Academy of European Law Twenty-Seventh Session

Academy of European Law Twenty-seventh Session

Human Rights Law 20 June – 1 July 2016

Reading Materials

The European Court of Human Rights as a Source of Human Rights Law

Ineta Ziemele Professor, Riga Graduate School of Law; Judge of the Constitutional Court of Latvia; former judge and Section President at the European Court of Human Rights

TABLE OF CONTENTS

Page

1 Course Outline 1

2 Reading List 3

3 Harris, O’Boyle & Warbrick, Law of the European Convention on 5 Human Rights, 3rd ed., Oxford University Press, 2014

4 Luzius Wildhaber, Arnaldur Hjartarson, Stephen Donnelly, “No 24 Consensus on Consensus? The Practice of the European Court of Human Rights”, Human Rights Law Journal, Vol. 33, No. 7-12 (2013).

5 Steven Greer, The European Convention on Human Rights. 40 Achievements, Problems and Prospects, Cambridge University Press, 2006, pp. 316 – 321.

6 Ineta Ziemele, “International Courts and Ultra Vires Acts”, in 46 Caflisch et al (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views.Droits de l’Homme – Regards de Strasbourg. N.P.Engel, Publisher, 2007, pp. 537 – 556

7 James Crawford, Chance, Order, Change: The Course of 66 International Law, Hague Academy of International Law, 2016, Chapter IX.

The European Court of Human Rights as a Source of Human Rights Law

Professor Ineta Ziemele Ph.D. (Cantab.) Judge of the Constitutional Court of Latvia, former judge and Section President at the European Court of Human Rights

Outline of the lectures:

1. Introduction – setting the stage

- Article 38. 1 (d) of the Statute of the International Court of Justice: “judicial decisions as subsidiary means for the determination of rules of law” - Article 32 of the ECHR: “1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. 2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.” - Article 46 of the ECHR: “1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties”. - lex interpretata - erga omnes character of the Convention - the Convention and its Protocols – primary source of European human rights law

2. Methods of interpretation of the ECHR and its Protocols

- International treaty v quasi Constitution debate - Articles 31 – 33 of the 1969 Vienna Convention on the Law of Treaties - “ordinary meaning of the terms in their context and in the light of its object and purpose” - Reservations and declarations - “subsequent agreement” - “subsequent practice” - “relevant rules of international law applicable in the relations between the parties” - Special character as a human rights treaty - European public order

3. European consensus

- General principles? - Customary law? - Something else?

4. Margin of appreciation

- Protocol 15: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,” (13 signatures, 28 ratifications on 6.6.2016.)

5. Ultra vires decisions

- Mamatkulov v. Turkey (no. 46827/99 46951/99) [GC] judgment of 4 February 2005, Dissenting opinion of Judges Caflisch, Turmen and Kovler: “Our basic conclusion is, therefore, that the matter examined here is one of legislation rather than of judicial action. As neither the constitutive instrument of this Court nor general international law allows for holding that interim measures must be complied with by States, the Court cannot decide the contrary and, thereby, impose a new obligation on States Parties. To conclude that this Court is empowered, de lege lata, to issue binding provisional measures is ultra vires. Such a power may appear desirable; but it is up to the Contracting Parties to supply it.” - Hutten-Czapska v. Poland (no. 35014/97 ) [GC] judgment of 28 April 2008, Concurrign opinion of Judge Ziemele: “The real question is not one of power, but whether the exercise of power in a given case is consonant with due administration of justice.”

6. Fragmentation

7. Conclusions - is the consent of States Parties to the Convention the only source of European Human Rights law? - is the European Court of Human Rights through its judicial decisions a source of European Human Rights law?

6.6.2016.

2 The European Court of Human Rights as a Source of Human Rights Law

Professor Ineta Ziemele Ph.D. (Cantab.) Judge of the Constitutional Court of Latvia, former judge and Section President at the European Court of Human Rights

Reading material:

- On interpretation of the ECHR by the ECtHR

Harris, O’Boyle & Warbrick, Law of the European Convention on Human Rights, 3rd ed., Oxford University Press, 2014 (relevant chapters attached as pdf)

Demir and Baykara v Turkey (no. 34503/97) [GC] judgment of 12 November 2008, paras. 65 – 86. To be read but not in reading list

Jones and Others v United Kingdom (nos. 34356/06 40528/06) judgment of 14 Janaury 2014. To be read but not in reading list

- On margin of appreciation and European consensus

Luzius Wildhaber, Arnaldur Hjartarson, Stephen Donnelly, “No Consensus on Consensus? The Practice of the European Court of Human Rights”, Human Rights Law Journal, Vol. 33, No. 7-12 (2013).

A, B and C. v. Ireland (no. 25579/05) [GC] judgment of 16 December 2010. To be read but not in reading list

Animal Defenders International v the United Kingdom (no. 48876/08) [GC] judgment of 22 April 2013. To be read but not in reading list

- On effects of the Court’s judgments and decisions

Steven Greer, The European Convention on Human Rights. Achievements, Problems and Prospects, Cambridge University Press, 2006, pp. 316 – 321 (attached in pdf).

Ineta Ziemele, “International Courts and Ultra Vires Acts”, in Caflisch et al (eds.), Liber Amicorum Luzius Wildhaber. Human Rights – Strasbourg Views.Droits de l’Homme – Regards de Strasbourg. N.P.Engel, Publisher, 2007, pp. 537 – 556 (attached in pdf).

3 - On fragmentation

James Crawford, Chance, Order, Change: The Course of International Law, Hague Academy of International Law, 2016, Chapter IX.

Hirsi Jamaa and Others v. Italy (no. 27765/09) [GC] judgment of 23 February 2012. To be read but not in reading list

1.4.2016.

4 xii TABLE OF CONTENTS

3 THE EUROPEAN COURT OF HUMAN RIGHTS: ORGANIZATION, PRACTICE, AND PROCEDURE 103

1 The Organization of the Court , 103 2 Procedure before the Court (I): From the Initial Application to Judgment 113 3 Procedure before the Court (II): Additional Procedūrai Matters 136 4 Article 41: Just Satisfaction 155 5 Article 46 162 6 Protocol 14 165 7 Reform of the Court 166 Ķ TheFuture: 176

4 THE EXECUTION OF THE COURT’S JUDGMENTS .. 180 1 The Role of the Committee ofMinisters 181 2 Procedure 181 3 The Court and Execution of its Judgments 191 4 The Parliamentary Assembly and Execution of Judgments ... 194 5 Protocol 14 196 6 Conclusion 198

PART III THE RIGHTS GUARANTEED

5 A R T IC L E 2: THE RIGHT TO LIFE 203 1 The Obligation to Protect the Right to Life by Law 203 2 Preventive Action 207 3 Health Care and Other Social Services 212 4 The Procedūrai Obligation to Investigate 214 5 Application of the Obligation to Protect Life to Non-fatal Cases 218 6 Protection of the Unborn Child 219 7 The Prohibition of the Taking of Life by the Use of Force 221 8 Conclusion 233

6 A R T IC L E 3: FREEDOM FROM TORTURE OR INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 235 1 Introduction 235 2 Torture 238 3 Inhuman Treatment 241 4 Inhuman Punishment 259 5 Degrading Treatment 261 6 Degrading Punishment 271 7 The Obligation to Protect Individuāls from Proscribed Ill-Treatment 2 74 8 Conclusion 5 217 THE INTERPRETATION OF THE CONVENTION is monitoredbythe Committee ofMinisters ofthe Council ofEurope, which is composed of govemmentrepresentatives of ali of the member states..

4* THE INTERPRETATION OF THE CONVENTION

L THE GENERAL APPROACH As a treaty> the Convention must be interpreted according to the internātiem! law rules on the interpretation of treaties.38 Ihese are to be found in the Vienna Convention on the Law ofTreaties 1969.39 The basie rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.40 A good example ofthe use of this rule is the case of Luedicke, Belkacem and Код v Germany,41 There the Court adopted the ordinary meaning1 ofthe words (gratuitementy and ‘free5 in the two authentic language texts42 of Article 6(3) (e), which it found not contradicted by the context of the sub-paragraph5 and confirmed by the object and purpose of Article 6’. The terms in the Convention have their ordinary meaning. Accordingly, words such as ‘degrading5 (Article 3) have been understood in their dictionary sense.43

II. EMPHASIS UPON THE OBJECT AND PURPOSE OF THE CONVENTION

In accordance with the Vienna Convention, considerable emphasis has been placed on the interpretation of the Convention through a teleological approach, ie one that seeks to realize its object and purpose’. This has been identified in general terms as ‘the protection of individual human rights’44 and the maintenance and promotion of cthe ideāls and values of a democratic society 45 As to the latter, it has been recognized that cdemocracy supposes ‘pluralism,

38 See eg,GoldervUK А 18 (1978); 1 EHRR 524 para 29 PC, and John tonvIrelandA 112 (1986); 9 EHRR 203 para 51 PC. See Rosakis, in Valticos Melanges, 487. On the interpretation of the Convention generally, see Golsong, EuropeanSystem , Ch 8; Greer,European Convention, Gh 4; Ļetsas, A Theory of Interpretation of the European Convention on Human Rights, 2007. 39 1155 UNTS 331. See Articles 31-3, 40 Article 31(1), Vienna Convention. The ‘contexf of a treaty includes its preamble and any agreement or instrument relating to and made in connection with it: Article 31(2). The subsequent practice of the par- t ies to a treaty and any relevant rules of international law shall be taken into account ‘together with the context*: Article 31(3). On the use ofthetravauxpreparatoires, see section 4.ХШ, ‘Recourse to thetravau preparatoires. 41 А 29 (1978); 2 EHRR 149 para46 42 Ie, the English and French texts. Where, as was not the case in the Luedicke case, the two authentic t exts of the Convention differ in their meaning, they must be interpreted in such a way as to ‘reconcile them as far as possible5: Article 33(4), Vienna Convention. If they cannot be reconciled, the ‘object and purpose’ becomes decisive: seeWemhojfv Сегтапу А 7 (1968); 1 EHRR 55 and Brogan v UKА 145-B (1988); 11 EHRR 117 PC. Tyrer v UK А 26 (1978); 2 EHRR 1. 44 Soeringv U K A161 (1949); 11 EHRR 439 para 87 PC. Cfth e 'Belgian Linguistics с ase А 6 (1968); 1 EHRR 241 PC. 45 Kjeldsen, Busk Madsen, and Pedersen v Denmark А 23 (1976); 1 EHRR 711 para 53. Both ofthe consid- crations mentioned are confirmed by the Convention Preamble. The Preamble also identifies ‘the. aehieve- ment of greater unity between its Members’ as the aim of the Council of Europe. See Gearty, 51 NILQ 381 (2000); Harvey, 29 ELR407 (2004); Marks, 66 BYIL 209 (1995); and Mowbray, 1999 PL 703. The commitment to democracy was crucial in United Communist Party ofTurkey v Тигкеу 1998-1; 26 EHRR 121. 6 8 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONTEXT tolerance and broadmindednessl46 The primary importance-of the object and purpose of the Convention was strikingly illustratedin Golder v UK.47 Hiere .the Court readrthe right of access to a court into the fair trial guarantee in Article 6. It did so, in the absence of clear wording in the text to the contrary, mainly by reference to guidance as to the object and purpose’ of the Convention to be found in its Preamble.48 This mdicated, inter alia, that the drafting states were resolved to ctake the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration in furtherance of the ruleoflaw. Asthe Court stated, one could not suppose compliance with the rule of law without the possibility of taking legal disputēs to court. What is remarkable is that the Court has extended the reach of the Convention in many other contexts, too, apparently by reference to its object and purpose. Article 8 is a striking example, with the riģht to privacy in particular having an almost limitless scope. The Court also confirmed in the Golder case its earlier pronouncement in Wemhoff v Germany49 that ‘[g]iven that it is a law-making treaty, it is also necessary to seekthe interpretation that is most appropriate in order to realize the aim and achieve the object of the treaty, and not that which would restrict to the greatest possible degree the obligations undertaken by the parties’. This approach was forcefully opposed by Judge Fitzmaurice in his separate opinion in the Golder case. Judge Fitzmaurice argued, inter alia, that the cheavy inroads5 made by the Convention into an area previously within a states domestic jurisdiction, namely the treatment of its own nationals, demanded a cautious and conservative interpretation. Such an argument, which emphasizes the character of the Conventionas a contract bywhich sovereign states agree to limitations upon their sovereignty, has now totally given way to an approach that focuses instead upon the Convention’s law-making character and its role as a European human rights guarantee that must be interpreted so as to permit its development with time. It is in this last connection that statements to the effect that the Convention is an instrument of European public order (ordre public)’50 are relevant. They signify that in the interpretation and application of the Convention, the overriding consideration is not that the Convention creates reciprocal engagements between contracting states’, but that it imposes objective obligations’ upon them for the protection of human rights in Europe,51 with the Convention evolving in the direction of becoming Europe’s constitutional bill of rights.52

IIL DYNAMIC OR EVOLUTIVE INTERPRETATION It follows from the emphasis placed upon the ‘object and purpose’ of the Convention that it im rt be given a dynamic or evolutive interpretation.53 Thus, in Тугег v UK,54 the Court

6 Handyside v UK А 24 (1976); 1 EHRR 737 para 49 PC. Cf Dudgeon v UK А 45 (1981); 4 EHRR 149 para 53 PC. 47: А 18 (1975); 1EHRR 524 PC: 48 The Court also referred to the empha ī on the rule of law in the Statute of the Council of Europe (Preamble, Article 3). 49 А 7 (1968) p 23; 1 EHRR 55 at 75. Cf, Delcourt v Belgium А 11 (1970); 1 EHRR 355 para 25, concerning Article 6 in particular. %50 Loizidou v Тигкеу (Preliminary Objections) А 310 (1995); 20 EHRR 99 para 93. Cf, Austria v Italy No 788/60, 4 YB 112 at 140 (1961) and Chrysostomos, Papachrysostomou and Loizidou v Тигкеу Nos 15299/89. 15300/89 and 15318/89, 68 DR 216 at 242 (1991). 51 Ireland v UK А 25 (1978); 2 EHRR 25 para 239 PC. The ‘objective’ character of the obligations mani- fested itself inAustria v Italy No 788/60, 4 YB 112 (1961), in that Austria was permitted to question ītaliān conduct that occurred before Austria became a party to the Convention. 52 See further below, section. 53 The term ‘evolutive’, rather than Cdynamic’, is sometimes used by the Court: see eg,Johnston v Ireland А 112 (1986); 9 EHRR 203 para 53 PC. On the interpretative and law-making role of the Court, and formerly the Commission, generally, see Gearty, 52 CLJ 89 (1993); Mahoney, 11 HRLJ 57 (1990); and Stavros, The Guarantees for Accused Persons under Article 6 ofthe European Convention on Human Rights, 1993, pp 340-50 (hereafter Stavros). 7 54 А 26 (1978); 2 EHRR 1 para 31. THE INTERPRETATION OF THE CONVENTION 9 stated that-the-Convention is>‘a living instrument whi'ch...must-be interpreted in the light of present-day eonditions5. Accofdmgly, the Court coul¬

CfMahoney, 11 HRLJ 57 at 70 (1990). See also Nicol, 2000 PL 152. 56 Магскх v Belgium А 31 (1979); 2 EHRR 330 PC. 57 Dudgeon vUK А 45 (1981); 4 EHRR 149 PC. Cf, L and VvAustria 2003-1; 36 EHRR 1022. 58 Seeeg, Soeringv UKA161 (1989); 11 EHRR439 PC (de&thņena[ty); Sigurjonsson vIceland A 264 (1993); 16 EHRR 462 (closed shops); Stafford v UK 2002-IV; 35 EHRR 1121 GC (life sentences). The Convention enforcement machinery provisions are also to be interpreted dynamically: Loizidou v Тигкеу (Preliminary Objections) А 310 (1995); 20 EHRR 99 para 71. 59 Johnston v īreland А 112 (1986); 9 EHRR 203 PC. Quaere whether the sensitive nature of the divorce question in īreland at the time was another factor in the Johnston case. 60 11 HRLJ 57 at 60 (1990). Mahoney draws an analogy with the judicial activism and judicial restraint distinction found in the jurisprudence of the US Supreme Court. 61 See Chapter 15, section 4.III. Cf, the gradual extension of Article 6(3) to pre-trial criminal proceedings. See also the Court’ approach to diiferent retirement ages for men and women inStec v UK 2006-VI; 43 EHRR 1017 GC. 62 See generally Mowbray The Development of Positive Obligations under the European Convention on Human Rights hy the European Court ofHuman Rights, 2004. 63 See Soeringv UKA 161 (1989) 11 EHRR439 PC. 64 See Lopez Ostra v Spain А 303-C (i994); 20 EHRR 227. 8 10 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONTEXT new approach.65 For example, in MarckxvBelgium66 theCourt reliedupon a new approach to the status of children born out of wedlockthat had been adopted in the law .ofthe ,‘great majority’, but not ali, of Council ofEurope states b j 19У9. The Gourt adopted a somewhat different and less demanding approach, than this in the case of Goodwin (Ghristine) v UK.67 In a series of transsexualcases from the mid-1980s onwards, The Gourt had indicated that it was not satisfied that a common new European Standard requiring the full recognition in law of the new sexual identity of post-operative transsexuals had emerged; standards were stili in transition with little common gmund between the contracting states’.68 However, in the Goodwin с ase, while recognizing that there remained no com mon European approach’ on the matter, -theCourt was persuaded to overturn its earlier rulings by ‘clear and uncontested evidence of a continuing internatiorial trend’, both in Europe: and elsewhere, in the direction of ‘legal recognition ot the new sexual identity of post-operative transsexuals’. It thus referred to natlonal standards around the world, as well as in Europe, and did not require that a cgreat majority’ of European states follow the new approach 69 -

IV.. R ELI ANCE UPON EUROPEAN NATIONAL LAW AND INTERNATIONAL STANDARDS The question whether the Court should be influenced by the law in European states in its interpretation ofthe Convention is relevant not only in contexts in which the policy of the law has changed. The question may arise when the Court has to decide how rigor- ously to interpret the requirements of the Convention in other circumstances also. Here, too, any European consensus that exists has had a considerable impact upon the Court’s jurisprudence.70 For example, the Court’s ringing pronouncements on the importance of freedom of speech and of the press in a democratic society71 stem from a confident conviction as to long ~tanding values that generally underpin European society. Equally clearly, the easy incorpo"ation into Article 1, First Protocol of a compensation requirement for the taking of the property of nationals, followed from the clegal systems of the contracting states’.72 And in S and Marper v UK73 the Court was strongly influenced by the fact that England, Wales and Northern Ireland appeared to be cthe only jurisdictions in the Council of Europe to allow the indefinite retention of fingerprints and DNA

65 A state that is entirely on its own is particularly at risk of an adverse judgment if its practice offends common European standards relevant to human rights: see eg, the Тугег case, mentioned earlier (corporal punishment) and Unai Tekeli v Тигкеу 2004-Х; 42 EHRR 1185 (married womens surnames). For an ехсер- tion, seeEB v France hudoc (2008); 47 EHRR 509 GC. 66 А 31 (1979); 2 EHRR 330 para 41 PC. Cf Dudgeon v UK А 45 (1981); 4 EHRR 149 PC and Hirst v UK (No 2) 2005-1Х; 42 EHRR 849 GC. 67 2002-VI; 35 EHRR 447 para 85 GC. 68 Cossey v UKA 184 (1990); 13 EHRR 622 para 40. 69 A ‘majority5, but not the £great majority’, of member states provided for full legal recognition: Sheffieļd and Horsham v UK 1998-V; 27 EHRR 163 paras 35, 57 and Goodwin (Christine) v UK 2002-VI; 35 EHRR 447 GC. 70 See Dzehistarou, Public Law (2011) 534; Dzehistarou 2 German LJ 1730 (2011); Helfer, 26 Cornell ILJ 133 (1993); Heringa, 3 Maastricht JECL 108 (1996). 71 SeeĻingens v Austria А 103 (1981); 8 EHRR 407 para 41 PC. 72 James v UK A 98 (1986); 8 EHRR 123 para 54 PC. Other examples include A v UK2002-Х; 36 EHRR 917 (parliamentary immunity) and Вгуап v UK А 335-A (1995); 21 EHRR 342 (judicial review of administrative action). 73 2008-; 48 EHRR 1169 GC. See also Demir and Ваукага v Тигкеу 2008 48 EHRR 1272 para 151 GC (‘vast majority’ of European states recognized civil servants’ right to collective bargaining). 9 THE -INTERPRETATION OF THE CONVENTION 11 materiaF of any criminal suspect: there was a ‘strong сошешш5 to the contrary5 with the ‘great та1огку’ of jurisdictions with DNA databas.es,-including Scotland, requiring that they be destroyed. Former Judge Van.der Meersch74 has pointed to the paradox of taking standards in national law intoaccount when interpreting an International treaty whose purpose is to control. national law. The convincing justification that he. provides is that there is a necessarilyclose relationship between the Convention standards and the European eommon law5 by which they are inspired. Another reason,may be that an interpretat on of the Convention that deviated substantially from general European practice would undermine State conMence in the Convention system and thereby threaten its continued success or acceptance by states.75 Generally, the Court s reliance upon any European consensus i&acceptable in that it is likely to be in accordance with recognized human rights standards, as in the case of the emphasis placed upon freedom of speech. Even so, the Court needs to be aware that ģovernment and individual interests do not always:comcide and that a practice may not be aeceptable in human: rights terms srnply because it is generally followed.'■ The Court inereasmgly refers to other sources of interņationalhuman rights standards when interpreting the Convention in its judgments. Thus the Court refers to other human rights treaties and 'other relevant instruments-—both of the Couricil of Europe itself76 and of other international institutions77—and decisions by bodies applying them/8 A treaty may be referred to whether the respondent state is a party to it or not79 The Court also interprets the Convention, as a treaty, against the background of public international law generally.80 This is ali to be welcomed in ensuring a uniformity of app 'oach where this is appropriate. In the absence of a European or international consensus, the Court has tended to reflect national law by applying a lowest eommon denominator apprdach or to accommodate variations in state practice through the margin of appreciation doctnne81 when deciding upon the meaning of a Convention guarantee. The result is that a state s law or conduct may well escape condemnation if it reflects a practice followed in a number of European states or where practice is widely varied. For example, the fact that members of a linguistic minority may not be able to vote in an election for candidates whose language is theirs82 or that civil servants may sit as expert members of a tribunal8 does not present problems for the rights to free elections (Article 3, First Protocol) and an independent

74 1 HRLJ 13 at 15 (1980). 75 See Stavros, p 346. 76 See eg,Sorensen and Rasmussen v Denmark 2006-1; 46 EHRR 572 GG (European Social Charter); Dickson v UK 2007-V; 46 EHRR 927 GC (European Prison Rules); Oneryildiz v Тигкеу 2004-ХП; 41 EHRR 325 GG (Gommittee of Ministers and Parliamentary Assembly reeommendations). 77 See eg,AlAdsani v UiC2001-XI; 34 EHRR 273 GC (UN Torture Convention); Jersildv Denmark А 298 ((994); 19 EHRR 1 (UN Racial Discrimination Convention); Siliadin v France 2005-VII; 43 EHRR 287 GC (ILO Conventions); and Vilho Eskelinen and Others v Finland 2007-ХХ; 45 EHRR 985 GC (EU Charter on l undamentalRight ) 78 See Forowicz The Reception of International Law in the European Court of Human Rights , 2010. 79 See eg,Магскх v Belgium А 31 (1979); 2 EHRR 330 (Children Born Out of Wedlock Convention) and / h’tnirandВаукага v Тигкеу 2008-; 48 EHRR 1272 GC (European Social Charter). H0 See eg,ATSkeini and Others v UK 2011- GC (jurisdiction), and Waite and Kennedy v Germany 1999-1; 4) EHRR 261 (sovereign immunity). For references to non-human rights treaties, seeGlass v UK 2004-II; w i^HRR 341 and Taskin v Тигкеу 2004-Х; 42 EHRR 250. International law’ is directly incorporated into Л rt icle 7 of the Convention: seeKononov v Latvia hudoc (2008). 81 As to this doctrine, see section 4.VII. 8ž Mathieu-Mohin and Clerfayt vBelgium А 113 (1987); 10 EHRR 1 para 57 PC (ca good many states’). f!! Ettl v Austria А 117 (1987); 10 EHRR 225 para 40 (‘domestic legislation... of member states affords many examples’). 10 12 THE EUROPEAN CONVENTION ON HUMAN'RIGHTS IN CONTEXT and impartial tribunal (Article 6) respectively, given that such situations are common in European states» WidespreaddifFerences'in practice in European states can lead to а similar tolerance, as in the case of laws governing abortion,84 attificial insemination,85 the right of prisoners tovote,86 the regulation of political advertising,87 and relations between church and state88 Other examples can-be found in connection with the right to a fair trial, where there is much diversity of practice resulting, most clearly, from the differences between civil and common law systems of criminal justice. Thus, when interpreting the Article 6(1) requirement that judgments be ‘pronounced in public, the Court has taken account of the fact that courts of cassation in civil law jurisdictions commonly do not deliver their judgments in public 89 Similarly, the Court has been influenced in its approach to the ‘trial within a reasonable time5 guarantee in Article 6(1) by the character- istics of civil law-.criminal justice systems.90 It is encouraging, however, that, faced with a diversity of practice, the Court has sometimes acted positively in the interests of protecting human rights. This is the case, for example, in the Courts application of Article 6(1) to administrative justice, its strict reading of the requirement of an impartial tribunal that is found in the same provision, and its expansive interpretation of the residual ‘fair hearing’ guarantee91 More controversial, perhaps, is the balance that the Court has struck between the rights of parents and their children. The policy of some states of permitting their child care authorities to intervene to protect children at the ехреше of parental rights more than most European states do so has led to findings ofbreaches of the Convention in several cases.92 Finally, it is interesting to consider the evidence that the Court has available to it when it acts by reference to the standards in European national law or International lam After many years in which the Court lacked the time or resources to undertake research in relevant areas of law, it now has a research division which is asked to саггу out studies on questions of comparative or international law that arise in cases, mostly cases before the Grand Chamber. This is an important new development in the practice of the Court that has taken place over the last decade or so 93 The result is that today Grand Chambers and occasionally Chambers will have at their disposal in-house documents that provide extremely useful and detailed comparative and international law information.94 Beyond such resources, the Court relies upon the collective knowledge of its members and its registry and upon the amicus curiae briefs of non-governmental orgamzations and others, which have been of great assistance on occasion95 The contribution ofjudges is obviously

84 See Vč> vFrance 2004-VIII; 40 EHRR259 GC.= 85 See Evans v UK (2007); 46 EHRR 728. 86 SeeScoppola v Italy (No 3) hudoc (2011). In Hirst v UK (No 2) 2005-1Х; 42 EHRR 849 GC the margin of appredation was exceeded. 87 AnimalDefenders International v UK hudoc 2013- GC (csomewhat wider5 margin). 88 Sindicatul ‘Pastorul CelBun’ v Romania hudoc 2013- GC. 89 See Ghapter 9 section 3-Ш. 90 See Chapter 9 section 3-IV. Note also the absence of any need for jury trial in criminal cases, which is not found generally across Europe. For other examples of differing practice concerning the law of evidence and trial in absentiūi resulting in a ‘low common denominator’, see Stavros, pp 238 and 265-266. 91 See Chapter 9 section 3-II. 92 See eg,Andersson (M & R)v Sweden А 226-A (1992); 14 EHRR 615. 93 For earlier doubts as to whether the Court made a thorough investigation of the law of European states when relying on common standards, see eg, the dissenting opinion of judge Matscher inOzitirk v Germany А 73 (1984); 6 EHRR 409 PC and, among authors, Bernhardt* European System, p 35; Helfer, 26 Cornell ILJ 133 at 138-40 (1989); and Mahoney, 11 HRLJ 57 at 79 (1990). 94 At present, research reports are not communicated to the parties to a case. 95 See eg, the reliance on a study by the NGO Liberty in Goodwin (Christine) v UK 2002-VI; 35 EHRR 447 GC. 11 THE INTERPRETATION OF THE CONVENTION 13 valuable but is curtailed by the Court s practice ofhearing cases in chambers and the fact that judges are unlikely to claim expertise in ail areas of their national law.

V. TH E PRINCIPLE-OF PROPORTIOHALlTY The principle of proportionality96 is a recurring theme in the interpretation of the Convention. Reliance on the principle is most evident in those areas in which the Convention expressly allows restrictions upon a right. Thus, under thesecond paragraphs Of Artides 8-11', a state may restrict the protected right to the extent that this is ‘necessary in a democratic society’ for certain listed purposes. This formula has been interpreted as meaning that the restriction must be proportionate to the legitimate aim pursued5.97 Similarly, proportionality has been invoked when setting the limits to an implied restric- l ion that has been read into a Convention guarantee98 and in some cases in determining whether a positive obligation has been satisfied." The principle has also been introduced into the non-discrimination rule m Article 14, so that for its prohibition of discrimination to be infringed there must be no reasonable relationship of proportionality between the means employed and the aim sought to be pursued’.100 Finally, the principle is relied upon when interpreting the requirement in Article 15 that measures taken in a public emergency in derogation of Convention rights must be £strictly required by the exigencies of the situation’.101 In general, the principle of proportionality is not applied under Article 3, which contains an absolute guarantee.102 A limitation upon a right, or steps taken positively to protect or fulfil it, will not be proportionate, even allowing for a margin of appreciation, where there is no evidence that the state institutions have balanced the competing individual and public interests when deciding on the limitation or steps, or where the requirements to be met to avoid or benefit from its application in a particular case are so high as not to permit a meaningful bak ncmg process.103

96 See Christoffersen,Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention 01t Human Rights, 2009; McBride, in Ellis, ed, The Principle of Proportionality in the Laws of Europe, 1999; and Van Drooghenbroeck, Laproportionalite dans le droitde la Convention europeenne des droits de Vhomme, 2001. 97 Handyside v UK А 24 (1976) para 49; 1 EHRR 737 PC. See also the 'absolutely necessary’ test in Article ^(2), where the test is one of ‘strict proportionality\ The principle has also been applied to differently formu- lited restrictions in other Articles, eg, Article 5(Winterwerp v Netherlands А 33 (1979); 2 EHRR 387 para 39); Article 12 (F v Switzerland А 128 (1987); 10 EHRR 411 PC); and Article 1, First Protocol (James v UK А 98 (1986); 8 EHRR 123 para 50 PC). 98 Mathieu-Mohin and Clerfayt v Belgium А 113 (1987); 10 EHRR 1 para 52 PC (Article 1, First Protocol) and Fayed v UK А 294-В (1994); 18 EHRR 393 para 71 (Article 6(1)). In the forrner ca e the Court also stated that a restriction must not impair the ‘essence’ ofthe right. Cf, Ashingdane v UK А 93 (1985); 7 EHRR 528 para 57 (Article 6(1)). The Court not uncommonly uses this last idea when vettmg а restriction' under any of the headings discussed above, whether as an element of cproportionality or a t neparate requirement. 99 See eg, the Article 8 cases ofRee v UK А 106 (1986); 9 EHRR 56 para 37 PC and GasJcin v UK А 160 ( 1989); 12 EHRR 36 para 49 PC. I<)0 ‘Belgian Linguistics’ case А 6 (1968) p 34; 1 EHRR 241 at 284 PC. Cf, the recourse to proportionality when interpreting the term Torced labour’ in Article 4; Van der Mussele v Belgium А 70 (1983); 6 EHRR 163 para 37 PC. 101 See Lawless v Ireland (Merits) А 3 (1961); 1 EHRR 15 and Ireland v UK А 25 (1978); 2 EHRR 25 PC. Although the term proportionality is not mentioned in these judgments^ the principle is applied in fact. * ^°2 See Saadi v ltaly hudoc (2008). 103 Hirst v UK (No 2) 2005-1Х; 42 EHRR 849 GC (absolute ban on prisoners’ right to vote) and Dickson v UK 2007-V; 46 EHRR 927 GC (strict limits on prisoners" artificial insemination). See, however, Odievre v Vmnce 2003-III; 38 EHRR 871 GC (no right to know one s biological parent) where the Court majority gave little heed to such considerations. 12 14 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONTEXT

VI. A FAIR BALANCE In Soering v UK,104 the Court stated that ‘inherent in the whole of the Convention is а search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuāls fundamental rights5. Mowbray states that the fair balance principle is used by the Court 4as a basis for assessing the proportionality of respondents’ interferences with the Convention rights of applicants and for determining when states are subject to implied positive obligations under the Convention?05 As to proportionality, in Hutten-Czapska v Poland>106 for example, the Court ~tated:

there must be a reasonabie relation of proporiionality beivveen the means empSoyed and the aim sought to be realised [by any interference with the right to property in Article 1, Protocol 1]... That requirement is expressed by the notion of a ‘fair balance" that must be struck between the demands of the general interest of the community and the requirements ofthe protection of the individuāls fundamental rights.

As to positive obligations, in Verein Gegen Tierfabriken Schvveiz v Switzerland (No 2),107 for example, when deciding whether the respondent state had a positive obligation under Article 10 of the Convention to act to allow a controversial television advertise- ment to be broadcast after the Strasbourg Court had held that its prohibition was а violation of freedom of expression, the Court similarly stated that ‘regard must be had to the “fair balance” that has to be struck5 between the community interest and individual rights.

VIL THE MARGIN OF APPRECIATION DOCTRINE A doctrine that plays a crucial role in the interpretation of the Convention and that has been extensively commented upon is that of the margin of appreciation.108 In gen eral terms, it means that the state is allowed a certain measure of discretion, subject to European supervision, when it takes legislative, administrative, or judicial action in the area of a Convention right The doctrine was first explained by the Court in Handyside v UK.109 This was a case concerning a restriction upon a right within the Article" 8 11

104 А 161 (1989); 11 EHRR 439 para 89 PC.Gf, ‘Belgian Linguistics case (No 2) А 6 (1968); 1 EHRR 252 PC; Sporrong and Lonnroth v Sweden А 52 (1982); 5 EHRR 35 PC; and Fayed v UK А 294-B (1994); 18 EHRR 393. Morerecently, see eg,iV v UiChudoc 2008-; 47 EHRR 885 GC. 105 Mowbray, 10 HRLR 289 at 315 (2010). 106 2006-VIII; 45 EHRR 52 para 167 GG. The ‘fair balance’ concept is particularly prominent in right to property cases. 107 Hudoc (2009); 52 EHRR 394 para 91 GC. 108 From a large literature, see on the doctrine, Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle ofProportionality in the Jurisprudence ofthe ECHR , 2002; Brauch, 11 Col} European Law 113 (2004); Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe Human Rights File 17, 2000; id, European Convention, Ch 5; Legg , The Margin of Appreciation in International Human Rights Law, 2012; Letsas, 26 OJLS 705 (2006); Macdonald, in European System, Ch 6; articles by Mahoney et ai, 19 HRLJ 1-36 (1999); Ostrovsky, Hanse LR 47 (2005); Sottiaux and Van Der Schyff, 31 Hastings I and С LR 115 (2008); and Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence, 1996. The doctrine is included in Protocol 15. 109 А 24 (1976); 1 EHRR 737 paras 48-9 PC. It had in effect been relied upon by the Court earlier, following the Commission, in Lawless v Ireland (Merits) А 3 (1961); 1 EHRR 15 para 28, iri the context of public emergencies (Article 15). On the use of the doctrine in Articles 8-11, see further, Ch 8. 13 THE INTERPRETATION OF THE CONVENTION 15 group of rights. In the Handyside case, the Court had to consider whether a conviction for possessing an obscene article could be justified under Article 10(2) as a limitatibii upon freedom of expression that was necessary for the ‘protection of morāls’. The Court stated: • • . ■ . - ■ . ■;

!»>/ reason of their direct and coniinuous conlact vvilh ihe virai forces of their countries, ■.iaic authorities are in principle in a better position than the international judge to give an <>pinion 011 the...Cnecessity’ of a ‘restriction’ or ‘penally\..it is for the national authori- 1 ies to make the initial assessment of the reality of the pressing social need implied by the noiion o f 'necessily* in this context. • onsecjiientlv, Article 10(2) leaves to the coniracting states a margin of appreciation. I h is margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws

Nevertheless, Article 10(2) does not give the contracting states an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those states’ engagements, is empowered to give the final ruling on whether л Vestriction’ or penalty’ is reconcilable with freedom of expression. The domestic margin ul appreciation thus goes hand in hand with a European supervision. Such supervision ■ oncerns both the aim of the measare challenged and ils £necessity’; it covers not oniy 11и- basie legislation bul also the dccision applying it, even one given bv an independent

’lhe Court must decide, on the basis of the difterent daia availabie to it, vvhether the u-asons given by the national authorities lo justify the actual measures o f‘interference’ 11к*у take are relevant and sufficient.

Пн* doctriņe has since been applied in the above sense to other Convention arti- ■ irs, As well as Article 10, it has been relied upon when determining whether an interference with other rights in the Ar ticies 8-11 group of rights is justifiable on mv of the grounds permitted by paragraph (2) of the Article concerned. The doc- iiiiie is also used when assessing whether a state has done enough to comply with «nv positive obligations that it has under these110 and other Articles111 and when • f* trrmining whether a states interference with the r ght to property protected Article 1, First Protocol is justified in the public interest.112 A margin"of appre- . »aiion is also allowed in the application of other guarantees where an element of [jMl^ment Ьу the national authorities is involved, as in certain parts of Articles 5113 ин1 ьП4 and in Article 14.115 It has been instrumental as well in the application of Article

Scc eg, Ahdulaziz, Cabales and Balkandali v UK А 94 (1985); 7 EHRR 741 para 67 PC and Keegan v i-< l.ind A 290 (1994); 18 EHRR342 para49. 111 See eg,Mathieu-Mohin and Clerfayt v Belgium А 113 (1987); 10 EHRR 1 PC (Article 3, First Protocol); м и I Yo v France 2004-Vīīi; 40 EHRR 259 GC (Article 2). ” See eg,James v UK А 98 (1986); 8 EHRR 123 PC. '' Scc Winterwerp v Netherlands А 33 (1979); 2 EHRR 387 (person of unsound mind); Weeks v UK А 114 i {•*.". ); 10 EHRR 293 PC (release on parole); Brogan v UK А 145-B (1988); 11 EHRR 117 PC (terrorist sus- 1 • • с.). No margin of appreciation in Article 5(3). As to a margin of appreciation in connection with the il*Iutcly necessary’ test in Article 2: seeFinogenov vRussia 2011- '11 See eg,Osman v UK 1998-VIII; 29 EHRR 245 (1998) (right of access), but no margin of appreciation on *<< tl wi(hinareasonabletime. 11 Iklgian Linguisticsy Case A 6 (1968) p 35; 1 EH RR24at284PC anditasmw5se?3 v Denmark А 87 (1984); f I i К R 371 para 40. 14 16 THE EUROPEAN CONVENTION ON HUMAN :RIGHTS IN CONTEIT

15 when deciding whether there is a ‘public emergency’ and, if so, whether the measures taken in response to it are ‘strictly required by the exigencies of the situation5.116 Aswill be apparent, these Articles largely coincide with those to whieh the principle of proportionality spelt out in the Handyside case applies, the point being that in assessing the proportionality of the state s acts, a certain degree of deference is given to the judgment of national authorities when they weigh competing public and individual interests in view of their special knowledge and overall responsibility under domestic law. Finally, it should be noted that national courts are allowed considerable discretion, either under an implied margin of appreciation doctrine or under the fourth instance doctrine (see section VIII), in the conduct of trials in respect of such matters as the admissibility or evaluation of evidence. Ihus the Gourt has stated that Article 6(3)(d) generally Teaves it to the competent authorities to decide upon the relevance of proposed evidence’117 and that it is for the national courts to assess the evidence before them5.118 An interference with a right that has been ordered or approved by the objective decision of a national court following a full exaffiination of the facts= will also benefit from a margin of appre ciation in its favour.119 : The margin of appreciation doctrine is applied differentially, with the degree of dis cretion allowed to the state varying according to the context A state is allowed a con siderable discretion in cases of public emergency arising under: Article 15,120 in some national security cases,121 in cases involving the move from communist to free market economies,122 and in the protection of public morāls.123 Similarly, the margin of appre ciation cavailable to the legislature in implementing social and economic policies should be a wide one’.124 It will be wide, too, when ‘there is а no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues’.125 A wide margin also usually applies cif the state is required to strike a balance between competing interests or Convention rights5.126 At the other extreme, the margin of appreciation is limited where ca particularly important facet of an individuāls identity or existence is at stake’127 and is reduced almost to vanishing point in certain areas, as where the justification for a restriction is the protection of the authority of the judiciary.128 The margin of appreciation doctrine reflects the subsidiary role of the Convention in protecting human rights.129 The overall scheme of the Convention is that the initial and

116 IrelandvUKA25 (1978);2EHRR25 PC. 117 EngelvNetherlands A22 (1976); 1 EHRR647para91 PC. 118 Isgro v ītaly А194-А (1991) para 31. A state is also allowed a margin of appreciation under Article 6 in decid ing whether an accused must be legally represented:Croissant v Germany А 237-B (1987); 16 EHRR 135 para 27. 119 See eg,Handyside v UKA 24 (1976); 1 EHRR 737 PC. 120 See Chapter 19. 121 See eg,Leander v Sweden А 116 (1987); 9 EHRR 433 para 67. 122 Broniowski v Poland 2004-V; 40 EHRR 559 para 182 GC. 123 See eg,Handyside v UK А 24 (1976); 1 EHRR 737 PC. 124 Hatton v UK 2003-VIII; 37 EHRR 611 para 97 GC (airport noise), citing James v UK А 98 (1986); 8 EHRR 123 PC (taking of property). 125 Evans v UKhudoc2007-1; 46 EHRR728para 77 GC. Cf,Rasmussen vDenmark А 87 (1984) 7 EHRR371 (fathers’ rights); Vo v France 2004-III; 40 EHRR 259 (abortion); Lautsi and Others v Italy 2011- GC(crucifixes in classrooms). Even so, a state’s discretion is not unlimited: Dickson v UK 2007-V; 46 EHRR 927 GC. 126 Evans v l/Khudoc 2007-1. 127^ Evans v UK hudoc 2007-1. Cf Dudgeon v UK А 45 (1983); 4 EHRR 149 PC (homosexual acts) and Christine Goodwin v ШС2002-VI; 35 EHRR 447 PC (transsexuals). 128 Sunday Times v UK А 30 (1979); 2 EHRR 245 PC. The Court may have been influenced by the disagreement within the relevant UK institutions as to the need for the restriction. 129 See Matscher, European Systemi Ch 5 atp 76. On the principle о f subsidiarity in the Convention generally, see Petzold, European System, Ch 4 and Rysdall, 1996 EHRLR 18 at 24ff. The principle will be added 15 THE INTERPRETATION OF THE CONVENTION IJ primary respoņsibiIity for the--protection-of-"human rights lies- with the contracting parties.130 The Court is there to monitor their action^ exercising a power of review that has some simrIarities;:-with"that-of a federal constitutional court overconduct by democratically elected govemments or legislatures within.the federation.131 The margin of appreciation doctrine serves as a mechanism by which a tight or slack rein is ķept on state conduct, depending upon the context. The doctrine is nonetheless а controversial one. When it is applied widely, so as to appear to give a state a blank cheque or to tolerate questionable national practices or decisions,132 it may be argued that the Court has abdicated its responsibilities. However, the doctrine has its counterpart in the context of judicial review in national systems of administrative law and may be essential to retain state confidence in the operation of the Convention system. In its absence, Strasbourg might well be seen as imposing solutions from outside without paying proper regard to the ķnowledge and responsibilities of local decision-makers. Underlying the doctrine is the understanding that the legislative, executive, and judicial orgāns of a state party to the Convention basically operate in conformity with the rule of law and human rights and that their assessment and presentation of the national situation in cases that go to Strasbourg can be relied upon. Given this premise, the doctrine сап ргоЬаЫу be justified.133 The dlfficulty lies not so much m allowing it as in deciding precisely how to apply it to the facts of particular cases.

VIII. THE FOURTH INSTANCE DOCTRINE The Court, and formerly the Commission, has made it clear that it does not constitute а (urther court of appeal, ie a fourth instance (^uatrieme instance), from the decisions of national courts applying national law. In the words of the Court, cit is not its function to īleal with errors of fact or law allegedly committed by a national court unless and inso- lar as they may have infringed rights and freedoms protected by the Convention/134 An application that merely claims without more that a national court has made an error of lact or law will be declared inadmissible ratione materiae. A claim that such an error is a breach of the right to a fair hearing in Article 6 will not succeed, as Article 6 provides a procedūrai guarantee only; it does not guarantee that the outcome of the proceedings is fair.However, where the Court is called upon to determilie the facts of a case in order to apply a Convention guarantee (eg whether there was inhuman treatment contrary to Л rticle 3), it is not bound by the finding of facts at the national Ievel.135 Where an applica- l ion alleges that national law violates the Convention, the Strasbourg authorities will not in principle question the interpretation of that law by the national courts.136 However,

fo the Convention Preamble by Protocol 15. On the principle in the Court’s jurisprudence, see eg,Z v UK 4)01 -V; 34 EHRR 97 GC and Vilho Eskelinen and Others v Finland 2007-IV; 45 EHRR 985 GC. 1 i() ‘Belgian Linguistics Case А 6 (1968) p 34; 1 EHRR 241 at 284 PC and Handyside v UK А 24 (1978); I FIIRR 737 para 48 PC. Thus Article 1 requires the contracting parties to ‘secure’ the rights’ in the * onvention. See also Articles 13 and 53, Convention. 1 u See Mahoney, 11 HRLJ 57 at 65 (1990), who compares the roles of the European Court and the US Supreme Court. 1 *’■ See, eg, Barfod v Denmark А 149 (1989); 13 EHRR 493 paras 28-36. 1'1 Note, however, that it is not used by UN human rights treaty monitoring bodies, and has only a modest 1 «t ( sence in the inter-American and African human rights systems. 1 1 Garcia Ruiz v Spain 1999-1; 31 EHRR 589 para 28. 1 л See eg,Ribitsch v Austria А 336 (1995); 21 EHRR 573. 136 X and Y v Netherlands А 91 (1985); 8 EHRR 235 para 29. 16 18 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CO NTEXT it may do so where the interpretation by the national court is ‘arbitrary or manifestly unreasonable5,137 or where it is a part of a Convention requirement that national law be Gomplied with (eg that an arrest is ‘lawfuP: Article 5(1)).138 Even so, it is very exceptional for the Court to disagree with any decision by a national court on its interpretation and application of its o#n national law.139

IX. EFFECTIVE INTERPRETATION

An important consideration which lies at the heart of the Court s interpretation of the ( onvention, and which is key to realizing its ‘object and purpose’, is the need to ensure the effective protection of the rights guaranteed. In Artico v Itaty?40 the Court stated that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective5. Ihere the Court found a breach of the right to legal aid in Article 6(3)(c) because the legal aid lawyer appointed by the state proved totally ineffective. The Court has relied upon The principle of effectiveness in other cases when interpreting positive obligations.141 In other eontexts, the Court has emphasized the need to ensure the effectiveness of the Convention when interpret ing the term ‘victinf in Article 25142 and when givmg the Convention extra-territorial reach under Article 3.143

X. CONSISTENCY OF INTERPRETATION OF THE CONVENTION AS A WHOLE In Stec v UK,144 the Court stated that the ‘Convention must be read as a whole, and inter preted in such a way as to promote internai consistency and harmony between its various provisions'. Accordingly, in that case a crucial factor for the Court in ruling that the right to property in Article 1, First Protocol extended to non-contributory as well as contributory benefits was that it had been held that rights to both kinds of benefit were protected by the right to a fair trial in Article 6 of the Convention.

XI. LIMITS RESULTING FROM THE CLEAR MEANING OF THE ТЕХТ

Although the Strasbourg authorities rely heavily upon the ‘object and purpose’ of the Convention, they have occasionally found that their freedom to do so is limited by the clear meaning of the text. Thus in Wemhoffv Germany,145 it was held that Article 5(3) does not apply to appeal proceedings because of the wording of Article 5(l)(a). Remarkably, in Pret to v Italy,146 the Court went against the clear wording of the Convention text in order tb achieve a restrictive result. There it held that the unqualified requirement in Article 6(1)

*■" See, eg, Andelkovič v Serbia hudoc (2013). 138 See, eg, Lukanovv Bulgaria 1997-11; 24 EHRR 121. 139 Winterwerp v Netherlands А 33 (1979); 2 EHRR 387 para 46. 140 А 37 (1980); 3 EHRR 1 para 33. Cf Airey v īreland А 32 (1979); 2 EHRR 305. 141 S eeKlass v Germany А 28 (1978); 2 EHRR 214 para 34 PC. 142 Магскх v Belgium А 31 (1979); 2 EHRR 330 PC. 143 Soeringv UKA 161 (1989); 11 EHRR439 para 87 PC. 144 2006-V; 43 EHRR 1027 para 48 GC. Cf Klass v Germany А 28 (1978); 2 EHRR 214 PC. 145 А 7 (1968); 1 EHRR 55. 146 А 71 (1983); 6 EHRR 182 para 26 PC. 17 THE INTERPRETATION OF THE CONVENTION 19 ihaf judgments be ‘pronouncedpublicly5 (rendupubliquement) does not apply to a Court «»! Cassation. The Court considered that it must have been the intentionof the drafting • lates (although there was no clear evidence in the travaux preparatoires) to respect the loiig-standinģ tradition in many Council of Europe states to this effeet.147 For this reason, the Court did not ‘feel bound to adopt a literal interpretation’ and preferred a more llrxible approach that itfelt was not inconsistent with the basie, object and purpose’ of Article 6. Similarly, in Scoppola v Italy (No 2),148 there was a clear departure from the I mguage of Article 7 to introduce the lex motior, this time to the benefit of the accused. In a remarkable development, the Court has taken the position that the text of the • onvention may be amended informally by state practice. In Soering v UK,149 faced with \vording in Article 2 which expressly permitted capital punishment, the Court stated that i,4ļubsequent practice in national penal pohcy,in the form of a generalized abolition of Capi tal punishment, could be taken as establ shing the agreement of the contracting states to ahrogate the exception provided for under Article 2(1)’. W hile state practice had not reached ihis point by the time of the Soering case, in the Al-Saadoon case the Court later concluded 1 hat it had, so that the numbers of ratifications of the Thirteenth Protocol prohibiting Capi tal punishment completely and other state practice were strongly indicative that Article 2 1 ш been amended so as to prohibit the death penalty in ali circumstances’.150

XII. THE AUTONOMOUS MEANING OF CONVENTION TERMS

I .ogai terms that might be considered as referring back to the meaning that they have in I he national law ofthe state concemed have not been so interpreted.151 Instead, they have been given an autonomous Convention meaning. They inelude terms such as criminal < harge’, ‘civil rights and obligations’, ‘tribunal’, and Vitness’ in Article 6.152 The words law’ and clawful’, however, have a mixed national law and Convention meaning. They bol h require that there be a national law basis for what is done and are imbued with . 1 ( Convention idea of the essential qualities of law. As to the latter, a ‘law’ must not be a rbitrary; it must also be publicly available, have a reasonably predictable effeet and be ronsistent with the general principles of the Convention.153

XIII. RECOURSE TO THE TRAVAUX PREPARATOIRES

Kecourse may be had to the travaux preparatoires, or preparatdry work, of the ( 'onvention154 in order to confirm its meaning as established in accordance with the rule ш Article 31 of the Vienna Convention or where the application of that rule leaves its

1 ,|/ The Court’s approach may have been influenced by the fact that the text of Article 6 was probably II \\\ l'tcd with only trial proceedings in mind. 148 Hudoc (2009) GC. 110 А 161 (1989); 11 EHRR 439 para 103 PC. 1.0 Al-Saadoon and Mufdhi v UK, 2010- para 120. This illustrates the risk that an optional protocol to Uu- Convention may, at least until widely ratified, foreclose the possibility of a broad interpretation of the • и iginal Convention. See, however,Ekbatani v Sweden А 134 (1988); 13 EHRR 504 para 26 PC, in which the ( ourt stated that the addition of a right in a protocol was not to be taken as limiting the scope of the meaning <>l (he original Convention guarantee. 1.1 See Letsas, 15 EJIL 279 (2004); Matscher, European System, Ch 5 at pp 70-3, and Van der Meersch, \Yinrda Melanges, p 201. 1 ’ ■ Cf, the autonomous meaning of the terms ‘vagrant’ and ‘persons of unsound mind5 in Article 5(l)(d). I ,, See Chapters 8 and 11 concerning Articles 5 and 8-10. ы por ļ-ļļg travaux preparatoires of the Convention, see theCollected Edition ofthe Travaux Preparatoires ofthe European Convention on Human Rights, 8 vols, 1975-85 (hereafter TP) 18 20 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CO NTEXT meaning ‘ambiguous or obsaire5 or ieadsto a result which iamani£estly absurd or .unrea sonable’.155 In practice, the Court, and fo-rmerly the Commission, has onlymade occa sional use ofthe- tmvauxprepamtoire$}56 This is partly because the travaux are not always helpful157 and partly because of the emphasis upon a dynamic and generally teleological interpretation of the Convention that focuses, where relevant, upon current European standards rather than the particular intentions of the drafting states.158

XIV. THE INTERPRETATIVE ROLE OF THE COURT

The interpretation ofthe Convention is the role of the Court. The Committee ofMinisters makes no attempt to interpret the Convention when it monitors compliance with judgments under Article 46(2). Before its abolition in 1998, the Commission also played an important part in the interpretation of the Convention. The Commission gave reasoned decisions at the admissibility stage, particularly when; it declared an application to be inadmissible.159 In addition, the Commissions reports on the merits of admitted applications were fully reasoned.160 However, it followed from the scheme of the Convention that in practice the Tast word5161 as to its meaning rested with the Court. If the Court interpreted the Convention differentlyfrom the Commission, the Courts viewprevailed and the Commission, if sometimes slowly, changed its mind.162 Although the Court has, since 1998, developed its own jurisprudence on admissibility and has filledin many of the gaps in its interpretation ofthe Conventions substantive guarantee, somepre-1998 Commission interpretations remain of authority in the absence of Court pronouncements. There is no eommon law distinetion between ratio decidendi and obiter dieta in the practice of the European Court of Human Rights. Any statement by way of interpre tation of the Convention by the Court, and formerly the Commission, is signifieant, although inevitably the Ievel of generality at which it is expressed or its centrality to the decision on the material facts of the case will affect the weight and influence of any pronouncement. Clearly, a Grand Chamber ruling is more authoritative than one by а Court Chamber. There is no doctrine of binding precedent in the sense that the Court is bound by its previous interpretations of the Convention (or those of the former Commission).163 The

155 Article 32, Vienna Convention. 156 See, eg, Johnston v Ireland А 112 (1986); 9 EHRR 203 para 52 PC; Lithgow v UK А 102 (1986); 8 EHRR 329 para 117 PC; KudlavPoland 2000-Х1 GC; Hirsi Jamaavltaly 2012-; 55 EHRR 627 GC; Sitaropoulos and Giakoumopoulos v Greece 2012- GC. See also its extensive use under Article 1, First Protocol. 157 See, eg, Cruz Varas v Sweden А 201 (1991); 14 EHRR 1 para 95 PC (travauxprčparatoires ‘silent’). 158 Remarkably, in Young, James and Webster v UK А 44 (1981); 4 EHRR 38 PC and Sigurjonsson v Iceland А 264 (1993); 16 EHRR 462, the Court resorted to thetravauxprčparatoires only to reject the evidence that it found. 159 Applications are sometimes admitted (now by the Court) on the basis that they raise complexissues of fact and law that should be left to the merits; in such cases, there is little or no reasoning at the admissibility stage. 160 In contrast, Commission reports (and now Court judgments) on friendly settlements contain little or no interpretation of the Convention. 161 Mosler, in Kaldoven, Киурег and Lammers, eds,Essays on the Development ofthe International Legal Order, in Метогу ofHaro Van Panhuys, 1980, p 152. In theory, the contracting parties to the Convention have the ‘last word’ as to the meaning of their treaty and could, if th< у were ali agreed (either when meeting within the■ Committee of Ministers or otherwise),adopt an interpretation that would prevail over that of the Court. 162 Eg, the Commission adopted (see eg, its Report, para 95 in Buchholz v Germany В 37 (1980)) the Court’s approach to the interpretation of the reasonable time requirement in Article 5(3) following the Courts rejection ofthe Commission s approach in Wemhoffv G егтапу А 7 (1968); 1 EHRR 55. 163 On precedent in the Court, see Mowbray, 9 HRLR179 (2009) and Wildhaber, inRyssdal Melanges, p 1529. 19 NEG ATIVE AND POSITIVE OBLIGATIONS AND DR1TTWIRKUNG 21 rules coneerningprecedenthave to be read in the context of ā Court that sits iniive separate Chambers of equal standing and a Grand Chamber to which certain cases тпау be relinquished by the Chamber for an initial decision on the merits or to which a case that has been decided initially ;by a Court Chamber may be referred for a re-hearing.164 In Cossey v 1Ж,165 the Plenary Court (which was replaced by the Grand Chamber in

1,998) stated that it ‘is not bound by its previous judgments7 but that ‘it usually follows and applies its own precedents, such a course being in the interests of legal certainty and ihe orderly development of the Convention case-law’. However, the Court continued, it is free to depart from an earlier judgment if there are ‘cogent reasons’ for doing so, which might include the need to ‘ensure that the interpretation of the Convention reflects soci- dal changes and remains in line with present day conditions’. For example, in Goodmn ((Ihristine) v UK,166 the Grand Chamber reversed the ruling of the Plenary Court in the Cossey and other cases on the legal status of post-operative transsexuals in the light of i hanging trends. Reformulating the position taken by the Plenary Court in the Cossey case, in the Christine Goodwin case the Grand Chamber stated that ‘it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases’. This cogent' or good ceason approach applies to Grand Chamber reversais of its own or Plenary Court deci sions; it will feel much freer to reverse previous Chamber decisions.167 As to Chambers, it follows from this approach that a Chamber should:foliow an earlier decision of another i chamber unless there are ‘cogent reasons’ not to do so. Ali Chambers are expected to fo!low Grand Chamber judgments, regardless of ‘cogent reasons’, unless the case can be īlistinguished in some other manner.

5. NEGATIVE AND POSITIVE OBLIGATIONS AND DRITTWIRKUNG

Article 1 of the Convention requires the contracting parties to ‘secure’ the rights and f reedoms included in it.168 Together with the text of later articles dealing with particular rights, this wording in Article 1 has been interpreted as imposing both negative and positive obligations upon states. A negative obligation is one by which a state is required lo abstain from interference with, and thereby respect, human rights. For example, it must refrain from torture (Article 3) and impermissible restrictions upon freedom of cxpression (Article 10). Since such obligations are typical of those that apply to civil and political rights, it is not surprising that most of the obligations that a state has under the < Convention are of this character.

164 Articles 30,43, Convention. 165 А 184 (1990); 13 EHRR 622 para 35 PC. 166 2002-VI; 35 EHRR 447 para 74 GC. As well as the need for a dynamic interpretation of the Convention, * и ber ‘cogent reasons’ recognized by the Court are the needs to clarify the meaning of the ConventionVilho ( liskclinen and Others v Finland 2007-ХХ; 45 EHRR 985 GC ) and to tackle the rise in application numbers (Ktidla v Roland 2000-Х1 GC). See Mowbray, 9 HRLR 647 (2009). u’7 The Grand Chamber is, of course, totally free to reverse a decision of a Chamber in the same case: see <•}’.> Dickson v UK 2007-V; 46 EHRR 927 GC. 1(18 See Clapham, Human Rights in the Private Sphere, 1993, Ch 7; Cherednychenko, 13 Maastricht JECL I *)5 (2006); Conforti, 13 ItYIL 3 (2003); and Drzemczewski, European Human Rights Convention in Domestic law, 1983, Ch 8. 20 22 THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN CONTEXT

A positive obligation is one whereby a state must take action to secure human rights/69 Positive obligations are generally assoeiated with.economic, social, and cultural rights170 and commonly have financial implications, as, for example, with an obligation to: provide medical treatment in realization of the right to health. However, positive obligations ean also be imposed in respect of civil.and political rights and they are to be found the European Convention. Before considering those in the Convention, it should be noted that a different, tripartite typology of obligations to respect,. protect, and fulfil human rights is now well established.171 In this typology, obligations to respect are negative obli gations. Obligations to protect and to fulfil are positive obligations, requiring respectively state protection from the acts of other persons, whether state aģents or private persons, and other positive action by the state to fulfil a human, right. A number of positive .obligations are expressly present in, or necessarily follow from, the text ofthe Convention. There are, for example, obligations to protect the right to life by law (Article 2(1)); to provide prison conditions that are not ‘inhuman’ (Article 3); to provide courts, legal aid in criminal cases, and translators in connection with the right to a fair trial (Article ;6); and to hold free elections (Article 3, First Protocol). Other positive obligations have been read into the Convention by the Court.172 This process finds its source in the Court s jurisprudence in Магскх v Belgium.173 There the Gourt stated, in the context ofthe right to ‘respect for family life’ in Article 8, that cit does not merely compel the state to abstain from such interferences: in addition to this primary negative undertaking, there may be positive obligations inherent in an “effective respect” for family life’. In that case, a positive obligation had been infringed, inter alia> because Belgian family law did not recognize a child born out of wedlock as a member of the mother’s family, thus not allowing the mother and child ‘to lead а normai family Нф’. In Airey v Ireland,174 the same approach was used to establish a posi tive obligation, this time one involving public expenditure,175 under the same Article 8 guarantee to provide for effective access to a court in civil proceedings for an allegedly battered wife to obtain an order of judicial separation. Generally, the Court has justified its finding of positive obligations as being necessary to make a Convention right effective.176 In the Магскх and Airey cases, the state’s positive obligations were to grant individuāls the legal status, rights, and privileges needed to ensure that their Convention rights were ‘secured’ (Article 1). In terms of the tripartite typology referred to previously, they were obligations to use the power of the state to fulfil Convention rights. Other obligations of this kind of great importance that have been read into the Convention by the Court are

169 The Court sometimes has difficulty iri deciding whether a case involves a positive or a negative obli gation, and may decide not to make the distinction: see eg Broniowski v Poland 2004-V; 43 EHRR 495 GC. Whichever approach is adopted, £the applicable principles are broadly similar’: Demir and Ваукага v Тигкеу 2008-; 48 EHRR 1272 para 111 GC. 170 See Van Hoof, in Alston and Tomasevski, eds, The Right to Food > 1984, p 97. 171 It was first formulated in UN Doc E/CN.4/Sub.2/1987/23 and is used by the UN Committee on Economic, Social, and Cultural Rights. See Koch, 5 HRLR 81 (2005). 172 See generally Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights , 2004. 173 А 31 (1979); 2 EHRR 330 para 31 PC. Cf, Abdulaziz, Cabales and Balkandali v UKA 94 (1985); 7 EHRR 471 para 67 PC and Goodwin (Chnstine) v UK 2002-VI; 35 EHRR 447 GC. See also the ‘ National Union of Belgian Police case А 19 (1975); 1 EHRR 518 para 39. 174 А 32 (1979); 2 EHRR 305 para 32. 175 For other cases involving public expenditure, see eg,Bouamar v Belgium А 129 (1988); 11 EHRR 1 and Poltoratskiy v Ukraine 2003-V; 39 EHRR 916 para 148. 176 See Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, p 221. 21 N EG ATIVE AND POSITIVE OBLIGATIONS AND DRITTWIRKUNG 23 the obligations to investigate suspicious deaths (Article 2)177 and allegationš of torture (Article 3). In other cases, foliowing the same typology, the Court has established that there are positive;obligations upon contracting parties to protect5 Convention rights, by protect- 1 ug persons’ rights from the acts of others. The first clear indication of this came in X and Y v Netherlands,178 where a state was held liable:because; its eriminal law did not provide. л means by which a sexual assault upon a mentally handicapped young woman could lu‘ the subject of a eriminal prosecution. In the words of the Court, the Article 8 obliga- 1 ion to respect an individuāls privacy imposed positive obligations that ‘may involve the adoption of measures designed to secure respect for private life even in the sphere ofthe irlations o f individuāls themselves\ The same formula was later used in Plattform ‘Arzte lūr das Leben v Austria,179 in which the Court heki that a state must take reasonable and appropriate measures to protect demonstrators from interference by other private persons intent upon disrupting their demonstration in breach ofthe right to freedom of assembly protected by Article 11. ;More recently, the Court has found positive obligations to protect individuāls from assault180 and other ill-treatment181 and from invasions of I heir privacy by private persons.182 The full extent to which the Convention places states under positive obligations to pro tect individuāls against infringements of their rights by other private persons has yet to 1 >e fully established, with the Court continuing to add to their number. Domestic violence (Articles 3 and 8), and deprivation of liberty by terrorists or other kidnappers (Article 5) are obvious areas to which an obligation to protect individuāls against interferences with their rights by other persons extend. The question of the protection under the Convention of individuāls against other pri vate persons is sometimes spoken of, misleadingly, in terms of the concept of drittwirkung. This concept, which is most developed in German legal thinking and law,183 supposes that an individual may rely upon a national bill of rights to bring a elaim against a private person who has violated his rights under that instrument.184 Given that this involves the liability of private individuāls, or the horizontal application of law, it can have no applica- l ion under the Convention at the international Ievel,185 because the Convention is a treaty 1 luīt imposes obligations only upon states.186 Insofar as the Convention touches the conduct of private persons, it does so only indi- t cctly through such positive obligations as it imposes upon a state. As noted earlier, the basis for the states responsibility under the Convention in the case of such obligations is that, contrary to Article 1, it has failed to ‘secure’ to individuāls within its jurisdietion

177 This obligation inelude investigation of alleged killings by both state and private actors. 178 А 91 (1985); 8 EHRR 235 para 23. Italics added. See also Young, James and Webster v UK А 44 (1981); 4 EHRR 38 PC. 179 А 139 (1988); 13 EHRR 204 para 32. 180 Osman v UK 1998-VIII; 29 EHRR 245 (death threat); Ozgur Gūndem v Тигкеу 2000-III, 31 EHRR 1082 (protection of journalists from attack); A v UK 1998-VI; 27 EHRR 611 (parental corporal punishment); Opuz v T w r^ hudoc (2009); 50 EHRR 695 (domestic violence). ml Z v UK 2001-V; 34 EHRR 97 GC. 182 Von Hannover v Germany 2004-VI; 43 EHRR 139. 183 For its meaning in German law, see Lewan, 17ICLQ 571 (1968). 184 This is the concept of direct drittwirkung. For indirect drittwirkung , which likewise does not refer to positive obligations of the kind that exist under the Convention, see Lewan, 17ICLQ 571 (1968). 185 What may happen, however, is that in a state in which the Convention is a part of national law, the Convention guarantee may be treated, like some national bills of rights, as generating rights vis-ā-vis private persons: see Drzemczewski, European Human Rights Convention in Domestic Law , 1983, Ch 8, particularly concerning Germany (p 210). <86 See Article 1. Accordingly, an application may not be brought under Article 34 against a private person and Article 33 supposes only inter-state applications. 22 24 THE EUROPEAN CONVENTION ON HUMAN RIGHTS Ш CONTEXT the rights guaranteed in the Convention by not rendering unlawfulthe acts of pnvate persons that infringe them. The position may be difFerentv however, where the. private conduet fails within the area of a Convention right or.is the result of ‘privatization; The first of these situations existed in.Gostello-Roberts v UK 87 whichwas a case conceming corporal punishment in ,a private schooL The Court noted that the case fell within the ambit of a right—the right to education—that was protected by the First Protocol to the Convention. It stated that ‘the state eannot absolvē itself from responsibility to secure a Convention right ‘by delegating its obligations to private bodies or individuāls’.188 Accordingly, the Court held that, although the act of a private person, the treatment complained of could engage the responsibility ofthe respondent state under Article 3. This approach was followed mutatis mutandis in Woš v Poland189 in the situation where the respondent state had entrusted а private law foundation.to.admindster a comp.ensation«scfaeme. The Court held that the ‘exercise of state powers which affects Convention rights and freedoms raises an issue of state responsibility regardless5 of the fact that their exercise may have been delegated by the state to a private actor.: Gonsequently given, the need to protect rights effectively, the respondent state was accountable under the Convention for the acts of the foundation. It would be consistent with this reasoning for the state to be directly responsible under the Convention for the acts of pavatē companies and other persons to whom powers that are traditionally state power~ have been transferred byprivatižātion, as in the case of private prisons.

6. RESERVATIONS

Article 57 (formerly Article 64) of the Convention allows a party on signature or ratification ‘to make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provi sion.190 Reservations have been made by over twenty of the forty-seven parties to the Convention.191 Ihey have been invoked successfully in several cases to prevent a claim being heard,192 although some reservations have been held to be invalid.193 Article 57 requires that a reservation must not be ‘of a general character’. In Belilos v Switzerland,194 the Court stated that a reservation fails within this prohibition if it is ‘couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope’. In that case, having confirmed its competence to rule on the validity of reservations, the

187 А 247-C (1993); 19 EHRR 112. 188 A 247-C (1993); 19 EHRR 112 para 27. Cf, Van derMussele vBelgium А 70 (1983); 6 EHRR 163 PC. 189 No 22860/02 hudoc (2005) para 72 DA. 190 See Frowein, Wiarda Melanges, p 193. The rules on reservations in Articles 2(1)(d) and 19-23 in the Vienna Convention on the Law of Treaties 1969 apply to the Convention as customary international law: TemeltascU v Switzerland 5 EHRR 417 at432 (1983) Com Rep. 191 For the text of reservations, see http://www.coe.int. A few reservations have been withdrawn (eg Finland: Article 6). Reservation may be for a limited time: seeJecius v Lithuania 2000-1Х; 35 EHRR 400 (one year). 192 See, eg, Chorherr vAustria А 266-B (1993); 17 EHRR 358; Helle v Finland 1997-VIII; 26 EHRR 159; and Shestjorkin v Estonia No 49450/99 hudoc (2000) DA. 193 See Belilos v Switzerland А 132 (1988); 10 EHRR 466; Eisenstecken v Austria 2000-Х; 34 EHRR 860; and Weber v Switzerland А 177 (1990); 12 EHRR 508. 194 А 132 (1988); 10 EHRR 466 para 55. See Bourguignon, 29 VJIL 347 (1989); Macdonald, 21 RBDI 429 (1988); and Marks, 3 9 ICLQ 300 (1990). 23 248 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12

No CONSENSUS ON CONSENSUS? THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS

by Luzius Wildhaber, Base!, Arnaldur Hjartarson, Reykjavik, and Stephen DonneUy, London

I. Introduction ...... 248 Il. The Historical Development of Consensus Analysis ... 249 * Luzius Wildhaber, Dr. iur. (Basel), LL.M., J.S.D. (Yale), A. Origins ...... 249 Ores. h.c.; Prof. (Basel), Visiting Prof. (Yale), former Judge and B. The development of the present approach ...... 249 President, European Court of Human Rights; IIJ. The Broader Significance of Consensus Analysis ...... 251 Arnaldur Hjartarson, MJur. (Univ. of Iceland), LL.M. (Yale); IV. Normative and Dogmatic Bases of Consensus Analysis . 252 Adjunct Professor, Univ. of Iceland, Reykjavik; A. Lack of explicit basis in Treaty Law ...... 252 Stephen Donnelly, LLB. (Hons) (Glas.), B.C.L. (Oxon.), M.Sc. B. The different elements used to establish consensus . 253 (Edin.), LL.M. (Yale); Teaching Fellow, Univ. College London. C. Common legal position among domestic systems ... 253 We thank Yale Law School and the BIZ Foundation (Base!) D. Scientific consensus? ...... 253 for financial support of our research. E. Common societal values? ...... 253 l Helen Keller I Alec Stone Sweet (eds.), A Europe of Rights: F. Treaties ...... 253 The Impact of the ECHR on National Legal Systems (2008) 3; G. Contribution of international courts to European Thomas Buergenthal, "The Evolving International Human Rights consensus ...... 254 System", AJJL 100 (2006), 783-807, p. 792 et seq. H. Contribution of extra-European legal orders 2 Abbreviations: to European consensus ...... 255 CJEU: Court of Justice of the European Union I. Soft law as basis of consensus? ...... 256 ECHR: European Convention on Human Rights (also: "the V. Is consensus binding? ...... 256 Convention"); VI. The Mechanics of Consensus Analysis as Practised .... 256 EurCourtHR: European Court of Human Rights (also: "the A. Who commissions and carries out a consensus Court"); analysis? ...... 256 -"old" Court: EurCourtHR 1959-1998; B. To which provis.ions of the Convention is consensus - "new" Court: EurCourtHR 1998 onwards (after the entry analysis applied? ...... 257 into force of Protocol No. 11 ); C. Consensus versus trend ...... 257 ICJ: International Court of Justice. D. Among how many countries does the Court require 3 Cf. No. 6 infra, at nn. 21-22. similarity to establish consensus? ...... 258 4 See the two recent comprehensive discussions of Jonas E. What degree of similarity does the Court require? .. 258 Christoffersen, Fair Balance: Proportionality, Subsidiarity and VU. A Detailed Look at the Court's Case-Law ...... 259 Primarity in the ECHR (2009) 227-357; Dean Spielmann, VIII. Conclusion ...... 262 "Allowing the Right Margin, the EurCourtHR and the National IX. Appendix ...... 262 Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?", University of Cambridge CELS Working Paper Series (2012). And see the representative contributions of I. Introduction Yutaka Arai-Takashi, The Margin of Appreciation Doctrine and (l) The Strasbourg Convention and its Court have been the Principle of Proportionality in the Jurisprudence of the called "the most effective human rights regime in the EurCourtHR (2002); Eva Brems, "The Margin of Appreciation Doctrine in the Case-Law of the EurCourtHR", ZaiiRV 56 (1996) world".1 One of the foremost reasons it is held in such esteem is that the European Court of Hwnan Rights 240-314; Johan Callewaert, "Que! avenir pour la marge d'appnlciation. in: Protecting Human Rights: the European 2 (EurCourtHR) has interpreted the relatively short Perspective", Melanges Rolv Ryssdal (eds. P. Mahoney I F. Convention teleologically and evolutively, so as to turn it Matscher I H. Petzold I L. Wildhaber, 2000) 147-66; Elias into a living instrument with practical and effective Kastanas, Unite et Diversite: Notions Autonomes et Marge guarantees.3 This tendency is tempered by leaving member d'Appreciation des Etats dons la Jurisprudence de la Cour States a certain latitude through what is known as the Europeenne des Droits de l'Homme (1996); Andrew Legg. The doctrine of the margin of appreciation.4 The doctrine is Margin of Appreciation in International Human Rights Law: well established; yet it has been described as one of the Deference and Proportionality (2012); Paul Mahoney, "The "most debated, most elusive'? "most disputable, most Doctrine of the Margin of Appreciation under the ECHR: criticized, most appraised"6 concepts of the Court's case Marvellous Richness of Diversity or Invidious Cultural law. Relativism?", 19 HRU l-6 (1998); Ronald St. J. Macdonald, "The The extent of this margin, on which a large number of Margin of Appreciation", in: The European System for the cases hinge, depends on several factors.7 One of the most Protection of Human Rights (eds. R.St.J. Macdonald I F. Matscher I H. Petzold, 1993) 83-124; Howard Charles Yourow, The Margin significant has been the extent to which there is consensus of Appreciation Doctrine in the Dynamics of European Human or common ground within the member States of the Rights Jurisprudence (1996). Council of Europe on the approach to the problem at s Steven Greer, The ECHR. Achievements, Problems and issue.s Prospects (2006) 226. We analyse the specific role of European consensus in 6 Christos L. Rozakis, "Through the looking glass: An the Court's case-law, which has developed beyond its role 'Insider's' view of the margin of appreciation", in: Melanges Jean as an adjunct to the margin of appreciation, and aim to Pouf Costa (2011) 527-37 at pp. 527-28. sketch a comprehensive picture of the richness and the 7 Dean Spielmann (supra n. 4) 2, 9-24. complexity of this strand of jurisprudence. 8 EurCourtHR, Rasmussen v. Denmark, 28 Nov. 1984, no. 8777/79, (2) Part 11 presents a brief overview of the origins and A/87 = 6 HRLJ 17 (1985), § 40; Buckley v. UK, 25 Sept. 1996, no. the development of the present approach to consensus 20348192, 1996-IV = 17 HRLJ 420 (1996), § 74; Evans v. UK, 10 analysis. Part Ill discusses the diverging concepts and April2007, no. 6339105,2007-1, § 77; Wagner et al. v. Luxembourg, theoretical explanations of European consensus. In Part 28 June 2007, no. 76240101, § 128; Glor v. Switzerland, 30 April IV the normative and dogmatic bases of consensus 2009, no. 13444104, § 75; Schalk & Kopf v. Azwria, 24

Electronic copy available at: http://ssrn.com/abstract=2398955 2013] NO CONSENSUS ON CONSENSUS? 249 analysis are presented, reaching from European and extra European domestic legal systems to treaties, judgments of § 44. - And see for further consensus analyses, Handyside v. UK, international courts and sundry soft law. This is followed 7 Dec. 1976, no. 5493/72, A/24, § 48; Sunday Times v. UK, 26 by a brief inquiry into the question whether consensus is April 1979, no. 6538/74, A/30, § 59; Abdulaziz, Cabales and binding, in Part V. Parts VI and VII set out the results of Balkandali v. UK, 28 May 1985, nos. 9214/80 et. al., A/94, § 67; our comprehensive survey of the mechanics of consensus Johnston et al. v. Ireland, 18 Dec. 1986, no. 9697/82, Al112, § 55; analysis as practised by the EurCourtHR and of its case F. v. Switzerland, 18 Dec. 1987, no. 11329/85, A/128, § 33; Soering law. We conclude that consensus analysis has a sound basis v. UK, 7 July 1989, no. 14038/88, A/161 = 11 HRU 335 (1990), in both principle and pragmatism. §§ 102-04. 13 Paolo G. Carozza, "Uses and Misuses of Comparative Law in D. The Historical Development of Consensus Analysis International Human Rights: Some Reflections on the A. Origins Jurisprudence of the EurCourtHR", Notre Dame L. Rev. 73 (1997-98) 1217-37, p. 1233, also pp. 1224-5, ("conclusory (3) The three pioneering cases Tyrer, Marckx and superficiality of the Court"); Laurence R. Heifer, "Consensus, Dudgeon, decided around 1980, constitute the first examples Coherence and the ECHR", Cornell Int'l L. J. 26 (1993) 133-65, of consensus analysis in the history of the EurCourtHR.9 In p. 140 ("vague generalities"); Howard Charles Yourow, "The each of these cases, the results of the analysis helped the Margin of Appreciation Doctrine in the Dynamics of European Court to expand the scope of Convention guarantees by Human Rights Jurisprudence", Conn. J. Int'l L. 3 (1987) 111, interpreting them evolutively. On other occasions, however, p. 158 ("Especially vexing ... is the consistently unsubstantiated the Court relied on the lack of consensus when it rejected nature of the Court's pronouncements"); Petr Muzny, "Standards claims for a further expansion. jurisprudentiels de la CourEDH et droit compare: une question Building on these early cases, judgments simply would de rationalite", Annales de droit de Louvain 63 (2003) 27-76 (p. 40: "irrationalite methodologique"; p. 49: "formulation aussi claim either that a "great majority" of States had evolved peremptoire que laconique"). - See also Joanna N. Erdman, "The 10 in a certain direction; or that there was "no sufficiently Deficiency of Consensus in Human Rights Protection: A Case broad consensus" ,n and that "little common ground" Study of Goodwin v. UK", J. L. & Equal. 2 (2003) 318-47, p. 347, could be found.I2 who spoke of an "abandonment of the consensus doctrine" The opacity and lack of guidance, which was in connection with the Goodwin case. Reports of the death characteristic of the old Court, angered some of the earlier of consensus analysis proved, however, to be greatly academic writers visibly.B The new Court then built up a exaggerated. more carefully documented, sophisticated and more 14 See, e.g., Tom Zwart, "More human rights than Court: Why variegated case-law, though some critics still complain of a the legitimacy of the EurCourtHR is in need of repair and how it lack of clear criteria.14 can be done", in: The EurCourtHR and its Discontents (eds. S. Flogaitis I T. Zwart I J. Fraser, 2013) 71-95. And seen. 122 infra B. The development of the present approach for diverging views between the Judges of the Court. 1s Kanstantsin Dzehtsiarou, "Does consensus matter? (4) Neither the old nor the new EurCourtHR has Legitimacy of European consensus in the case law of the defined consensus,15 or explained whether or to what EurCourtHR", Public Law (2011) 534-53, at pp. 541-45; (Chief extent consensus is decisive or binding.16 It appears that Justice) John L. Murray, "Consensus: concordance, or hegemony the Court is hoping to keep the concept fuzzy enough to of the majority?", in: Dialogue between Judges (Council of avoid the consequences of adopting one particular theory Europe, 2008) 35-70, pp. 51-53. out of the many held by judges and academics. We work in 16 Cf. Nos. 35-36 infra. the following chapters with statistical data and case 17 EurCourtHR, T. v. UK, 16 Dec. 1999, no. 24724/94, 1999-IX, analysis, in an effort to offer more clarity by explaining § 71; Chapman v. UK, 18 Jan. 2001, no. 27238/95, 2001-1 = 22 HRU with greater precision what the Court in fact does. 435 (2001 ), §§ 93-94; Frette v. France, 26 Febr. 2002, no. 36515/97, (5) The Court has relied on consensus principally as a 2002-1, § 41; Odievre v. France, 13 Feb. 2003, no. 42326/98, 2003-III, factor determining whether a wider or narrower margin of § 47 (cf. No. 49 infra); Murphy v. Ireland, 10 July 2003, no. 44179/98, appreciation ought to apply. Where there is no European 2003-IX, § 67; Vo v. France, 8 July 2004, no. 53924/00, 2004-VIII, §§ 84-85; Leyla $ahin v. Turkey, 10 Nov. 2005. no. 44774/98, 2005-Xl consensus, the margin of appreciation will be wider.17 The = 26 HRU 166 (2005), § 109; Evans v. UK, 10 April 2007, no. 6339/05, 2007-1, § 77; J.A. Pye (Oxford) Ltd. v. UK. 30 Aug. 2007, no. 44302/02. 2007-111, §§ 71, 74; Egeland & Hanseid v. Norway, 16 April 2009, no. 34438/04, §§ 54-55; Schwizgebel v. June 2010, no. 30!4l/04, § 98; Sitaropoulos & Giakoumopoulos v. Switzerland, 10 June 2010, no. 25762/07, § 92; Schalk & Kopf v. § Greece. 15 March 2012, no. 42202/07. 66; 11-Iarkin v. Russia, 22 A ustria, 24 June 2010, no. 30141/04, § 105 (cf. No. 52 infra), Lautsi v. March 2012, no. 30078/06, § 126; Fabris v. France, 7 Feb. 2013, no. ltalv 18 March 2011, no. 30814/06, 31 HRU 166 (2011), §§ 69-70; 16574/08, §56. S.H.' v. Austria, 3 Nov. 2011, § 94 (cf. No. 53 infra); Harkins & 9 Tyrer v. UK, 25 April 1978, no. 5856172, A/26, § 31 (birching Edwards v. UK, 17 Jan. 2012, nos. 9146/07. 32650/07, § 138; of juvenile pupil); Marckx v. Belgium , l3 June 1979, no. 6833/74, Sitaropoulos & Giakoumopoulos \'. Greece, 15 March 2012, no. A/31, § 41 (discrimination of illegitimate children; for criticism 42202/07, § 74; Kautzor v. Germany, 22 March 2012, no. 23338/09, of the Court's consensus methodology, see No. 23 infra); §§ 70-72; Boulois v. Luxembourg. 3 Apiil2012, no. 37575/04, § 102; Dudgeon v. UK, 22 Oct. 1981, no. 7525176, A/45, §§ 56, 60 van der Heijden v. Netherlands. 3 April 2012, no. 42857/05, §§ 60-61; (criminalization of homosexual acts between consenting adults) = Babar Ahmad v. UK, 10 April 2012, nos. 24027/07 et al., § 242; 2 HRLJ 362 (1981). Stiibing 11. Germany, 12 April 2012, no. 43547/08, § 60; Hristozov et 1o Marckx (n. 9), § 41; Dudgeon (n. 9), § 60; Sigurj6nsson v. al. v. Bulgaria, 13 Nov. 20!1, nos. 47039111 et al., §§ 118, 124. -In Iceland, 30 June 1993, no. 16130/90, A/204, § 35. the same sense, but not in cases with the pattern "no consensus, n B. v. Fmnc:e, 25 March 1992, no. 13343/87, A/232-C = 13 wider margin, no violation": Christine Goodwin v. UK, 11 July 2002, HRLJ 358 (1992), § 48. no. 28957/95, 2002-VI = 23 HRU 72 (2002), § 85; Hirst v. UK. 12 Rasmussen (n. 8), §§ 40-41; Rees v. UK, 17 Oct. 1986, no. 6 Oct. 2005, no. 74025/01, 2005-IX = 30 HRU 204 (2009-2010), 9532/81, A/106, § 37; Cossey v. UK, 27 Sept. 1990. no. 10843/84, §§ 81-82 (cf. No. 56 infra); Dic:kson v. UK, 4 Dec. 2007, no. A/184. § 40; (hLws Dosier- und Fordertechnik GmbH v. 44362/04, § 78; A, B, C v. Ireland, 16 Dec. 2010, no. 25579/05, 31 Netherlands, 23 Feb. 1995, no. 15375/89, A/306-B, HRLJ 344 (2011), § 232 (cf. No. 48 infra); Mm·kin v. Russia § 68; X, Y, Z v. UK, 22 April 1997. no. 21830/93, 1997-II, (n. 8), § 126.

25 250 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12

consequence in practice will normally be that no violation will be found. Repeatedly the Court has added one of its classical formulae concerning subsidiarity, to the effect Rasmussen v. Denmark, 11 Jan. 2006, nos. 52562199 et al., 2006-I that "by reason of their direct and continuous contact with (little support for maintenance of closed-shop agreements); Dick san v. UK (n. 17; refusal of facilities for artificial insemination to the vital forces of their countries, the State authorities are, female prisoners); Odievre v. France (n. 17; no right of child to in principle, in a better position than the international know identity of her biological motller, cf. No. 49 infra); X et al. v. judge to give an opinion"18 on the requirements of ethics, Austria, 19 Feb. 2013, no. 19010107 (discrimination of same-sex morals and other issues in their countries. However, in couples in cases of second-parent adoptions in certain categories of some cases, "the lack of a common legal approach has not cases, cf. No. 60 infra). prevented the Court from referring to general trends"19 2o EurCourtHR, Christine Goodwin v. UK (n. 17), § 103; L. & and from finding a violation of the Convention. V. v. Austria, 9 Jan. 2003, nos. 39392198, 39829198, § 50; M.C. v. (6) On the other hand, where the Court affirms the Bulgaria, 4 Dec. 2003, no. 39272198, 2003-XII, § 166; existence of European consensus, the margin of Una[ Tekeli v. Turkey, 16 Nov. 2004, no. 29865196, § 61; Siliadin v. appreciation will narrow, and the Court will proceed to an France, 26 July 2005, no. 73316101, 2005-VII, § 112; S~rensen & evolutive interpretation of the Convention and as a rule Rasmussen v. Denmark (n. 19), §§58, 75; Wagner v. Luxembourg will find a violation.2o In doing so, it will frequently rely on (n. 8), §§ 128-29; Demir & Baykara v. Turkey, 12 Nov. 2008, no. those judgments that describe the Convention as "a living 34503197, §§ 96-107, 29 HRU 301 (2008); S. & Marper v. UK, 4 instrument which ... must be interpreted in the light of Dec. 2008, nos. 30562104, 30566104, § 112, 29 HRU 321 (2008); present-day conditions",21 so that its rights are rendered Opuz v. Turkey, 9 June 2009, no. 33401102, 30 HRU 154 (2009- 2010), §§ 87-90; Micallef v. Malta, 15 Oct. 2009, no. 17056106, 30 "practical and effective, not theoretical and illusory".22 It HRU 274 (2009-2010), § 78; Bayatyan v. Armenia, 7 July 2011, also insists that it "must ... have regard to the changing no. 23459103, 31 HRU 378 (2011), § 108; Markin v. Russia (n. 8), conditions in Contracting States and respond ... to any § 140. emerging consensus as to the standards to be achieved".23 21 Tyrer (n. 9), § 31; Soering (n. 12), § 102; E.B. v. France, 22 However, here again, the Court has occasionally not Jan. 2008, no. 43546102, 29 HRU 336 (2008), §§ 92-96; Schalk & followed its own pattern and has refrained from finding a Kopf(n. 8), § 46. violation of the Convention.24 22 Stafford v. UK, 28 May 2002, no. 46295199, § 68; Sitaropoulos (7) Such occasional inconsistencies can be explained by & Giakoumopoulos v. Greece (n. 17), § 65; Markin v. Russia (n. the schism that Judge Ronald Macdonald identified 20 8), § 126. years ago as the "delicate balance between national 23 Dudgeon (n. 9), § 60; Soering (n. 12), § 102; Chapman (n. 17), sovereignty and international obligation" in a "pragmatic § 70; Stafford (n. 22), § 68; M. C. v. Bulgaria (n. 20), § 155; gradualist project".25 This tension still exists, and will Dickson (n. 17), §§ 79, 81; Bayatyan (n. 20), § 32; Sitaropoulos & probably never leave the Court. Indeed, when some Giakoumopoulos (n. 8), § 66; Markin (n. 8), § 126; Fabris (n. 8), § 56. Cf. Dean Spielmann, "Allowing the Right Margin" (n. 4), Judges or writers see themselves, or are described, as p. 22: "It is possible to look into tlle reasons for the existence or proponents of activism or judicial self-restraint, they might absence of a consensus in terms of finding a solution to the also be viewed as affirming unity and idealism or steadily problem". higher human rights standards, on the one hand, and 24 The most obvious example is A, B, C v. Ireland (n. 17) respecting diversity and realism or democratic deference, (consensus on less restrictive access to abortion than in Ireland, on the other hand. The tension is part of the Court's nonetheless non-violation; cf. No. 48 infra). complex reality and of the "messy, creative dialectic that 25 Ronald St. J. Macdonald, "Margin of Appreciation" (n. 4), propels legal change".26 One-dimensional theses may pp. 124, 123. And see Eva Brems, "Margin of Appreciation" constitute attractive sirnplifications,27 but since they fail to (n. 4), 276-93; Paolo G. Carozza, "Uses and Misuses" (n. 13), describe the Court's practice without bias, they cannot 1225-27, 1230-31; Elias Kastanas (n. 4), 186-224, 306-22. offer accurate analytical tools. 26 Carozza (n. 13), 1237. (8) Some Judges have pleaded that consensus and 27 An example to the point is the claim of George Letsas, "The margin of appreciation should be "disentangled", and that Truth in Autonomous Concepts: How To Interpret the ECHR", there should be no "automaticity" in the conclusions to be EJIL 15 (2004) 279-305 at p. 305, that "the moral reading of the ECHR ... outweighs the pull towards consensus". drawn from the existence or non-existence of consensus.zs 28 Christos L. Rozakis (n. 6), at p. 536. The joint dissenting But since the Court itself makes clear that consensus is not opinion of Judges Tulkens, Vajic, Spielmann, Zupancic and the only relevant factor in the determination of the Laffranque quotes Rozakis' view approvingly in Van der Hei}den margin of appreciation,29 an adequate measure of v. Netherlands (supra n. 17). "disentanglement" would seem to be guaranteed already 29 References in n. 8. now. In addition, the Court has recently indicated an 30 A, B, C v. Ireland, 16 Dec. 2010, no. 25579105, 31 HRU 344 understanding of consensus that attributes a more general (2011). § 234. See also Opuz v. Turkey (n. 20), § 164; Eva Brems significance to it in saying that it "ha[d] long played a role (n. 4). 276-86; Kanstantsin Dzehtsiarou, "European Consensus: a in the development and evolution of Convention way of reasoning", University College Dublin Working Papers in protections".30 This remark probably reflects the Court's Law, Criminology & Socio-Legal Studies, Research Paper No. 1112009; Paul Mahoney, "The Comparative Method in Judgments of the EurCourtHR: Reference Back to National Law'', in: Comparative Law Before the Courts (eds. Guy Canivet I Mads 18 Handyside (supra n. 12), § 48; Frette (supra n. 17), § 41; Andenas I Duncan Fairgrieve, 2004) 135-50. Hanneke Senden, Murphy (supra n. 17), § 67; Vo (supra n. 17), § 82; Schalk & Kopf Interpretation of Fundamental Rights in a Multilevel Legal System. (supra n. 8), § 62; A, B, C v. Ireland (supra n. 17), §§ 223, 232; S. An Analysis of the EurCourtHR and the CJEU (2011) 112-13, H. v. Austria (supra n. 17), § 94; Stabing (supra n. 17), § 60. 224-26, 393-95. And see the remark of Kanstantsin Dzehtsiarou I 19 Anatoly Kovler I Vladimiro Zagrebelsky I Lech Garlicki I Conor O'Mahony, "Evolutive Interpretation of Rights Dean Spielmann I Renate Jaeger I Roderick Lidcten ''The role of Provisions: A Comparison of the EurCourtHR and the U.S. consensus in the system of the ECHR", in: Dialogue between Supreme Court", Columbia Human Rights L. Rev. 44 (2013) 309- judges (Council of Europe, 2008) 15-27, p. 21, citing Christine 65, pp. 334-35, that where evolutive interpretation is based on Goodwin (n. 17; cf. No. 50 infra, § 85, and Hirst (n. 17; cf. No. 56 consensus, the Court is following, rather than leading, public infra), § 81. - We would add to these two cases S~rensen & opinion. -+

26 2013] NO CONSENSUS ON CONSENSUS? 251

experience that a good many of the Convention's central Similar thoughts are expressed by writers who are notions overlap and fuse more readily and loosely than frequently described as "activists" and who conceive the some observers would have it. At the same time, the EurCourtHR's function as the progressive liberalization or remark permits a broader and more realistic analysis of integration of the European public order, or who, from a the functions of comparative interpretation. different angle, believe that there must be a general presumption in favour of a centralistic uniformity of ID. The Broader Significance of Consensus Analysis human rights, or who think that the balancing of (9) We think that consensus analysis is fundamentally a conflicting rights and interests is bound to result in only sound and constructive idea. It is built on the premise that one "correct", "progressive" answer.39 Such writers are the human rights of the ECHR imitate and reinforce those also concerned that consensus might be tantamount to the pre-existing in many domestic legal systems, so as to constitute their general principles.31 An excellent early description of the comparative law analysis by the EurCourtHR comes from Judge Waiter Ganshof van der 31 Paul Mahoney, "The Comparative Method" (n. 30), 135-38, Meersch: 147. "The explanation for so referring to the domestic law of 32 Waiter J. Ganshof van der Meersch, "Reliance, in the case the Contracting States is that the Court, for the purposes law of the EurCourtHR, on the domestic law of the States", of judging the conformity of a given instance of State 1 HRU 13-35 (1980), at p. 15. action alleged to be in breach of ... the Convention ... , is 33 Kanstantsin Dzehtsiarou, "Consensus from within the Palace thereby having recourse to a 'common law' which Walls", in: University College Dublin Working Papers in Law, derives, with a high degree of homogeneity, from the Criminology & Socio-Legal Studies Research Paper No. 4012010, general body of the Contracting States' laws taken as a pp. 2-3, 10-13; id., "Does Consensus matter?" (n. 15), pp. 544-45, whole and by which the Convention itself was quotes the opinions of several EurCourtHR Judges whom he has inspired".32 interviewed with respect to core purposes of consensus analysis. They indicated four such purposes: The existence of common ground among the domestic (1) delineating the scope of the margin of appreciation; legal systems helps to interpret Convention notions and to (2) legitimising EurCourtHR judgments; decide whether a State's margin of appreciation should be (3) assisting in achieving consensus within the Court; wide or narrow, and whether consensus should be ( 4) indicating whether Europe is ready for particular solutions. understood more as a rein or as a spur. The Court's 34 Cf. Eric Voeten, "Politics, Judicial Behaviour, and judgments that can be traced to consensus - and thus to Institutional Design", in: The EurCourtHR between Law and the domestic legal systems - are likely to enjoy a higher Politics (eds. Jonas Christoffersen I Mikael Rask Madsen, 2011) degree of legitimacy and plausibility, to provoke less 61-76; Luzius Wildhaber, "Recent Criticism of the EurCourtHR", criticism and to be executed more readily.33 By contrast, in: Liber Amicorum Wolfram Karl (2012) 160-72. where the Court ferrets out paths not yet trodden by most 35 Paul Martens, "Perplexity of the national judge faced with States, its activities are bound to encounter as much the vagaries of European consensus", in: Dialogue between judges criticism as applause.34 (Council of Europe, 2008) 77-98, p. 95. The authors find it difficult to imagine that the prohibition of torture could be undermined by (10) Although we are convinced that monocausal way of consensus, although they concede that the Court could explanations will hardly do justice to the richness, the modify and even overrule earlier case-law for cogent reasons. variety and the recurrent inconsistencies of the Court's 36 Considering several well-known critical articles of national case-law, one-sidedness in the approach to consensus is Judges, it is obvious that not all would go along with Judge frequent. It is striking and often confusing to see how Martens. Cf. Lord Hoffmann, "The Universality of Human often comments on the Court's consensus analysis Rights", L.Q.R. 125 (2009) 416-32; Marc Bossuyt, "The Court of emphasize only one of what we might call its two effects or Strasbourg Acting as an Asylum Court", European Constitutional wings (the "rein effect" and the "spur effect"). L. Rev. 8 (2012) 203-45; Valery Zorkin, "The Extent of (11) At the Court's yearly seminar in 2008, Judge Paul Flexibility", Rossiskaya Gazeta (20 Oct. 2010), quoted by Tom Martens of the Belgian Constitutional Court voiced his Zwart (n. 14), pp. 73-74. concern that the consensus argument would turn into an 37 Id. pp. 85-86. instrument of retrogression which could reverse progress 38 Eyal Benvenisti, "Margin of Appreciation, Consensus, and and reintroduce, "by consensus, ... infringements of Universal Standards", N.Y. U. J. Int'l L. & Politics 31 (1999) 843- intangible rights",35 He stated: 54,p. 852. 39 Fiona de Londras I Kanstantsin Dzehtsiarou in ICLQ 62 "The weakness of 'consensualist logic', in the eyes of the (2013) 250-62, p. 251 (progressive liberalization); Christos L. national judge,36 is that it appears to favour the status Rozakis, "The European Judge as Comparatist", Tulane L. Rev. quo over progress, running the risk of letting States 80 (2005-06) 257-79, p. 272 (integration role of EurCourtHR); guide the development of a common legal order, of George Letsas, "The Truth in Autonomous Concepts: How to letting their lowest common denominator prevail, on the Interpret the ECHR", EJIL 15 (2004) 279-305, p. 305, thinks that sole condition that one can be found, without examining the "moral reading of the ECHR ... should become the Court's the reasons for the consensus, which may relate to principal theory of adjudication". His main reason is amazingly conformism, egoism or greed on the part of States - distant from the realities of democratic politics: " If it makes no failings whose accumulation is not sufficient to render sense to let the majorities decide what rights individuals have, them legitimate".37 then it makes no sense either to resolve legal disagreement in Along the same lines, ten years earlier, Eyal Benvenisti human rights cases by appealing to what the majorities now had claimed that the Court, by relying on consensus, believe or have legislated" (at p. 304). While it is true that "... relinquishe(d) its duty to set universal standards majorities can only claim to be democratic if they treat their from its unique position as a collective supranational minorities as human beings and citizens of equal value and voice of reason and morality. Its decisions reflect a worthiness, nonetheless, constitutions and human rights respect of sovereignty, of the notion of subsidiarity, and catalogues cannot be accepted and kept in force without the of national democracy. It stops short of fulfilling the majorities. The majorities set up the courts and decide on their crucial task of becoming the external guardian against powers and budgets. And the judgments of the courts are most the tyranny by majorities".38 effective if the majorities comply with them.

27 252 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12

"lowest common denominator"40 - a view which we find value judgments and philosophies about law and politics, too simplistic and, inasmuch as it puts pressure on the evolution and continuity, the legitimacy of democratic Court to conform, harmful in the long run. decision-making and the functions and limits of (12) At the same EurCourtHR seminar in 2008, John international courts). Murray, Chief Justice of Ireland, articulated concerns from the perspective of "self-restraint". He suggested that IV. Normative and Dogmatic Bases of Consensus Analysis the EurCourtHR should not "seek to be a panacea for all In this part, we examine in turn the miscellaneous legal society's perceived shortcomings", and that the consensus and factual sources from which the Court has sought to argument could be misused to reduce "the scope for the derive conclusions whether a consensus exists. democratic ideal of diversity".41 In a recent article, Tom Zwart criticized the A. Lack ofexplicit basis in Treaty Law EurCourtHR stringently for its handling of the consensus (16) The Vienna Convention on the Law of Treaties method. He did not censure the method as such, but rather (VCLT) and the European Convention on Human Rights an activist "overreaching",42 which in his view was neither mandate nor prohibit consensus analysis.49 Only expressed in a lack of clarity, precision, consistency and the Preamble of the ECHR might give rise to some above all an instrumentalization of the method in order to arguments, but these are inconclusive. It speaks of a accommodate the personal opinions of individual Judges.43 "common understanding" of human rights in "an effective (13) Most of the advocates of "judicial self-restraint" political democracy" and a "common heritage of political would not eliminate the consensus method altogether, but traditions, ideals, freedom and the rule of law". Not much would wish to see it applied more even-handedly, more can be derived from this, the less so since, following the moderately and without overreach. They would accept Brighton Declaration of 2012, it is now planned to insert in that the EurCourtHR is - within limits - a law-making the Preamble references to subsidiarity and the margin of body, and that the ECHR is- again within limits- a living appreciation by means of an Additional Protocol No. 15. instrument. They would perceive the ECHR guarantees - Article 31 (3) (b and c) VCLT states that in the like human rights guarantees of national constitutions - as interpretation of treaties, "any subsequent practice in the programmatic formulations, open to the future, to be application of the treaty" and "any relevant rules of unfolded and developed- still within limits- in the light of changing conditions and democratic decisions. Nevertheless they would unhesitatingly reject the notion which seems to be advanced by some "activists", that 40 a. Bilyana Petkova, "The Notion of Consensus as a Route to courts should operate as a sort of second legislature, Democratic Adjudication?", Cambridge Yearbook of European specializing in unfolding human rights far beyond what the Legal Studies 14 (2011-12) 663-95, p. 689. 41 John L. Murray, "Consensus: concordance or hegemony of first and actual, democratically elected legislatures decided the majority?", in: Dialogue between judges (Council of Europe, to do or not to do. Since genuinely democratic decisions 2008), 35-70, pp. 63, 68. should be treated with due respect, proponents of "self 42 This term is used by the long-time member and Vice restraint" would find it beyond belief that the diversity of President of the European Commission of Human Rights, Jochen responses to human rights issues would automatically be A. Frowein, "Is the EurCourtHR in the danger of somehow illegitimate or attributable only to "conformism, overreaching?", Festschrift Eckart Klein (2013) 1053-56. egoism or greed on the part of States".44 To the contrary, 43 Tom Zwart (n. 14) 89-93. Jeffrey A. Brauch, "The Dangerous they would be convinced that - as the Court famously put Search for an Elusive Consensus: What the Supreme Court it in the Handyside case - there could be no democratic Should Learn from the EurCourtHR", Howard L.J. 52 (2009) society without "pluralism, tolerance and broad 277-318, at pp. 278, 288, 317, claims that the EurCourtHR is mindedness".45 Implicit in this postulate is the acceptance, "simply unable to articulate and apply a clear, predictable and even the celebration, of diversity. workable" consensus standard. The article of Shai Dothan, (14) Apart from core or elementary rights, there can be "Judicial Tactics in the EurCourtHR", Chicago J.I.L. 12 (2011) no harm in leaving adequate room for human rights 115-42, is sometimes invoked for the assertion that the Court uses the consensus model in an instrumental manner. However, the diversity and pluralism. As Mireille Delmas-Marty put it: article contains no hard evidence and works exclusively with "Mentionner les etudes comparatives, c'est exprimer une assumptions and speculations. preference pour une internationalisation pluraliste qui ne 44 Martens, Perplexity (n. 35), pp. 85-86. renonce pas a la diversite des systemes".46 Both the 45 Handyside, 7 Dec. 1976, no. 5493172, A/24, § 49. margin-of-appreciation doctrine and the European 46 Mireille Delmas-Marty, "Etudes juridiques comparatives et consensus jurisprudence should therefore be seen as internationales du droit". Le11on inaugurale du College de France instruments apt "to situate the limits of the international ... (2003) 32. judges' legitimate power of 'constitutional' review over 47 Quoted from an unpublished text of Judge Paul Mahoney (of decisions taken at national level according to normal October 2012). See generally Armin von Bogdandy I Ingo democratic processes and not constituting blatant Venzke, "On the Democratic Legitimation of International violations of human rights".47 Judicial Lawmaking", in: International Judicial Lawmaking. On (15) We prefer, both descriptively and normatively, an Public Authority and Democratic Legitimation in Global understanding of European consensus that does not Governance (eds. A. v. Bogdandy I!. Venzke, 2012), p. 477. instrumentalize it only in one direction, but rather lets it 48 J. G. Merrills, The Development of international law by the EurCourtHR (2nd ed. 1993), p. 166. evolve and adjust to diverging changes of law and societal 49 For a very good and more extended discussion of this point values. One may point out inconsistencies in the see Hanneke Senden (n. 30), pp. 66-69, 111-143, 241-244. See for EurCourtHR's case-law and criticize a certain lack of comments on Article 31 (3) (b and c) VCLT, EurCourtHR, rigor. But ultimately, we would say about consensus what Demir & Baykara v. Turkey, 12 Nov. 2008, no. 34503197, 29 HRLJ J.G. Merrills said about the margin of appreciation: that 301 (2008), § 76; Saadi v. UK, 29 Jan. 2008, no. 13229103, §§ 62-63; "decisions about human rights are not a technical exercise Bankovic et al v. 17 member States, (dec.) 12 Dec. 2001, no. in interpreting texts, but judgments about political 52207199, 22 HRLJ 453 (2001), §57; Cruz Varas et al. v. Sweden, morality"48 (and, we would add, expressions of underlying 20 March 1991, no. 15576189, A/201 = 12 HRLJ 142 (1991), § 100.

28 2013] NO CONSENSUS ON CONSENSUS? 253 international law applicable in the relations between the member States on its own, without comprehensive parties" "shall be taken into account". This is not a direct research or evidence, yet equipped with the binding effect reference to the comparative method of interpretation, but of its judgments, would have to be considered as eminently this method is in no way excluded. The EurCourtHR political and therefore as an overextension of the notion of (which is after all an international court) has therefore consensus analysis. Bilyana Petkova is somewhat less justly remarked that it has to take into account "the sceptical in summarizing her viewpoint: international law background". "It may be argued that references to extra-judicial factors make courts look more like ill-equipped fact B. The different elements used to establish consensus finding legislatures, yet on the other hand it is precisely (17) In the early cases of Sunday Times and Rasmussen, the job of a judiciary to solve cases, and this includes the the old Court stated that it was looking for a "substantial difficult, politically embroiled ones".57 measure of common ground" "between the laws of the Contracting States".so Consensus could in other words be F. Treaties found in the common rules and practices of the legal (22) Already in its earliest cases on consensus, the systems of the member States (No. 19). The Court EurCourtHR investigated not only common legal moreover relied on international treaties (Nos. 22-27). In positions in the domestic law of the member States of the more recent years it has also looked for evidence of trends Council of Europe, but also treaties. Article 38 (1) (a) of of changing societal values in the law of selected extra the ICJ Statute refers to "international conventions, European States (Nos. 31-32); in judgments of the Court whether general or particular, establishing rules expressly of Justice of the European Union and of other recognised by the contesting states". It describes treaties international courts (Nos. 28-30); and in reports and in other words as contracts between sovereign states. resolutions of Council of Europe and United Nations From the perspective of consensus analysis, the committees and all sorts of soft law (Nos. 33-34).51 EurCourtHR might consequently have invoked those (18) Our research and discussion will focus mostly on treaties which a respondent State had ratified, as evidence consensus-finding and comparative analyses of the that the State would agree, or have to agree, to an domestic legal systems of the ECHR member States. We expansive interpretation of a Convention guarantee shall take somewhat less interest in cases which invoke covered by the treaty. This would have been a classical, only one or a few treaties, or judgments of international but safe approach. However, from the beginning the Court tribunals, or extra-European States or soft law. in the famous early leading case Marckx opted for a more adventurous approach. C. Common legal position among domestic systems (23) In Marckx,ss the EurCourtHR sounded the death (19) There is little doubt that in order to establish knell for the widespread discrimination against illegitimate consensus, one has to study the constitutions, statutes, children across Europe. Up to that case, most European ordinances, judgments and customs of the member States. democracies had not yet made disappear, or had just only This is where democratic States express, modify and begun to undertake to make disappear, the hideous amend their legal rules. So this is what the EurCourtHR injustice of avenging the sins of a father on an innocent did from the beginning. Our chapters on the Court's case child. So the Court - the conscience of Europe - stepped in. In retrospect, one may well applaud the result. But law and on the mechanics of consensus analysis will show in detail how it is conducted by the Court (Parts VI-VII). from the perspective of consensus analysis, it is less

D. Scientific consensus? 50 Sunday Times (n. 12), § 59; Rasmussen (n. 8), § 40. Senden (20) Some authors have attempted to distinguish calls the references to the domestic legal systems "internal" between "legal" and "expert" or "scientific" consensus.sz comparative law components. References to extra-European law, But the Court invokes only rarely a scientific consensus judgments of international courts or soft law would be "external" and has in fact never decided on the basis of an alleged comparative law components, see (n. 30), pp. 115-16, 122-23,225, expert consensus which would have been different from 260-61, 393. the legal and social consensus.5 3 Moreover it is ~ quite 51 The Court does not really attempt to distinguish between doubtful whether courts should do this in democratic rules and principles or between binding treaties and soft law. It societies. may be motivated by the endeavor to lift soft law to the level of binding rules. Still, there is always a risk that the States, which remain the ultimate source of the Court's authority, might move E. Common societal values? in the opposite direction and might in effect reduce treaties and (21) Kanstantsin Dzehtsiarou distinguishes between a other binding rules to the level of soft law. Cf. Ineta Ziemele, legally-comparative, procedural and a socio-political, "Other Rules of International Law and the EurCourtHR: A material component of consensus. The material Question of a Simple Collateral Benefit?", in: Melanges Christos component would comprise "the values, morality and L. Rozakis (2011) 741-58. And see infra No. 34. socio-political perception of the values in question".54 52 Laurence R. Heifer, "Consensus, Coherence and the However, the EurCourtHR has never seriously tried to ECHR", Cornell Int'l L.J. 26 (1993), 133-65, at p. 139. research the state of values, morality and public feelings 53 Most references to issues of scientific consensus can be found on any given issue in the various member States of the in the cases concerning transsexualism, cf. No. 50 infra. For a Council of Europe. And when it stated, in the early recent case with recurring such references see X et al. v. Austria (n. 19), §§ 17, 67, 91, 102, 142, 146, dissenting opinion § 10; also Dudgeon case,ss that there was "now a better Frette (n. 17), § 42. understanding, and in consequence an increased tolerance, 54 Dzehtsiarou, "European Consensus: a way of reasoning" of homosexual behaviour", it added at once that it could (n. 30), pp. 3-4. not "overlook the marked changes which have occurred in 55 Dudgeon (n. 9), A/45, § 60. this regard in the domestic law of the member States".56 In 56 Ibid. our opinion, to claim that the Court should be entitled to 57 Petkova (n. 40), p. 695. express views about values and morality in the various 58 Marc/ex, 13 June 1979, no. 6833/74, A/31.

29 254 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12 obvious that one should applaud. The Court stated that it customary norm in the absence of a binding treaty could not "but be struck by the fact that the domestic law provision. The Court in reality leaves itself a space for of the great majority of the member States of the Council some creative thinking and adjudication in which various of Europe59 has evolved and is continuing to evolve, in sources of international law can be helpful to adjudicate company with the relevant international instruments, on a tendency which has not yet become a rule".67 towards full juridical recognition of the maxim 'mater (27) This analysis of Demir & Baykara is perceptive. It semper certa est"'.60 It relied on two treaties, both of which is granted that the EurCourtHR has been engaged in had been ratified by only 4 States.61 In effect, it relied on "creative thinking" and evolutive interpretation for a long the mere paper existence of treaties, rather than on the time. Article 31 VCLT, the starting point for guidance on reality of their status as instruments binding in ECHR problems, allows teleological interpretation.6B In internationallaw.62 the San Juan River case, the International Court of Justice (24) Disappointingly, the Court reaffirmed this gave further support to evolutive interpretation, when it questionable approach in Demir & Baykara, 63 where the stated that applicants claimed a right for Turkish public servants to " ... there are situations in which the parties' intent upon bargain collectively. The Court observed "that in conclusion of the treaty was, or may be presumed to searching for common ground among the norms of have been, to give the terms used - or some of them - a international law it has never distinguished between meaning or content capable of evolving, not one fixed sources of law according to whether or not they have been once and for all, so as to make allowance for, among signed or ratified by the respondent State".64 other things, developments in internationallaw".69 Does the Court really mean this? So a treaty would be The desirable dosage of creative thinking is and remains treated as a "norm" of international law irrespective of a hotly challenged topic. Surely creative thinking is much ratification, contrary to the 1969 Vienna Convention on needed in international courts, but it must acknowledge the Law of Treaties? So it would be irrelevant whether limits, lest it create a state of permanent legal uncertainty, treaties are universally applicable, constituting perhaps deny democratic processes the necessary deference and expressions of customary international law and even ius lose the support of the member States, without which the cogens, or are, on the contrary, obsolete and affected by system cannot work properly.1o desuetudo? So the vexed problem of the "persistent objector" could be conveniently ignored? And the fact G. Contribution of international courts to European that a treaty does not attract a significant number of consensus ratifications would be considered as an expression of (28) The EurCourtHR has not only looked at consensus, although it may in reality demonstrate a lack of international treaties for information about the existence consensus? of a European consensus. It has also more and more relied (25) We believe that the Court probably did not intend on judgments of other international courts, particularly the to re-write the general Law of Treaties. We assume that it only had in mind multilateral, standard-setting, universal or regional human rights conventions, dealing with matters such as genocide, war crimes and humanitarian law, 59 Id. § 41. The Court mentions six States (France, Germany, torture, racial and sexual discrimination, women, children Italy, Netherlands, Switzerland, UK). and refugees. Such treaties have usually been ratified by a 60 Ibid. multitude or almost all States and are implemented by the 61 The 1962 Brussels Convention on the Establishment of States Parties with the help of monitoring mechanisms and Maternal Affiliation of Natural Children and the 1975 European optional bodies which can consider individual Convention on the Legal Status of Children born out of Wedlock. communications or complaints. If the Court thought only 62 J. G. Merrills (n. 48), p. 225, argues convincingly: of such treaties, it is easier to accept what is stated in "If, as in this case, the question is whether opinion has Demir & Baykara: "The precise obligations that the developed to the point where a principle can properly be substantive provisions of the Convention impose on regarded as one of international obligation, support for the principle should be tested by considering the status, not merely Contracting States may be interpreted ... in the light of the existence of treaties on the subject, since that is the clearest relevant international treaties that are applicable in the possible evidence of governments' readiness to assume the particular sphere".65 obligation in question." In sum, we would urge the Court to clarify its general 63 Demir & Baykara v. Turkey, 12 Nov. 2008, no. 34503/97, 29 line and to harmonize it with public international law. HRLJ 301 (2008). Standard-setting multilateral human rights treaties may 64 Id.§ 40. express rules of customary international law and they may 65 Id. § 69. For a thorough discussion of the case-law of the old accelerate the creation of customary international law. EurCourtHR see Heringa (infra n. 129), 117-29, 141-43. However, the automaticity which Demir & Baykara seems 66 Ineta Ziemele, "Customary International Law in the Case to claim ignores the complexities of public international Law of the EurCourtHR - The Method", in: The Judge and law beyond measure. International Custom (Council of Europe, 2012) 75-83, pp. 77-78. (26) Judge Ziemele has recently given a two-pronged 67 Ibid. See generally Alastair Mowbray, "The Creativity of the interpretation of Demir & Baykara. She begins with the EurCourtHR", HRLR 5 (2005) 57-79. following passage: "(W)hat the Court wanted to say is that 68 Ibid. 69 Dispute regarding Navigational and Related Rights (Costa even if a State has not ratified a particular treaty, it does Rica v. Nicaragua), ICJ Reports 2009 242, § 64. And see Aegean not mean that international law does not provide for a Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978 32, relevant obligation any way. Normally, this would lead us §77. to think about an obligation deriving from a customary 70 Ronald St. J. Macdonald, "The Margin of Appreciation" norm".66 However, she then takes us right into the center (n. 4), 83-124, p. 123 ("the entire legal framework rests on the of the discussion about the Court's role and activism, fragile foundations of the consent of the Contracting Parties"); expressing the opinion "that the Court did not want to Ineta Ziemele, "Other Rules of International Law" (n. 51), p. 758 narrow down its analysis and limit it to the search of a ("the source of the Court's authority, i.e., State consent").

30 2013] NO CONSENSUS ON CONSENSUS? 255

International Court of Justice (ICJ), the Inter-American it is far from clear why the practice of non Court of Human Rights, the International Criminal Court contracting parties should be of any relevance at all in and - with increasing frequency - the Court of Justice of determining the level of protection accorded at the the European Union (CJEU). Many publications have European level; the great risk of manipulative relativity discussed these developments,71 which we shall therefore that ensues from the selection of the countries' practice not describe in detail. itself cannot go unnoticed either".83 (29) The International Law Commission has proposed, What is the aim of the selectivity of the Court's and the EurCourtHR has followed and adopted in the consensus analysis? It would seem that the aim is not so Nada case, a "principle of harmonization" in the case-law much to look at all legal systems of the world, in which of international courts, which should preserve the unity of predictably not much uniformity and not much consensus the international legal system, and according to which, "when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a n See, e.g., Nico Krisch, Beyond constitutionalism: the pluralist single set of compatible obligations".n Judge Thomas structure of postnational law (2010) 129-43; Andrew Legg (n. 4); Buergenthal explained that Christopher McCrudden, The use of comparative reasoning by "(t)his means ... that each tribunal has an obligation to the European Court of Justice and the EurCourtHR (manuscript respect the general and special competence of the other 2013); Dragoljub Popovic, "Le droit compare dans judicial and quasi-judicial institutions which comprise l'accomplissement des taches de la Cour europeenne des droits de the system, to recognize that it has an obligation, when l'hornrne", in: Liber amicorum Luzius Wildhaber (Strasbourg rendering judgments, to take account of the case-law of Views, eds. L. Caflisch I J. Callewaert I R. Liddell I P. Mahoney I other judicial institutions that have pronounced on the M. Villiger, 2007) 371-86; Hanneke Senden, Interpretation of same subject and, most importantly, to promote and be Fundamental Rights in a Multi/eve/ Legal System. An analysis of open to jurisprudential interaction or cross the EurCourtHR and the CJEU (2011). fertilization" ,73 n Report of the International Law Commission, 58th Session (2006), United Nations General Assembly, Official Records, 61'' (30) Given the prestige and uniqueness of the afore Session, Supplement No. 10 (A161110), p. 408. In the same sense, mentioned international courts, the persuasive authority EurCourtHR, Nada, 12 Sept. 2012, no. 10593108, 32 HRU 129 of their judgments is high. It is even higher when we take (2012), § 170; (President) Rosalyn Higgins, "The ICJ and the into consideration the aforementioned principle of EurCourtHR: Partners for the Protection of Human Rights", harmonization with international law (as, e.g., with the Speech given on 30 Jan. 2009, Annual Report of the EurCourtHR ICJ) and European law (e.g., the CJEU).74 2009 41-49; Luzius Wildhaber, The EurCourtHR 1998-2006. The case of Mamatkulov and Askarov v. Turkey75 can History, Achievements, Reform (2006) 198-99,211. serve as a particularly striking illustration. In this case, the 73 Thomas Buergenthal, "Proliferation of International Courts EurCourtHR overruled its earlier case-law76 and held that and Tribunals: Is it Good or Bad?" Leiden J.I.L. 14 (2001) 267-75, interim measures indicated by the Court were binding on p.274. the State concerned. It was impressed by the fact 74 On harmonization, constitutionalization and fragmentation see (Judges) Stephan Breitenmoser I Christoph Grabenwarter I "that the ICJ, the Inter-American Court of Human Konrad Schiemann, Das Zusammenspiel der Grundrechts Rights, the Human Rights Committee and the ordnungen (EMRK, Grundrechte-Charta, Allgemeine Rechts Committee against Torture of the United Nations ... grundsiitze) und ihre Interpreten (Bonn 2012); (Judge) Andreas L. ha( d) confirmed ... in recent decisions that the Paulus, "Hybridisierung der Rechtsordnungen? Zusammenspiel preservation of the asserted rights of the parties in the der Rechtsquellen aus vtilkerrechtlicher Perspektive" (to be face of the risk of irreparable damage represent( ed) an published in Berichte der Deutschen Gesellschaft fiir Inter essential objective of interim measures in international nationales Recht 2013); (President) Andreas Vosskuhle, "Der law".77 europaische Verfassungsgerichtsverbund", NVwZ 29 (2010) 1-8. 75 Mamatkulov and Askarov, 4 Feb. 2005, nos. 46827199 et al., H. Contribution of extra-European legal orders to 2005-1 = 26 HRU 39 (2005). European consensus 76 Cruz Varas et al. v. Sweden, 20 March 1991, A/201 = 12 HRU (31) The EurCourtHR has repeatedly said that it will 142 (1991). look for common ground in the law of the member States 77 Mamatkulov and Askarov, (n. 75), § 124. 78 See supra n. 8. of the Council of Europe.78 Yet in a considerable number 79 a. generally, The Use of Foreign Precedents by of cases references to judgments of extra-European Constitutional Judges (eds. Tania Groppi I Marie-Ciaire national courts can be found. Clearly extra-European Ponthoreau, 2013); Senden (n. 30), 66-69, 118-19, 124,395-98. measures and judgments can constitute no more than 80 Examples can be found in Christine Goodwin (n. 17), § 84; persuasive authority.79 Until recently the Court has Vo (n. 17), § 64; Hirst (n. 17), § 46, dissenting opinion § 6; Evans restricted its references almost exclusively to courts of the (n. 17), §§ 43-49, 80; Giifgen v. Germany, 1 June 2010, no. USA, Canada, South Africa, Australia, New Zealand and 22978105, 30 HRU 286 (2009-2010), §§ 73-74; Schalk & Kopf Israel. SO Only very recently a few judgments have reached (n. 8), § 48; Harkins & Edwards (n. 17), § 126; Hristozov (n. 17), beyond these six States. at The limitation of the research to §§ 56-65; Eweida et al. v. UK, 15 Jan. 2013, no. 48420/10 et al., them may be explained by difficulties of accessibility (e.g., §§ 48-49. And see McCrudden (n. 71) I. for linguistic reasons). But the most obvious reasons are 81 Babar Ahmed v. UK, 10 April 2012, nos. 24027107 et al., the societal affinities and the democratic or liberal §§ 152-55; Vinter et al. v. UK, 9 July 2013, nos. 66069109 et al., 33 character of the States to which the Court refers.82 HRU 96 (2013), §§ 73-75. 82 See the perceptive remarks of Aharon Barak, "A Judge on (32) The Court's analyses do not consistently describe Judging: The Role of a Supreme Court in a Democracy", Harvard the divergencies which may exist between the six States. L. Rev. 116 (2002) 16, p. 111; Rex D. Glensy, "Which Countries The references vary according to the context of each case. Count?: Lawrence v. Texas and the Selection of Foreign Critics have alleged extraneous reasons for the Court's Persuasive Authority", Virginia J.I.L. 45 (2004) 357-449, p. 361. selectivity. Thus Del Moral (apparently inspired by Justice 83 Ignacio de la Rasilla del Moral, "The Increasingly Marginal Scalia) has criticized the Court's cherry-picking approach Appreciation of the Margin-of-Appreciation Doctrine", German in strong words: L.J. 7 (2006) 611-23, at p. 618.

31 256 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12

would be found. The aim is more to move ahead with the preciSion or maturity required for a rule to be evolution of the regional European system, supported by established".90 parallel developments in States with sufficient affinities. She continues that Some would even believe that the Court conceives of its " ... the Court did not say that this consensus has reached mission as being at the forefront of progressive the level where it would have been bound to recognise a development, to act as a sort of a indefatigable, widely regional customary norm which should be read into visible human rights locomotive. Article 8" ECHR.91 We believe that Judge Ziemele correctly describes the I. Soft law as basis ofconsensus? ambiguities of a rather blurred situation. She speaks of a (33) The EurCourtHR often invokes soft law in its binding rule because she apparently thinks that the Court, judgments, though mostly only in the part on facts.84 if it affirmed the existence of consensus and then Frequently it refers to Council of Europe documents such proceeded to find a violation of the Convention, would as resolutions and recommendations of the Parliamentary create a rule of regional customary international law. This Assembly and the Committee of Ministers or reports of might be qualified as an accelerated or even instantaneous the Venice Commission. ss Relatively frequent are also creation of such law. The most notable difficulty with this references to various United Nations (UN) bodies, for suggestion is that it would appear to permit the creation of instance the UN Committee against Torture, the UN High customary international law on the basis of practice alone, Commissioner for Refugees or the joint UN Programme without any finding of opinio iuris. Those who find this on HIV/AIDS!International Organisation for Migration.86 ground too untested, will be content with calling the (34) The Court has never commented on the specifics of consensus decisive.92 soft law or its thinking about the use of these gray-zone sources of law. It should do this. While soft law may in VI. The Mechanics of Consensus Analysis as Practised some cases express customary international law, it may in A. Who commissions and carries out a consensus analysis? other cases only presage the formation of such la~, and in still other cases it may never crystallize into law. Those {37) It is part of the Court interna to decide when it who see soft law too readily as customary international wants to obtain a consensus analysis. Parties may raise law paradoxically run the risk of softening up the belief in such issues; Judges and especially the Judge Rapporteurs the binding character of general international law, while may be interested in additional elements; sheer intellectual those who see soft law as necessarily less than law are curiosity may be important; analyses may have helped in exaggerated pessimists. We think that the Court- and its other comparable cases; especially in Grand Chamber admirers and critics - should think more critically and cases, it has become habitual to submit consensus analyses; specifically about soft law and its possible contribution to such analyses keep "the EurCourtHR firmly on a level of the formation of European consensus. reality";93 this is why they constitute strong arguments which assist the Court in achieving agreement in delicate V. Is consensus binding? cases;94 in brief, the reasons for commissioning a consensus analysis may be manifold. And as various inconsistencies {35) We have found no indication that the Court describes consensus as binding. That accords with in the Court's practice demonstrate,95 sometimes such principle, both in human rights law specifically and in public international law generally, since to treat it as binding per se would have entailed the creation of a new category of legal obligation. 84 Hanneke Senden (n. 30), 255-58. Rather, consensus informs the content of the treaty 85 For example, Kimlya et al v. Russia, 1 Oct. 2009, nos. obligations contained in the ECHR, in the manner 76836/01 et al., §§ 65-67; Vinter et al. v. UK (n. 81), §§ 60-64. described by the ICJ in the San Juan River case.87 In 86 Senden (n. 30), 256; Kiyutin v. Russia, 10 March 2011, no. 2700/10, §§ 36-38. particular, it is a factor or element in defining the margin 87 See supra n. 69. of appreciation, in proportionality balancing and generally 88 Senden (n. 30), 259; for the references to the three cases see in interpreting the ECHR, of indicative, persuasive, in footnotes 20, 75 and 17; see also Senden at pp. 66-68, 79-80, 124, some cases probably decisive value. But the Court does 266. not appear to wish to offer additional guidance. 89 See for references to these cases footnotes 95, 95, 8, 20, 172, It is sheer guesswork to indicate cases in which the 20, 20, 81. consensus factor was determinative. In her thorough 90 Ineta Ziemele, "Customary International Law in the Case study, Hanneke Senden writes that "the comparative Law of the EurCourtHR - The Method", in: The Judge and arguments play{ed) a crucial role" in the cases of M.C. v. International Custom (Council of Europe, 2012) 75-83, p. 81. Bulgaria, Mamatkulov & Askarov, and Vo. ss It would, 91 Ead., pp. 81-82. however, be equally well possible to mention the cases of 92 If we begin to qualify the Court's judgments as customary in Pretty, Koch, Schalk & Kopf, Bayatyan, Paksas, Unal nature, additional reflection is needed not only on the finding of Tekeli, S. v. Marper and Vinter. 89 In brief, in a sizable an opinio iuris, but also with respect to issues such as the number of cases, the consensus factor has probably played overruling or the evolutive development of "custom". a decisive role. Note that in 4 out of these 11 cases the lack 93 Judge Lucius Caflisch, quoted by Dzehtsiarou, "Consensus from within the Palace Walls" (n. 33), p. 17. of consensus led to a finding of non-violation, whereas in 94Id. pp.ll-13. the other 7 cases, consensus had the consequence of a 95 In EurCourtHR, Frette (n. 17), § 41, the Chamber undertook finding of violation. a consensus analysis (no violation of Articles 8 and 14 ECHR {36) In her interesting discussion of the A, B, C case, because of the wide margin of appreciation in the case of rejection Judge Ineta Ziemele suggests that of an application of a single homosexual to adopt a child), " ... the Court distinguishes between a legal rule with whereas E.B. v. France, 22 Jan. 2008, no. 43546/02, 29 HRLJ 336 binding consequences and European consensus which is (2008), which in effect overruled Frette, did not address not the basis for legal obligations as it still represents a consensus. - Pretty v. UK, 29 April 2002, no. 2346/02, 23 HRU trend, even if a general one, which has not obtained the 194 (2002) (euthanasia), hardly took up consensus, whereas Koch -+

32 2013] NO CONSENSUS ON CONSENSUS? 257 decisions may be dependent on mere coincidence rather than on a systematic approach. v. Germany, 19 July 2012, no. 497/09, § 26, mentioned the issue, (38) The old, part-time EurCourtHR lacked the but found that no consensus existed. - Odievre (n. 17) found in a infrastructure to do extensive comparative research.% The rather cursory way that there was no consensus (and no right of a new, full-time Court has systematically extended the child to learn the identity of the mother), whereas Godel/i v. Italy, capacities of its research division. At the beginning of 25 Sept. 2012, no. 33783/09, § 28, which in effect overruled 2013, the division comprised at least ten lawyers, who Odievre, failed to discuss consensus (cf. No. 49 infra). could count on additional help from Registry lawyers.97 96 Luzius Wildhaber remembers that in the early 1990ies, the As a consequence, the description of comparative law in Registry wrote letters to the Judges and asked them to help explore issues of domestic law relevant for consensus analysis. recent judgments has often (but not consistently) become Probably the first description of the initial efforts of the "new" visibly more professional and detailed. The Court also Court to achieve a more systematic approach can be found in Paul relies on research carried out by the Council of Europe,9B Mahoney, "Comparative Method" (n. 30), pp. 148-49. by United Nations bodies,99 by NGOsioo or govern Descriptions of modem-day practice can be found in Dzehtsiarou, ments,IOI and exceptionally even by academics.l02 "Consensus from within the Palace Walls" (n. 33), pp. 4-9; Kanstantsin Dzehtsiarou I Vasily Lukashevich, "Informed B. To which provisions of the Convention is consensus Decision-Making: The Comparative Endeavours of the analysis applied? Strasbourg Court", Netherlands Quarterly of Human Rights 30/3 (39) The consensus argument is used above all (in 45% (2012) 272-98, pp. 273-74, 279-85, 293-94. of all casesl03) in connection with Article 8 ECHR with 97 We thank Roderick Liddell, Director of Common Services of respect to private and family life (e.g. various aspects of the Court's Registry, for these informations. homosexuality, transsexualism, adoption and artificial 98 Evans (n. 17), §§ 39-42; Stoll v. Switzerland, 10 Dec. 2007, no. procreation; restrictive abortion grounds; prohibition of 69698/01, § 44; S.H. v. Austria (n. 17), § 95; Stummer v. Austria, 7 July 2011, no. 37452/02, § 60; Costa & Pavan v. Italy, 28 Aug. 2012, no. pre-implantation diagnosis; assisted suicide; demand of 54270/10, § 25; X et al. v. Austria (n. 19), § 55. ill terminally cancer patients to obtain anticancer products 99 Kiyutin v. Russia, 10 March 2011, no. 2700110, §§ 36-38 not yet authorized; requirement of physical resistance in (UNAIDS) . cases of rape; storing and destruction of fingerprints and 1oo Sheffield & Horsham v. UK, 30 July 1998, no. 22985/93, 1998-V DNA samples; paternity leave of military personnel; = 19 HRLJ 338 (1998), § 35; Nikula v. Finland, 21 March 2002, no. refusal of residence permit for HIV-positive applicant; 31611/%, §§ 22-26; Pretty (n. 95), §§ 26-27; Christine Goodwin (n. failure to compel service provider to disclose the identity 17), §§55-56; M. C. v. Bulgaria (n. 20), §§ 130-47; K.U. v. Finland, 2 of a person· who placed indecent advertisements on an Dec. 2008, no. 2872/02, § 32; Glor (n. 8), § 39. And see Nicole Biirli, Internet site; and so forth). However, a closer look reveals "Amicus curiae as a means to reinforce the legitimacy of the that the consensus argument is used across most of the EurCourtHR", in: The EurCourtHR and its Discontents (n. 14) 135- Convention guarantees, and we can think of no reason of 46; Dzehtsiaroul Lukashevich (n. 96) 294-98; McCrudden (n. 71) V; principle why that should not be so. The appendix sets Petkova (n. 40) p. 681. out the main cases to which such analysis has been 1o1 Hirst (n. 17), § 33; Georgian Labour Party, 8 July 2008, no. applied,l04 9103/04, §§54-57. 102 Harkins & Edwards (n. 17), § 66; Babar Ahmad (n. 17), § 138; Stiibing (n. 17), § 30. See also Z. et al. v. UK, 10 May 2001, C. Consensus versus trend no. 29392/95, 2001-V = 22 HRU 417 (2001 ), § 7. ( 40) The EurCourtHR uses a variable vocabulary to 103 The percentage comprises cases alleging both violations of express its variable findings with respect to European Article 8 ECHR only and of Article 8 in conjunction with Article consensus. When it speaks of an "emerging consensus"Ios 14 ECHR. If one added the alleged violations of Article 1 of or a "trend"I06 or a "clear trend",I07 this has in some Protocol no. 1 in cases concerning e.g. children born out of instances led to findings of violation, in others to non wedlock, the number would be even closer to 50%. See also violation. "Majority"!OB or "large majority",l09 as well as Senden (n. 30) at pp. 240-41. "certain tendency"liO or "growing tendency"lll usually 104 The Appendix can be found at the end of our Article at p. 262. predicate non-violation; "vast majority"112 or 105 Onal Tekeli (n. 20), § 61 (violation); Fabris (n. 8), § 56 "overwhelming majority",ll3 as well as "distinct (violation); Schalk & Kopf (n. 8), § 105 (no violation); S. H. v. tendency"114 or "ever growing consensus"l15 normally lead Austria (n. 17), § 96 (no violation). 106 Christine Goodwin (n. 17), § 85 ("continuing international to violation. The Court's vocabulary garden grows lush - trend"; violation). perhaps too lush; gardeners would be welcome. 107 M. C. v. Bulgaria (n. 20), § 156 ("clear and steady trend"; (41) One attempt to create some measure of order could violation); Hristozov (n. 17), § 123 (violation); S. H. v. Austria (n. be terminological: The Court should distinguish between 17), § % (no violation); Harkins & Edwards (n. 17), § 138 (no "consensus" and "trend". "Consensus" means more than a violation); Babar Ahmad (n. 17), § 242 (no violation). simple majority. It expresses the general agreement of a 108 Sitaropoulos & Giakoumopoulos (n. 8), §§ 32, 74; Odievre group of persons or States. The consent may be so clear or (n. 17), § 47. even overwhelming that the Court may assume that it can 109 J. A. Pye (Oxford) Ltd. (n. 17), § 72. impose the majority view on the remaining minority (as 110 Kautzor (n. 17), § 72. happened, for instance, in the Bayatyan case116). 111 Schalk & Kopf (n. 8), § 93. Originally, "consensus" was a Latin word which signified 112 Demir & Baykara (n. 20), §§ 52, 76; Markin (n. 8), § 99 unanimity or concord. However, the EurCourtHR does ("absolute majority"); Micallef (n. 20), § 78 ("widespread not require unanimity. "Trend" is defined as the general consensus"). 113 Bayatyan (n. 20), § 108. direction in which something is developing or changing. 114 Mazurek v. France, 1 Feb. 2000, no. 34406/97,2000-11, §52. Confronted with a "trend", the Court should respect the 115 L. & V. v. Austria (n. 20), §50. subsidiarity of the Strasbourg system, should wait for 116 Supra n. 20. further consolidation and corroboration and, when this has 117 Kanstantsin Dzehtsiarou, "European Consensus: a way of taken place, only then proceed to find a "consensus".l17 reasoning" (n. 30), pp. 2-3; Dean Spielmann, "Allowing the Right In several cases, the Court has found tendencies which Margin" (n. 4), p. 20: "A clear trend or a mere emerging had not yet crystallized and were still in a transitional consensus, is most of the time not enough".

33 258 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12 stage.118 In such situations, it may be recommendable to detail of a given right, then that choice alone might speak of an "emerging consensus", provided it is drastically decrease the number of cases where the Court understood that no normative significance is assigned (yet) could find consensus. In practice this concern has not to the term.l19 played a major role up to now. It is true that in Sitaropoulos & Giakoumopoulos, where no consensus was D. Among how many countries does the Court require found, arrangements for the exercise of expatriates' voting similarity to establish consensus? rights were found to take a variety of forms and to be less ( 42) It is quite difficult to extract an answer from the than uniform.130 But in Markin, the Court found that the case-law of the EurCourtHR to the question of how many denial of parental leave to military servicemen on grounds States make up a European consensus. It would be of sex violated ECHR guarantees, although the various accurate to say about consensus what the Court affirmed legal systems which were analysed differed considerably. m about the margin of appreciation: that the meaning of In the Chapman case, the Court remarked "that there may consensus "is not identical in each case but will vary be said to be an emerging international consensus amongst according to the context"; relevant factors "include the the Contracting States of the Council of Europe nature of the Convention right in issue, its importance for recognising the special needs of minorities and an the individual and the nature of the activities obligation to protect their security, identity and concerned".J2° Hanneke Senden's thoughtful and comprehensive study ends with the comment that while the "actual criterion remains a mystery",121 the problem 11s Frette (n. 17), § 41; Schalk & Kopf(n. 8), §§ 105, 109; S. H. v. may be more controversial in theory than in practice. Austria (n. 17), §§ 96, 106; Hristozov (n. 17), § 123. Unfortunately, these formulations do not really render 119 For details from the USA practice see Brauch (supra n. 43) possible a reasonably predictable answer to our question. at pp. 314-15. Nor is our task simplified by the multitude of dissenting 12o See the references in n. 8. opinions in which Judges express diverging standpoints 121 Senden (n. 30), 395, 397 (her specific comment concerns the about consensus.122 use of external sources); and see pp. 264-66. It would seem self-evident that in a Court with 47 122 See the following examples (dissents by individual Judges member States comparative research should be as are left aside): EurCourtHR, T. v. UK, 16 Dec. 1999, no. 24724/94, comprehensive as possible. Where judgments rely on only 1999-IX, diss. op. Pastor Ridruejo, Ress, Makarczyk, Tulkens, half or less of all legal orders, the consensus argument is Butkevytch; Frette v. France, 26 Feb. 2002, no. 36515/97, 2002-I, bound to lose in strength and credibility.m Of course, a diss. op. Bratza, Fuhrmann, Tulkens; Odievre v. France, 13 Feb. notoriously overloaded Court does not dispose of 2003, no. 42326/98, 2003-III, diss. op. Wildhaber, Bratza, Bonello, unlimited resources to study comparative law issues which Loucaides, Cabral Barreto, Tulkens, Pellonpiiii; Hirst v. UK, 6 may be fascinating, but do not constitute an absolute Oct. 2005, no. 74025/01, 2005-IX = 30 HRU 204 (2009-2010), diss. op. Wildhaber, Costa, Lorenzen, Kovler, Jebens; Evans v. UK, 10 priority in the work of the Court. April 2007, no. 6339/05, diss. op. Tllrmen, Tsatsa-Nikolovska, (43) We have explored how many legal orders of Spielmann, Ziemele; Dickson v. UK, 4 Dec. 2007, no. 44362/04, member States the Court analyses in actual practicet24 and diss. op. Wildhaber, ZupanCic, Jungwiert, Gyulumyan, Myjer; can report that: Schalk & Kopf v. Austria, 24 June 2010, no. 30141104, diss. op. • in about 56% of post-1998 judgments which discuss Rozakis, Spielmann, Jebens; A, B, C v. Ireland, 16 Dec. 2010, no. consensus in the 47 European member States, the 25579/05, 31 HRU 344 (2011), diss. op. Rozakis, Tulkens, Fura, number of legal orders may be qualified as Hirvelii, Malinverni, Poalelungi; S. H. v. Austria, 3 Nov. 2011, no. representative;125 57813/00, diss. op. Tulkens, Hirvelii, Lazarova Trajkovska, • in about 12.3% roughly half of all States are taken into Tsotsoria (cf. No. 53 infra); Van der Heijden v. Netherlands, 3 consideration (and are indicated separately); April 2012, no. 42857/05, diss. op. Tulkens, Vajic, Spielmann, • in about 7% the comparative research is less than ZupanCic, Laffranque; X et al. v. Austria, 19 Feb. 2013, no. representative; 126 19010/07, diss. op. Casadevall, Ziemele, Kovler, Jociene, Sikuta, • and in about 24.6% the "new" Court remains content to de Gaetano, Sicilianos (cf. No. 60 infra). 123 follow the example of the "old" Court, indicating that it See the discussions within the EurCourtHR in Odievre (n. 17); S. H. v. Austria (n. 17) and X et al. v. Austria (n. 19). And see recognizes or fails to recognize consensus, without any Dzehtsiarou!O'Mahony (n. 30) 342-44. further details or simply speaking of a "majority of 124 Our results are representative and are based on 65 States". judgments, but there is no conclusive criterion to determine the cases in which a consensus analysis took place. See for example E. What degree ofsimilarity does the Court require? our footnote 133, infra. a. also Senden (n. 30), 246-52. (44) Several recent publications have compared the 125 We speak of a "representative" figure when about 60-67% case-law of the United States Supreme Court on consensus of the member States are included. with that of the EurCourtHR.127 They have concluded that 126 Here we include for instance the Odievre and Egeland & the US Supreme Court has handled issues of the definition Hanseid cases (n. 17), as well as other cases with less than 25% of and calculation of consensus with a strikingly higher level the member States. of detail. By contrast, the differences between the Judges 127 Brauch, Elusive Consensus (n. 43) 292-317; Glensy, Which of the EurCourtHR were articulated "in a manner that is Countries Count? (n. 82); Dzehtsiarou!O'Mahony, Evolutive less defined, less consistent and less explicit" _12s Interpretation (n. 30); Murray, Consensus (n. 41) 41-49. 128 Murray, Consensus (n. 41) 41, 46. (45) We agree that the EurCourtHR shows perhaps 129 Aalt Willem Heringa, "The 'Consensus' Principle - The little awareness that it may affect the outcome of a Role of 'Common Law' in the EurCourtHR Case Law", consensus when it decides how much similarity in the laws Maastricht J. Eur. & Comp. L. 3 (1996) 108-49, p. 139. of different States is needed for a consensus to exist. Aalt 130 Sitaropoulos & Giakoumopoulos (n. 8), §§ 32-45, 65-66, 74- Willem Heringa has argued: "A cautious conclusion seems 75. And see S~rensen & Rasmussen (n. 19) § 75; Georgian Labour appropriate that the consensus is mainly about recognizing Party (n. 101), §§ 58-69,90-91, 103; Hristozov (n. 17), § 123. a common principle, irrespective of any possible 131 Markin (n. 8), §§ 71-75,99-100, 126 (denial of parental leave details".129 Indeed if a consensus must reach down to every to military serviceman on grounds of sex).

34 2013] NO CONSENSUS ON CONSENSUS? 259

lifestyle". m However, it added that it was "not persuaded should be kept under review.152 In Christine Goodwin, the that the consensus (was) sufficiently concrete" for the new Court overruled unanimously the earlier cases and Court "to derive any guidance as to the conduct or found violations of Articles 8 and 12 ECHR.153 The NGO standards which Contracting States consider desirable in any particular situation".133

VD. A Detailed Look at the Court's Case-Law m Chapman (n. 17), §57. (46) The EurCourtHR frequently, but not consistently, 133 Id. § 94. For these reasons, the authors did not include cases opts against the existence of consensus, as long as some 6 on consensus analysis with respect to minority rights in their data, to 10 States adhere to solutions which differ from the nor did they discuss them. majority view.l34 134 The authors rely here on T. v. UK (n. 122); Leyla $ahin v. (47) Where the Court finds only some 3 or 4 countries in Turkey, 10 Nov. 2005, no. 44774/98, 2005-XI = 26 HRU 166 the minority, it has in some cases proceeded to find a (2005); Evans (n. 122); Wagner et al. v. Luxembourg, 28 June consensus and a violation. 2007, no. 76240/01; Schwizgebel v. Switzerland, 10 June 2010, no. Thus in Bayatyan v. Armenia, the Court ruled on the 25762/07; S. H. v. Austria (n. 122); Harkins & Edwards v. UK, 17 applicability of Article 9 ECHR to conscientious Jan. 2012, nos. 9146/07 et al.; Sitaropoulos & Giakoumopoulos v. objectors.l35 It concluded that Greece, 15 March 2012, no. 42202/07; Kautzor v. Germany, 22 "the domestic law of the overwhelming majority of March 2012, no. 23338/09: Van der Heijden (n. 122); Hristozov et Council of Europe member States, along with the al. v. Bulgaria, 13 Nov. 2012, nos. 47039/11 et al. relevant international instruments, has evolved to the 135 Bayatyan v. Armenia, 7 July 2011, no. 23459/03, 31 HRU effect that at the material time there was already a 378 (2011). 136 Id. § 108. At the time of the judgment, only Azerbaijan and virtually general consensus on the question in Europe and beyond".l36 Turkey had not yet introduced a right to conscientious objection. m Costa & Pavan v. Italy, 28 Feb. 2012, no. 54270/10, §§ 29-34, In a comparable case, Costa & Pavan, the Court held 70. And see Fabris v. France, 7 Feb. 2013, no. 16574/08, § 56. that the Italian prohibition of preimplantation diagnosis 138 A, B, C v. Ireland (n. 122). Cf. Fiona de Londras I (which was prohibited in only two more States) violated Kanstantsin Dzehtsiarou, ICLQ 62 (2013) 250-62. Article 8 ECHR.137 139 Id. §§ 112, 175, 234-35. Abortion was available on request in (48) In other cases, the Court approached the issue some 30 States; on health grounds in some 40 countries; and on differently. In the Irish abortion case A, B, C,Bs the Court well-being grounds in some 35 States. was confronted with a vast majority of States which had 140 Andorra, Malta, San Marino. gradually liberalized their abortion regimes;139 with 3 micro 141 Id. §§ 109, 253. States which prohibited abortion altogether;140 and with a 142 Id. § 235. very restrictive Irish regime which rendered abortion in 143 Id. § 233; and see§§ 222, 226, 241. 144 Id. § 123; Hirst v. UK, 6 Oct. 2005, no. 74025/01, 2005-IX = practice "largely unavailable".141Jt qualified the situation as 30 HRU 204 (2009-2010) (cf. No. 56 infra); E. B. v. France, 22 Jan. consensus.l42 But it refused to consider this as decisive, on 2008, no. 43546/02, 29 HRU 336 (2008). In an extravagant the basis of reasons which emphasize judicial self-restraint separate opinion in Fabris (n. 137), Judge Pinto de Albuquerque and resemble a de facto "political question"- doctrine and asserted that EurCourtHR judgments "should be based on a the notion of the "persistent objector". Thus it referred to principled, rather than a casuistic, approach to the legal issues". the "acute sensitivity of the moral and ethical issues" and As Lord Bingham remarked in !ones v. Saudi Arabia (HoL 2006), "to the profound moral views of the Irish people".143 It " ... one swallow does not make a rule of international law". To be decided to stick strictly to the facts - unlike the Hirst and sure, one would expect the EurCourtHR to stick to the specific the E. B. v. France cases144- and did not add that the issue facts submitted to it (see Kart v. Turkey, 3 Dec. 2009, no. 8917/05, should be kept under review - unlike the earlier § 85; Taxquet v. Belgium, 16 Nov. 2010, no. 926/05, § 83), but it transsexualism cases and S.H. v. Austria)45 So the Court would indeed constitute a real challenge to investigate in detail followed a long line of prior jurisprudential reticence in what the Court does in reality. questions of abortion, despite the existence of a European 145 Cf. No. 50 infra; S. H. v. Austria (n. 122), § 118. consensus and despite rather conclusive figures showing 146 Id. §§ 84-88, 226. The A, B, C case might be compared with the early case of Johnston et al. v. Ireland, 18 Dec. 1986, no. changes of societal values in Ireland.l46 9697/82, A/112, where the Court accepted the constitutional (49) In Odievre,141 the applicant was prevented under prohibition of divorce, because a right to divorce could not be French law from learning the identity of her biological derived from Articles 8, 12 or 14 ECHR. mother. France, along with Italy and Luxembourg, stood 147 Odievre (n. 122). alone in not making it obligatory to provide the name of 148 Id. §§ 19, 47, diss. op. Wildhaber, Bratza, Bonello, the mother. In 10 other countries the names of both Loucaides, Cabral Barreto, Tulkens, Pellonpaa §§ 13-14, 16. mother and father had to be registered.l4B The Court 149 Id.§ 47. concluded in very short compass that given the diversity of 150 Godelli v. Italy, 25 Sept. 2012, no. 33783/09. In effect, Godelli European practice, France was within the margin of overruled Odievre. Technically speaking, the Court engaged in an appreciation, so that there was no violation.149 In our unconvincing exercise of distinguishing the Italian from the opinion, no core guarantee was at stake, and there was no French law. reason why the child's "right to know" should not have 151 Rees v. UK, 17 Oct. 1986, no. 9532/81, A/106 (12 : 3 been balanced against the mother's "right to remain judgment); Cossey v. UK, 27 Sept. 1990, no. 10843/84, A/184 (10 : 8 judgment); B. v. France, 25 March 1992, no. 13343/87, A/232-C = anonymous". Such a balancing might well have led to a 13 HRU 358 (1992) (16 : 5 judgment in favor of violation); different result, and indeed a few years after Odievre the Sheffield & Horsham v. UK, 30 July 1998, no. 22985/93, 1998-V Court found a violation in the Godelli case.1so (11: 9 judgment)= 19 HRU 338 (1998). (50) A series of cases of the old Court before 1998 had 152 Rees (n. 151), §§ 37, 47; Cossey (n. 151), §§ 40, 42; found no consensus with respect to the legal recognition of B. v. France (n. 151), § 48; Sheffield & Horsham (n. 151), the change of gender of a post-operative transsexuaJ.151 § 60. These judgments had granted the States a wide margin of 153 Christine Goodwin v. UK, 11 July 2002, no. 28957/95, 2002- appreciation, but had regularly warned that the matter VI = 23 HRU 72 (2002).

35 260 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12

Liberty had submitted that only 4 out of 37 States did not that no consensus existed where the number of diverging permit a change to be made to a transsexual's birth legal orders was similar or even lower than in S.H. v. certificate,154 The Court did not attempt to find a Austria.171 In our opinion, it is untenable to pretend that consensus,m although this would have been compatible the Court's majority could not rely on earlier precedents with its case-law.l56 Nor did it dwell on non-discrimination, and took a novel, "unprecedented" step in S.H. v. Austria. as it might well have done. Instead, it squarely focussed on (54) In judgments finding violations, inter alia for human dignity, human freedom, personal autonomy and reasons of European consensus, one can discern certain fair balance,157 and on top of this, insisted there was "clear patterns. We shall trace such patterns, but wish to and uncontested evidence of a continuing international emphasize that they do not necessarily constitute the trend".158 decisive aspect of a given judgment. (51) In terms of intensity of feelings, issues such as (55) One such pattern is the singling out of one State in same-sex marriage and euthanasia might be considered as comparison to all others. The one State is described as comparable to the distress of transsexuals. In the Pretty, being a black sheep outside the European consensus. Thus Haas and Koch cases the Court refused to get involved too the Court finds in the Paksas case that except in Lithuania, profoundly in the discussions concerning assisted impeachment proceedings have no direct, life-long effect suicide.l59 Since by 2012 only 6 States had mitigated the on the electoral rights of heads of State.172 In Unal Tekeli, strictness of the prohibition of assisted suicide,160 no it claims that Turkey "is the only country which legally consensus in favour of an evolutive interpretation existed, imposes ... the husband's name as the couple's surname and this was decisive. The Court did not issue any warning and thus the automatic loss of the woman's own surname that the matter should be kept under review, although on her marriage",173 In S. & Marper, the storing of decisions about life and death would appear to fall fingerprints and DNA samples is allowed in an increasing squarely under the core aspects of private life, human number of States, but only the United Kingdom is dignity and freedom. described as providing for systematic and indefinite (52) Analogous comments can be made about the storing.174 Schalk & Kopf case and same-sex marriage or (56) Although the Court in the notorious Hirst case partnership,161 Only 6 out of 47 States allowed same-sex accepted that the United Kingdom was not the only marriage; 13 more States had adopted partnership statutes country which deprived all convicted prisoners of the right as alternative means of legal recognition.162 The Court to vote,175 the judgment can in certain respects be spoke of "an emerging European consensus", which, compared to the aforementioned cases. The British however, was not yet established.l63 legislation excludes (with minor exceptions) convicted (53) In S.H. v. Austria, the EurCourtHR dealt with prisoners from the right to vote. The applicant Hirst was Austrian legislation, allowing homologous methods but sentenced to discretionary life imprisonment for prohibiting heterologous techniques for the purposes of manslaughter. He was released from prison 24 years later. artificial procreation. Sperm donation was prohibited in only 4 countries, ovum donation in 8.164 However, legislation, if it existed at all, varied considerably.l65 The Court concluded 154 Id. §§ 55-56. " .... that there is now a clear trend in the legislation of 155 Id. §§ 85, 108. the Contracting States towards allowing gamete 156 Reference is made to Bayatyan (n. 135) and Costa & Pavan donation for the purposes of in vitro fertilisation .... That (n. 137). emerging consensus is not, however, based on settled 157 Id. §§ 90-93. and long-standing principles established in the law of the 158 Id.§ 85. member States but rather reflects a stage of 159 Pretty v. UK, 29 Apri12002, no. 2346/02,2002-111 = 23 HRU development within a particularly dynamic field of law 194 (2002), § 41; Haas v. Switzerland, 20 Jan. 2011, no. 31322/07; and does not decisively narrow the margin of Koch v. Germany, 19 July 2012, no. 497/09. Cf. Daniel Rietiker, appreciation of the State".l66 "From Prevention to Facilitation? Suicide in the Jurisprudence of Although the issue needed to be kept under review,l67 the EurCourtHR in the Light of the Recent Haas v. Switzerland Articles 8 and 14 ECHR were not breached. Judgment", Harvard H. R. J. 25 (2012) 85-126. 160 Koch (n. 159), § 26. Judges Tulkens, Hirvela, Lazarova Trajkovska and 161 Schalk & Kopf(n. 122). Tsotsoria dissented in an angry joint opinion. They 162 Id. §§ 27-28, 58, 86. accused the majority of taking 163 Id. §§ 105, 62. "the unprecedented step of conferring a new dimension 164 S. H. v. Austria (n. 122), §§ 35-40, 95. on the European consensus and appl(ying) a particularly 165 Id. §§ 95, 84. low threshold to it, thus potentially extending the States' 166 Id.§ 96. margin of appreciation beyond limits. The current 167 Id. § 118. climate is probably conducive to such a backward step". 168 Id. diss. op. § 8. They added that this would "engender ... great legal 169 See the references supra n. 122. uncertainty" ,168 170 See the references supra n. 8. The dissenting Judges did not indicate what cases had m References in n. 134. Laurence R. Heifer (n. 13), p. 154, been ignored and in what respect. It is granted that there wrote 20 years ago that the Court (or in our situation, the dissent) are various inconsistencies in the Court's case-law. And "leaves itself vulnerable to the charge that it manipulates the we acknowledge that a sizeable number of dissenting consensus inquiry to achieve an interpretation of the Convention opinions demonstrate that Judges hold diverging views that it finds ideologically pleasing". about consensus,169 We also realize that the meaning of m Paksas v. Lithuania, 6 Jan. 2011, no. 34932/04, §§ 60-62, 96, 106. consensus "is not identical in each case, but will vary 173 Onal Tekeli v. Turkey, 16 Nov. 2004, no. 29865/96, § 61. 170 according to the context". Despite all these factors of 174 S. & Marper v. UK, 4 Dec. 2008, nos. 30562/04 et al., §§ 45- uncertainty, the materials analysed in this article show that 49, 108, 110, 29 HRU 321 (2008). in a sizeable number of pertinent cases the Court found m Hirst (n. 122), §§ 23, 77, 81.

36 2013) NO CONSENSUS ON CONSENSUS? 261

18 States allowed prisoners to vote without restriction; in consensus.192 It claimed that it would not review the 15 countries all prisoners were barred from voting; in Austrian law in abstracto, but it could not escape doing another 13 States, the right to vote of prisoners could be just that.193 In the end result, the Court declared that limited in different ways.l76 The Court stated the obvious, Articles 8 and 14 ECHR were not violated, "when the that there existed "no clear consensus".J77 It added, applicants' situation (was) compared with that of a however, that this could not "in itself be determinative"_178 married couple in which one spouse wishes to adopt the While the margin of appreciation continued to be wide, other spouse's child", but were violated when the situation the British legislation imposed a "blanket restriction on all was compared "with that of an unmarried different-sex prisoners", and "(s)uch a general, automatic and couple".194 indiscriminate restriction ... (fell) outside any acceptable The majority opinion produced an outspoken dissenting margin of appreciation".l79 opinion, which qualified the majority's way of handling We believe that the EurCourtHR should not, as it did in and eliminating the consensus argument as "to say the Hirst, decide in a sort of abstract-norm control without least, curious", "artificial", "disregarding a clear trend" regard to both the obvious lack of consensus and the facts and therefore "strange".195 We could say that in A, B, C of an application.1so If the States keep a "wide margin of and in Lautsi the Court showed its self-restrained and appreciation", as the Court affirms, it is difficult to see pragmatic face, whereas we see in X et al. v. Austria and in why persons convicted of murder and manslaughter could Hirst its activist and voluntaristic face .196 not be deprived of the right to vote, given the seriousness (61) The most recent case to be discussed in this article of the crime committed.181 is Vinter and Others v. United Kingdom.19? At issue were (57) One might expect to find a pattern of increased life sentences without parole against murderers ("whole readiness to affirm consensus when core guarantees are at life orders" or "irreducible" life sentences). The Court stake. This is not always the case, however, since core reported that in 9 countries life imprisonment did not guarantees often express delicate value judgments on exist. In 32 countries where a sentence of life issues of morality and ethics. And the EurCourtHR is imprisonment could be imposed, there existed a dedicated more reticent and less activist when abortion, beginning of mechanism for reviewing the sentence after a minimum the life of a foetus or euthanasia are at stake.1s2 period. 5 countries did not make provision for parole for (58) In other situations of core guarantees, on the other life prisoners, but allowed commutation of life sentences hand, the Court proceeded to find a European consensus by means of pardon. 6 countries had systems of parole, but without establishing a clear quantitative majority of States for certain offences parole was not available.19B as punctiliousliY as in most other cases. Already in the A practically unanimous Court found "clear support in early leading case Marckx, the Court "condemned"183 the European and international law for the principle that all Belgian legislation with respect to illegitimate children as prisoners, including those serving life sentences, be offered discriminatory (cf. supra No. 23). In M.C. v. Bulgaria,1B4 the Court found violations where alleged rape was not !16Id. §§ 33-34, diss. op. § 6. prosecuted because the victim's physical resistance could 171Id. § 78. not be proved. In Opuz, 1ss Turkey had violated its positive 118Id. § 81. obligation to take effective measures in order to protect a 179 Id. §§ 82, 60-61, 83-84. wife and her mother against recurrent violent attacks of ISO See n. 144 for more details. the husband. The Court did not claim that a clear 181 Id. diss. op. § 8. Sharply critical is David Davis, "Britain consensus had been demonstrated. Finally in Christine must defy the EurCourtHR on prisoner voting as Strasbourg is Goodwin, 186 while the Court did not attempt to find a exceeding its authority", in: The EurCourtHR and its Discontents European consensus, it nonetheless overruled its earlier (n. 14) 65-70. case-law and found that the lack of legal recognition of the 182 See e.g. Nos. 48 and 51. change of gender of a post-operative transsexual 183 The expression is borrowed from Fran~tois Rigaux, "La loi 13 juin 1979 de la Cour amounted to a violation of Articles 8 and 12 ECHR. condamnee. A propos de l'arret du europeenne des droits de l'homme", Journal des Tribunaux 94 (59) Another pattern concerns discriminations. The (1979) 513-24; and see Marckx, 13 June 1979, no. 6833n4, A/31. right to respect for private and family life, and within 184 M. C. v. Bulgaria, 4 Dec. 2003, no. 39272/98, 2003-XII. Article 8 ECHR, particularly questions of discrimination 185 Opuz (n. 20), §§ 87-90. are a fertile ground for consensus analysis (cf. supra No. 186 Christine Goodwin (n. 153). See the text at No. 50, supra. 39). When the Court encountered the broad aspects of 187 For an early description see Luzius Wildhaber in: effective equality of "social" minorities, it pronounced the Intemationaler Kommentar zur Europiiischen Menschenrechts rule of non-discrimination in favour of illegitimate konvention, Article 8 (1992) nos. 144-51, 355-65. children and homosexuals1B7 quite readily, whereas it took 188 Text at No. 50, supra. longer in the case of transsexualism.1ss Thereafter, when 189 X et al. v. Austria (n. 122). Cf. Christian Maierhofer, the general rule of non-discrimination had to be applied to "Homosexualitlit, Ehe und Gleichheit: Ein Missverstlindnis im specific problems (e.g. costs of transgender operations, Dialog der Gerichte", EuGRZ 40 (2013) 105-13. same-sex marriages, minimum and maximum age for 190 Id. § 100 defines "second-parent adoption" as situations adoptions), the Court often had resort to comparative law where "one partner in a same-sex couple may wish to adopt the analyses. In some recent cases, it sacrificed the result of its other partner's child, with the aim of giving both of them legally recognised parental status". analyses to a rather artificially reduced view of 191 See at n. 194. discrimination. 192 Id. § 149. (60) Perhaps the prime example for this phenomenon is 193Id. § 126, diss. op. § 4. the case of X et al. v. Austria.1B9 In a situation where 194 Id., operative part. plainly no consensus existed, the majority reduced the 195Id., diss. op. §§ 14-15, 18. problem of a second-parent adoption19o by same-sex 196 A, B, C v. Ireland (n. 122); Lautsi (n. 17); Hirst (n. 122). couples to a somewhat formalistic issue of sexual 197 Vinter et al v. UK, 9 July 2013, nos. 66069/09 et al., 33 HRU discrimination.191 It discarded the consensus argument 96 (2013). entirely, thus failing to attach due weight to the lack of 198 Id. § 68.

37 262 HUMAN RIGHTS LAW JOURNAL [Vol. 33, No. 7-12 the possibility of rehabilitation and the prospect of release therefore perhaps binding, we have nevertheless if that rehabilitation is achieved",l99 The Court stated that attempted to identify some such cases. review of life sentences could take an executive or judicial All in all, it is our belief that consensus analysis is a form.zoo There was, it said, "clear support for the sound and constructive idea. There is nothing wrong with institution of a dedicated mechanism guaranteeing a the premise that the Convention guarantees imitate and review no later than 25 years after the imposition of a life reinforce those pre-existing in many domestic legal sentence, with further periodic reviews thereafter".20l systems. Of course, these domestic systems need to be Article 3 ECHR was violated because the life sentences discussed, challenged, modified and improved, and the were in the instant cases practically irreducible. EurCourtHR may contribute to this. We would prefer, both descriptively and normatively, an understanding of Vlll. Conclusion European consensus which is open into the future and The search for, and analysis of, European consensus does not instrumentalize it only in one direction, (which is also called comparative interpretation) maintains whichever that may be. Only then can the ECHR be a an important role in the practice of the European Court of living instrument. Human Rights. Its origins can be traced back to that The Court's case-law is in some respects fluid and even specially creative period of the late 1970ies. Academic fuzzy. Some uncertainties could be removed. But not writers have criticized the Court for being vague, everything should be expected from, or be blamed on, the superficial and unsubstantiated in its consensus analyses, Court. We would insist on the warning of Constance but the comparative interpretation method flourished Grewe, that "il n'appartient pas au juge de faire ceuvre de nevertheless in practice. This article describes the doctrine; les incoherences de sa jurisprudence preservent developments and the present reality in detail. It l'ouverture et obligent a perseverer dans la pensee summarizes the abundant case-law and academic writings complexe".204 and tries to structure them. There is a rich controversy whether consensus analysis is 199 Id. § 114, also §§ 119, 126-31. inevitably part and parcel of evolutive interpretation and 200 Id. § 120. of judicial activism. We describe different aspects of that 201 Id. § 120, also §§ 122, 131. controversy and reject the theory of the unavoidable one 202 Paul Mahoney (n. 47). sidedness of comparative interpretation. The practice of 203 Hanneke Senden (n. 50). the EurCourtHR simply does not prove the theory to be 204 Constance Grewe, "Quelques reflexions sur la fonction de juger a partir de )'arret Mamutkulov c. Turquie rendu par la true. Moreover, consensus originated as recourse to a CourEDH", in: Festschrift Christian Tomuschat (2006) 527-44, common law of the domestic legal systems of the member p.544. States, by which the ECHR itself was imbued and inspired. Consensus was and still is solidly anchored in IX. Appendix reality. However, if and where European consensus can be Guarantee Contexts In which consensus analysis established, this may well encourage the Court, employed "through evolutive interpretation (i.e. through adding a new meaning, neither written on the face of the text nor Article2 • Beginning of life of foetus previously inherent in it), to overturn its previous case (right to life) - Vo (n. 17) law and push the application of the Convention into • State's obligation to stop domestic areas where previously it did not reach, and thus to violence- Opuz (n. 20) convert what was previously neutral into an obligation Article 3 • Physical resistance in cases of rape for the Contracting States".202 (prohibition of torture) -M. C. v. Bulgaria (n. 20) In its early consensus analyses, the EurCourtHR began • Domestic violence- Opuz (n. 20) • Advanced age as a bar to by looking for a substantial measure of common ground in prosecution and imprisonment the legal systems of the member States. It also relied on - Papon v. France, 7 June 2001, international treaties. Subsequently, it also looked for dec. No. 64666/01 evidence of trends of changing societal values in the law of • Irreducible life sentences selected extra-European States, in judgments of -Harkins & Edwards (n. 17), international courts, and in reports and resolutions of the Babar Ahmad (n. 17); Vinter Council of Europe and the United Nations and all sorts of n.197 soft law. It would seem that these various elements of Article 4 • Exploitation of au pair-girl consensus call for different foundations. To look for (prohibition of slavery - Siliadin v. France (n. 20) and forced labor) consensus in the domestic legal systems of the member Article 5 • Irreducible life sentences - Babar States is to look for internal components of a common (right to liberty and security) Ahmad (n. 17); Vinter (n. 197) understanding of human rights in the European member Article 6 • Prisoner's request for leave States, whereas reliance on external components (such as (right to fair trial) of absence- Boulois (n. 17) extra-European legal systems or judgments of • Use of evidence gathered through international courts) looks for a harmonized, trans methods breaching Article 3 European concept of human rights.203 The Court has, - Giifgen (n. 80); Othman (Abu however, hardly reflected in public on a possible Qatada) v. UK,17 Jan. 2012, difference of the components. no. 8139/09, 32 HRU 85 (2012) • Applicability of Article 6 Nor has the Court ever indicated that it considers to interim measures- Mical/ef (n. 20) consensus as binding. Consensus is a factor or element in • Jury systems- Taxquet (n. 144) defining the margin of appreciation, in proportionality • Parliamentary immunity balancing and generally in interpreting Convention -Kart (n. 144) guarantees. It is indicative, persuasive, in some cases • Age of responsibility of juvenile probably decisive. While it is sheer guesswork to indicate killers- T. v. UK (n. 17) cases in which the consensus factor was determining and

38 2013] NO CONSENSUS ON CONSENSUS? 263

Guarantee Contexts in which consensus analysis Guarantee Contexts in which consensus analysis employed employed Article 9 • Conscientious objectors Protocol No. I Article 1 • Compensation for expropriation (freedom of thought, - Bayatyan (n. 20) (protection of property) - Kozacioglu v. Turkey, 19 Feb. conscience and religion) • Prohibition of wearing of muslim continued 2009, no. 2334/03 headscarves, or of religious • Inheritance rights and taxes symbols- Leyla $ahin (n. 17), of siblings- Burden v. UK, Eweida (n. 80) 29 April 2008, no. 13378/05, Article 10 • Photographs of convicted person 29 HRU 351 (2008) (freedom of expression) leaving prison- Egeland & • Demolition of construction built Hanseid (n. 17) on coastal area- Depalle v. France, • Ban of religious advertisements 29 March 2010, no. 34044/02 on TV- Murphy (n. 17) • Excessive court fees- Perdigiio v. • Publication of confidential and Portugal, 16 Nov. 2010, secret documents- Stoll (n. 98) no. 24768/06 • Lawyer defaming prosecutor Protocol No. I, Article 2 • Crucifix in school classrooms - Nikula (n. 100) (right to education) - Lautsi (n. 17) Article 11 • Closed shop agreements • Muslim headscarves- Leyla $ahin (freedom of assembly and - S(Jrensen & Rasmussen (n. 19) n.17 association) • Collective bargaining Protocol No. I, Article 3 • Right to vote of long-term - Demir & Baykara (n. 20) (right to free election) prisoners; of impeached heads Article 12 • Right to marry of transsexuals of state; of dual nationals; and (right to marry) and of same-sex couples - See the from abroad- Hirst (n. 17); cases discussed in Nos. 50 and 52 Paksas (n. 172); Tiinase v. Protocol No. I Article 1 • Obtaining land by adverse Moldova, 27 April2010, no. 7/08, (protection of property) possession- J. A. Pye (Oxford) 30 HRU 220 (2009-2010); Ltd. (n.17) Sitaropoulos & Giakoumopoulos • Disinheritance of illegitimate (n. 8) adulterine children- Mazurek • Electoral commissions - Georgian (n. 114); Fabris (n. 8) Labour Party (n. 101) • Access of prisoners to pension • Electoral threshold for regimes- Stummer (n. 98) parliamentary elections- Yumak • Intellectual property rights and Sadak v. Turkey, 8 July 2008, - Anheuser-Busch Inc. v. Portugal, no. 10226/03 11 Jan. 2007, no. 73049/01

39 7

Conclusion

ACHIEVEMENTS AND PROBLEMS

In order to discover whether the European Convention on Human Rights has achieved anything more substantial than mere bureaucratic institutionalization in Strasbourg, the question of what it is for must be squarely addressed. The apparently obvious answer, and the one which underpins the approach of most jurists, maintains that, whatever it was intended to achieve over fifty years ago, its current primary purpose is to enable individuāls to bring governments of member states before an international court for violations of their basie human rights — the modei of ‘individual justice’. Most who take this view would also add that the Convention has discharged this funetion very effectively, or at least that it has done so significantly more effectively than any comparable trans-national process in the world. There are, however, several problems with this account of the system5s rationale and this assessment of its success. The first is that although for some of its founding fathers the delivery of individual justice should have been a priority, this was not one of the Convention’s original agreed objectives. As with many public institutions and official texts, the strueture and content of the Convention were the result of compromise between competing visions. It emerged from the negotiations of the late 1940s primarily intended to contribute to the prevention of another war between western European states, to provide a statement of common values contrasting sharply with Soviet-style communism, to re-enforce а sense of common identity and purpose should the Cold War turn chot5, and to establish an early warning device by which a drift towards authoritarianism in any member State could be detected and dealt with by complaints to an independent trans-national judicial tribunal. And even this cearly warningJ funetion was also inextricably linked to the prevention of war because the experience of the slide towards

40 316 CONCLUSION 317 the Second World War suggested that the rise of authoritarian regimes in Europe made the peace and security of the continent more pre- carious. But, those who designed the Convention agreed that its main modus operandi should be complaints made by states against each other, and not those made by individuāls against their own governments. While some wanted the right of individual petition to be mandatory from the start, this did not become the case until 1998, although by then it had been voluntarily accepted by ali signatory states. Over the past half-century the Convention's surrounding environment has changed in several significant respects. First, not only have there been very few inter-state applications, they have also failed effectively to tackle authoritarianism in member states, and to prevent, or stop, gross or systematic Convention violations, largely because they rest on a contradiction — that litigious animosity between states will promote their greater unity, interdependence, and respect for shared values. Second, while the risk of a conflict between liberalism and authoritarianism over the ‘ideological identity5 of the State has diminished in most of Europe, the risk of conflict over its cexistentiaF identity has increased, particularly as ethnic and religious animosities stifled by communism can now be more easily re-asserted. Third, the identity which the Convention originally provided, and which was then limited only to western Europe, has now become an £abstract constitutional identity5 for the entire continent, linking EU with non- EU halves, and the European Court of Human Rights has become the European constitutional court. This constitutional identity is £abstract5 both in the sense of leaving considerable scope to national authorities in fashioning a range of equally Convention-compliant national norms, institutions and processes, and in providing the ‘constitution’ for а ‘partial polity5, that is to say one with executive and judicial, but no legislative, functions. Fourth, as the Constitutional Court for Europe, the European Court of Human Rights has become a vehicle for promoting national Convention compliance, which, in its turn, promotes greater convergence in the cdeep structure5 of national constitutional, legal, and political (though less so economic) systems, around the ccontemporary European institutional modei5, characterized by the ideāls of liberalism, democracy, the rule of law, human rights, welfarism, and the socially regulated market, albeit in different mixes in different states. Transforming the European Court of Human Rights

41 3i8 STEVEN GREER into the Constitutional Court for Europe can now, rightly, be regarded as the Convention’s greatest achievement. But the fact that this process is far from complete presents the greatest challenges for the future. The second, and deeply ironic, problem with the modei of individual justice is that the individual applications process is incapable of delivering individual justice. This is so, in the first place, for sheer logistical reasons. Given the current application rate, there is not the remotest prospect that every applicant with a legitimate complaint about a Convention violation will receive a judgment in their favour at Strasbourg. With one judge per member State (46 in total), the Court’s capacity is limited to about 1,000 judgments а уеаг. Currently about 98 per cent of the 40,000 or so who apply every уеаг are turned away at the door without judgment on the merits, although about 94 per cent of those lucky enough to have their case adjudicated on the merits receive а judgment in their favour. While the summary process for well-founded complaints and the new admissibility test introduced by Protocol 14 may boost the Court’s productivity and buy extra time for further reflection on its future, they are unlikely, of themselves, to solve the problem of case overload. Second, in spite of some recent developments, the Court remains reluctant, on account both of the principle of subsidiarity and a lack of information and expertise, to direct states on how to remedy violations, although it can, at its discretion, order victims to be compensated. It is, therefore, an open question if a mere dedaration that the Convention has been violated, without a clear indication of what needs to be done to correct it, constitutes the delivery of ‘justice5 even to the tiny percentage of applicants who manage to receive judgment in their favour, Iet alone to the possibly numerous others who may also find themselves in a similar position in the State concerned. Third, even if these problems could be overcome, the vindication of ali violations of ali Convention rights would not amount to the delivery of 'individual justice’, since £individual justice’ embraces a much wider range of rights, reflecting a more comprehensive picture of human well-being than those found in the Convention. However, there is no realistic prospect of the catalogue of Convention rights being extended to encompass any other class of right for the simple reason that the Convention system finds it almost impossible to соре with litigation on the rights it already has. Adjudication on whole new species of rights would further diminish the chances of adjudication on any of the current rights, and would also increase the risk of the judicial process grinding to a termiņai standstill. 42 CONCLUSION 319

There сап be no doubt that laws and practices in many member states have been changed as a result of successful litigation by individuāls before the European Court of Human Rights. However, the third problem with the modei of individual justice is that it is not clear that individual applications provide the most effective means of dealing with systemic or structural compliance problems — such as gross violations stemming either from an authoritarian culture in certain public institutions, struggles over the identity of the State, or intractable institutional problems such as those relating to delays in national judicial processes. Nor are individual applications obviously the best means for promoting better Convention compliance or increased national convergence around the contemporary European institutional modei. One particular difficulty in assessing the effectiveness of the individual applications process is that, given the current State of knowledge, it is difficult to determine, even with the minimum degree of social scientific reliability, which states are most, and which least, Convention compliant. Plausible hypotheses, capable of being verified or falsified by more detailed national empirical studies yet to be conducted, will unfortunately have to do instead. While not providing a wholly unproblematic surrogate for national compliance, differential rātes of official Convention violation invite explanation. There is little surprise in finding that, among western European states (leaving aside some of the micro-states with fewer than a million inhabitants), Denmark, Norway and Ireland, widely recognized as rights-sensitive democracies, have the lowest rātes of official violation, and that Italy, with its notorious judicial problems, has the highest. The fact that France has the second highest official violation rate on the 1960—2000 figurēs, and the third highest between 1999 and 2005, is not, however, so easy to explain. The most plausible reason is a lack of opportunity in national judicial processes for the compatibility of French law and public policy to be effectively tested for compliance with Convention standards. The case of Тигкеу, third in the 1960—2000 table and second in 1999—2005, also graphically reveals the limits of the Council of Europe, the Convention, and the individual applications process in producing sustained respect for Convention standards where a member State is unwilling or unable to bring itself into line. In spite of having been a member of the Council of Europe since it was established, having permitted individual applications since January 1987, and having been at the receiving end of a string of adverse judgments by the Court, Тигкеу has had an appalling human rights record until 43 320 STEVEN GREER the last few years. Tellingly, things only began to change for the better a result of recent attempts by the Turkish government to join the EļJ, a fact not yet reflected in the Court5s statistics. The experience of the former communist states also provides liiik cause for satisfaction about the efficacy of the Convention system. First* while liberal democratic values played a critical role in the design ol post-communist constitutions in the transition process, it is impossiblr to distinguish the contribution made by the Convention per se, frarn that made by the wider liberal democratic tradition of which it is merdv one particular manifestation. Second, the liberal democratic tradi tion was itself only one of several influences in the constitutionaliza tion process, and many post-communist constitutions were responsive to others, including the significant imprint of their sociālist heritage. Third, the available, though incomplete, data suggest wide variation in the region between, on the one hand, the Baltie and Central Europea» states (including Slovenia) — where human rights are increasingly well protected — and, on the other, most of the former Soviet republics where a lot of progress stili has to be made. Regrettably, in spite of having joined the Council of Europe and Convention systems, Russia and some Caucasian republics exhibit a unique mix of capitalism, nationalism, and cauthoritarian democracy5. It remains to be seen whether this is a half-way house on the road to greater conformity with the common European institutional modei, or a transitional stage on а different road to more permanent divergence. And if it is the latter, it is difficult to prediet how the Council of Europe will react. In the Balkans, in between these two categories, Croatia and Macedonia appear to be doing better than Albania, Bosnia-Herzegovina and Serbia-Montenegro. But it is, fourth, impossible to teli how much credit the Council of Europe, the Convention and the Court should receive for any of these developments. The same methodological problems which inhibit proper social seientifie evaluation in western Europe apply even more power- fully in the former communist zone, and commentators are divided over the Convention5s profilē in constitutional adjudication in the process of democratic consolidation. The pieture is, at best, uneven. The official violation rate is an even less satisfactory surrogate for assessing Convention compliance in central and eastern Europe than it is in the west, because many former communist states have not been in the system long enough for stable patterns to have emerged. The authors of comparative studies, cited in Chapter 2, eonelude that constitu tional adjudication in the former communist zone is almost exclusively 44 CONCLUSION 321 referenced to national constitutions, with virtually no reference to external sources including the Convention. However, jurists commen- tating on specific states, also cited in Chapter 2, claim to have detected a more prominent role for the Convention, particularly in the Czech Republic, Hungary, Lithuania and Slovenia. But the problem with these studies is that they are dominated by the doctrinal tradition and make no attempt to calculate the Convention’s domestic impact empirically. Prima facie, better national records of Convention compliance appear, therefore, to be the result either of Convention values having been institutionalized at the national Ievel before, even long before, the Convention itself was promulgated — as in the Scandinavian democracies, the low countries and Ireland — or an attempt to secure the long-term strategic goals associated with the successful assertion of a convincing European political, constitutional identity, as in the case of Germany, Spain, the Czech Republic, Poland, Hungary and the Baltie states. France and Italy are special cases for the reasons already explained, while, until the more exacting demands of acceding to the EU appeared on the honzon, Turkey?s attempt to establish a European identity was compromised, not so much by its Islamic culture, but by its uniquely authoritarian, militaristic, secular and unitary process of modernization.

PROSPECTS

The Convention system, therefore, faces several challenges as the first decade of the twenty-first century draws to a close. One set concerns what needs to be done at the national Ievel to improve compliance. Another requires the further improvement of the Convention’s existing judicial process, while a third suggests the need for fresh institutional innovations. The key to the first set of challenges is the more thorough domestication of Convention values in national legal systems. Contrary to the received wisdom, this is less a matter of formai incorporation — the Convention has, after ali, long been formally incorporated in those states with the highest official violation rātes — and more a matter of effectively integrating it in national adjudication. One possible way of aehieving this result would be to ensure that ali judgments of the European Court on Human Rights are regarded as binding, and not merely persuasive authority (erga omnes), at least by the supreme and/ or constitutional courts of ali member states. 45 537

International Courts and Ultra Vires Acts

In e t a Z ie m e l e

I. Preface ...... 537 II. Introduction ...... 537 TĪT. Setting the stage: Mamatkulov andAskarov v. Тигкеу case...... 538 IV. Ultra vires acts and jurisdiction of international courts ...... 540 V. Examples of the case law of the European Court ofHuman Rights 549 VI. Conclusions ...... 555

I. Preface It is a pleasure to write this article for the book dedicated to Professor Luzius Wildhaber. And it is my great honour to contribute to a book celebrating the well-known international lawyer and a long-serving President of the European Court of Human Rights.

II. Introduction There is something unsettling about the proposition that an international court, or for that matter any court, may have acted ultra vires. H.L.A. Hart has even said that since “a supreme tribunal has the last word in saying what the law is, and, when it has said it, the statement that the court was 4wrong’ has no consequences within the system: no one’s rights or duties are thereby altered”.1 On the one hand, there is a certain expectation that a court will adjudicate a disputē correctly, basing itself on sound legal arguments under the rules delineating its powers. This is especially so since in most cases a judicial decision is indeed the final word on one’s rights and obligations. On the other hand, disagreements about the correctness and soundness of a court’s decision are not rare and not only between opposing parties in a case. Situations have arisen where, in the absence of any obvious rule entitling or disallowing a court to act, the court takes a decision. It is said that such acts may fall within the discretion of a court. Judicial discretion has, however, been one of the grounds for serious reservations regarding courts and especially international courts.2 Choices made by courts as to

1 H.L.A. Hart, The Concept ofLaw, Oxford, Clarendon Press, 2nd ed., 1994, p. 141. 2 Raymond Wacks, Understanding Jurisprudence. An Introduction to Legal Theory, Oxford, Oxford University Press, 2005, p. 83. . 46 538 Ineta Ziemele the substantive application of the law have also been challenged, and questions concerning judicial activism or the need for judicial self- restraint remain topical. Chancellor Wolfgang Schussel of Austria has wondered aloud about the European Court of Justice and has asked awhether judges are going beyond EU treaties by issuing judgments affecting the military, criminal law and education - and robbing sovereign nations of the right to set their own policies”.3 There are different reasons for what has even been called “hostility”4 towards courts and certainly international courts. The examination of these reasons could be relevant for the study of instances in which it is alleged that a court has acted ultra vires. Within the framework and limitations of this article, such an examination will not be carried out. This article will look into some instances when the ultra vires concept has been invoked with respect to a decision by an international court. For different reasons, the examples taken are those where the court or individual judges, members of that court, have used the concept; the debate in the scholarly writings is outside the scope of this study. This should provide а number of elements towards answering the main question of this article - whether an international court can at ali act ultra vires. If so, using Hart’s language, are there any consequences to the fact that “a court was ‘wrong’”?

III. Setting the stage: the case of Mamatkulov and Askarov v. Тигкеу The Grand Chamber of the European Court of Human Rights decided the case on 4 February 2005.5 It concerned two Uzbek nationals, members of the opposition party Erk (Freedom) in Uzbekistan. They were arrested upon their arrival at Istanbul airport on the basis of an international arrest warrant, since they were suspects in a bomb explosion and an attempted terrorist attack on the President of Uzbekistan. On the basis of a bilateral agreement between Тигкеу and Uzbekistan, the latter requested their extradition. The individuāls concerned applied to the European Court of Human Rights and asked the Court to apply Rule 39 of the Rules of the Court on interim measures which would have the effect of asking Тигкеу to stay the extradition proceedings until the Court had had the chance to deal with the case. The Court accepted the request and indicated interim

3 James Kanter, “Support wanes for potent EU court”,International Herald Tribune, 3 May 2006, pp. 1,7. 4 George Letsas, “The Truth in Autonomous Concepts: How To Interpret the ECHR”, 15 European Journal of International Law (2004) p. 280. 5 Mamatkulov and Askarov v. Тигкеу [GC], EurCourtHR, nos. 46827/99 and 46951/99, ECHR 2005-1 = 26 Human Rights Law Journal (HRLJ) 39 (2005). 47 International Courts and Ultra ViresActs 539 measures, on 18 March 1999. The applicants were nonetheless handed over to the Uzbek authorities on 27 March 1999. Тагкеу informed the Court that it had received assurances from the Uzbek authorities that the applicants would not be tortured and that their property would not be confiscated. Subsequently, the Supreme Court of Uzbekistan found them guilty and imposed heavy prison sentences. The majority of the Grand Chamber did not find a violation of Articles 3 (on the prohibition of torture) or 6 (on the right to a fair trial), but did find a violation of Article 34 by Тигкеу. Article 34 provides that: “The Court may receive applications from any person,... claiming to be the victimof a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to ■ hinder in any way the effective exercise ofthis right [emphasis added]”. It essentially provides for the right of individual application to the Court. This article is the basis for the Court’s jurisdiction ratione personae. In their partly dissenting opinion, Judges Caflisch, Ttirmen and Kovler disagreed with the finding of a violation of Article 34 on the ground that Тигкеу did not comply with the interim measures applied by the Court. The Judges maintained that “the Convention cannot serve as a basis for holding that the Court’s provisional measures are binding upon the States Parties to the Convention”.6 They referred to the established case law of the Court. In the leading authority on interim measures, the Cruz Varas judgment of 19917, the Court had said that: “in the absence of a provision in the Convention for interim measures an indication given under Rule 36 (now Rule 39) cannot be considered to give rise to a binding obligation on Contracting Parties.”8 In the view of the dissenting Judges, Rule 39 was not merely an interpretation of the Convention. Nor was it a reflection of a possible rule of customary international law. In this respect they said that: “while the Court is entitled to interpret the provisions of the Convention, it may not - by way of interpretation or through the enactment of rules of procedure, or both - write new rules into the Convention, not even if there is a fairly widespread practice in the desired sense, as long as that practice is not uniform, accompanied by а corresponding opinio juris. Only States Parties as a whole may amend the Convention by supplementing it.”9 As far as the argument concerning а

6 Ibid., (note 5), Joint Partly Dissenting Opinion of Judges Caflisch, Ttirmen and Kovler, § 2. 7 Cruz Varas and Others v. Sweden, EurCourtHR, judgment of 20 March 1991, Series А no. 201 = 12 HRLJ 142 (1991). 8 Referred to by the dissenting Judges,ibid. (note 6), § 5. 9Ibid. (note 6), §7. 48 540 Ineta Ziemele possible rule of customary international law was concerned, the dissenting Judges made a distinction between the power to formulate interim measures and the power to prescribe such measures. The former, in their view, might have emerged as the customary rule since ali international courts may enact their Rules of Procedure. The same could not be said about the power to prescribe such measures, in the absence of explicit power to do so. Therefore, Judges Cafhsch,Turmen and Kovler considered that the Court had entered the domain “of legislation rather than of judicial action”. Their conclusion is of particular interest for the purposes of this article. It is cited in ML “As neither the constitutive instrument of this Court nor general international law allows for holding that interim measures must be complied with by States, the Court cannot decide the contrary and, thereby, impose a new obligation on States Parties. To conclude that this Court is empowered, de lege lata, to issue binding provisional measures is ultra vires. Such a power may appear desirable; but it is up to the Contracting Parties to supply it.” The Mamatkulov case is one recent case in which the European Court of Human Rights allegedly exceeded its powers and thus acted ultra vires as far as the prescription of interim measures is concerned. It is not often that the Court is said to have acted ultra vires. The opinion of the dissenting Judges exemplifies very well how and in what situations such а proposition can emerge. The case is a good starting point for the purposes of this article.

IV. Ultra vires acts and jurisdiction of international courts The concept of ultra vires acts in its literal sense is not complex; it means that an institution has acted beyond its powers, i.e., without legal authority. It is the determination of those powers and consequently the acts and decisions that fall outside them that becomes complex, especially where different international courts are concerned. It is submitted that since courts exercise judicial functions and decide disputēs over their powers it becomes particularly difficult to establish that they may have acted ultra vires. An attempt to exemplify that difficulty follows.

Determination The determination of the powers of a court refers essentially to the establishment of its jurisdiction “to adjudicate upon cases and make orders in respect of the parties to them”.10 The jurisdiction of international

10 Vaughan Lowe, “Jurisdiction”, in: M Evans (ed.),International Law, Oxford, Oxford University Press, 2003, p. 330. 49 International Courts and Ultra ViresActs 541 courts is based on State consent. There may be differences as to the degree to which the State is free to decide on its consent. In the modern reality of State interdependence, especially within the context of international organisations, State consent may sometimes be a pure formalit^11 Nevertheless, a State has to ratify the relevant constitutive treaty. Furthermore, practice shows that even if States have in general consented to the jurisdiction of an international court, once a specific disputē is submitted for adjudication the parties frequently challenge the jurisdiction of the court to deal with the disputē in question. In the case concerning Certain Phosphate Lanās in Nauru, for example, the issue of ratione temporis jurisdiction was raised. The International Court of Justice (ICJ) noted that: “international law does not lay down any specific time-limit in that regard. It is therefore for the Court to determine in the light of the circumstances of each case whether the passage of time renders an application inadmissible”.12 One can also look at the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in which, as a preliminary objection, Yugoslavia refuted the jurisdiction ratione personae, ratione materiae and ratione temporis of the ICJ. Yugoslavia thus submitted that at the time, Bosnia-Herzegovina was neither a State under international law nor a Party to the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).13 It also challenged the admissibility of the application by Bosnia-Herzegovina since, in the view of Yugoslavia, in the context of civil war no international disputē may arise. The practice of the ICJ is rich with examples where the parties chose to question vigorously the jurisdiction of the Court both in contentious and advisory proceedings.14 As confirmed by the Court’s answer to the challenges to jurisdiction in the Nauru case, it is for the Court to settle disputēs over its jurisdiction.

11 On this point, see also Ian Brownlie, Principles of Public International Law, 6th ed., Oxford, Oxford University Press, 2005, pp. 683-684. 12 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 253-254. 13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996, § 15. 14 E.g.Arrest Warrant o f l l April 2000 (Democratic Republic ofthe Congo v. Belgium), Judgment, I.C.J. Reports 2002 = 23 HRLJ 330 (2002). Similarly, important objections were raised concerning the competence of the Court to give the advisory opinion in the recent case on Legal Conseguences of the Coristruction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 = HRLJ25 161 (2004).50 542 Ineta Ziemele

The Statute of the ICJ provides: aIn the event of a disputē as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court”15 This refers to the well-known principle of la competence de la competence which, in the words of the International Criminal Tribunal for the former Yugoslavia (ICTY), “is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its ‘jurisdiction to determine its own jurisdiction’.”16 It has been argued that the principle la competence de la competence is a general one, which would apply, for example, to the ICJ, “even if Article 36(6) were not included in the Statute”.17 The scope of the application of this principle is not laid down with any precision in the constitutive documents of international courts or in general international law. Professor Abi-Saab has commented, in the context of examples concerning delegated legislative power, that “international tribunāls have developed, on the basis of the principle of competence-competence, a whole body of international procedūrai law”.18 The courts have indeed legislated for the purposes of developing the procedure of adjudication and that is one example of the consequences of the principle of competence-competence. Its application is, however, not limited to questions of procedure. Decisions on jurisdiction extend to questions of scope ratione materiae, without however the courts deciding on the merits. Further examples on the scope of the application of the principle can be given. In the eight cases Concerning Legality of Use ofForce brought by Serbia and Montenegro before the ICJ against the NATO Member States in the aftermath of the bombing of Belgrade in March 1999, the Respondents argued that the Court should exercise its inherent jurisdiction to strike the cases off the list since the Applicant had changed the grounds submitted for jurisdiction. Neither the Rules of the Court nor its practice provide for such an approach explicitly but, in view of the Respondents, “there is no doubt that in certain circumstances the Court may of its own motion put an end to proceedings in a case”.19 The Respondents further explained that the ICJ in the exercise of its power to determine its own jurisdiction should be guided by the needs of

16 Prosecutor v. Dusko Tadič a/kJa “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72 (2 Oct 1995), para. 18, full text in 16 HRLJ 437(1995). 17 Hugh Thirlway, “The International Court of Justice” in: Evans (ed.),International Law, Oxford University Press, 2003, p. 572. 18 Georges Abi-Saab, “Comment” in:Developments of International Law in Treaty Making, Beitrage zum auslandischen dffentlichen Recht und Volkerrecht (2005) 177, p. 35. 19 Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment, I.C.J. Reports 2004, § 33. 51 International Courts and Ultra Vires Acts 543 the proper administration of justice. The submission of the Respondents concerns an aspect of procedūrai law. In her Separate Opinion Judge Higgins addresses the question of the wider scope of application of the Court’s inherent jurisdiction: “The Court’s inherent jurisdiction derives from its judicial character and the need for powers to regulate matters connected with the administration of justice, not every aspect of which may have been foreseen in the Rules. ... The very occasional need to exercise inherent powers may arise as a matter in limineUtis , or as a decision by the Court not to exercise a jurisdiction it has, or in connection with the conduct or the merits of a case. The judges who jointly dissented in the Nuclear Tests cases did not challenge the existence of such inherent powers. They asserted that their use ‘must be considered as highly exceptional and а step to be taken only when the most cogent considerations of judicial propriety so require’.”20 In the Nuclear Tests cases, the Court found by nine votes to six that the claim of Australia agūinst France no longer had any object and that the Court was not therefore called upon to give a decision. The Court reasoned that Australia sought assurances from France of the discontinuation of its nuclear tests in the South Pacific Ocean. Since the Court found that through its unilateral declarations France had indeed taken upon itself an obligation to discontinue the tests, it considered the matter settled as the disputē had disappeared.21 The Court explained further its reasons for declining to deliver judgment as follows: “This is not to say that the Court may select from the cases submitted to it those it feels suitable for judgment while refusing to give judgment in others. Article 38 of the Court’s Statute provides that its function is “to decide in accordance with international law such disputēs as are submitted to it”; but not only Article 38 itself but other provisions of the Statute and Rules also make it clear that the Court can exercise its jurisdiction in contentious proceedings only when a disputē genuinely exists between the parties. In refraining from further action in this case the Court is therefore merely acting in accordance with the proper interpretation of its judicial function”.22 The six dissenting Judges addressed the argument that the Court had refused to issue a judgment based on the proper exercise of its judicial function in this case. In view of the Judges:

20 Separate Opinion of Judge Higgins, §§ 10-11. 21 Nuclear Tests Case (Australia v. France), Judgment, I.C.J. Reports 1974, §52 56. 22 Ibid. (note 21), § 57. 544 Ineta Ziemele

“there is a basie eontradietion when the Court invokes its “inherent jurisdiction” and its “judicial character” to justify its disposal of the case, while, at the same time, failing to accord the Applicant any opportunity whatever to present a countervailing argument. No-one doubts that the Court has the power in its diseretion to decide certain issues ex proprio motu. The real question is not one of power, but whether the exercise of power in a given case is consonant with the due administration of justice. ... we are of the view that, in the circumstances of this case, to decide the issue of “mootness” without affording the Applicant any opportunity to submit counterarguments is not consonant with the due administration of justice”.23 The disagreement among the Judges is clearly not about whether, in the absence of clear rules, the Court has the power to determine its course of action in the circumstances of the case. Rather, the disagreement is over whether the action ehosen by the Court in this case is in accordance with due administration of justice. Furthermore, the dissenting Judges could not see how the inherent jurisdiction could serve as a basis for finding that the respondent was under legal obligations {ie., unilateral declarations of France) ratione materiae as concerns the nuelear tests, while at the same time it refused to hold that any future tests would violate international law. In view of the Judges “such an extensive interpretation of the alleged “inherent jurisdiction” would blur the line between the jurisdiction conferred to the Court by the Statute and the jurisdiction resulting from the agreement of States”. In their view, this was an unacceptable way to bypass the fundamental rule that jurisdiction is based on the consent of States.24 It is indeed somewhat unclear how the elaimed inherent jurisdiction might be relevant for the discussion on the obligations of France that may or may not derive from a particular source of law; in this case a unilateral statement. Moreover, Article 38 of the ICJ Statute does not recognise expressis verbis unilateral acts of States as a source of rights and obligations. It may be that this is where inherent jurisdiction of the Court is relevant, but what the dissenting Judges are in fact saying is that rules of international law are essentially formed through State consent. The Court may be overstepping its powers when it says that certain unilateral acts can be the source of legal obligations, especially since, in view of the dissenting Judges, the parties have not agreed to the Court’s jurisdiction to adjudicate on such obligations.25 Although the dissenting Judges have

23 Joint Dissenting Opinion of Judges Опуеата, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock, § 23. 24 Ibid. (note 23), §28. 25 Ibid. (note 23). 53 International Courts and Ultra Vires Acts 545

raised a very interesting question as to the powers of the Court ratione materiae and the question can be raised whether Article 38 could cover unilateral statements as a source of rights and obligations, I believe there is agreement today that the international normative process is much more complex than a narrow reading of Article 38 would suggest. In any event, the question may also be asked to what extent a description of an act as unilateral corresponds with ali the processes and effects that such an act may have in the international arēna. Ian Brownlie has pointed out that “legally significant reaction may occur in the form of unilateral acts or conduct, involving estoppel, recognition, or acquiescence”.26 It is interesting to note that the dissenting Judges in their conclusion do not use the term ultra vires but the substance of their conclusion could be easily summed up by this term. They say that: “... we consider that the Applicant had a right under the Statute and the Rules to have the case adjudicated. This right the Judgment takes away from the Applicant by a procedure and by reasoning which, to our regret, we can only consider as lacking any justification in the Statute and Rules or in the practice and jurisprudence of the Court.”27 In other words, the Court has acted ultra vires since none of the sources for its competence provided for such action. It is also interesting to note that the dissenting Judges distinguish between the Statute and the Rules as the basis for jurisdiction, on the one hand, and the practice and jurisprudence of the Court, on the other. It seems that this implies recognition that, for example, in the area of inherent jurisdiction it is through practice that its exercise is developed. If this is so, there can always be a first case for the particular exercise of inherent jurisdiction. This exemplifies the submission that it is particularly difficult to determine that an international court has acted ultra vires. There may always be, certainly theoretically, a possibility to refer to the inherent jurisdiction of a court. It is therefore that views differ as to when and how far a court can go in claiming inherent jurisdiction. Practice shows that a judicial body has a fairly wide margin of appreciation when deciding on the issues of its jurisdiction. Naturally, the Court has to remain mindful of the fact that the source of its authority is State consent. At a certain point, if it is stretched too much, that consent may be withdrawn, or at least challenged, and that certainly affects adversely the authority and credibility of a judicial body and the decisions rendered. In fact, this is true as concerns both the classical grounds of jurisdiction {ratione temporis, ratione personae, ratione materiae, ratione

26 Brownlie, ibid. (note 11), p. 85. 27 Ibid. (note 23), §120. 54 546 Ineta Ziemele loci) and inherent jurisdiction. The determination of jurisdiction on classical grounds is not without controversy, as amply evidenced by cases in the European Court of Human Rights such as, for example, Bankovič and Others v Belgium and Others28 or Blečič v. Croatia.29 In the Prosecutor v. Dusko Tadič case (supra note 16), the ICTY addressed in detail a question of inherent jurisdiction of international tribunāls. The Tribunal raised another aspect of this question. Given that the principle of inherent jurisdiction is a general one, can it be put within certain bounds through a treaty process? In view of the Tribunal “the constitutive instrument of an international tribunal can limit some of its jurisdictional powers, but only to the extent to which such limitation does not jeopardize its ‘judicial character’. Such limitations cannot, however, be presumed and, in any case, they cannot be deduced from the concept of jurisdiction itself”. The Tribunal admitted that the power to determine one’s own jurisdiction that rests with international judicial bodies “can be limited by an express provision in the arbitration agreement or in the constitutive instruments of standing tribunāls, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character of the independence of the Tribunal”. The following general points emerge from the cases in which the ICJ and ICTY discussed the inherent jurisdiction of international courts: (1) Inherent jurisdiction is in the nature of the judicial functions of an international court and is aimed at assisting the court; it is a general principle of international law. (2) It can only be limited, if at ali, by а constitutive document, provided such limitations do not interfere with judicial functions. (3) It should be used with care in the interests of the proper administration of justice and where judicial propriety so requires,

28 The question of the jurisdiction ratione loci was at the heart of the case. Persons living and having allegedly been victims of human rights violations in a non-State party to the Convention were the applicants before the Court, while the alleged respondents were several States parties to the Convention, which strictly speaking did not exercise effective control over the territory of a non-State party.Bankovič and Others v. Belgium and 16 Other Contracting States, EurCourtHR, No. 52207/99, Admissibility decision of 12 December 2001, ECHR 2001-ХП = 22 HRLJ 453 (2001). For the discussion of the Court’s approach to the question of jurisdiction, see Christos L. Rozakis, “How Far Can We Go? Recent Developments of Strasbourg Case-Law on the Concept of Jurisdiction”, in: Caflisch et al. (eds.), II derecho internacional: normas, hechos у valores. Liber Amicorum JosēAntonio Pastor Ridruejo, Universidad Complutense Madrid, pp. 209-227. 29 The question of the jurisdiction ratione temporis was addressed by the Grand Chamber in the context of the question of whether or not termination of tenancy was а continuing or instantaneous act. See Blečič v. Croatia, EurCourtHR, No. 59532/00, Judgment of 8 March 2006, § 63et seq. 55 International Courts and Ultra Vires Acts 547 even if a particular act or decision is not explicitly provided for in а constitutive treaty and/or the rules of the court. It could be added that since existing international courts and tribunāls are created in the majority of cases with a view to ensuring the effective implementation of a specific international treaty by the States parties, there will always be principles that are specific to this treaty that will affect the inherent jurisdiction of a particular international court. It is for the courts to decide upon the proper administration of justice and the needs of judicial propriety in adjudicating cases within their powers. The courts have a considerable margin of appreciation as to what actions are warranted by the proper administration of justice. Also, each court is the main authority for the interpretation and application of its constitutive documents and other applicable rules. In this regard, the courts enjoy considerable discretion. It is therefore no surprise that the limitations of judicial discretion are hotly debated both at national and international Ievels and that the courts are criticised for acting as legislators instead of exercising their self-restraint.30 While it has been seen to fall within the powers of the courts to legislate on matters relevant for the proper exercise of their functions,31 difficult questions may indeed arise where decisions on merits, in the view of some, have gone beyond а mere interpretation of the applicable law and have entered the domain of political decision-making or legislation. The ICJ has had to address this question repeatedly. In the Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territorythe Court once again confirmed that law and politics are linked and that the Court is called to adjudge the legal aspects of a political question.32 It may indeed be difficult to set totally apart the political and legal sides of disputēs in today’s world but courts have their own role to play in this. In the Mamatkulov case, the dissenting Judges considered that the European Court had in fact legislated by pronouncing on the binding character of the interim measures. It is the legislative action that they considered as ultra vires. It was observed before that, in view of the inherent jurisdiction of an international court, it is not easy to determine

30 For this argument, see Mamatkulov (note 5). For criticism of these conceptual bounds and the relativity of the distinction between legislative and judicial powers, see Boštjan Zupančič, “On the Interpretation of Legal Precedents and Judgments of the ECHR” (on file with the author, forth-coming). For discussion of the autonomous concepts of the ECHR and the questions of the legal authority for their development or the lack of any such authority and thus the use of illegitimate judicial discretion by the Court to develop new concepts, see Letsas, op.cit. (note 4) pp. 285-290. 31 Abi-Saab,op. cit. (note 18). 32 Supra (note 14) § 41. 56 548 Ineta Ziemele whether the Court merely interprets the Convention and its Rules of Procedure or in fact legislates in the given circumstances. In the Mamatkulov case, even if the European Convention on Human Rights (ECHR) does not contain a provision on interim measures, the Court had good reason to say that the drafters could have hardly wanted to adopt something that is ineffective. If it takes binding provisional measures to make the State party comply with the Convention effectively, and given the long established State practice of compliance with provisional measures, the Court indicated provisional measures. The decision was certainly necessary for the proper administration of justice in this and other similar cases under the Convention. It may well be that in the exercise of their inherent jurisdiction the courts rule on a number of issues on which their constitutive documents and rules of procedure are silent, but the development of the proceedings requires such a ruling.33 This may appear as an act of legislation or even be accepted as such. Whether it is beyond the court’s jurisdiction and thus ultra vires can only be decided on a case-by-case basis. A degree of self- restraint is in the interests of courts, since their authority and legitimacy is based on retaining the State consent which lies at the basis of their jurisdiction. It can be said that the courts are very well aware of that.

Conseguences Further important questions concerning the determination that a court has acted ultra vires arise: Who can make such a determination? What are the effects of such an act once the determination is made? As to the determination of an ultra vires act, one could, first of ali, think of the procedures already available within the courts. In the European Court of Human Rights, for example, if it is argued by one of the parties to a case that a Chamber has acted ultra vires there is the possibility to appeal the judgment to the Grand Chamber. А submission to the Grand Chamber that some part of a judgment is ultra vires would, in my view, qualify as raising serious questions of the interpretation or application of the Convention - a condition for the referral of a case to the Grand Chamber in accordance with Article 43 § 2. Where no clear appeal is available, and even if the underlying principle states that it is only the parties to the case that are bound by the judgment, international courts and third States follow and comply with the rulings of general principles and statements of general law in the case law concerned. There is therefore a possibility, even if a limited one, to remedy a past situation in a future case.

33 As, in fact, acknowledged by Judge Higgins of theICJ. Higgins, op. cit. (note57 20). International Courts and Ultra Vires Acts 549

In systems such as the European one, where the execution of judgments is supervised by an inter-governmental body, it is the States parties having consented to the jurisdiction of the Court that are in a position to make the necessary determinations. This is very much in line with the basie principle that the jurisdiction of international courts is based on State consent and, if and where a court goes beyond that consent, the States should have a procedure available to look into that matter. Admittedly, not ali international courts are linked to an inter-governmental execution mechanism, but it is in fact in the interests of States.34 Finally, if it is determined, either through the procedures sketehed out above or other available procedures, that a decision or a judgment is wholly or partly ultra vires, the question of relevant consequences arises. It is obvious that the preferred situation is where the problem can be settled by the court itself through its judicial procedures. Where the States take the matter into their hands the practice relevant for the purposes of this study shows that a State may refuse to comply with the judgment or react in another negative manner towards the court and its decision. Unilateral actions of States in such a context seem, however, to fall short of what could be considered as proper determination of an ultra vires act. А unilateral act will usually be seen as demonstrating the inability of a losing party to accept the outeome of the case.35 In other words, given the independence and authority of courts, the multilateral inter-State procedure is the only appropriate means if an ultra vires problem arises.

V. Examples of the case law of the European Court of Human Rights Like other treaties providing for the establishment of international courts, the European Convention on Human Rights determines the jurisdiction of the European Court of Human Rights. It states that “the jurisdiction of the Court shall extend to ali matters concerning the interpretation and application of the Convention and the protocols

34 Fredrik G.E. Sundberg, “Control of Execution of Decisions Under the ECHR - Some Remarks on the Committee of Ministers’ Control of the Proper Implementation of Decisions Finding Violations of the Convention” in: Alfredsson et ai. (eds.) International Human Rights Monitoring Mechanisms, The Hague/Boston/London, KIuwer Law International, 2002, pp. 561-585. 35 The developments in theNicaragua case are relevant to exemplify the point. When the ICJ found that it had the jurisdiction in the case, the US stated that the Court’s judgment “was clearly and manifestly erroneous as to both fact and law” and that the United States “reserves its rights in respect of any decision by the Court regarding Nicaragua’s elaims”. The US did not appear in the further proceedings on the merits. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, §§ 26-27. 58 550 Ineta Ziemele thereto ...”. Furthermore, “in the event of disputē as to whether the Court has jurisdiction, the Court shall decide”.36 Apart from the abovementioned Mamatkulov case, there have been few other occasions when it has been submitted that the Court has acted ultra vires. At the outset, it can be stated that the ultra vires concept has been invoked both as concerns the Court’s decisions on its competence to adjudicate the matter and as concerns the application of the substantive provisions of the Convention. In the Guzzardi case the Court found a violation of Article 5 which was not complained about initially by the applicant and, in particular, was not substantiated by the facts invoked in the proceedings in front of the former European Commission of Human Rights.37 In the dissenting opinion, Judge Sir Gerald Fitzmaurice pointed out that “the ultra petita rule precludes that an international tribunal or equivalent body should deal with matters that are not subject of the complaint brought before it, and stili more that t should give a decision on those matters against the defendant party m the case. If it does this, proprio motu, it is acting ultra vires ”38 In other words, the Court is limited by the submissions of the parties. 5 This is a well-known principle that has also been applied by the International Court of Justice. In the Arrest Warrant case, the Court stated that it “would recall the well-established principle that ‘it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions’ (Asylum, Judgment, I.C.J. Reports 1950, p. 402). While the Court is thus not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning.”39 In the view of the ICJ, an international court has a certain margin when deciding which points to address as part of its reasoning in a judgment but it appears to be a more limited margin than the one assumed by the European Court in the Guzzardi case. The margin referred to in the context of the non ultra petita rule is based on the judicial character of the court’s functions and is aimed at (or limited by, as it may be) the proper administration of justice.

36 Article 32. 37 The European Commission of Human Rights was abolished with the entry into force of Protocol 11 to the European Court of Human Rights in 1998 whereby a single, full-time Court was established. 38Guzzardi v Italy, EurCourtHR, judgment of 6 November 1980, Series А no. 39, § 4 = 1HRLJ 257 (1980). 39Ibid. (note 14), §43. 59 International Courts and Ultra Vires Acts 551

In the case Ringeisen v. Austria the Commission asked the Court for the interpretation of the judgment. The Convention at the time did not contain a specific provision on the interpretation of judgments (it stili does not), while the Rules of the Court provided for such a possibility. The Austrian Government submitted that such a competence of the Court was ultra vires “because no provision has been made in the Articles of the Convention for such a course to be taken”. In a separate opinion, Judge Zekia stated that without any doubt “interpretation of the judgment lies within the inherent jurisdiction of the Court which gives the judgment”.40 In this case the arguments raised by Austria go in the same direction as the view of the dissenting Judges in the Mamatkulov case. As can be seen, views may differ as to whether the Court is merely interpreting the scope of its powers and its inherent jurisdiction in particular or is legislating on the matter. One could also refer to the Belilos v. Switzerland case where the Court had to address the question of the Swiss interpretative declaration with respect to Article 6 § 1. There were two questions. The Court first had to determine the character of the declaration. Having examined the matter in detail, the Court found that it was in fact a reservation. Secondly, the Court had to decide whether the reservation was valid. As to the first question, the text of the Convention, relevant State practice and the travaux preparatoires supplied the Court with a solid basis to assess the declaration. As to the second question, the competence of the Court to declare a reservation invalid is not expressly provided for in the Convention. The Court does not elaborate on the sources of this competence which it assumes in the case. It only notēs that: “The Court’s competence to determine the validity under Article 46 of the Convention of a reservation or, where appropriate, of an interpretative declaration has not given rise to disputē in the instant case. That the Court has jurisdiction is apparent from Articles 45 and 49 of the Convention, which were cited by the Government, and from Article 19 and the Court’s case law ...”.41 The Convention articles mentioned encompass general principles concerning the Court as a supervisory mechanism over the State compliance with their Convention obligations. It has been argued that the

40 Ringeisen v. Austria (interpretation), EurCourtHR, judgment of 23 June 1973, Series А no. 16. 41 Belilos v. Switzerland, EurCourtHR, judgment of 23 March 1988, Series А no. 132, § 50. On the reactions in the Swiss legal practice, see Luzius Wildhaber, “Rund um Belilos. Die schweizerischen Vorbehalte und auslegenden Erklārungen zur Euro- pāischen Menschenrechtskonvention im Verlaufe der Zeit und im Lichte der Recht- sprechung”, in: Wildhaber, Wechselspiel Zwischen Innen und Aussen, Basel und Frankfurt am Main: Helbing & Lichtenhahn, 1996, pp. 415-432. 60 552 Ineta Ziemele

Court in fact deliberately avoided invoking the law of treaties in this regard since it did not assist the Court in its task.42 The question as to the legal consequences of inadmissible reservations, especially to human rights treaties, is the subject of an ongoing international law debate.43 In adopting the approach whereby inadmissible reservations are severed while the State party remains bound by the Convention in its entirety, the Court finds support in its general powers and the special character of the European Convention. In the Loizidou v. Тигкеу case, the Court was faced with a somewhat similar question. The Court had to examine the Turkish declaration under Articles 25 and 46 of the ECHR.44 The declaration stated,inter alia, that “the recognition of the right of petition extends only to allegations concerning acts or omissions of public authorities in Тигкеу performed within the boundaries of the territory to which the Constitution of the Republic of Тигкеу is applicable”.45 At the stage of preliminary objections, the Court had to determine, inter alia, whether the matters under scrutiny fell within the jurisdiction of Тигкеу “even though they occur outside her national territory”. In this connection, the Court had the possibility to clarify the scope and content of Article 1 of the ECHR. It held that: “Bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party may also arise when as а consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration.”46 Тигкеу further argued since recognition of the jurisdiction of the Commission and the Court was optional (at the time), a partial recognition of this jurisdiction was permissible. It supported this argument by referring to the well-established practice of the ICJ and the drafting

42 Jorg Polakiewicz, “Collective Responsibility and Reservations in a Common European Human Rights Area”, in: Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime. Conflict, Нагтопу or Reconciliation, Leiden/Boston, Mārtiņus Nijhoff Publishers, 2004, p. 117. 43 On this debate and possibility for the development both within the law of treaties and customary international law, seeibid. (note 42). 44 Luzius Wildhaber, “Foreword”,ibid. (note 42). 45Loizidou v. Тигкеу (Preliminary Objections), EurCourtHR, judgment of 23 Febmary 1995, Series А no. 310, § 15 =HRLJ 16 15 (1995). 46Ibid., §62. 61 International Courts and Ultra Vires Acts 553 history of the ECHR, which did not exclude restrictions or conditions with respect to the optional jurisdiction of the Convention institutions.47 The Court in this regard explained the basie principles emanating from Article 19 as they related to the obligations of States parties deriving from the acceptance of the right of individual complaint. It addressed the question of limitations set forth in the Convention whenever departures from the Convention obligations are elaimed. “The Court observes that Articles 25 and 46 of the Convention are provisions which are essential to the effectiveness of the Convention system since they delineate the responsibility of the Commission and Court “to ensure the observance of the engagements undertaken by the High Contracting Parties” (Article 19), by determining their competence to examine complaints concerning alleged violations of the rights and freedoms set out in the Convention. In interpreting these key provisions it must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms.”48 The Court held that Тигкеу had de facto control over the territory of Northern Cyprus, and it was on this basis that Тигкеу was determined the respondent in the Loizidou case in view of Article 1. The Turkish declaration was severed while Тигкеу remained bound by the Convention in its entirety. It is true that the European Court of Human Rights has developed an innovative approach to reservations. According to the President of the Court Wildhaber, “the Belilos and Loizidou approach totally disregarded the fact that at the heart of any treaty based commitment there could only be agreement. Human rights treaties made no exception in this respect”.49 Did the Court act ultra vires? In the meantime, the Court’s practice has been accepted, or at least not objected to, by the States parties to the ECHR. It is justified by the special character of the Convention. The effective application of the Convention and its special character giving rise to obligations erga omnes partes requires the Court to determine the compatibility of reservations and declarations with the obligations of the States parties under the Convention.50 The question remains whether such an approach is to be adopted with respect to ali human rights treaties and who should be in a position to determine the validity of reservations in the

47 Ibid., §67. 48 Ibid., § 70. 49 Luzius Wildhaber, “Preface”, in: Ziemele (ed.),Reservations to Human Rights Treaties and the Vienna Convention Regime. Conflict, Нагтопу or Reconciliation, Leiden/Boston, Mārtiņus Nijhoff Publishers, 2004, р. X. 50 Polakiewicz, op. cit. (note 42), p. 131. 62 554 Ineta Ziemele

other cases in the absence of any specific treaty provision in most cases. There is no doubt that until the issue is settled through the international normative process the ultra vires concept will be invoked in this area repeatedly. The next example from the practice of the European system is of а different nature. In the Van Geyseghem v. Belgium case involving Articles 6 § 1 and 6 § 3, Judge Bonello attached a concurring opinion where he agreed with the outcome of the case but could not agree with the reasons. In this case, the Belgian Court of Appeals dismissed the appeal because the applicant did not take part in the hearing but instead sent his lawyer. The appeal was on a technical legal issue. The majority of the Court took the view that Article 6 requires a case-by~case approach where the rights of the defendant and those of administration of justice are balanced. Judge Bonello in this respect stated that “balancing the discordant interests of the individual and those of society is crucial in the application of various other provisions of the Convention, where the text itself explicitly demands such balancing. In the fundamental right to be present at the trial, Article 6 § 3 (c) posits no such balancing, and any excursion into that equilibrating exercise would be both amiss and inadmissible. At best, balancing is subjective and therefore arbitrary. In this case it is also clearly ultra vires".51 This example raises the question of how far can the Court go in saying that it interprets the Convention and at what point will it be said that the Court has in fact legislated on a matter. As put by Judge Zupančič, “a question might be raised as to this quasi-legislative creativity čf the Court in Strasbourg”. There is however a fundamental difficulty in drawing this distinction.52 It lies in part in the specific features of the Convention system. Some compare the case law of the Court with precedents and this comparison suggests some elements of the answer as to the difficulty of establishing when the Court has allegedly legislated on a substantive issue. Furthermore, there are principles specific to the application of the Convention which make this task even more complicated. Most importantly, athe Convention is not a stātie but a dynamic, living instrument of the law of human rights. In this fashion the Court - mostly through its Grand Chamber compositions of 17 judges - interprets the Convention and creates new precedents”.53 In fact, international treaty law requires that a treaty is to be interpreted in line with its object and purpose; a test which in itself gives the supervisory body considerable

51 Van Geyseghem v. Belgium [GC], EurCourtHR, no. 26103/95, ECHR 1999-1, concurring Opinion of Judge Bonello. 52 Zupančič,op. cit. (note 30). 53 Ibid., p. 167. 63 International Courts and Ultra Vires Acts 555 discretion. In the words of H.L.A. Hart, “the open texture of law leaves to courts a law-creating power far wider and more important than that left to scorers, whose decisions are not used as law-making precedents”.54 This is not to say that in every case a reference to these principles will justify the decision on substance. On the contrary, the discussion here underlines the importance of the careful and detailed reasoning that the Court has to provide when a judgment brings new developments to the existing case law.

VI. Conclusions In view of the exampies from the practice of the European Court of Human Rights, the following two categories of alleged ultra vires acts can be distinguished. The first one concerns the powers conferred upon the Court by the Convention regarding the conduct of proceedings through the adoption of procedūrai decisions that may not be expressly provided for in the text of the constitutive treaty. The second one concerns the substantive application of the Convention. The discussion above of the practice of the International Court of Justice shows that challenges of ultra vires have been brought along very similar lines. Admittedly, such challenges regarding points of substance are particularly difficult in the framework of the ICJ, since it is empowered to apply the entire international legal system. It is evidently easier to challenge decisions on the merits where a court is empowered to apply a single treaty and has over the years developed a very clear case law and methodology concerning the application of this treaty. In any event, the basie question remains in ali instances whether a court has merely interpreted the law in conformity with the applicable rules of interpretation or whether it has legislated on a matter not provided for in the law. Regarding procedūrai decisions, they are often taken in the interests of the proper administration of justice and are justified by the inherent jurisdiction of the court. It has to be noted that in this regard the European Court has addressed examples of State practice and emphasized the special character of the Convention when taking rather radical steps, for example, in the area of severability of reservations. This shows that the Court is well aware of the two sources of its authority, i.e., State consent and the Convention itself with ali the applicable principles that uphold the legitimacy of the Convention as law, such as legal certainty and predictability. As concerns the possible argument that a court has adopted a decision in which it has given a new and allegedly ultra vires interpretation to а

64 54 Hart,op. cit. (note 1), p. 145. 556 Ineta Ziemele general rule of international law or a particular treaty provision, it is difficult to uphold this argument for the following reasons. There may always be particular circumstances in the case subject to adjudication that merit a particular interpretation of the applicable rule. Even if comparisons could be drawn, legal systems continue to evolve and decisions which were not possible yesterday are necessary today. This is especially true in the context of European human rights law. This is not to say that case law changes constantly. On the contrary, the case law of the European Court is impressively coherent and problems of legal certainty normally do not arise. Developments in the existing case law are usually carefully explained.55 In other words, in view of the judicial character of the courts and the principle of competence-competence, it is only in exceptional circum stances that the determination of an ultra vires decision may raise difficult questions as to what to do with it and how to respond. H.L.A. Hart may be right after ali - saying that a court is wrong does not make much difference.

65 55 For ways in which it is done, seee.g. EurCourtHR, Judgment of 18 October 2000, Kudla v. Poland, §§ 148-156 =HRLJ 21 451 (2000). 205

CHaPTeR IX

FRaGMenTaTIOn, PROLIFeRaTIOn anD “SeLF-COnTaIneD ReGIMeS”

“Turning and turning in the widening gyre The falcon cannot hear the falconer ; Things fall apart ; the centre cannot hold ; Mere anarchy is loosed upon the world . . .” Yeats, The Second Coming (1919) 667. “at one point midway on our path in life I came around and found myself now searching through a dark wood, the right way blurred and lost.” Dante, Inferno (c. 1321) 668.

A. The Problem

1. A case study : Hirsi Jamaa v. Italy

345. In Hirsi Jamaa v. Italy 669, the Grand Chamber of the european Court of Human Rights was faced with a claim by Somali and eritrean asylum seekers, part of a group of about 200 who attempted to cross by boat from Libya to Italy. while still on the high seas, they were intercepted by the Italian authorities, transferred to Italian military vessels, and returned to Tripoli. The Italian Minister of the Interior relied on a series of bilateral agreements with Libya, entered into pursuant to an Italian policy to curb clandestine immigration. 346. The asylum seekers alleged that their treatment was inconsistent with various provisions of the european Convention on Human Rights 670. In particular, the Grand Chamber found that Italy

667. w. B. Yeats, The Collected Poems of W. B. Yeats (ware, wordsworth, 1994), p. 158. 668. D. alighieri, Inferno (trans., R. Kirkpatrick, London, Penguin, 2006), I. 1-3. “nel mezzo del cammin di nostra vita mi ritrovai per una selva oscura, ché la diritta via era smarrita.” 669. Hirsi Jamaa & Others v. Italy, [2012] eCtHR no. 27765/09. 670. Originally the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 november 1950 (in force, 3 September 1953), 213 UNTS 221.

66 206 J. Crawford had breached eCHR article 3, on the basis that by returning the asylum seekers to Libya without any form of individual assessment, Italy knowingly exposed the asylum seekers to inhuman and degrading treatment 671. Most notably, the Grand Chamber found that “[i]rregular immigrants, such as the applicants, were destined to occupy a marginal and isolated position in Libyan society, rendering them extremely vulnerable to xenophobic and racist acts” 672. It was further held that Italy had breached eCHR article 3 by exposing the asylum seekers to the risk of arbitrary repatriation 673. 347. So far, so arguable. But the applicants in Hirsi Jamaa made a further submission on the basis of article 4 of Protocol 4 674, which provides that “[t]he collective expulsion of aliens is prohibited”. The plain meaning of that provision — and particularly the word “expulsion” — would suggest that in order to be “expelled” from somewhere, one must first be “in” the place that one is being expelled from 675. One has to be expelled from somewhere, whether the Garden of eden or uganda. It is difficult to see how someone could be expelled from the high seas. 348. This reading is consistent with the drafting history 676. article 4 was a latecomer to Protocol 4 ; it only emerged after the assembly’s first draft was submitted to the Committee of experts.

671. Hirsi Jamaa & Others v. Italy, op. cit., para. 138. 672. Ibid., para. 125. 673. Ibid., para. 158. 674. Protocol 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms other than those already included in the Convention and in the First Protocol thereto, 16 Sep- tember 1963 (in force, 2 May 1968), ETS no. 46. 675. Cf. the definition provided in The New Shorter Oxford English Dictionary (Oxford, OuP, 4th ed., 1993) : “expulsion, n. The action of expelling ; the fact or condition of being expelled. expel, v.t. 1. eject ; cause to depart or emerge ; esp. by the use of force ; banish from a place ; discharge (a bullet). 2. Compel the departure (of a person) from a society, community, etc. ; esp. enforce the departure (of a student) from an educational establishment as a punitive measure. 3. Reject from attention or consideration. 4. Keep off, exclude, keep out (rare).” 676. See Council of europe, “Collected edition of the Travaux Préparatoires of Protocol no. 4”, 1976 ; explanatory Report to Protocol no. 4, ETS, no. 46, 1963 .

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This much longer draft 677 contained a territorial limitation : expulsion could only occur where the expellee was “in the territory of a Contracting Party” 678. This version of article 4, moreover, was based on article 13 of the International Covenant on Civil and Political Rights 679, a procedural guarantee concerning expulsion which also contains a territorial limitation 680. Removal of the limitation does not mean that the drafters intended that the provision be territorially unlimited 681. nowhere in the Committee of experts’ deliberations does there appear any intention to create a territorially unlimited prohibition. 349. The Grand Chamber relied on article 1 of the eCHR, which provides that “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. eCHR article 1 jurisdiction is presumed to be “essentially territorial” 682 ; but it can apply in circumstances where a State exercises effective control of an area outside of its territory, e.g. in the case of a military operation 683. In Hirsi Jamaa, the Grand Chamber found that Italy’s exclusive control over the intercepting military vessels justified the extension of eCHR article 1 juris-

677. explanatory Report to Protocol no. 4, op. cit., para. 30 provided : “1. an alien lawfully residing in the territory of a High Contracting Party may be expelled only if he endangers national security or offends against ‘ordre public’ or morality. 2. except where imperative considerations of national security otherwise require, an alien who has been lawfully residing for more than two years in the territory of a Contracting Party shall not be expelled without first being allowed to avail himself of an effective remedy before a national authority, within the meaning of article 13 of the Convention. 3. an alien who has been lawfully residing for more than ten years in the territory of a Contracting Party may be expelled only for reasons of national security or if the other reasons mentioned in paragraph 1 of this article are of particularly serious nature.” 678. Ibid. 679. new York, 16 December 1966 (in force, 23 March 1976), 999 UNTS 171. 680. Collected edition of the Travaux Préparatoires of Protocol no. 4, op. cit., p. 479. 681. Ibid., 505-506. 682. See, e.g., Banković & Others v. Belgium & 16 Other Contracting States, [2001] eCtHR no. 52207/99, paras. 61, 67 ; Ilaşcu & Others v. Moldova & Russia, [2004] eCtHR no. 71503/01, para. 312. 683. See, e.g., Banković & Others, op. cit., para. 67 ; Ilaşcu & Others, op. cit., para. 314. See further Loizidou v. Turkey, Preliminary Objections, (1995) 103 ILR 642 ; Al-Skeini & Others v. United Kingdom, [2011] eCtHR no. 55721/07, paras. 132, 136 ; Medvedyev & Others v. France, [2010] eCtHR no. 3394/03, para. 67.

68 208 J. Crawford diction 684. This is all well and good — indeed, a similar conclusion was reached with respect to maritime interception in the case of Medvedyev v. France 685. But the point was not the meaning of article 1, it was the meaning of article 4. The Chamber went on to argue that the concept of extraterritorial jurisdiction in eCHR, article 1, should be used to expand the scope of article 4 of Protocol 4 on the basis that : “[t]o conclude otherwise . . . would result in a discrepancy between the scope of application of the Convention as such and that of article 4 of Protocol no 4, which would go against the principle that the Convention must be interpreted as a whole” 686. This reasoning is specious : one struggles to see how the meaning of the term “jurisdiction” in eCHR article 1 can control the meaning of the term “expulsion” in article 4 of Protocol 4. The Grand Chamber was no doubt correct to say that article 4 applies in situations falling within the jurisdiction in the sense of article 1. But that does not mean that the substantive elements of article 4 do not need to be made out. 350. The conclusion is at odds with other important norms of international law, notwithstanding the Grand Chamber’s unconvincing assertion that its ruling did not compromise a State’s ability to set its own immigration policy 687. Of course it did. In principle, a State has the right to determine who shall enter its territory, subject to a few legal restrictions 688. among these, collective expulsion of aliens is a serious breach of international law, and article 4 is expressed as an absolute and non-derogable prohibition. as such, it must be interpreted narrowly and precisely. If any measure prevent-

684. Hirsi Jamaa & Others, op. cit., paras. 76-82. 685. Medvedyev & Others, op. cit., paras. 66-67. 686. Hirsi Jamaa & Others, op. cit., paras. 178-180. 687. Ibid., para.179 : “The above considerations do not call into question the right of States to establish their own immigration policies. It must be pointed out, however, that problems with managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations.” 688. This was perhaps amongst the earliest and widely recognized powers of sovereignty, and was recognized in england as a prerogative power of the Crown as early as the seventeenth century : East India Co v. Sandys, (1684) 10 ST 371, 530-531 (Jeffreys CJ). See further R (European Roma Rights Centre & Others) v. Immigration Officer at Prague Airport, [2005] 2 aC 1, 27-28 (Lord Bingham).

69 General Course on Public International Law 209 ing groups of aliens from entering the territory of a Contracting State is prohibited, then the words of article 4 cease to have meaning. For example, in the “Eurotunnel” decision, at the request of cross- Channel train operators, an arbitral tribunal found that it was incumbent on the united Kingdom and France “to maintain conditions of of normal security and public order” to prevent asylum seekers from illegally boarding trains travelling from France to the united Kingdom 689. under the Grand Chamber’s decision, it would appear that this would be equivalent to collective expulsion. 351. The decision, moreover, ignores the purpose served by the principle of non-refoulement that is expressed in the Refugee Convention 690. article 33 (1) of the Convention prohibits the expulsion or return (refoulement) of refugees “to the frontiers of territories where his life or freedom would be threatened” on account of racial, ethnic or religious factors. The generally accepted position is that the non-admittance of a refugee must occur from within or at the very least at the frontier of the State refusing entry 691. For the scope of article 4 to expand so as to cover as preventive measures taken outside the territory of the State would render article 33 (1) of the Refugee Convention redundant as far as groups of persons are concerned and would do so irrespective of the treatment to be expected in the State of return : there would no longer be any requirement of a well-founded fear of persecution. 352. Hirsi Jamaa is also at odds with the International Law Commission’s (ILC) work on expulsion. Draft article 2 (a) of the Commission’s proposed Draft articles on the expulsion of aliens provides that “expulsion” means “a formal act, or conduct consisting of an action or omission, attributable to a State, by which an alien is compelled to leave the territory of that State” 692. as the Special

689. The Channel Tunnel Group Limited and France-Manche S.A. v. United Kingdom and France, Partial Award, (2007) IIC 58, para. 395 (2). 690. Convention relating to the Status of Refugees, Geneva, 28 July 1951 (in force, 22 april 1954), 189 UNTS 150. 691. See European Roma Rights Centre & Others, op. cit., 29-30 (Lord Bingham) ; Sale, Acting Commissioner, Immigration and Naturalisation Service v. Haitian Centers Council Inc. (1993) 509 uS 155 ; Minister for Immigration and Multicultural Affairs v. Ibrahim, (2000) 204 CLR 1 ; Minister for Immi- gration and Multicultural Affairs v. Khawar (2002) 210 CLR 1. See generally T. Gammeltoft-Hansen, Access to Asylum : International Refugee Law and the Globalisation of Migration Control (Cambridge, CuP, 2011), Chap. 3. 692. Draft arts. 1-32 were provisionally adopted on first reading by the ILC’s Drafting Committee at its 64th session in 2012. See un doc. a/Cn.4/L.797, 24 May 2012 (emphasis added).

70 210 J. Crawford

Rapporteur noted, expulsion “refers to the displacement of an individual under constraint beyond the territorial frontier of the expelling State to a State of destination” 693. 353. Finally, the decision is at odds with the decision of other courts or tribunals at a domestic level. The House of Lords in the Roma Rights case had to consider whether the united Kingdom’s policy of intensively questioning Roma passengers prior to boarding at Prague airport (pursuant to an agreement with the Czech Government) was contrary to the Refugee Convention. Following an extensive analysis of the Convention, the eCHR and customary international law, the House concluded that there was no obligation on the part of the united Kingdom to extend legal protections of the relevant kind to asylum seekers in situations that did not arise at or within its frontiers 694.

2. Defining fragmentation

354. In short the Grand Chamber in Hirsi Jamaa laid down the “law” on collective explusion without due regard to the relationship of article 4 of eCHR Protocol 4, with other rules of international law. It employed textual and teleological reasoning to reach a pre- determined result. Other international courts and tribunals, notably the International Court, would be most unlikely to reach the same conclusion. But the issue may never come before the International Court. under the eCHR, there is no right of appeal to another court or tribunal. There is no avenue for the correction of the decision, especially where it is a unanimous decision of a Grand Chamber. as was observed by the appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Tadić:

693. un doc. a/Cn.4/573, 20 July 2006, p. 57 (para. 178). 694. European Roma Rights Centre & Others, op. cit., pp. 45-47 (Lord Steyn), pp. 53-55 (Lord Hope), p. 55 (Lady Hale), p. 66 (Lord Carswell). See especially ibid., p. 38 (Lord Bingham) : “There would appear to be general acceptance of the principle that a person who leaves the state of his nationality and applies to the authorities of another state for asylum, whether at the frontier of the second state or from within it, should not be rejected or returned to the first state without appropriate inquiry into the persecution of which he claims to have a well- founded fear. But that principle, even if one of customary international law, cannot avail the appellants, who have not left the Czech Republic nor presented themselves, save in a highly metaphorical sense, at the frontier of the united Kingdom.”

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“International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided).” 695 355. In this light, the decision in Hirsi Jamaa typifies the problem caused by the proliferation of international courts and tribunals, and the consequent “fragmentation” of international law. In short, fragmentation is the product of a system of laws that, by and large, lacks a sense of vertical integration, of hierarchy. 356. The issue was addressed by the ILC Study Group under the chairmanship of Martti Koskenniemi 696. This recognized that : “[S]pecialized law-making and institution-building tends to take place with relative ignorance of legislative and institutional activities in the adjoining field and of the general principles and practices of international law. The result is conflicts between rules or rule-systems, deviating institutional practices and, possibly the loss of an overall perspective on the law.” 697 Put more pithily by Sir Robert Jennings, fragmentation reflects a concern that international law is growing “without any overall plan” “there is a danger that international law as a whole will become fragmented and unmanageable” 698.

3. Species of fragmentation

357. So far I have proceeded without defining fragmentation. In fact two broad concepts may be identified : “fragmentation” and “proliferation”. Fragmentation will be used here to refer to substan-

695. Prosecutor v. Dusko Tadić (Jurisdiction), (1995) 105 ILR 458. 696. The topic was originally included on the ILC’s programme under the title “Risks ensuing from the Fragmentation of International Law” : ILC Ybk 2000/II (2), p. 131. This was subsequently and finally changed in 2002 to “Frag- mentation of International Law : Difficulties arising from the Diversification and expansion of International Law”. See ILC Ybk 2002/II (2), p. 98. 697. Report of the ILC Study Group, un doc. a/Cn.4/L.682, 13 april 2006, p. 11 (para. 8). 698. R. Y. Jennings, “The Role of the International Court of Justice” (1997) 68 BYIL 58-60.

72 212 J. Crawford tive fragmentation, i.e. the product of conflicting but equally authoritative pronouncements on international law by courts and tribunals. Proliferation refers to institutional fragmentation, i.e. the great expansion in the number of international courts and tribunals of competing jurisdiction since the 1980s 699. 358. To the problems of fragmentation and proliferation may be added a further concern : the so-called self-contained regime 700. a self-contained regime is said to occur where a particular substantive or institutional field of international law develops to such an extent that it effectively displaces the general law. In such a situation, the regime so created no longer interacts with international law, even though it may owe to international law its existence and external legitimacy. B. Substantive Aspects of Fragmentation 1. Fragmentation as a crowded bar 359. according to article 38 (1) (d) of the Statute of the Inter- national Court, judicial decisions are a subsidiary source for the identification of international law : nowhere is it said that the judicial pronouncements of one court carry more weight than any other. This lack of hierarchy can result in a situation in which many different voices shout from many different rooftops, with none able to be heard over the other. 360. a key example of this process arose from the International Criminal Tribunal for the former Yugoslavia, which has engaged in several differences of opinion with the International Court 701. whilst these have usually taken the form of the two institutions talking past each other, on at least one occasion the situation has become a full- fledged dialogue, with contrary views forcefully presented.

699. See, e.g., Symposium, “The Proliferation of International Courts and Tribunals : Piecing Together the Puzzle” (1999) 31 NYU JILP 679 ; Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford, OuP, 2003), pp. 1-11 ; C. Brown, A Common Law of International Adjudication (Oxford, OuP, 2007), Chap. 1. 700. See B. Simma, “Self-contained Regimes” (1985) 16 NYIL 111-136 ; B. Simma and D. Pulkowski, “Of Planets and the universe : Self-Contained Regimes in International Law” (2006) 17 EJIL 483-529 ; B. Simma and D. Pulkowski, “Leges Speciales and Self-Contained Regimes”, in J. Crawford, a. Pellet and S. Olleson (eds.), The Law of International Responsibility (Oxford, OuP, 2010), pp. 139-163. 701. Koskenniemi and Leino, “Fragmentation of International Law ? Post- modern anxieties” (2002) 15 LJIL 562-567.

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361. One point of divergence occurred in the context of belligerent reprisals. In the Martić case, Trial Chamber I held that armed reprisals against civilians were in all cases forbidden 702, a position which was contradicted by the International Court two months later in the Nuclear Weapons advisory Opinion, in which it held that such reprisals could indeed be lawful if necessary and proportional 703. 362. a more profound divergence occurred in the context of attribution to the State of the conduct of non-State actors 704. In Nicaragua, the International Court held that attribution required it to be shown that the State in question possessed effective control of the relevant non-State actor in relation to the alleged conduct 705. applying that test to the uS support for the nicaraguan contras, it was held that the united States could not be held generally responsible for all acts of these paramilitary groups, notwithstanding that a considerable measure of logistical and other support had been provided. This finding was called into question by the ICTY in Tadić. as an international criminal tribunal with jurisdiction limited to individuals, the ICTY would not need to address questions of State responsibility. In Tadić, however, the ICTY treated State responsibility as an antecedent question in order to classify the conflict in Bosnia as an international rather than a non-international armed conflict : many of the charges against Tadić depended on that classi- fication. The Trial Chamber — Judge McDonald dissenting — relied on the test proposed in Nicaragua, and held that the actions of the Republika Srpska could not be sheeted home to the Federal Republic of Yugoslavia, notwithstanding that Republika Srpska was largely dependent upon the FRY for its existence 706. 363. On appeal by the prosecution, the appeals Chamber affirmed the Trial Chamber’s decision, but criticized its reliance on Nicaragua, arguing that the International Court’s use of the effective control test was contrary to the logic of State responsibility. Rather, the appeals Chamber argued for a lesser standard of overall control

702. Prosecutor v. Marcić (Rule 61), (1996) 108 ILR 47. 703. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 246 (para. 46). 704. See generally J. Crawford, State Responsibility : The General Part (Cambridge, CuP, 2013), pp. 146-156. 705. Military and Paramilitary Activities in and against Nicaragua (Nica- ragua v. United States), Merits, Judgment, ICJ Reports 1986, p. 65 (para. 115). 706. Prosecutor v. Tadić, ICTY, IT-94-1-T (Trial Chamber, 7 May 1997), para. 216.

74 214 J. Crawford in certain circumstances 707. This test was unsurprisingly seen as authoritative by the Trial Chambers of the ICTY and was applied systematically in later cases 708. 364. The International Court returned to the question of responsibility for non-State actors in Bosnian Genocide 709. This arose from the same factual matrix as Tadić: the question was whether the FRY (and, later, Serbia) was responsible for acts of genocide committed by Bosnian Serb militias during the Bosnian war. The Court here made a concerted effort to engage with the jurisprudence of the ICTY, but it affirmed the effective control test in Nicaragua, rejected the reduced threshold advocated by the appeals Chamber in Tadić, stressing that the question “was not indispensable in the exercise of [the ICTY’s] jurisdiction”, and that the ICTY’s expertise did not extend to “issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it” 710.

707. Prosecutor v. Tadić (Appeal against Conviction), (1999) 124 ILR 62, 109. 708. See, e.g., Prosecutor v. Aleksovski, ICTY, IT-95-14/I-T (Trial Chamber, 25 June 1999) ; Prosecutor v. Aleksovski, ICTY, IT-95-14/I-a (appeals Chamber, 24 March 2000) ; Prosecutor v. Blaškić, ICTY, IT-95-14/T (Trial Chamber, 3 March 2000) ; Prosecutor v. Naletilić, ICTY, IT-98-34-T (Trial Chamber, 31 March 2003) ; Prosecutor v. Kordić and Čerkez, ICTY, IT-95-14/2- T (Trial Chamber, 26 February 2001) ; Prosecutor v. Kordić and Čerkez, ICTY, IT-95-14/2-a (appeals Chamber, 17 December 2004) ; Prosecutor v. Delalić et al., ICTY, IT-96-21-a (appeals Chamber, 20 February 2001). See further e. La Haye, War Crimes in Internal Armed Conflicts (Cambridge, CuP, 2008), pp. 15- 19. See also a. J. J. De Hoogh, “articles 4 and 8 of the ILC articles on State Responsibility, the Tadić Case and attribution of acts of Bosnian Serb authorities to the Federal Republic of Yugoslavia” (2001) 72 BYIL 279-281 ; M. Milanović, “State Responsibility for Genocide” (2006) 17 EJIL 581. Cf. also the dissenting judgment of Judge Shahabuddeen : (1999) 124 ILR 62, 194 ff. 709. The Court had flagged its intention to hold fast to the effective control test in Nicaragua in the Armed Activities case. The Court there was called upon to decide whether the conduct of certain auxiliaries operating in the Democratic Republic of the Congo could be attributed to uganda. It held that the required level of instruction, direction or control within the meaning of the provision had not been made out on the facts, citing nicaragua in support : Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 226 (para. 160). 710. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 209 (para. 403).

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2. Substantive fragmentation and its resolution 365. although the level of disagreement between the Interna- tional Court and ICTY evidenced in these exchanges are prima facie perturbing, it may fairly be asked whether fragmentation is really a problem 711. 366. The notion that different elements of a judicial system can have a different idea of what the law is will come as no surprise to any lawyer who has been trained in a federal jurisdiction in which separate regions possess separate judicial hierarchies. To take one example concerning the uS alien Tort Statute 712, a significant split developed between the different circuit courts of appeal 713 as to whether foreign corporations could be held liable for violations “of the law of nations”. It is true that the uS federal system contains a resolving element, namely a court of final appeal in the form of the uS Supreme Court. But as we have seen in Kiobel 714, the mere fact of a hierarchy of courts within a system does not mean that arguments will inevitably be resolved : a court may elide an issue, or a split may develop within the Bench that masks the long-term significance of the decision 715. In such a situation, litigants may be left with contradictory pronouncements of formally equal weight. But this does not signify the collapse of the system. 367. The second point to be made is that the existence of multiple formally equal statements does not prevent international law from exercising a preference, although it may take time for the preference to emerge. article 38 (1) (d) of the Statute of the International Court

711. On which see M. Koskenniemi and P. Leino, op. cit., pp. 553-579 ; e. Benvenisti and G. Downs, “The empire’s new Clothes : Political economy and the Fragmentation of International Law” (2007) 60 Stanford L. Rev. 602- 608. 712. 28 uSC, § 1345. Following the “rediscovery” of the act in the case of Filartiga v. Peña-Irala, 630 F. 2d 876 (2nd Cir. 1980), the Torture victims Protection act of 1991 was passed, providing a cause of action for any victim of torture or extrajudicial killing wherever committed : 106 Stat. 73 (1992). 713. See, e.g., Presbyterian Church of Sudan v. Talisman Energy Inc, 582 F. 3d (2nd Cir. 2009) ; Kiobel, Individually and on Behalf of Her Late Husband et al. v. Royal Dutch Petroleum et al., 621 F. 3d 111 (9th Cir. 2010). See further O. Murray, D. Kinley and C. Pitts, “exaggerated Rumours of the Death of an alien Tort ? Corporations, Human Rights and the Remarkable Case of Kiobel” (2011) 12 Melbourne JIL 1. 714. Kiobel, Individually and on Behalf of Her Late Husband et al. v. Royal Dutch Petroleum Co. et al., 569 uS (2013). 715. For a further example, see R v. Keyn (1876) 2 ex. D. 63. See further G. Marston, The Marginal Seabed : United Kingdom Legal Practice (Oxford, Clarendon, 1981), Chap. 5.

76 216 J. Crawford refers to highly qualified publicists as a subsidiary means for determining the law. Scholarly criticism may thus play a role, sometimes an important one. The pronouncements of the ILC, charged under the terms of its Statute with the “the promotion of the progressive development of international law and its codification” 716, carry unusual normative force and may help to resolve difficult legal issues. In the case of State responsibility for non-State actors, the articles on the Responsibility of States for Internationally wrongful acts 717 expressly approved the International Court’s formulation of effective control in its commentary to article 8 718, confining Tadić to its facts. It thereby avoided contradicting the appeals Chamber while expressing a preference for the test of attribution in Nicaragua 719. article 8, in turn, was applied by the Court in Bosnian Genocide, confirming the approach in Nicaragua 720. The Court’s formulation must be seen as the default rule 721. 368. This episode highlights two further points. First, it suggests that despite the lack of a formal hierarchy between international courts and tribunals, the pronouncements of the International Court, the only permanent tribunal of general jurisdiction, carry particular weight 722. This may provide a centre of gravity. Second, it demon- strates that international law is not inherently hostile to the notion of a rule confined to a particular factual or institutional context, as in Tadić 723. 369. This suggests — Hirsi Jamaa notwithstanding — that fragmentation poses no real threat to international law as a system. The instances of disagreement between courts and tribunals rarely mature into outright conflict, and even if they do, the system allows for legal preferences to be expressed over time, such that a choice between two differing norms may eventually be made. Perhaps even

716. Statute of the International Law Commission, annexed to Ga res. 174 (II), 21 november 1947, as amended by : Ga res. 485 (v), 12 December 1950 ; Ga res. 984 (X), 3 December 1955 ; Ga res. 985 (X), 3 December 1955 ; Ga res. 36/39 of 18 november 1981, art. 1 (1). 717. ILC Ybk 2001/II (2), p. 20. 718. Ibid., p. 47 (para. 4). 719. Crawford, State Responsibility : The General Part, op. cit., p. 154. 720. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, op. cit., p. 208 (para. 399). 721. Crawford, State Responsibility : The General Part, op. cit., p. 156. 722. See generally M. andenas and e. Bjorge (eds.), A Farewell to Frag- mentation : Reassertion and Convergence in International Law (Cambridge, CuP, 2014). 723. Prosecutor v. Tadić (Jurisdiction), op. cit., 434 ff.

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Hirsi Jamaa may be only the beginning of the debate over collective expulsion, not the last word on it.

C. Institutional Aspects of Fragmentation

1. The overlapping jurisdictions of international courts and tribunals 370. The post-Cold war era has seen the establishment of a number of new international courts or tribunals. By and large, these are specialized in character and limited in terms of their jurisdiction ratione materiae. But they still all function — or at least purport to function — within the same ocean of international law. 371. Two broad reasons for this proliferation may be identified 724. In the first place, the traditional reluctance of States to submit bilateral disputes to third party adjudication has decreased. In the second, globalization and increasing interdependence has resulted in complex problems of interaction, and the corresponding production of detailed norms of international law. One need only compare the provisions of the un Convention of 1982 with the 1958 Geneva Conventions on various aspects of the law of the sea 725. The same may be said of a comparison of the provisions of the wTO covered agreements 726 with the 1947 General agreement on Tariffs and Trade 727. The increasing complexity of such norms has resulted in a need for specialized systems of dispute resolution 728.

724. Brown, op. cit., pp. 22-23. Shany, op. cit., pp. 3-4, offers a more detailed taxonomy, including : (1) the increased density, volume and complexity of international norms, which require sufficiently complex forms of dispute resolution ; (2) greater commitment to the rule of law in international relations ; (3) the easing of international tensions post-Cold war ; (4) the positive experience of States with earlier specialist international courts, such as the european Court of Human Rights or the Court of Justice of the european Communities ; and (5) the perceived unsuitability of the International Court of Justice to adequately address specialized and technical disputes. 725. See Convention on the Territorial Sea and the Contiguous Zone, Geneva, 29 april 1958 (in force, 10 September 1964), 516 UNTS 206 ; Convention on the High Seas, Geneva, 29 april 1958 (in force, 30 September 1962), 450 UNTS 82 ; Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva, 29 april 1958 (in force, 20 Geneva March 1966), 559 UNTS 286 ; Convention on the Continental Shelf, Geneva, 29 april 1958 (in force, 10 June 1964), 499 UNTS 312. 726. Marrakesh agreement establishing the world Trade Organization, Marrakesh, 15 april 1994 (in force, 1 april 1995), 1867 UNTS 14. See further world Trade Organization, The Legal Texts : The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge, CuP, 1994). 727. Geneva, 30 October 1947 (in force, 1 January 1948), 55 UNTS 194. 728. Shany, op. cit., pp. 3-4.

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372. But with such systems, new problems may arise. This may be the case when the obligations incumbent on States in one arena prevent them from relying on other international law rights justi- ciable before another tribunal. One example is the Mexico—Soft Drinks case before the wTO 729. In that case, Mexico had imposed a series of taxes on soft drinks and other beverages that used a sweet- ener other than cane sugar. unsurprisingly, the united States — whose companies both produced in and imported to Mexico soft drinks sweetened with corn syrup — protested, claiming that the measures were inconsistent with GaTT articles III (2) and III (4). 373. This could be considered a fairly banal case concerning the national treatment provisions of the GaTT, but for the fact that Mexico imposed these measures as a consequence of a long-running dispute with the united States under the north american Free Trade agreement (naFTa) 730. Mexico had initially invoked naFTa’s dispute settlement procedures in relation to uS restrictions on imports of Mexican sugar, which Mexico claimed were contrary to a specific agreement under naFTa guaranteeing market access. naFTa Chapter 20 envisaged that disputes would be resolved by a standing roster of panellists, failing which naFTa panels were to be assembled on an ad hoc basis. unfortunately this permitted the united States to obstruct dispute settlement by simply refusing to appoint its panellists 731. The Mexican Congress introduced the GaTT-inconsistent trade measures as a form of countermeasure, although they were not well articulated as such. 374. Mexico argued that the wTO dispute was inextricably linked to the pre-existing naFTa dispute, and asked that jurisdiction be declined accordingly. at the centre of the Mexican argument was the notion that the wTO’s adjudicative bodies possessed certain implied powers, including the capacity to decline jurisdiction “in circumstances where the underlying or predominant elements of a dispute derive from rules of international law under which claims

729. Panel Report, Mexico — Tax Measures on Soft Drinks and Other Bever- ages, wT/DS308/R, 7 October 2005 ; appellate Body Report, Mexico — Tax Measures on Soft Drinks and Other Beverages, wT/DS308/aB/R, 6 March 2006. See further C. Henckels, “Overcoming Jurisdictional Isolationism at the wTO-FTa nexus : a Potential approach for the wTO” (2008) 19 EJIL 576-579. 730. washington, 8 and 17 December 1992, Ottawa, 11 and 17 December 1992, Mexico City, 14 and 17 December 1992 (in force, 1 January 1994), (1993) 32 ILM 289 . 731. Ibid., art. 2011.

79 General Course on Public International Law 219 cannot be judicially enforced in the wTO, such as naFTa provisions” 732. In this it was unsuccessful. The Panel considered that the terms of the wTO Dispute Settlement understanding 733 did not permit it to choose whether to decline an otherwise valid jurisdiction 734. Declining jurisdiction would amount to a failure to address the matter before it and would, moreover, diminish the rights of the united States 735. In light of DSu article 3.10, which States that “Members should not link complaints and counter-complaints in regard to distinct matters”, Mexico had no business linking its naFTa dispute to the wTO case, and of course the Panel had no authority to rule on breaches of naFTa 736. 375. This decision was upheld by the appellate Body, which said that “it is difficult to see how a panel would fulfill [its] obligation [to adjudicate a valid dispute] if it declined to exercise validly established jurisdiction and abstained from making any finding on the matter before it” 737. For the Panel to decline jurisdiction would be to “disregard or modify” the provisions of the DSu 738. The presumption of the language of the DSu and the reasoning of the Panel and appellate Body is that in declining jurisdiction, the united States would be deprived of any legal recourse against Mexico’s actions. as it

732. Panel Report, Mexico — Soft Drinks, op. cit., para. 4.103. 733. understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh, 14 april 1994 (in force, 1 January 1995), 1869 UNTS 401 (DSu). The DSu is annex 2 to the Marrakesh agreement establishing the world Trade Organization. 734. The Panel placed particular reliance on DSu, art. 11, which provides relevantly that “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”. 735. Panel Report, Mexico — Soft Drinks, op. cit., paras. 7.4-7.9, noting DSu, arts. 3.2. and 19.2. 736. Ibid., paras. 7.11, 7.15. 737. appellate Body Report, Mexico — Soft Drinks, op. cit., para. 51. 738. Ibid., para. 46. The appellate Body here noted its earlier decision India — Patents, where it was said : “[a]lthough panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSu . . . nothing in the DSu gives the panel the authority either to disregard or to modify . . . explicit provisions of the DSu” : appellate Body Report, India — Patent Protection for Pharmaceutical and Agricultural Chemical Products, wT/DS50/aB/R, 19 December 1997, para. 92.

80 220 J. Crawford happened, the naFTa tribunal the united States had deliberately stymied was capable of determining both sets of complaints together 739 — the result of the action, therefore, was to deprive Mexico of access to justice under naFTa, Chapter 19. 376. The particular wording of jurisdictional provisions may lead to adverse outcomes, even within the same system. The signal example of such intra-system conflict occurred in the investment arbitration cases of Lauder v. Czech Republic 740 and CME v. Czech Republic 741, which resulted in what has been described as “the ultimate fiasco in investment arbitration” 742. Both cases concerned the investment by a uS national, Ronald Lauder, in the Czech private broadcaster Tv nova through an investment vehicle CMe, a Dutch company owned by Lauder. Following, inter alia, the alleged interference of the Czech Media Council in the operations of Tv nova, Lauder brought a personal action under the Czech/united States bilateral investment treaty. The Lauder tribunal held unanimously that although the Czech Republic had committed certain breaches of the BIT, these nevertheless did not give rise to liability because of lack of causation of damage suffered. Shortly after the Lauder proceedings were initiated, however, CMe launched its own investment proceedings under the Czech/netherlands bilateral investment treaty making substantially the same allegations on the basis of the same facts. Shortly after the Lauder award was rendered, the CME tribunal issued a partial award that reached diametrically the opposite conclusion, eventually awarding the claimant uS$270 million in damages (a sum proximate to the Czech Republic’s annual health budget at the time). an attempt to have the award set aside before the Swedish courts 743 failed on the basis that the formal non-identity of Lauder as an individual and CMe as a company prevented the application of principles of res judicata or lis alibi pendens so as to

739. Henckels, op. cit., 579. 740. Lauder v. Czech Republic, (2001) 9 ICSID Reports 66. 741. CME Czech Republic BV (The Netherlands) v. Czech Republic, Partial Award, (2001) 9 ICSID Reports 121 ; Final Award, (2003) 9 ICSID Reports 264. 742. a. Reinisch, “The Proliferation of International Dispute Settlement Mechanisms : The Threat of Fragmentation vs. the Promise of a More effective System ? Some Reflections from the Perspective of Investment arbitration”, in I. Buffard, J. Crawford, a. Pellet and S. wittich (eds.), International Law between Universalism and Fragmentation : Festschrift in Honour of Gerhard Hafner (Leiden, Martinus nijhoff, 2008), p. 116. 743. Czech Republic v. CME Czech Republic BV (Judicial Review : Sweden), (2003) 9 ICSID Reports 439.

81 General Course on Public International Law 221 prevent concurrent litigation of the same dispute before different tribunals 744.

2. Proliferation and comity

377. Such cases — one inter-systemic, one intra-systemic — give cause for concern. apart from diminishing confidence in the integrity of international dispute settlement, and the systematicity of international law, one cannot say justice was done in either of these situations. But, as with substantive issues associated with fragmentation, the problem is not necessarily pathological. Similar problems have been faced and largely overcome as between domestic courts or tribunals by techniques of private international law. 378. within private international law, the willingness to surrender jurisdiction or stay proceedings in the event of a more appropriate forum is generally justified by reference to “comity” 745. as the Supreme Court of Canada said in one case : “Comity is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its law.” 746 379. Comity represents an exercise of discretion by the court or tribunal that weighs its own jurisdiction against the interests of the parties and the conflicting jurisdiction, actual or anticipated, of other courts or tribunals747. It is “a flexible doctrine enabling the cooperation of tribunals in the international legal order. . . . [I]t can rationalize the tension between an international dispute settlement forum’s jurisdiction and the non-hierarchical nature of such fora. In the sense that it

744. See further C. n. Brower and K. Sharpe, “Multiple and Conflicting arbitral awards” (2003) 4 JWIT 211 ; a. Reinisch, “The use and Limits of Res Judicata and Lis Pendens and Procedural Tools to avoid Conflicting Dispute Settlement Outcomes” (2004) 3 LPICT 37. See further C. McLachlan, “Lis Pendens in International Litigation” (2008) 336 Recueil des cours 203. 745. R. Fentiman, International Commercial Litigation (Oxford, OuP, 2010), pp. 579-586. 746. Morguard v. De Savoye, [1990] 3 SCR 1077, 1096, citing Hilton v. Cuyot, 159 uS 113 (1895). 747. See, e.g., Henckels, op. cit., 584-585 ; Shany, op. cit., pp. 260-266.

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functions as a principle for resolving issues of overlapping jurisdiction, it operates to permit a tribunal to limit its own jurisdiction where exercise of that jurisdiction would be unreasonable or inappropriate . . .” 748 380. This may result in the court or tribunal declining jurisdiction or staying proceedings over matters more appropriately heard elsewhere. It is a discretionary power, not a legal requirement ; no textual reading of a court or tribunal’s constitutive instrument or procedural rules such as that undertaken by the Panel and appellate Body in Mexico—Soft Drinks will mandate its use. It derives from the inherent power of international courts and tribunals to protect the integrity of the judicial process. as Judge Higgins said in the Use of Force cases 749 “[t]he Court’s inherent jurisdiction derives from its judicial character and the need for powers to regulate matters connected with the administration of justice, not every aspect of which may have been foreseen in the Rules” 750. She referred to “the very occasional need to exercise inherent powers may arise as a matter in limine litis, or as a decision by the Court not to exercise a jurisdiction it has” 751. 381. an example of how such an approach might affect the contours of international dispute settlement occurred in serial litigation brought by Ireland against the united Kingdom concerning the operation of the MOX nuclear reprocessing plant at Sellafield 752. Four decisions were produced : (1) a judgment of the Interna- tional Tribunal for the Law of the Sea on a request for provisional measures 753 ; (2) an arbitration award under the OSPaR Conven-

748. Henckels, op. cit., 584. 749. Legality of Use of Force (Serbia and Montenegro v. Belgium) (Serbia and Montenegro v. Canada) (Serbia and Montenegro v. Germany) (Serbia and Montenegro v. Italy) (Serbia and Montenegro v. Portugal) (Serbia and Monte- negro v. United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2004. 750. Ibid., pp. 1361-1362 (para. 10) (sep. op.). 751. Ibid., p. 1362 (para. 11) (sep. op.). 752. McLachlan, op. cit., pp. 447-451. 753. MOX Plant (Ireland v. United Kingdom), Provisional Measures, (2002) 126 ILR 334.

83 General Course on Public International Law 223 tion 754 in proceedings for access to information concerning the operation of the plant 755 ; (3) an order by an unCLOS annex vII tribunal 756 ; and (4) a judgment of the european Court of Justice in proceedings brought against Ireland by the european Commission holding that commencing the unCLOS proceedings breached eu law 757. The ITLOS proceedings determined that the distinct character of each of the relevant proceedings meant that unCLOS article 282 did not deprive it of jurisdiction 758. Similar conclusions were reached by the PCa tribunal in the OSPaR proceedings 759. The annex vII tribunal, however, decided to stay proceedings on the basis that “there is a real possibility that the european Court of Justice will be seized of the question of whether the provisions of the Convention on which Ireland relies are matters in relation to which competence has been transferred to the european Community, and indeed . . . the exclusive jurisdiction of the european Court of Justice . . . In these circumstances, and bearing in mind considerations of mutual respect and comity which should prevail between judicial institutions both of which may be called upon to determine rights and obligations as between two States, the Tribunal considers that it would be inappropriate for it to proceed further with hearing the Parties on the merits of the dispute in the absence of the resolution of the

754. Convention for the Protection of the Marine environment of the north- east atlantic, Paris, 22 September 1992 (in force, 25 March 1998), 32 ILM 1069 (OSPaR Convention). 755. Dispute concerning Access to Information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom), (2003) 126 ILR 334. 756. MOX Plant (Ireland v. United Kingdom), Annex VII, (2003) 126 ILR 310. 757. European Commission v. Ireland, Case C-0459/03, [2006] eCR I-4635. 758. MOX Plant, Provisional Measures, op. cit., 273-274. For the contrary approach, see Southern Bluefin Tuna (Australia v. Japan ; New Zealand v. Japan), Annex VII, (2000) 119 ILR 508 ; a. Boyle, “The Southern Bluefin Tuna arbitration” (2001) 50 ICLQ ; C. McLachlan, op. cit., pp. 443-446. a similar situation threatened to arise as between ITLOS and the wTO in Conservation and Sustainable Development of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union), ITLOS Case no. 7 (Order, 20 December 2000), but the matter was discontinued before it could materialize : M. a. Orellana, “The Swordfish Dispute between the eu and Chile at the ITLOS and the wTO” (2002) 71 Nordic JIL 55. On the operation of united nations Convention on the Law of the Sea, Montego Bay, 10 October 1982 (in force, 16 november 1994), 1833 UNTS 396, art. 282, see D. Rothwell and T. Stephens, The International Law of the Sea (Oxford, Hart, 2010), pp. 445-448. 759. OSPAR Convention Dispute, op. cit., 378.

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problems referred to. Moreover, a procedure that might result in two conflicting decisions on the same issue would not be helpful to the resolution of the dispute between the Parties.” 760 382. as perhaps anticipated by the Tribunal, the european Court of Justice subsequently held that Ireland had no right to bring arbitration proceedings before any other forum with respect to the MOX Plant 761. 383. To apply this principle to the examples given above, comity would operate so as to give the Panel in Mexico—Soft Drinks capacity to decline jurisdiction in favour of the naFTa tribunal 762. Similarly, the tribunal in CME, knowing that Lauder was on foot, should have stayed its hand notwithstanding the lack of formal identity between the claimants in the two arbitrations. 384. Comity is not the only solution. The concepts of lis alibi pendens and res judicata, flexibly applied, could provide a means to prevent duplication of proceedings. But despite attempts by some scholars to argue that a general principle of lis pendens exists in international law 763, no court or tribunal has yet pronounced on its scope. 385. To conclude, the problems that result from proliferation tend to emerge not due to a failure of the system as a whole, but due to the rigidity of the jurisdictional provisions of individual courts or tribunals. It is true, as the appeals Chamber said in Tadić, that international law does not provide for an integrated judicial system, but this does not mean that judges and arbitrators are justified in throw- ing up their hands. The tools necessary to address problems of proliferation are already available.

D. Self-contained Regimes 386. Finally, I turn to self-contained regimes. The term has a respectable provenance, deriving from the decision of the Permanent Court in The SS “Wimbledon”. The Court was faced with the question whether the provisions of the Treaty of versailles 764 relating to German waterways applied to entitle non-neutral passage through

760. MOX Plant, Annex VII, op. cit., 318-320. 761. European Commission v. Ireland, op. cit., paras. 123-127, 135. 762. Henckels, op. cit., 592-598. 763. McLachlan, op. cit., p. 500. 764. versailles, 28 June 1919 (in force, 10 January 1920), 225 CTS 188.

85 General Course on Public International Law 225 the Kiel Canal at a time when Germany was not a belligerent. The Court noted that the Treaty contained a special section on the Canal, which differed from its general provisions relating to watercourses : “The provisions relating to the Kiel Canal in the Treaty of versailles are therefore self-contained; if they had to be supple- mented and interpreted by the aid of those referring to the inland navigable waterways of Germany in the previous sections of Part XII, they would lose their ‘raison d’être’ . . . The idea which underlies [the specific provisions regarding the Kiel Canal] is not to be sought by drawing an analogy from these provision but rather by arguing a contrario, a method of argument which excludes them.” 765 387. The “SS Wimbledon” concerned the interaction between general and specific rules within the same treaty : the Court could as well have applied the lex specialis rule as have referred to self- contained provisions. But the International Court went further in Tehran Hostages, holding that the legal consequences described in the vienna Convention on Diplomatic Relations766 (for example, declaring a diplomat persona non grata) were not merely self- contained but amounted to a regime : “The rules of diplomatic law . . . constitute a self-contained regime which, on the one hand, lays down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded to the diplomatic missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposal of the receiving State to counter any such abuse. These means are, by their very nature, entirely efficacious.” 767 388. Both cases were taken into account in the ILC’s work on State responsibility. aRSIwa article 55 codifies the lex specialis principle 768, providing that

765. The SS “Wimbledon” (United Kingdom, France, Italy and Japan v. Germany ; Poland intervening), (1923) PCIJ, Ser. A, No. 1, p. 24. 766. vienna, 18 april 1961 (in force, 24 april 1964), 500 UNTS 95. 767. United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ Reports 1980, p. 38 (para. 86). 768. Translated : “the specific derogates from the general”. See further G. Fitzmaurice, “The Law and Procedure of the International Court of Justice 1951-4 : Treaty Interpretation and Other Treaty Points” (1957) 33 BYIL 237.

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“[t]hese articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law”. The Commentary makes reference to both “strong” and “weak” forms of lex specialis, with only the former constituting a self- contained regime, properly so-called 769. 389. Thus, in a broad sense, a self-contained regime is little more than a strong form of lex specialis, by which a “geographically or functionally limited treaty series” attempts to contract out of the secondary rules of international law that underpin the system as a whole 770. More narrowly, however, such regimes may represent comprehensive sub-systems that cover a particular international law problem in a different manner from how it might be otherwise dealt with 771. Such subsystems, some have suggested, threaten the coherence of international law : “when such deviations become general and frequent, the unity of the law suffers” 772. One is reminded of the words of the prophet ezekiel : “[t]heir appearance and their work was as it were a wheel in the middle of a wheel” 773. 390. Hints of a dystopian future might be seen in those self- contained regimes which are stronger than the system of diplomatic relations. a commonly cited example is that of the wTO 774. It pos- sesses a detailed set of primary norms and a compulsory system of dispute settlement. Its specialized regime of remedies — notably the system of suspension of concessions contained in DSu, articles 19 and 22 — is comprehensive, leading some to the conclusions that in transiting from the GaTT, the wTO moved decisively towards a self-contained regime 775. 391. another example is that of the european union 776. The

769. ILC Ybk 2001/II (2), p. 140 (para. 5). 770. Conclusions of the ILC Study Group, un doc. a/Cn.4/L.702, 18 July 2006, para. 10. 771. Report of the ILC Study Group, op. cit., para. 128. 772. Conclusions of the ILC Study Group, op. cit., para. 10. 773. ezekiel 1 :16 (King James version). 774. See, e.g., Report of the ILC Study Group, op. cit., paras. 165-171 ; Simma and Pulkowski, “Leges Speciales and Self-Contained Regimes”, op. cit., pp. 155-158. 775. P. J. Kuyper, “The Law of the GaTT as a Special Field of International Law” (1994) 25 NYIL 252. 776. See, e.g., Simma and Pulkowski, “Leges Speciales and Self-Contained Regimes”, op. cit., 152-155.

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Treaty establishing the european Community 777 has established its own legal system 778, one which requires that members “shall not fail to carry out their obligations and shall not take the law into their own hands” 779. To the extent that the customary rules of State responsibility are applicable, they are only residual — and as the system of european law matures, any remaining lacunae are gradually being plugged 780.

1. Self-contained regimes, lex specialis and the law of treaties

392. But again the problems posed by self-contained regimes should not be exaggerated. If States wish to enter into comprehensive relationships that, in effect, contract out of the remainder of the law (peremptory norms aside 781) they are free to do so. The task of international law in such a circumstance is to ensure that a framework “through which such systems may be assessed and managed in a legal-professional way” 782. Conflicts between general and specific norms of international law may thereby be prevented, and a workable compromise reached 783. 393. However, it is rather difficult for an inter-State system to contract completely out of general international law — indeed, there does not presently exist an entirely self-contained interstate regime 784. For example, the wTO appellate Body has acknowledged that the GaTT “is not to be read in clinical isolation from public international law” 785. In Korea — Procurement, the Panel said that customary law remains a source of law for the wTO “to the extent

777. 24 December 2012, 2002 OJ, C-325/35. 778. Costa v. ENEL, Case 6/64, [1964] eCR 585 ; Van Gend en Loos, Case 26/62, [1963] ECR 12. 779. European Commission v. Luxemburg & Belgium, Cases 90/63 and 91/63, [1964] ECR 625. 780. Simma and Pulkowski, “Leges Speciales and Self-Contained Regimes”, op. cit., 153. 781. OSPAR Convention Dispute, op. cit., 364. 782. Conclusions of the ILC Study Group, op. cit., para. 12. 783. See, e.g., vienna Convention on the Law of Treaties, vienna, 23 May 1969 (in force, 27 January 1980), 1155 UNTS 331. 784. Report of the ILC Study Group, op. cit., para. 120 ; Simma and Pulkowski, “Leges Speciales and Self-Contained Regimes”, op. cit., 143. 785. appellate Body Report, United States of America — Standards for Reformulated and Conventional Gasoline, wT/DS2/aB/R, 26 april 1996, p. 19. See further L. Bartels, “applicable Law in wTO Dispute Settlement Proceedings” (2001) 35 JWT 499-519 ; P. van den Bossche, The Law and Policy of the World Trade Organization (Cambridge, CuP, 2nd ed., 2008), pp. 55-63.

88 228 J. Crawford that the wTO treaty agreements do not ‘contract out’ from it” 786 : this is the default position in international law for any treaty. Similar conclusions may be reached with respect to the system’s treatment of general principles of law 787. Indeed the wTO is one of the most influential users of the vCLT in matters of treaty interpretation 788. Similarly, the european Court of Justice has asserted that there is a residue of general principles of international law within the context of eu law, and in the interpretation of an international agreement, has indicated its willingness to defer to the decisions of tribunals established pursuant to that agreement 789. as Simma and Pulkowski note, “the term ‘self-contained regime’ should not be used to circumscribe the unrealistic hypothesis of a fully autonomous legal system” 790.

E. Conclusion : The Centre Holds 394. all this suggests that the problems to which the label of “fragmentation” has been attached may be little more than by- products of a maturing system of law, albeit one lacking in vertical integration. Given that international law grew from bilateral relationships, it is difficult to see how anything has become more fragmented than it was at the beginning : it has just become more diverse. Multilateralism never meant complete coherence of treaty practice or State interest. If States are free to join multilateral treaties, they are free to create a partly fragmented system. 395. and yet, and yet. The instinct of any system is its own preservation and perpetuation : international law is no different. In the midst of a period of immense, even exponential, growth, it retains the tools necessary to maintain its own coherence. This has been shown for substantive fragmentation (the allocation of

786. Panel Report, Korea — Measures Affecting Government Procurement, wT/DS163/R, 1 May 2000, para. 7.96. See further J. Pauwelyn, Conflict of Norms in Public International Law : How WTO Law Relates to Other Norms of International Law (Cambridge, CuP, 2003), pp. 210-211, 470. 787. See, e.g., appellate Body Report United States of America — Import Prohibition of Certain Shrimp and Shrimp Products, wT/DS58/aB/R, 12 October 1998, para. 158. See further van den Bossche, op. cit., pp. 56-57 ; a. D. Mitchell, Legal Principles in WTO Disputes (Cambridge, CuP, 2008). 788. See generally I. van Damme, Treaty Interpretation by the WTO Appellate Body (Oxford, OuP, 2009). 789. EEA I, Opinion 1/91, [1991] eCR I-6079, paras. 39-40. 790. Simma and Pulkowski, “Leges Speciales and Self-Contained Regimes”, op. cit., 143.

89 General Course on Public International Law 229 preferences within the system), institutional proliferation (the introduction of comity to international dispute settlement) and self-contained regimes (application of the lex specialis rule and the vCLT to manage and resolve conflict). The result is a system which itself acts as guide, in the mode of Dante’s virgil : “ ‘You, as you speak, have so disposed my heart in keen desire to journey on the way that I return to find my first good purpose. Set off ! a single will inspires us both.’ ...... all this I said to him as he moved on. I entered on that deep and wooded road.” 791

791. Dante, op. cit., II.136-142. “ ‘Tu m’hai con disiderio il cor disposto si al venir con le parole tue, ch’i’ son tornato nel primo proposto. Or va, ch’un sol volere è d’ambedue : tu duca, tu segnore e tu maestro . . .’ Così li dissi ; e poi che mosso fue, intrai per lo cammino alto e silvestro.”