 6 October 2016, www.ejiltalk .org/no-dispute-about-nuclear-weapons/ Tams, C The continued relevance of compromissory clauses as a source of icj jurisdiction, in T Giegerich (ed), A Wiser Century? Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference (2009) 461 Tams, C Individual States as Guardians of Community Interests, in U Fastenrath et al (eds), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011) 379 Tavernier, P En Marge de l’Arrêt Chypre contre la Turquie: l’Affaire Chypriote et les Droits de l’Homme devant la Cour de Strasbourg (2002) 52 Revue Trimestrielle des Droits de l’Homme 807 Taylor, A The Struggle for Mastery in Europe: 1848–1918 (2001) Ténékidès, G La Condition Internationale de la République de Chypre (1960) 6 afdi 133 Thienel, T Provisional Measures in the ‘Case Concerning Application of the International Convention on the Elimination of All forms of Racial Discrimination’ (Georgia v. Russian Federation) (2009) 1 GoJIL 143 Thirlway, H Counterclaims before the International Court of Justice: The Genocide

Index of Authorities

265

Convention and Oil Platforms decisions (1999) 12 ljil 197 Thornberry, C Some Reflections on the Effectiveness of European Human Rights Techniques, in the Light of British Experience of the Application of the Right of Individual Petition, in (no editor) Actes de la Table Ronde organisée par la Faculté de Droit de l’Université de Bari en liaison avec le Conseil de l’Europe et l’Institut International des Droits de l’Homme, Les clauses facultatives de la ­Convention Européenne des Droits de l’Homme (1974) 147 Tomuschat, C Human Rights, Between Idealism and Realism (2nd ed, 2008) Tomuschat, C Individueller Rechtsschutz: das Herzstück des ,,ordre public européen“ nach der Europäischen Menschenrechtskonvention (2003) 30 EuGRZ 95 Tomuschat, C Democracy and the Rule of Law, in D Shelton (ed), The Oxford Handbook of International Human Rights Law (2013) 469 Tomuschat, C Quo Vadis, Argentoratum? The Success Story of the European Convention on Human Rights – and a Few Dark Stains (1992) 13 hrlj 401 Tomuschat, C Individual reparation claims in instances of grave human rights violations: the position under general international law, in A Randelzhofer, C Tomuschat (eds), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (1999) 1 Tomuschat, C Reparation for Victims of Grave Human Rights Violations (2002) 10 Tulane Journal of International and Comparative Law 157 Tomuschat, C Just satisfaction under Article 50 of the European Convention on Human Rights, in P Mahoney et al (eds), Protecting Human Rights: The European Perspective,

266

Index of Authorities

Studies in Memory of Rolv Ryssdal (2000) 1409 Tomuschat, C Der Streit um die Auslegungshoheit: Die Autonomie der eu als Heiliger Grahl/das EuGH-Gutachten gegen den Beitritt der eu zur emrk (2015) 42 EuGRZ 133 Treves, T The International Law Commission’s Articles on State Responsibility and the settlement of disputes, in M Ragazzi (ed), International Responsibility Today (2005) 223 Trinidade, C L’épuisement des voies de recours internes dans les affaires inter-étatiques (1978) 14 Cahiers de Droit Européen 139 Trinidade, C Exhaustion of domestic remedies in relation to legislative measures and administrative practices – the European experience (1976) 18 Malaya Law Review 257 Trinidade, C Exhaustion of Local Remedies in the travaux préparatoires of the European Convention on Human Rights (1980) 58 Revue de Droit International 73 Trinidade, C Exhaustion of local remedies in relation to legislative measures and administrative practices – the European experience (1976) 18 Malaya Law Review 257 Trinidade, C Die Entwicklung des interamerikanischen Systems zum Schutz der Menschenrechte (2010) 70 hjil 629 Trinidade, C Die Entwicklung des interamerikanischen Systems zum Schutz der Menschenrechte (2010) 70 hjil 629 Tulkens, F La protection des droits fondamentaux en Europe et l’adhesion de l’Union européenne à la Convention des droits de l’homme’ (2012) 1 Critical Quarterly for Legislation and Law 14 Uerpmann-Wittzack, R Der Europarat, in A Hatje, P Müller-Graff (eds), Enzyklopädie Europarecht, vol 1, Europäisches Organisations- und Verfassungsrecht (2014) 1071

Index of Authorities

267

Vajic, N Interim measures and the Mamatkulov Judgment of the ­European Court of Human Rights, in M Kohen (ed), Promoting Justice, Human Rights and Conflict Resolution through ­International Law (2007) 601 van der Vyver, J Sovereignty, in D Shelton (ed), The Oxford Handbook of ­International Human Rights Law (2013) 379 Velu, J Report on Responsibilities for States ­Parties to the European Convention in (no editor) Proceedings of the Sixth ­International Colloquy about the European Convention on Human Rights organized by the Secretariat General of the Council of Europe (1988) Verdross, A Universelles Völkerrecht. Theorie und Praxis (5th ed, 1964) Vermeer-Künzli, A The Protection of Individuals by Means of Diplomatic Protection, Diplomatic Protection as a Human Rights Instrument (2007) Villiger, M Commentary on the 1969 Vienna Convention on the Law of ­Treaties (2009) Villiger, M Handbuch der Europäischen Menschenrechtskonvention (2nd ed, 1999) Villiger, M Binding effect and declaratory Nature of the Judgments of the European Court of Human Rights: An Overview’, in A SeibertFohr, M Villiger (eds), Judgments of the European Court of ­Human Rights – Effects and Implementation (2014) 33 Voeffray, F L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (2004) von Bogdandy, A The European Union as a Human Rights organization? Human Rights and the core of the European Union (2000) 37 cmlr 1307 von Bogdandy, A et al Ein Rettungsschirm für europäische Grundrechte, Grundlagen einer unionsrechtlichen Solange-Doktrin gegenüber Mitgliedstaaten (2012) 72 hjil 45

268

Index of Authorities

Vranes, E Die Staatenbeschwerde im Verhältnis egmr, internationalen Gerichten und EuGH (2014) 69 Zeitschrift für öffentliches Recht 257 Waldock, H The European Convention for the Protection of Human Rights and Fundamental Freedoms (1958) 34 byil 356 Waldock, H General Course on Public International Law (1962) 106 RdC 5 Walter, C Der gegenwärtige Wirkungsbereich der Rechtsschutzeinrichtungen der Europäischen Menschenrechtskonvention, ­Unterwerfungserklärungen Belgiens, Großbritanniens und Schwedens (1966) 26 hjil 325 Wassenberg, B History of the Council of Europe (2013) Waters, C The Caucasus Conflict and the Role of Law, in J Green, C ­Waters (eds), Conflict in the Caucasus – Implications for the ­International Legal Order (2010) 8 Weil, G The Evolution of the European Convention on Human Rights (1963) 57 ajil 804 Weiler, J The Transformation of Europe (1991) 100 Yale Law Journal 2403 Weller, M The Rights of Minorities in Europe (2005) Wennerås, P Sanctions against Member States under Article 260 tfeu: Alive, but not kicking? (2012) 49 cmlr 145 Werbke, A Kann die Beratende Versammlung des Europarats einzelne Abgeordnete ausschließen? (1969) 29 hjil 356 White, R Tackling Political Disputes through Individual Applications (1998) 1 ehrlj 61 Wildhaber, L Pilot Judgments in Cases of Structural or Systemic Problems on the National Level’, in R Wolfrum, U Deutsch (eds), The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions (2009) 69 Wildhaber, L A Constitutional Future for the European Court of ­Human Rights? (2002) 23 hrlj 161

Index of Authorities

269

Wildhaber, L Pilot Judgments in Cases of Structural or Systemic Problems on the National Level, in R Wolfrum, U Deutsch (eds), The European Court of Human Rights Overwhelmed by Applications: Problems and Possible Solutions (2009) 69 Williamson, D Taking the Troubles across the Atlantic: Ireland’s un ­Initiatives and Irish-US Diplomatic Relations in the Early Years of the Conflict in Northern Ireland, 1969–72 (2007) 18 Irish Studies in International Affairs 175. Wolfrum, R Aspekte des Schutzes von Minderheiten unter dem Europäischen Menschenrechtsschutzsystem, in J Bröhmer et al (eds), Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress (2005) 1109 Wolfrum, R The Taking and Assessment of Evidence by the European Court of Human Rights, in S Breitenmoser et al (eds) H ­ uman Rights, Democracy and the Rule of Law, Liber ­Amicorum Luzius Wildhaber (2007) 915 Wood, M European Perspectives on Inter-State Litigation, in N Klein (ed), Litigating International Law Disputes, Weighing the Options (2014) 130 Wouters, J et al Democracy and International Law (2003) 34 Netherlands Yearbook of International Law 139 Zimmerman, A Zuständigkeit des Internationalen Gerichtshofs und Treaty Bodies, in M Breuer et al (eds), Der Staat im Recht, Festschrift für Eckart Klein zum 70. Geburstag (2013) 953 Zwaak, L Turkey and the European Convention on Human Rights, in M Castermans et al (eds), The Role of the Nation State in the 21st Century (1998) 209 S Schmahl, M Breuer (eds) The Council of Europe (2017)

270

Index of Authorities

Other Materials

Bybee, S

Churchill, W

Clonan, T

Committee of Ministers of the Council of Eruope Committee of Ministers of the Council of Europe Committee of Ministers of the Council of Europe

Committee of Ministers of the Council of Europe Committee of Ministers of the Council of Europe Committee of Ministers of the Council of Europe Committee of Ministers of the Council of Europe Consultative Assembly of the Council of Europe Consultative Assembly of the Council of Europe Council of Europe

Council of Europe Council of Europe

Memorandum for Alberto Gonzales on the standards of conduct in interrogation of 1 August 2002, www .justice.gov/sites/default/files/olc/legacy/2010/08/05/ memo-gonzales-aug2002.pdf Speech delivered at the University of ­Zurich, 19 September 1946, www.coe.int/t/dgal/dit/ilcd/Archives/ selection/Churchill/ZurichSpeech_en.asp Operation Armageddon would have been doomsday – for Irish aggressors’ Irish Times online, 31 August 2009, www.irishtimes.com/opinion/operation-armageddon -would-have-been-doomsday-for-irish -aggressors-1.728983 Resolution(2004)3 on Judgments revealing an underlying systemic problem, 12 May 2004. Resolution (70)17, 15 May 1970, reprinted in Yb 13 (1970), 70 Resolution Res dh (2006) 24 concerning the publication of the Commission’s report in the case of Greece against the United Kingdom (application No. 299/57), 5 April 2006 Resolution (59) 12, 20 April 1959, Yb 2 (1958–59), 186 Resolution (59) 39, 14 December 1959, Yb 2 (1958–59), 196 Resolution dh (97) 376, 17 September 1997 Resolution (78) 35 of 27 June 1978. Resolution 346 (1967), 23 June 1967, Yb 10 (1967), 94–96. Resolution of 547 (1969), 30 January 1969, Yb 12 (1969), 126. Explanatory report to Protocol No 14 to the Convention, conventions.coe.int/Treaty/EN/Reports/ Html/194.htm Budget and Programme 2014–2015, cm(2014)1 Explanatory Report to Protocol No 11 to the ­Convention for the Protection of Human Rights and Fundamental Freedoms restructuring the control machinery established thereby, 11 May 1994

Index of Authorities Council of Europe

271

Document 47+1(2013)008rev2 of the Council of Europe concerning the accession negotiations of the European Union to the European Convention on Human Rights of 10 June 2013, which contains a ‘Draft explanatory report to the Agreement on the Accession of the European Union to the Convention for the Protection of Human Rights and Fundamental Freedoms’10 June 2013 Report on interim measures under Rule 39 of the Council of Europe, SteerRules of Court, cddh(2013)R77 ­Addendum iii, of 22 ing Committee for Human Rights March 2013 Department for the Execu- Stock-taking concerning the violations established by the Court in the case Cyprus against Turkey and tion of Judgments of the European Court of Human analysis of the impact of the judgment of 12 May 2014 on the just satisfaction, 25 November 2014, H/ Rights Exec(2014)8 Directorate of the Juriscon- Practical guide on admissibility criteria (3rd ed, 2014), sult at the European Court of www.echr.coe.int/Documents/Admissibility_guide _ENG.pdf. Human Rights Drzemczwewski, A, Introduction of a system of financial sanctions or astreintes on states who fail to implement judgments of the Strasbourg Court, Memorandum on the Parliamentary Assembly’s proposal to introduce a system of financial sanctions or astreitens on states who fail to implement judgments of the Strasbourg Court, CTGDR_E(2013)002, 30 April 2013 Erkuş, S Turkey will ignore echr ruling to pay ­compensation to Greek Cyprus’, Hürriet Daily News online, 13 May 2014, www.hurriyetdailynews.com/turkey-will-not-­pay -compensation-to-greek-cyprus-fm-davutoglu.aspx?pa geID=238&nID=66395&NewsCatID=510 Opinion on the Implementation of the Judgments of European Commission for the European Court of Human Rights, 13–14 DecemDemocracy through Law ber 2002, cdl-ad(2002)34 (Venice Commission European Commission of Rules of Procedure, dh (55) 8, 16 May 1955 Human Rights) European Committee for the Public statement on Turkey, 15 December 1995, reprinted in (1993) 14 hrlj 49 Prevention of ­Torture and Inhuman and Degrading Treatment or Punishment

272 European Council

Index of Authorities

Council Decision 2008/901/CFSP of 2 December 2008 concerning an ­independent international factfinding ­mission on the conflict in Georgia, oj L 323, 3 ­December 2008 European Court of ­Human Statistical information about pending individual appliRights cations, echr.coe.int/­Documents/Stats_­pending_2016 _BIL.pdf European Court of ­Human Rules of the European Court of Human Rights Rights ­established under Article 24 § 1 echr, www.echr .coe.int/Documents/Rules_Court_ENG.pdf European Court of ­Human Practice Directions, Appendix to the Rules of Rights the Court established under Article 24 § 1 echr, www.echr.coe.int/Documents/Rules_Court_ENG.pdf European Court of ­Human Analysis of Statistics 2015, www.echr.coe.int/ Rights Documents/Stats_analysis_2015_ENG.pdf GA J Kokott View of 13 June 2014, ECLI:EU:C:2014:2475 Gage, W The Report of the Baha Mousa ­Inquiry (2011) Volume iii, www.gov.uk/government/publications/ the-baha-mousa-public-inquiry-report General Assembly of the Declaration on the Protection of All Persons from BeUnited Nations ing Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Resolution 3452 (xxx) of 9 December 1975 Greece Ad hoc to the jurisdiction of the European Court of Human Rights, Yb 2 (1958–59), 174 Greenwood, C Challenges of International Litigation, ­Lecture delivered on Friday 7th October 2011 at the The Lauterpacht Centre for ­International Law, video available at sms.cam.ac.uk/media/1180328 Group of Wise Persons Report to the Committee of Ministers, 15 November 2006, cm(2006)203 High Level Conference Brighton Declaration, 20 April 2012, www .echr.coe.int/documents/2012_brighton _finaldeclaration_eng.pdf High Level Conference Interlaken Declaration, 19 February 2010, wcd.coe.int/ ViewDoc.jsp?id=1591969. Independent International Report of 30 September 2009, www.mpil Fact-Finding Mission on the .de/en/pub/publications/archive/indepen dent_international_fact.cfm Other material Conflict in Georgia

Index of Authorities International Court of Justice International Court of Justice International Court of Justice International Court of Justice International ­Criminal Court, Office of the Prosecutor International Criminal Court, Pre-Trial Chamber i International Labour Standards Department International Law Commission International Law Commission Ipsen, K Irish Minister Flanagan

Italy

Costa, J-P

Letter of the Foreign ­ inister of Ukraine, Pavlo M Klimkin Meesen, K

273 Rules of the Court established under Article 30 of the Statute of the International Court of Justice, www .icj-cij.org List of treaties conferring compromissory jurisdiciton on the icj, www.icj-cij.org/ jurisdiction/index.php?p1=5&p2=1&p3=4 List of States which have accepted the ­compulsory jurisdiction of the icj, www.icj-cij.org/jurisdiction/ index.php?p1=5&p2=1&p3=3 Information about its advisory jurisdicton of the icj, www.icj-cij.org/jurisdiction/­index.php?p1=5&p2=2. 16 October 2015, ‘Situation in Georgia’, Doc no ICC -01/15, www.icc-cpi.int/iccdocs/doc/doc2090710.pdf 27 January 2016, ‘Situation in Georgia’, Doc no ICC-01/15, www.icc-cpi.int/Court Records/CR2016_00608.pdf Handbook of procedures relating to ­International Labour Conventions and ­Recommendations (2006) Draft Articles on Diplomatic Protection with Commentaries, ilc Yb 2006/II2 Draft Articles on Responsibility of States for Internationally Wrongful Acts, ilc Yb 2001/II2 Interview on 25 June 2015 Statement on ‘Hooded men’ case, www .dfa.ie/news-and-media/press-releases/ press-release-archive/2014/december/ hooded-men-case-northern-ireland/. Acceptance of the right of individual petition under Article 25 echr and acceptance of the jurisdiction of the Court under ­Article 46 echr, Yb 16 (1973) 10 Memorandum of the President of the ­European Court of Human Rights to the States with a view to preparing the Interlaken Conference, 3 July 2009, 7, www.echr .coe.int/Documents/Speech_20090703_Costa _Interlaken_ENG.pdf https://www.icc-cpi.int/iccdocs/other/Ukraine _Art_12-3_declaration_08092015.pdf Der territoriale Status quo als Quelle von Konflikt und Krieg, 15 April 2009, Neue Züricher Zeitung, no 86, 5

274 Memorandum of the ­Government of the ­Republic of Turkey Monitoring Committee of the Parliamentary ­Assembly of the Council of Europe Parliamentary Assembly Parliamentary Assembly Council of Europe

Index of Authorities On the Question of Human Rights in ­Cyprus, Doc cm (77) 11, 24 May 1977 Current tensions between Georgia and ­Russia, 22 January 2007, As/Mon(2006) 40 rev

Resolution 822 (1984), 10 May 1984 Recommendation 513 (1968)‚ ‘Power to be conferred on the Assembly to refer alleged breaches of the Convention to the ­European Commission of Human Rights’ 31 January 1968. Parliamentary Assembly of Recommendation 1201(1993), ‘Additional ­protocol on the Council of Europe the rights of minorities to the ­European ­Convention on Human Rights’, 1 ­February 1993 Parliamentary Assembly of Recommendation 1456 (2000), 6 April 2000, ‘Urgent the Council of Europe appeal to member states ‘to make use of Art.33’ echr (inter-state complaint) v. Russia/Violation of human rights in the Chechen Republic’, reprinted in (2000) 21 hrlj 286 Letter to the United Nations addressed to the PresiPermanent Representative of Ukraine at the United Na- dent of the Security Council, S/2014/196, 17 March 2014 tions Security Council Press unit of the ­European Factsheet pilot judgments in July 2015 available at www.echr.coe.int/Documents/FS_Pilot_judgments Court of ­Human Rights _ENG.pdf Press Unit of the ­European Factsheet on Interim Measures (last ­updated in September 2016), www.echr.coe.int/Documents/FS Court of ­Human Rights _Interim_measures_ENG.pdf; Printed matter of the Ger9th legislative period, reply of Secretary of State H man Parliament Hamm-Brücher of 16 July 1982, Ds 9/1870, 2 Raidió Teilifís Éireann inves- The Torture Files, documentary aired on 4 June 2014, tigation unit www.rte.ie/news/player/prime-time/2014/0604/ (25–31 January 2016) 11 April 2016 https://rm.coe Report to the Secretary .int/CoERMPublicCommon General of the Council of SearchServices/DisplayDCTMContent?documentId=0 Europe by Ambassador G Stoudmann on his human 90000168064211f rights visit to Crimea Secretariat of the Council of Information about the proceedings under Europe Article 52 echr, www.coe.int/t/dghl/standardsetting/ hrpolicy/Others_issues/Article_52/Article_52_en.asp.

275

Index of Authorities Spielmann, D

Teitgen Report

Turkey

Ukrainian Derogation note

United Kingdom United Kingdom United Kingdom United Nations General Assembly United Nations General Assembly

United Nations General Assembly

United Nations General Assembly United Nations Security Council United Nations Security Council United Nations Security Council

The European Court of Human Rights as a guarantor of a peaceful public order in Europe, speech to Gray’s Inn, 12 November 2014, echr.coe.int/Documents/ Speech_20141107_Spielmann_GraysInn.pdf Doc 77, 5 September 1949, Report presented to the Consultative Assembly oft he Council of Europe by P Teitgen on behalf of the Committee on Legal and Administrative Questions, reprinted in A Robertson (ed), tp i, 192f Derogation under Article 15 echr of 22 July 2016 wcd.coe.int/com.instranet.InstraServlet?command =com.instranet.CmdBlobGet&InstranetImage=29299 66&SecMode=1&DocId=2380676&Usage=2. wcd.coe.int/com.instranet. InstraServlet?command =com.instranet.CmdBlobGet&InstranetImage=2833 408&SecMode=1&DocId=2278178&Usage=2, 9 June 2015 Declaration of extension under ex-Article 63 echr, Yb 1 (1955–56–57) 46 Note of derogation of 25 September 1969, Yb 12 (1969) 72. Note of derogation of 20 August 1971, Yb 14 (1971) 33. Resolution 217 A (iii), 10 December 1948, Universal Declaration of Human Rights Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, A/RES/2625(xxv) Res 1497 (xv), 31 October 1960, ‘The status of the German-speaking element in the Province of Bolzano (Bozen), implementation of the Paris agreement of 5 September 1946’ Resolution A/68/L 39, ‘Territorial Integrity of Ukraine’, 27 March 2014 Resolution 186, 4 March 1964. Resolution 353, 20 July 1974. Resolution 541, 18 November 1983.

276

Index of Authorities

United Nations Security Council Waldock, H Press Unit European Court of Human Rights



Resolution 550, 11 May 1984 Third Report on the Law of Treaties, ilc Yb 1964/ii, 26 Russia Country Profile, updated in July 2017

Other Decisions and Judgments of International Courts

African Commission of Human Rights, Democratic Republic of Congo v Burundi, Rwanda, Uganda, no 227/99, Inter-American Commission on Human Rights, Nicaragua v Costa Rica, no 01/06 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle Åklagaren v Hans Åkerberg Fransson Commission v Hungary Kingdom of Spain v United Kingdom France v United Kingdom Belgium v Spain Kingdom of Spain v United Kingdom Hungary v Slovakia cjeu Opinion 2/13 (Full Court), 18 December 2014

20th Annual Activity Report of the African Commission on Human and Peoples Rights 2006, Annex iv admissibility decision, 8 March 2006; report n 11/07 of 8 March 2007, ECLI:EU:C:1970:114 ECLI:EU:C:2013:280 ECLI:EU:C:2012:687; ECLI:EU:C:2006:543 ECLI:EU:C:1979:225; ECLI:EU:C:2000:244; ECLI:EU:C:2006:543; ECLI:EU:C:2012:630. ECLI:EU:C:2014:2454

Index abuse of procedure 43 administrative practices 54, 57ff, 103f, 112, 135, 141, 145, 146, 160, 191, 195, 208 admissibility 30, 46ff, 73 advisory jurisdiction 40, 43, 158, 178ff amici curiae 185 armed conflict 2, 42, 127, 130, 141, 142, 144, 146, 148, 150, 151, 159, 160, 167, 199 Austria v Italy 77–82 Barcelona Traction 56 Charter of the United Nations 15, 33, 35, 158 collective enforcement 7–8, 11, 14ff, 16ff, 28, 30ff, 47, 59f, 88, 106, 119, 135, 145, 160ff, 161, 186ff, 193 enforcement 14ff, 161, 193 colonial clause 34, 70f Committee for the Prevention of Torture 137 Committee of Ministers 4, 22ff, 29, 68, 176–177, 180, 194 compromissory clause 32, 36–37, 44, 144 consent 32, 36, 38, 44, 148, 180 Convention on the Elimination of All Forms of Racial Discrimination 32 cooperation 4, 146f Article 38 echr 140, 168, 181, 204 counterclaim 38–39, 42, 128, 142, 149, 174 Croatia v Slovenia 3, 52, 53, 187 Cyprus v Turkey 113–129 Denmark v Greece 57, 83–96 Denmark v Turkey 57, 130 denouncement 83, 95 derogation, Article 15 echr 56–57, 64f, 67, 83, 111, 127, 130, 167, 175–176, 179, 209 diplomatic protection 33, 47ff, 54, 65, 79, 124, 160 disguised inter-state applications 4, 116, 185 dispute settlement 11, 28, 35, 30ff, 61f, 91f, 107, 125, 148, 157, 167 dispute 32, 36–37 international dispute settlement 31

erga omnes obligations 39, 162 European Commission of Human Rights 22ff, 67, 97, 126 European Convention on the Pacific Settlement of Disputes 176 European Union (eu), accession 3, 186ff exhaustion of domestic remedies 53ff, 79f, 181, 191ff facts, fact-finding 31, 66, 75, 96, 110, 149, 168, 181ff forum prorogatum 38 Friendly Relations Declaration 31 friendly settlement 72, 75, 131f, 136f, 206f Frowein, Jochen 100 function 5–6, 9 Georgia v Russia 32, 37, 58, 139–150 Greece v United Kingdom 57, 66–76 humanitarian law 26, 101–102, 127, 151, 174, 176 individual application, Article 34 echr 30, 46ff, 52 ameliorative effect 104f overlapping individual applications 4, 103, 112, 141, 208ff individual justice 7, 30, 63f, 76, 180 systemic impact 73, 137 interim measures 72, 103, 146, 152f, 156f, 162, 199f International Court of Justice (icj) 30ff, 36, 176 referral 176 International Covenant on Civil and Political Rights (iccpr) 4 International Covenant on Economic, Social and Cultural Rights (icescr) 5 International Criminal Court 110, 145, 153, 158, 178 International Labour Organization 93f International Red Cross 90 interpretation 11–12 Ireland v United Kingdom 57, 97–112

278 judicialization 8, 11ff, 27–29 judicial review 32, 65, 74, 89, 107f, 167 Marbury v Madison 74 jurisdiction 30, 32 advisory 40, 43, 158, 178 compulsory 37, 40, 148 territorial 33, 34ff, 127 just satisfaction, Article 41 echr 22, 23, 28, 113, 115, 122f, 141, 161, 184, 194, 196ff, 206 legislative measures 54, 56, 59, 64, 67, 69, 73, 74, 84, 103, 105, 111, 112, 123, 130, 160 legitimacy 8, 89, 172, 195 MacBride, Sean 102 margin of appreciation 65, 74, 167 minority 79, 174 object and purpose 5–6, 17ff Parliamentary Assembly of the Council of Europe/Consultative Assembly of the Council of Europe 91f, 131, 180 Permanent Court of International Justice 36 pilot judgment procedure 123, 194, 209 pilot judgments 7, 123, 194, 195, 209 preventive effects 90 supervisory deterrent effect 148 private interest litigation 66, 76, 168f proportionality 65, 167 Protocol No 11 to the Convention 1, 14, 41, 65, 97, 177 Protocol No 12 to the Convention 21, 172 public interest litigation 64, 83, 168f actio popularis 172

Index public order of Europe 67, 77, 80f, 95, 162f, 171f reciprocity 37, 41, 135–136, 166–167 reopening 2, 97, 100, 112, 113, 184 reservation 38, 164 Rolin, Henri 71 Rules of the Court 50f, 146f, 156, 194, 206 Secretary General of the Council of Europe 48 self-determination 72, 77f, 174 Simpson, Brian 69 standing 51ff subsidiarity 6, 8, 61, 173, 174, 181, 191, 193, 196ff suspension 17, 85, 93 systemic human rights issues/violations 49, 54, 59, 60, 64, 107, 138, 160, 161, 174, 179, 180, 191, 192, 194, 196, 205, 208 Teitgen, Pierre-Henri 18, 19 torture, Article 3 echr 57, 67, 82, 84, 88, 90f, 98, 102, 103, 105, 130, 133, 137, 141, 204 Ukraine v Russia 151 Universal Declaration of Human Rights 15, 262 victim, victim requirement 52, 57, 76 Vienna Convention on the Law of Treaties  11, 13, 136, 165, 176 Waldock, Humphrey 76, 165, 166 yardstick 30–32, 44ff, 61, 174