Interstate applications: history and typology – Ed Bates.

Presentation to ‘Interstate cases under the European Convention on Human Rights: Experiences and current challenges – 12/13 April 2021’

In 1950 the Convention’s member States agreed to take:

the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration of Human Rights’. [1]

‘Collective enforcement’ entailed that each Convention State had an enduring interest in the enforcement of European human rights law by other States. The national interests of Convention States could now be superseded by a higher order interest: European human rights protection.

This was reflected in the early inter-state case of Austria v Italy, which confirmed that the States’ purpose in creating the Convention was:

‘to realise the aims and ideals of the Council of Europe… and [so] to establish a common public order of the free democracies of Europe’.[2]

The notion that the Convention established of a type of new legal order helps us appreciate why it saw inter-state cases as a central feature of it, and their envisaged nature. Austria v Italy noted that an applicant in an inter-state case should:

‘not be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe’.[3]

One early commentator, later a Strasbourg judge, referred to inter-state cases as pursuing aims of ‘public interest’.[4]

This, and the idea of the Convention as a ‘common public order’, requiring national law to be kept within the boundaries of European human rights law, helps us appreciate why an applicant state did not have to claim a special impact on it to take a case to Strasbourg: ‘in abstracto’ cases were possible under Article 24 (now Article 33).

And, of course, at the outset inter-state cases were the only means of accessing the Convention collective guarantee.[5] This reinforced the Convention’s initial identity as a ‘pact for collective action’,[6] an expression employed by the first President of the European Commission on Human Rights in 1958.  

1950-2000

We know, however, that over the latter half of the last century the Convention’s success was associated with individual applicant cases. To some extent, the Convention’s emergent identity as a type of ‘European Bill of Rights for the individual’ outshone the original idea of it as a ‘collective pact’ to protect a ‘common public order’.

‘Outshone’ – but not eclipse. Here I make three points.

First, although individual applications became associated with obtaining remedies at Strasbourg, arguably that was not their original aim. Rather, in the words of one leading text, an individual application, ‘was [originally] envisaged as a mechanism for bringing to light a breach of a Convention obligation owed by one state to others’.[7]

Seen that way, individual applications were another means – in addition to inter-state cases – of seeking collective enforcement of the Convention as the ‘public order of Europe’.

Second, although up to the 1990s inter-state cases were relatively few and far between, unlike individual applications, they enabled general, national human rights situations, and so populations at large, to come under the Strasbourg spotlight. That was the main point, even if, coincidentally, the applicant state might have had ‘a political interest to assert in [bringing] the proceedings’.[8]

Third, these early inter-state cases made their own contribution to Convention law, especially that on Articles 3 and 15, and had important human rights outcomes. Consider here the legacies of the ‘Greek’ case, and the ‘Northern Irish’ case. The latter established that inter-state cases could be the subject of international judicial resolution. The United Kingdom tried but was unable to prevent a hearing in open court, and a subsequent ruling on whether the notorious ‘five techniques’ violated the Convention. 

So, the handful of inter-state cases under the old system were very important, and should not be eclipsed by individual applications.

Moreover, and as explained in Dr Risini’s excellent monograph,[9] the key principles associated with inter-state litigation were developed under the old, pre-Protocol 11 regime.

Strasbourg’s position as regards the concept of an administrative practice and evidentiary standards, for example, were hammered out on the anvil of cases involving original signatory states.

Similar comments could be made about the fact-finding practise as developed at Strasbourg, for virtually all early inter-state cases involved significant fact-finding visits.

Still, one must be wary of painting too rosy a picture of matters.

Up to the 1990s, all inter-state cases bar one were decided by the Committee of Ministers, acting under its (former) ‘Article 32’ capacity, and some were concluded in ways that stretched the limits of ‘collective enforcement’. They constituted ‘dark stains’ on Strasbourg’s record according to an article published by Professor Tomuschat in 1992.[10] He concluded by asking:

can the system of the ECHR operate successfully only under generally favourable conditions, which make violations an exceptional occurrence, an accident like event which can be easily remedied?[11]

The Convention in 2000

The question remained in 2000, by which stage the Convention’s control machinery had been reformed by Protocol 11, and the process of enlargement was well underway.

Prior to this, the Council of Europe’s Vienna Declaration of 1993 spoke of

[t]he end of the division of Europe offering an historic opportunity to consolidate peace and stability on the continent’. [12]

The Declaration eyed Europe as

‘a vast area of democratic security’.

Protocol 11 judicialized the decision-making part of the Convention machinery, establishing a ‘new’, full-time Court with a right of access to it for individuals that was not contingent on the old ‘optional clauses’. Post-Protocol 11 individual applicants could take their own cases (so-to-speak) to Strasbourg. That was significant for all pre-Protocol 11 inter-state cases bar one had been taken against respondent states who had not accepted the optional clauses at the time of the relevant application.[13]

Despite the comparative rarity of inter-state cases,[14] and even though in the future individual applicants would be guaranteed a right of access to Strasbourg, there was no suggestion that the inter-state procedure be removed from the Convention. That is, Protocol 11 retained the compulsory nature of inter-state cases, and the privileged position of applicant states compared to individual applicants.

It was also agreed that the ‘new’ Court would rule upon inter-state cases, as well as individual applications.[15] So, the Committee of Ministers’ ‘Article 32’ decision-making role was removed by Protocol 11, notwithstanding the potential political nature of certain of the preceding inter-state cases.

The continuing relevance of the inter-state procedure was underlined by the Secretary General of the Council of Europe in 2000, during proceedings of a European Ministerial Conference celebrating the Convention’s fiftieth anniversary.[16]

He noted their potential importance in the contexts of conflict settings, such as that in Chechnya. The inter-state procedure was identified as having “comparative advantages” compared to individual applications, offering a more appropriate means of addressing widespread human rights violations. They potentially allowed the Court to rule in a more general manner, and in relation to certain laws or practises and their compliance with European standards. 

The Declaration of member States associated with this fiftieth anniversary Conference[17] concluded by reaffirming that:

the Convention must continue to play a central role as a constitutional instrument of European public order on which the democratic stability of the continent depends’.

It:

‘deplor[ed] the fact that… massive violations of the most fundamental human rights still persist in the world, including in our continent, and call[ed] upon states to put them to an end immediately’.

Today’s Convention and Court

I now jump ahead to the present day.[18]

The 2018 Copenhagen Declaration called for an exploration of:

54. c) ‘… ways to handle more effectively cases related to inter-State disputes, as well as individual applications arising out of situations of inter-State conflict’

How did we get here?

The Copenhagen Declaration was part of a reform process initiated in 2010 at Interlaken to address Strasbourg’s case overload. The Court had become unable to perform all the roles required of it by the Convention, hence the issuance by it of a Priority Policy (June 2009) to handle individual applications.

However, it transpired that, over the 2010s, a new wave of inter-state cases reached Strasbourg.[19] Several involved applicant and respondent states on opposing sides to a crisis or conflict, including in relation to a respondent state’s military action on the territory of the applicant state.[20] Inevitably many individual applications ensued. As of mid-March 2021, some 9,600 individual applications were associated with inter-state ‘conflict’ cases, accounting for around 16% of the Court’s caseload.[21]

So, we are here because inter-state cases and related individual applications present major challenges for a Court already overloaded with work. It is recognised too that ‘the breadth of the questions raised by inter-state cases, cause specific difficulties, in particular concerning certain procedural aspects or concerning the way in which the facts are established’.[22]

In these regards, the experience and insights that this event will bring on important matters such as fact-finding, interim measures, and parallel litigation at other regimes, will surely prove very valuable.

Some reflections

Allow me now to add four personal reflections on what is potentially in issue more generally.

First, past experience suggests some opposed to the Court may point to its situation and identify it – i.e. the Court – as the problem.

We must be clear, then, that Strasbourg’s continuing case overload predicament – of which individual applicant cases associated with inter-state conflict is part – is in no way the Court’s fault. In fact, the measures taken by the Court over the Interlaken reform process have proven how efficient, progressive and adaptable it is – and that far more should be expected of many of its States.[23]

Second, yes lessons should be drawn from the past. However, expectations of what the Court can do need to take account of the burdens on it today.

Comparisons between now and era of the ‘old’, pre-Protocol 11 system must be approached with caution.

Reforms enabled the ‘old’ Court to keep up with its workload, just about. Today, however, and notwithstanding the Interlaken process, individual applications unconnected to inter-state cases remain at levels that are far more than the Court can comfortably handle. This is underlined by amendments to the Court’s Priority Policy, and the development of a new case-processing strategy (March 2021).[24]

As regards inter-state cases, until recently, Strasbourg tended to only have one major inter-state at any one time, and these consumed many resources and were long, drawn out affairs. Today’s Court has a dozen or so inter-states cases pending,[25] many comparable, if not larger, in magnitude than the older inter-state cases.[26] It is expected to address these simultaneously, notwithstanding their inter-state conflict dimension (amongst others) presents brand new issues and challenges.

These pressures upon the Court underline the prudence of its general approach whereby it prioritises an inter-state application over related individual applications, allowing the overarching issues stemming from the inter-State proceedings to be determined first.[27] We must give latitude to the Court when it states that, ‘[a]s more experience is gained in processing inter-State cases, [its] working methods can be evaluated and fine-tuned’.[28]

A third reflectionis to warn against quick fixes that undermine the place of Article 33, as an effective means of bringing to light ‘alleged violations of the public order of Europe’ (Austria v Italy) to Strasbourg, as intended by the Convention’s drafters.

The Copenhagen Declaration rejected suggestions that inter-State cases be dealt with by ‘separate mechanisms’.[29] It stipulated that new steps should not ‘limit[…] the jurisdiction of the Court’.[30] In that regard, I look with concern upon suggestionsthat appear to me to limit inter-state cases in practice, such as the idea that such applications should be required to identify all victims upfront.[31] My eyebrows were also raised at the idea that an individual application might prevent a subsequent, related inter-state case being brought.[32]

A fourth reflection is that there is no avoiding the reality that some inter-state cases concernongoing political disputes the ultimate resolution of which relies on political processes. Some inter-state cases relate to active hostilities, and their aftermath. Few could disagree with Registrar Fribergh’s comment that the Court ‘cannot settle war-like conflicts between States’,[33] even if it has been prepared to issue carefully worded interim measures. That the Court has started to refer some of these the Committee of Ministers underlines how ultimately the responsibility for the actual enforcement of the Convention as a ‘common public order’ lies beyond the Court.[34]

Conclusions

To conclude, how will history judge the present?

Future commentators may observe how the Interlaken reform process repeatedly stressed the Convention’s ‘extraordinary contribution’ to human rights protection and the rule of law, and the ‘central role it plays in maintaining democratic security and improving good governance across the continent’. But history will surely question whether these were, for some at least, platitudes for a Court that ended the Interlaken decade still in a case overload situation, and apparently under-resourced by the States.[35]

Does this not say something about some States’ enthusiasm for the Convention as a ‘common public order’?

Over the decade to come, the Court seems destined to rule on a whole batch of inter-state cases. It will continue to do its part, in exceptionally difficult circumstances, to fashion the legal aspect of the Convention as a ‘common public order’.

The recent Grand Chamber ruling in Georgia v Russia II (2021) underlines the great responsibility it has, and the genuine predicaments it is faced with as regards matters such as admissibility, jurisdiction issues and the relationship between Convention law and international humanitarian law.

Similar comments apply as the Court grapples with the many thousands of individual applications connected to inter-state cases. Will the Court’s Priority Policy be taken to its natural conclusion here? If so, it will be a consequence of a Court that is left to use its limited resources as best it can.

I do not doubt that such a situation would not be approved of by those who first labelled the Convention as a ‘common public order’. I do not doubt either that the Court will strive to do the best it can, continuing to prove itself to be the most loyal custodian of that order, and here I pay tribute to it.


[1] Preamble to the Convention.

[2] Austria v Italy 4 (1961) YB 116 at 138.

[3] Ibid.

[4] W Ganschof van der Meersch, ‘Does the Convention have the force of ‘ordre public’ in municipal law’,  in A H Robertson, Human Rights in National and International Law (Manchester University Press, 1968) 97 at 107.

[5] They were a mandatory feature of Convention membership (cf ‘individual petition’ was originally an optional feature: Article 25 of the pre-Protocol 11 Convention text).

[6] C M H Waldock, ‘Address by C M H Waldock’, in Council of Europe, Fifth Anniversary of

the Coming into Force of the ECHR: Brussels Exhibition, 3 September 1958, (Strasbourg: Council

of Europe, 1959) 27.

[7] D Harris, M O’Boyle, and C Warbrick, Law of the ECHR, (London: Butterworths 1995) at 33.

[8] Ibid at 587, noting that ‘often’ inter-state cases had ‘concerned allegation of violations of human rights on a large scale’.

[9] I Risini, The Inter-state Application under the European Convention on Human Rights: between Collective Enforcement of Human Rights and International Dispute Settlement, (Leiden: Brill Nijhoff, 2018).

[10] C Tomuschat, ‘Quo Vadis Argentoratum? The Success story of the ECHR—and a few dark stains’, 13 (1992) HRLJ 401. Experience of the initial Cyprus v Turkey inter-state litigation revealed ‘many murky aspects’. Professor Tomuschat commented, ‘[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’, at 402. Thank you to Dr Risini for highlighting this quotation to me.

[11] Ibid at 406.

[12] ‘Vienna Declaration of 9 October 1993 of the Heads of State and Government of the Council of Europe Member States’, 14 (1993) HRLJ 373.

[13] i.e. individual applications were not possible. The exception was Ireland v United Kingdom.

[14] Cf the comment made by Harris, O’Boyle and Warbrick, ‘[i]n the close-knit community of like-minded states in the council of Europe, contracting parties will be reluctant to jeopardise their good diplomatic relationships with other parties and undoubtedly prefer negotiation to a legal process which may be lengthy counterproductive and ultimately ineffective’, at 587.

[15] See Explanatory Report to Protocol 11, at paras 16-17 referring to a ‘Dutch-Swedish initiative’ which would have retained the Committee of Ministers’ role for inter-state cases. Of course, post-Protocol 11 the Committee of Ministers retains its role as regards supervising the implementation of all judgments (Article 46(2)-(4).

[16] Report of W Schwimmer in Council of Europe, European Ministerial Conference on Human Rights, Rome (3–4 November 2000), (Council of Europe Publishing, 2002) 41 at 45.

[17] The European Convention on human rights at 50: what future for the protection of human rights in Europe?

[18] For an excellent up-to-date account on the overall picture, see P Leach, ‘On Inter-State Litigation and Armed Conflict Cases in Strasbourg, European Convention on Human Rights Law Review (2021) 1-48.

[19] See Speech by President Robert Spano, ‘Meeting of the Committee of Legal Advisers on Public International Law (CAHDI)’, 25 March 2021.

[20] In September 2014, the Court’s Registrar, Erik Fribergh, commented that ‘the Court is seen as the last resort not only for individuals but also for some States’ (Presentation to the 3rd meeting by the Registrar of the European Court of Human Rights, Drafting Group F on the Reform of the Court, GT-GDR-F(2014)021, 24 September 2014).

[21] Speech by President Robert Spano, ‘Meeting of the Committee of Legal Advisers on Public International Law (CAHDI)’, 25 March 2021 at p 2. He commented: ‘Essentially they relate to conflicts in the following three regions: (i) Abkhazia and South Ossetia (with applications pending against Georgia and before Russia); Nagorno-Karabakh (with individual applications pending against Armenia and Azerbaijan) and Eastern Ukraine and Crimea (with individual applications pending against Ukraine and Russia)’.

[22] Contribution of the CDDH to the evaluation provided for by the Interlaken Declaration, CDDH(2019), R92Addendum2 (29/11/2019) at para 11. See also para 233/4, referring to the ‘particular complexity’ of inter-state cases. See also, Comment from the European Court on Human Rights on the CDDH contribution to the evaluation of the Interlaken reform process (11/02/2020): ‘Dealing with cases linked to armed conflicts – and in particular inter-State cases and the high number of individual applications generated – is also a major challenge for the Court… These cases are particularly time-consuming for Judges and Registry staff’, para 18. See also, Speech by President Robert Spano, ‘Meeting of the Committee of Legal Advisers on Public International Law (CAHDI)’, 25 March 2021 at p 4 (‘One of the greatest challenges in inter-State cases following armed conflict is the establishment of the facts and the assessment of whether or not there has been an administrative practice. Usually, there have been no decisions of domestic courts and the Court must, by sheer necessity, act as a court of first instance’). In his ‘Farewell Speech at the European Court of Human Rights (16 September 2019), Secretary General Jagland commented, ‘The Council of Europe’s monitoring bodies and other institutions do not have access to all territories where there are unresolved conflicts. This poses a challenge for the Court since it always looks at reports from our monitoring bodies when dealing with applications’. He added, ’It is time for governments to make it clear that it is intolerable to have such grey zones in our human rights protection system. The Council of Europe does not have a remit to address security issues that are being dealt with by the United Nations Security Council and the OSCE. But we do have a responsibility to address the causes and consequences of human rights violations whenever and wherever they occur within territory covered by the Convention’.

[23] Contribution of the CDDH to the evaluation provided for by the Interlaken Declaration, CDDH(2019), R92Addendum2 (29/11/2019. See Secretary General Jagland Speech: ‘Ministers of Justice: European Human Rights System in the Future Europe’, 12 April 2018 (Copenhagen).

[24] See European Court of Human Rights, ‘“A Court that matters/Une Cour qui compte”: A strategy for more targeted and effective case-processing’, 17 March 2021.

[25] See https://www.echr.coe.int/Documents/InterState_applications_ENG.pdf.

[26] The case file in Georgia v. Russia (II) runs to about 30,000 pages (European Court of Human Rights, Redacted version of the report adopted by the Plenary of the Court on 18 June 2018, [Committee on Working Methods

Proposals for More Efficient Processing of Inter-state Cases], 5 June 2019, n 5).

[27] See Copenhagen Declaration 12/13 April 2018 at para 45.

[28] See Committee on Working Methods Proposals for More Efficient Processing of Inter-state Cases, para 18.  On the Court’s on-going reflections on this matter, see Speech by President Robert Spano, ‘Meeting of the Committee of Legal Advisers on Public International Law (CAHDI)’, 25 March 2021.

[29] See Draft Copenhagen Declaration 5 February 2018 (para 54(b), calling for an analysis of the ‘establishment of separate mechanisms or other means to deal with inter-State cases as well as individual communications stemming from a conflict between two or more States Parties). The final Declaration omitted this suggestion.

[30] Copenhagen Declaration 12/13 April 2018 at para 54(c).

[31] See CDDH, Compilation of comments by member States on the  Draft CDDH report on the effective processing and resolution of cases relating to interState disputes (DH-SYSC-IV(2020)04), DH-SYSC-IV(2020)05REV – 11/09/2020, at p 17.

[32] Ibid at p 16. See also the suggestion that a new admissibility criterion be introduced for inter-state cases, requiring an applicant State to reasonably explain why the affected individuals or legal entities cannot apply to the Court independently. This seems to misunderstand the special nature of the inter-state procedure in the ‘collective enforcement’ context.

[33] Fribergh above at p 4.

[34] European Court of Human Rights Press Release, ‘Armenia v. Azerbaijan and alleged captives: notification to the Committee of Ministers of interim measures indicated’, 16 March 2021. On interim measures see Speech by President Robert Spano, ‘Meeting of the Committee of Legal Advisers on Public International Law (CAHDI)’, 25 March 2021, at p 5, and see generally K Dzehtsiarou and V Tzevelekos, ‘Interim Measures: Are Some Opportunities Worth Missing?’, European Convention on Human Rights Law Review (2021) 1-10.

[35] See Comment from the European Court on Human Rights on the CDDH contribution to the evaluation of the Interlaken reform process (11/02/2020) para 25.

One thought on “Interstate applications: history and typology – Ed Bates.

  1. Pingback: Of foxes guarding chickens, and their fellow foxes | Völkerrechtsblog

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