Batura, Justine

Kleinert, Lukas

Risini, Isabella

English

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A ‘golden age’ of inter-statecomplaints?Isabella Risini, Justine Batura, LukasKleinert2020-09-16T00:00:00Recently, the Principality of Liechtenstein brought an inter-state complaint againstthe Czech Republic to the European Court of Human Rights (ECtHR). Alreadybefore, the two countries shared a complicated relationship. Due to an unsettleddispute, the two States recognized each other only in July 2009. The same dispute– which essentially concernsthe expropriation of Liechtenstein nationals after theend of the Second World War – is also the subject of the current procedure beforethe ECtHR. The complaint joins a number of more recent inter-state complaintswhich have been considered as a ‘renaissance’ of this form of procedure. Just thissummer, a further state complaint was referred to the ECtHR: The Kingdom of theNetherlands lodged an application against the Russian Federation. The subject ofthe proceeding is the downing of flight MH17 over Ukraine in 2014. According to ajoint (international) investigation team, there is evidence indicating that the civilianaircraft was shot down by a Russian BUK surface-to-air missile.Our advisory board member Isabella Risini researched both cases and is an experton inter-state applications before the ECtHR. We had the chance to talk with herabout the current procedures, as well as on the ‘renaissance’ of the inter-stateapplication. In Janowiec and Others v. Russia, the Court held that facts that occurred priorto the ratification of the Convention only fall within the temporal scope of theConvention if there is a genuine connection between the original event andthe entry into force of the ECHR (para. 127 et seq). Isabella, do you think thatLiechtenstein’s reference to the recent decision of the Czech ConstitutionalCourt will convince the ECtHR that this criterion is met – even though theoriginal measures date from 1945/46?I had the privilege to see a summary of the application and it is indeed correct thatLiechtenstein focuses on the decision rendered by the Czech Constitutional Courtin February 2020. So, predictions are always marked by uncertainty. However, theproceedings leading up to the Constitutional Court’s decision fall within the temporalscope of the Court’s jurisdiction, since these events unfolded since 2014 and thustook place after the ratification of the ECHR by the Czech Republic. Therefore, Ithink that the case will move forward to the merits stage.I would assume that Liechtenstein is trying to not run against the same wall it did inthe Certain Property case. While the case has to be distinguished from the currentproceedings, the ICJ turned down Liechtenstein’s claims for the lack of temporal- 1 -jurisdiction. Liechtenstein used the European Convention on the Peaceful Settlementof Disputes of 1957 as jurisdictional basis. The subject of the dispute – whichessentially concerned as well an expropriation in the aftermath of 1945 – took placebefore the Dispute Settlement Agreement came into force in 1980. Liechtenstein,which is advised inter alia by former ECtHR-judge Mark Villiger, certainly will bewell aware of jurisdictional limitations and potential risks inherent in the Strasbourgproceedings.How the Court will then deal with the rather complex context of the case remainsto be seen. Possibly, if the Court finds the case to be within its jurisdiction andadmissible, there may be room for a friendly settlement. In the case of flight MH17, the extraterritorial responsibility of the RussianFederation will most likely be a central aspect. The aircraft was flying over theDonetsk Oblast in Ukraine when it was shot down. A region that was already atthe time the arena of a military conflict between separatists and the UkrainianState. How can the Russian Federation be held responsible for the incident,even though the area is officially under Ukrainian sovereignty?The link that must be established in order to attribute the actions to the RussianFederation, is the exercise of jurisdiction within the meaning of Art. 1 ECHR. Theway in which jurisdiction is exercised can take various forms. The ECHR regimedoes not differentiate as to whether or not the exercise of jurisdiction was lawfulaccording to the general rules of international law – solely the exercise of jurisdictionis decisive. Now, if the Court comes to the conclusion that the area from where theBUK-missile was shot, was under temporary or permanent jurisdiction of Russiaor of Russian supported separatists, the necessary jurisdictional link would beestablished.The facts in this case are somewhat reminiscent of a ‘reverse’ Bankovic situation– which Marko Milankovic has already written about. I think that the necessary linkcan be established if the facts indeed support this. My guess would be that the areawas possibly either under Russian control or that some other kind of responsibilityunder the law of state responsibility concerning the handling of the weapon mightbe relevant. Where did the BUK-missile come from? Even if there was no directcontrol over the weapon, then it is a fair assumption to say that when one possessessuch a weapon, one has to be careful in whose hands it ends up. If one handles itnegligently and the weapon then somehow is used by private actors for shootingdown a civilian aircraft, then there is a certain degree of responsibility.I don’t want to make a final prediction on how the jurisdiction will be established, butin my opinion, it is fair to assume that Russia was exercising effective control. All ofthis will of course depend on the fact-finding by the Court. - 2 -This decade saw by far the highest number of new state-to-state complaintscompared to any other decade in the history of the Convention. In the lastten years alone more than in the previous 35 years. How do you explain thissudden interest in inter-state complaints? Source: https://www.echr.coe.int/Documents/InterState_applications_ENG.pdf (J.Batura) I may have different aspects of an explanation. I think one very important aspectis the relative ease of access to the Court. Especially in comparison with theICJ, it is fairly easy to lodge an application at the ECtHR, because there are veryfew requirements to make an inter-state case admissible. You can see this veryclearly in the Russian cases with Georgia. While Georgia tried it both in the ICJand the ECtHR, it failed in the ICJ. According to the ICJ, which ruled based on thecompromissory clause of the CERD-Convention under Art. 22 CERD that it hadno jurisdiction because of the absence of previous negotiations with Russia, thesewere a necessary precondition for the jurisdiction of the Court under Art. 22 CERD.Under the ECHR, there is neither a need for a dispute nor previous negotiations, theallegation of a human rights violation is enough to unlock the Strasbourg forum.- 3 -Another aspect comes to mind when you see how many cases are filed againstRussia, currently 8 out of 10 cases. In fact, Russia was quite aggressive since 2007with Georgia. This creates of course resistance and States try to use many fora,especially Ukraine which also used ITLOS and the ICJ. The ensuing question is howthe Court should then deal with multi-forum litigation.Another explanation for the growing number of inter-state cases could be that thereare now 47 State Parties to the ECHR. In the earlier years of the Convention, therewere in comparison very few States and they just came out of a war. Therefore, theirrelations were not marked by violence. Now, however, we have violence betweenState Parties, which makes a very big difference in the readiness to lodge an inter-state application.Additionally, with the reform process of the inter-state procedure, more States aremaybe aware of this possibility. The more it is discussed, the more it is used. Most inter-state complaints are filed with a particular link of the applicant Stateto the victims. The only historical exceptions are the ‘Greek Cases’ (1967)and the ‘Turkish Case’ (1982) against military governments. However, withGambia it is a not-affected State which referred the case concerning thealleged genocide of the Rohingya people (2019) to the ICJ. Just recently, theNetherlands and Canada announced that they will join the proceedings, theMaldives had stated a similar intention earlier this year. Similarly, the requestof revision (2014) of the Ireland v. UK judgment is perceived as following‘altruistic’ objectives. Finally, the Dutch government has made it quite clearthat it ‘stands by all the 298 MH17 victims’, not only its own nationals. Isabella,in view of these applications of the last few years, would you say that we arewitnessing a ‘rediscovery’ of so-called ‘altruistic cases’?The term ‘rediscovery’ would imply that there has been a kind of ‘golden age ofaltruistic human rights litigation’ before, which is not really the case. However, withthe Rohingya case, it is remarkable that now some States have announced thatthey will join the proceedings. I would also like to draw attention to the Netherlandscase: there are at least two other States bound by the Convention, the UK andGermany, which had victims in the incident of MH17 and have obviously not usedthis possibility. It is unclear if they will join the inter-state proceedings. They can doso within 12 weeks. Concerning altruistic cases, I would like to underline that all inter-state cases,regardless whether they were litigated for altruistic reasons or for other reasons, leadto improvements of the human rights situation on the ground. In fact, it is nice to seeso-called altruistic litigation, but it is already good to have litigation in itself. Becauseit entails that a Court looks at the situation, conducts fact-finding and formalizes itsresults in a public record. Such a judgment, which documents the suffering inflictedon individuals, can and should, immediately and also in historical perspective, serveas a source of embarrassment for the State concerned. But perhaps we already livein an age of post-shame.- 4 -In sum, I am not sure if we live a period where we see more of this altruism, but Iwelcome the more frequent use of the inter-state application by States. Isabella, you have been invited to advise the Steering Committee for HumanRights (Comité directeur pour les droits de l’Homme, CDDH), which isresponsible for intergovernmental work of the Council of Europe in the humanrights field. Due to the mentioned growing number of pending inter-statecases, the CDDH has been asked to make proposals to improve the inter-stateprocedure. Could you please explain briefly where the main problems of thecurrent procedure lie?The point of departure for this reform process is that we have a very busy Court withthousands and thousands of pending applications. Almost 20% of these applicationsrelate to inter-state conflicts. This creates a certain pressure on the Court, whichleads to various problems.One of these problems is that many of these applications, both individual casesreferring to inter-state conflicts and the inter-state applications as such, require fact-finding. Since there are often no domestic remedies because the State has collapsedin a certain way or because the remedies are ineffective, the Court is put in theposition of a first instance Court. It has to establish which State exercised jurisdictionand what happened. This is no easy task for a Court that must deal with so manythousands of applications. This explains also why this kind of application takes arelative long time. Within this reform process of the inter-state procedure, what options areavailable, and which do you consider most effective?In fact, the States’ room for manoeuvre for reform is rather limited.One option would be a protocol that would somehow outsource the fact-finding, forexample by creating a fact-finding body similar to the old Commission. But in viewof the current political situation, a protocol is rather unlikely. Russia is trying on alllevels to reduce the possible room for manoeuvre further, as it for example excludedreform considerations in the context of the execution of inter-state judgments.Another option could be a change of the rules of the Court, which is the prerogativeof the Court.Concerning the substantive aspects of the reform, I have been asked as an expert toresearch and elaborate on three elements in particular.The first aspect concerns friendly settlements. This tool could help to ease theworkload of the Court. The question is then, what the Court can do to facilitatepossible friendly settlements between the State Parties and at the same timepreserve its judicial impartiality. This necessarily includes the question whether- 5 -friendly settlements are a good thing or a bad thing, which is a very principledquestion. In my opinion, settlements are not necessarily a bad thing, given the lackof enforcement of the existing judgments in inter-state cases against Turkey andRussia. Maybe friendly settlements could lead to some tangible results. With Russia,I think it is generally very difficult.In general, direct settlement negotiations do not take place. I would suggestemploying the senior staff of the Registry more actively. This approach could helpto get at least certain things off the table and thus reduce the workload of the Court.The old Commission had more room and a more explicit mandate to seek friendlysettlements.Another question that I was asked to elaborate on relates to the possible supervisorydeterrent effects of interim measures in inter-state proceedings. This might be anavenue to contain the worst human rights violations by drawing attention to a giventheatre of acute conflict, similar to a huge spotlight. By using interim measures, theCourt could request information about certain ongoing situations and try to raiseawareness of basic obligations under international law of the actors involved.The last issue which is relevant for the reform process is the relationship betweeninter-state proceedings and overlapping individual procedures. The Convention doesnot regulate this question because the drafters did not foresee that both procedureswould be available simultaneously. In the beginning of the history of the Convention,the individual application was just optional, and the inter-state application wasthe default mechanism. Therefore, their relationship today remains unclear. Onepossible solution would be to put all individual cases that relate to a certain, commonproblem on hold and to use the inter-state proceeding as a kind of a ‘pilot procedure’.If, for example, there were a judgment establishing the responsibility of a State underArt. 1 ECHR, this finding could then be used also in the pertinent individual casesand would reduce the workload for the Court. This approach guides the Court forexample in the cases about Eastern Ukraine.Maybe we can also use this interview to raise awareness of the risk of acounterproductive formulation, which I found in one of the documents and whichreally worries me.There has been a recommendation to ask applicant States ‘to submit from the outseta list of clearly identifiable individuals who are victims of the alleged human rightsviolations’ (para. 6 and 45). Indeed, this would make it very, very hard for applicantStates to submit an application, because it would mean that they would first have tosomehow identify individual victims in another State. In fact, the biggest advantageof the inter-state procedure is precisely that it does not require an individual victimand instead allows applications against abstract legislation or against so-calledadministrative practices that contravene the convention.Therefore, I hope this idea does not come to fruition. Of course, these documentsare not legal sources in a formal sense. But if States that are considering anapplication for altruistic reasons, for example in cases like Turkey, would feelrequired to submit a list of victims at the beginning of the procedure, then it becomes- 6 -very remote that States would even consider such an application. While I understandthat it is important for the stage of just satisfaction to have a clear idea of the identityof victims, this broad formulation is in my view counterproductive.I hope that the direction of this whole reform process is not to render inter-statecomplaints more difficult, but to actually encourage States to make more use of it. - 7 -

A ‘golden age’ of inter-state complaints?

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A ‘golden age’ of inter-state complaints?

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