The Inter-State Application Under the European Convention on Human Rights: More Than Diplomatic Protection
© Springer International Publishing Switzerland 2015Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_6
6. The Inter-State Application Under the European Convention on Human Rights: More Than Diplomatic Protection
Faculty of Law, Ruhr-University Bochum, Building GC 8/148, Universitätsstraße 150, 44801 Bochum, Germany
6.1 The Inter-State Application Under the ECHR and Its Overlap with Diplomatic Protection
The International Court of Justice (ICJ), in a lesser known passage of the Barcelona Traction judgment, referred to the inter-State application under Article 33 (at the time ex-Article 24) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, Convention)1 in these words:
… 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.2
This contribution describes the inter-State application under the ECHR and contours its similarities and its special, broader characteristics in comparison to diplomatic protection under general international law. For the purposes of this contribution, diplomatic protection is understood as the invocation by a State, through diplomatic action or other 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.3
Given that the inter-State application has not received much scholarly attention4 over the past six decades, it will be briefly revisited here.
Article 33 ECHR reads:
Any 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 [emphasis added].
The mechanism allows for the protection of individuals in a similar manner as by diplomatic protection. However, the inter-State application differs in certain 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, as for example in the 1963 Austria v. Italy 5 case. In addition to the possibility to protect individuals, the inter-State application can be used to address systemic issues in member states of the ECHR.6
6.2 The Inter-State Application, Past and Present: Explaining the Difference to Diplomatic Protection Situations
In order to better understand the differences between diplomatic protection and the inter-State application, a glance into the past of the Convention is helpful, also because the inter-State mechanism evolved over the past six decades and continues to do so.
The right to bring inter-State applications before the European Commission on Human Rights flowed directly from membership; no further declaration was necessary, ex-Article 24 ECHR. The inter-State application was intended as mechanism of compliance control of the obligations undertaken in the ECHR. It was not conceived as a dispute settlement mechanism.7
The individual application under ex-Article 25 ECHR was an optional remedy, which was contingent upon an additional declaration of the member states. The right to seize the European Court of Human Rights (both in individual and in inter-State cases) was subject to further acceptance pursuant to ex-Article 46 ECHR.
Under the inter-State mechanism, the Commission could draw up a nonbinding report. The case of Ireland v. United Kingdom 8 was the only one to reach the Court before Protocol Nr. 11 entered into force in 1998, which established a single Court.
Overall, less than 20 inter-State applications have been lodged in the roughly 60 years of the European Convention on Human Rights. In comparison, the International Covenant for Civil and Political Rights (ICCPR)9 has a similar inter-State mechanism in its Article 41. To date, no inter-State application has been lodged under the ICCPR. It is worth mentioning that the right of individual petition under the First Optional Protocol to the ICCPR is much more popular among member states than the optional right of inter-State complaint under Article 41 ICCPR. The latter has been accepted by only about 30 % of the States Parties.10
The changes the Convention witnessed over the last six decades are best illustrated by looking at the very first and the most recent cases.
In the 1950s, the Convention’s scope of application included 42 British territories, some of which were located in Africa.11 The first inter-State case was brought by Greece against the United Kingdom as the colonial power in Cyprus.12
The conflict in Ukraine was taken to Strasbourg in March 2014. The Court issued a request for interim measures.13 In this context, the marked lack of enthusiasm of States for addressing (alleged) human rights violations by offending states in terms of formal legal claims under the inter-State mechanism becomes apparent.14
In situations where the application might have been appropriate, and was even recommended by the Parliamentary Assembly of the Council of Europe, the mechanism was not set in motion at all. A prominent example is the situation concerning Chechnya.15
In 2014, the Court awarded 90 million euros in just satisfaction in the case of Cyprus v. Turkey (IV).16 The Court also issued a judgment on the merits in the case of Georgia v. Russia (I).17 The way the Court deals with overlapping individual and inter-State proceedings still has to be spelled out.
6.3 Collective Enforcement
The preamble of the ECHR speaks about “the collective enforcement of certain of the rights stated in the Universal Declaration.” As briefly mentioned above, the inter-State application is not limited to the protection of individuals. The mechanism can be used to address systemic failures in member states. These cases can be characterized as actiones populares 18 because no concrete individual interests of the applicant state(s) or individuals are at stake. These cases are structurally different from diplomatic protection and not amenable to a comparison with situations of diplomatic protection.
The collective interest in upholding human rights in the member states of the Convention was taken up twice via inter-State applications.
The first instance was the case of Denmark, Norway, Sweden and the Netherlands v. Greece (I) 19 of 1967. The application was brought in the context of the military regime, which had been established in Greece. The case was put to rest once the military regime in Greece came to an end.
A second instance was the case of Denmark, France, Norway, Sweden and the Netherlands v. Turkey 20 concerning the situation in Turkey in the early 1980s following the dissolution of the Turkish Parliament. The case was put to rest by a friendly settlement.
6.4 The Inter-State Application and the Requirement of the Exhaustion of Domestic Remedies
Given broad entitlement to bring inter-State applications, the requirement of the exhaustion of domestic remedies and the 6-month rule are the only limitations for the admissibility of an inter-State application. Other admissibility requirements as contained in Article 35 (2) and (3) ECHR do not apply to inter-State cases.
For the comparison of diplomatic protection and the inter-State application, the domestic remedies rule is relevant.
The exhaustion of domestic remedies is not required in cases where collective interests are at stake as mentioned in Chap. 3. The rule does, however, apply to those inter-State applications, which deal with individual interests similar to cases of diplomatic protection.
Article 35 (1) ECHR reads:
The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
At first glance, this provision looks like a reference to the law of diplomatic protection. The exact scope of this reference was open at the time the ECHR was drafted.
The degree to which the scope of application of the exhaustion of domestic remedies rule was left to the discretion of the organs of the ECHR is best illustrated by an observation21: Eustathiades, who served as a member of the European Commission and heard, inter alia, the first two inter-State cases between Greece and the United Kingdom, argued in favor of the exhaustion of domestic remedies rule22