| dc.description |
The Responsibility of State Parties to the European Convention on the Protection
of Human Rights and Fundamental Freedoms. An International Law Perspective. [Summary]
The present book deals with issues of state responsibility in the context of the European Convention on the Protection of Human Rights and Fundamental
Freedoms (hereinafter: “the Convention” or “ECHR”). The point of departure and theprincipal field of comparative analysis has been set within the concepts and r ules enshrined in the Articles on Responsibility of States for Internationally Wrongful Acts as elaborated by the International Law Commission and adopted by the UN General Assembly in the resolution no. 56/83 of 12 December 2001 (hereinafter as “the ILC Articles”). They are commonly regarded a reflection of customary international law.
The author aimed at examining the relation between the rules set forth in the ILC Articles and the rules on state responsibility resulting from the Convention and the
case-law of the European Court of Human Rights (hereinafter: “the Court”). The
book’s main focus is on the “secondary norms” of the Convention system, i.e. those
which expound the rules and contents of state responsibility for violation of this treaty.
It is generally admitted that the ILC Articles are focused on inter-state dimension
of international responsibility and as such have not been drafted to take up the
problem of state responsibility vis-à-vis non-state actors. However, it is the author’s
contention that the state-oriented approach of the ILC Articles does not make them
irrelevant when discussing the model of state responsibility based on the Convention.
In fact the rules set out in the ILC Articles apply not only when the responsibility
of a State Party to the Convention is invoked by another State Party (inter-state
complaints pursuant to Article 33 of the ECHR), but also in the context of the most
common way of adjudicating complaints against States, i.e. individual applications
(Article 34 of the ECHR).
The author is of opinion that the provisions on invoking state responsibility in
the Convention can be regarded as leges speciales against the regime of invocation provided in the ILC Articles. Nevertheless, the Convention itself is silent on many other aspects of state responsibility, such as the characteristics of a violation and rules on its temporal dimension, the problem of attribution or obligations of the responsible state other than those indicated by the Court on the basis of Article 41 (“just satisfaction”). The latter provision should be seen as a a “competence norm” rather than a “secondary norm” expressing the obligations of a responsible state. The “missing parts” in the architecture of state responsibility for violation of the ECHR have been “found” by the Court which had to made up for the Convention’s scarcity in this regard. The core question is if and how much did the Court rely on the general rules of state responsibility when it engaged in the aforementioned task. The answer suggested in this book is that although the Court went its own way and sometimes arrived at debatable solutions, its approach to State Parties’ responsibility usually remained anchored in the general rules as codified in the ILC Articles. The analysis of the Convention’s normative framework and the ECHR case-law in this regard generally excludes the possibility to consider the ECHR system of state responsibility as a self-contained regime.
Following introductory remarks in Chapter I the second Chapter discusses preliminary issues concerning international state responsibility. It starts with
reflections on the presence of responsibility in philosophy and legal thinking. There
is no doubt that “responsibility” is an ambiguous term which goes beyond purely
juridical framework. The concept of responsibility can be regarded as essential for any credible normative system, being its “key element”. Responsibility tends to be seen as a legal and systemic reaction to a situation contrary to obligations of a subject of law. Philosophy of legal responsibility does not appear to be a holistic discipline encompassing all fields of material law. However, the philosophy of state responsibility should be discerned, although it developed significantly later in comparison to the philosophy of individual responsibility. The same reflection concerns the development of the doctrine of state responsibility. While the latter can be traced to the writings of F. de Vitoria, F. Suarez, J. Bodin and H. Grotius, it was actually not until the XIXth century that the foundations of the modern concept of state responsibility have been established. The leading role in conceptualizing the framework of state responsibility is attributed to Dionisio Anzilotti who had assumed that an internationally wrongful act of a state leads to “a new legal relationship between the state to which the act is imputable, which is obliged to make reparation, and the state with respect to which the unfulfilled obligation existed, which can demand reparation.”
Further, Chapter II traces the doctrinal and jurisprudential developments in the
law of state responsibility, as well as codification efforts undertaken in this field, both prior and after the II World War. A short survey of the work within the International Law Commission is offered. It is noteworthy that the topic of state responsibility has been on the ILC’s agenda for over forty years to be only successfully accomplished in 2001 with James Crawford as the last special rapporteur. Other introductory remarks concern the issue of state responsibility for human rights violations and the place of an individual in the law of state responsibility. The last sub-chapter takes up the question of self-contained regimes, to argue that the system of the Convention, including its model of state responsibility, does not allow for being considered as “closed” or “self-contained”. On the contrary, the origins and principles of responsibility of state parties to the Convention remain in clear relation to the general regime. There is no reason to assume that with respect to the features of a violation of an international obligation or of the rules of attribution the regime of the Convention has established well-defined and independent rules. Allegedly and notwithstanding its international law genesis, the responsibility of state parties to the ECHR tends to be viewed in the context of the “special character” of this treaty and human rights obligations enshrined therein.
Chapter III concerns the violation of an obligation as an element of an internationally wrongful act. Having summarized the contents of the relevant part
of the ILC Articles with respect to the definition of “a violation” (Article 12), binding
force of the violated obligation (Article 13) and its temporal aspects (Articles 14–15),
the author suggests a systemic approach to the obligations resulting from the ECHR provisions. It is to be kept in mind that the Convention is not only the source of material obligations concerning human rights and freedoms (Chapter I of the ECHR and its additional protocols), but also provides for obligations of a procedural nature.
The author briefly analyses some of the states’ obligations resulting from Chapter II
of the Convention, including the obligation “not to hinder in any way the effective
exercise of the right to file an individual complaint” (Article 34 ECHR), obligation “to
furnish all necessary facilities for the effective conduct of an investigation undertaken by the Court” (Article 38 ECHR), obligation “to abide by the final judgment of the Court in any case to which a State is a party” (Article 46 § 1 ECHR), obligation “to furnish an explanation of the manner in which the internal law of a High Contracting Party ensures the effective implementation of any of the provisions of the Convention” upon a request of the Secretary General of the Council of Europe (Article 52 ECHR), obligation of the High Contracting Parties “not to avail themselves of treaties, conventions or declarations in force between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of the ECHR to a means of settlement other than those provided for in the Convention” (Article 55 ECHR), as well as those resulting from the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights (Council of Europe Treaty Series no. 161) and the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (Council of Europe Treaty Series no. 162).
Further reflections in Chapter III include the distinction between negative and
positive obligations as well as those of result and “due diligence”. It is also examined whether the regime of the Convention recognizes the notion of “serious violations of human rights”, as it is used in various meanings within the international law of human rights. By way of example, it has been employed in a specific meaning in the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights law and Serious Violations of International Humanitarian Law (UN General Assembly resolution 60/147 adopted on 10 December 2005). It is argued that although the framework of the Convention does not provide for any “aggravated” kind of state responsibility due to the seriousness of a violation, the Court in several cases did use this concept to underline the serious character of the breach (see for instance Ivantoc and others v. Moldova and Russia, judgment of 15.11.2011, § 144). Another meaning of “serious violations of human rights” can be found in the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations (Adopted by the Committee of Ministers on 30 March 2011, para. II.3). The reflections on the “serious character” of the breach are also juxtaposed with the specific regime of state responsibility provided in the ILC Articles in case of “serious breaches of obligations under peremptory norm of general international law” (Articles 40–41).
Chapter III deals also with temporal aspects of violations of the Convention,
including the discussion of the concept of “continuous violations”, as well as
accumulations of violations leading to a “practice incompatible with the Convention”. It is argued that the Court’s case-law on temporal aspects of violation of the Convention generally reflects the solutions adopted in the ILC Articles, even if some areas of case-law appear to lack coherence. This concerns in particular the Court’s judgments in cases which originated in events prior to the Convention’s entry into force for a State Party, and involved ECHR issues with respect to the aftermath of these events (in particular an obligation to investigate under Articles 2 and 3 of the Convention).
Chapter IV deals with the notion of “attribution” of an internationally wrongful
act as a prerequisite for engaging state responsibility. As in the preceding chapter, it
starts with setting out general rules expounded in the ILC Articles. Then it focuses
on the ECHR model of state responsibility while partly adopting the taxonomy of
the general model, i.e. discussing the issue of “attribution” with respect to organs
of a state, persons or entities exercising elements of governmental authority as well
as persons or entities acting under instructions, direction or control of the state.
A separate subchapter is devoted to the attribution of conduct to the armed forces of a State-Party to the ECHR. Although armed forces are commonly deemed to be state organs, the reason for discussing them separately was that their conduct gave rise to particularly crucial cases in the context of the so-called “extrateritorrial jurisdiction” of State-Parties to the ECHR.
Other problems tackled in Chapter IV involve the conduct of State Parties
undertaken due to obligations resulting from a membership in an international
organization. One of the crucial aspects within this field is the problem of fulfilling
obligations under the ECHR in the course of activities required under binding
resolutions of the UN Security Council. It has been observed that the Court declared its readiness to attribute such conduct to State Parties and establish responsibility under ECHR irrespective of whether the actions of a State were following UNSC resolutions (cf. Nada v. Switzerland, judgment of 9 September 2012). This line of reasoning – which has been expressed even stronger in the case-law of the Court of Justice of the European Union – causes some concerns as it actually may undermine the priority of state obligations under the UN Charter (see Article 103 of the UNC).
Final remarks in Chapter IV are related to the problem of attribution of conduct
to the State-Parties and the European Union after the latter’s expected accession to
the Convention. The draft Agreement on the Accession of the EU to the ECHR sets
out a specific form of “co-attributability”, i.e. the “correspondent mechanism”. It is
supposed to resolve potential difficulties in attributing acts contrary to the ECHR
obligations which involve the EU and/or its Member States. The accession of the EU to the Convention also brings up a question of whether the rules of EU’s responsibility are dealt with exclusively by the draft Agreement on the Accession or there are some legal lacunae to be filled in by general rules of responsibility of international organizations. It is suggested that the draft Agreement on the Accession is far from exhaustive as regards the secondary norms of EU’s responsibility. Nevertheless, just as in case of responsibility of State Parties, it can be expected that the Court will apply the rules established in its case-law mutatis mutandis to the EU, also in the sphere of secondary norms of responsibility for the violation of ECHR.
Chapter V is preoccupied with circumstances precluding wrongfulness as
defined in the ILC Articles. It is asserted that some of the circumstances defined
in the Articles are manifestly inapplicable in case of the ECHR (i.e. self-defence or
countermeasures). The distress as a circumstance excluding wrongfulness has been analyzed in the context of Article 2 (2) of the Convention, which provides that an “absolutely necessary” use of force resulting in deprivation of life might result in
considering the latter as not inflicted in contravention to Article 2 of the ECHR “in
defence of any person from unlawful violence”. It is suggested that although Article
2(2)(a) transposes the idea of distress, it should be remembered that it is a norm of
a primary rather than secondary character. It is not clear to which extent the distress understood in terms of Article 24 of the ILC Articles as “no other way” of saving the life or lives or other persons entrusted to the author of the act in question, could be applicable to situations considered under the Convention.
The remarks in Chapter V also concern the comparison of the notion of force
majeure and “necessity” in Articles 23 and 25 of the ILC Articles to the notion of
“necessity” implied by Article 15 (1) of the Convention (possibility of derogation of
some obligations under the ECHR “to the extent strictly required by the exigencies of the situation” in time of war or other public emergency). It is argued that there is no equivalence between the situation of “necessity” as expounded in the ILC Articles and Article 15(1) of the Convention. Though quite similar in the axiological and functional context, only the latter allows for temporary derogation of material obligations by a State Party the ECHR in a strictly defined limits and a priori of acts otherwise considered wrongful under the Convention. Invoking of “necessity” as circumstance precluding wrongfulness in the ILC Articles does not influence the scope of obligations of the violating State since it serves only to assess the potential wrongfulness of an act of State.
Chapter VI is focused on the invocation of state responsibility under the ECHR.
It is suggested that in this field the regime of the Convention is based on norms having the status of lex specialis. Rather than discussing in full detail procedures applied before the Court, the Chapter indicates who can invoke responsibility of the State Parties; an analysis of subjects having locus standi at the ECHR is thus offered in sub-chapters 3–5.
The last Chapter dwells on the contents of state responsibility for violation of the ECHR obligations. A point of view is offered that an application of rules of general regime of state responsibility with respect to ECHR should not be excluded.
Due to the fact that Article 41 of the Convention cannot be considered as a omplete
legal framework of the contents of state responsibility for violation of the ECHR, it is
argued that the rules on the consequences of finding a State Party responsible have been inferred to a large extent in the case-law of the Court. These rules do not depart from general ones, in so far as they consider full restitution (restitution in integrum) as a primary consequence of state responsibility. The obligation to cease an ongoing violation has also been well recognized in the ECHR system.
Further, a detailed analysis of Article 41 of ECHR is offered since this provision
constitutes a legal basis for adjudicating on both pecuniary as well as non-pecuniary damages. The Chapter also discusses cases where the Court found it appropriate to define the contents of state responsibility in a more detailed manner, i.e. specifying obligations to be undertaken by the responsible state outside the framework of Article 41. In discussing the contents of state responsibility for violation of the ECHR it is important to underline the role of the Committee of Ministers as a supervisor of the execution of judgments and decisions of the Court. It is argued that in the exercise of its functions under Article 46(1) of the Convention the Committee of Ministers takes part in defining the consequences of a violation of the ECHR, in particular through its scrutiny over “general measures” to be undertaken by the responsible state. The obligation of the State Parties to take “general measures” following a violation of the Convention found by the Court appears to be functionally similar to the obligation to guarantee non-repetition of wrongful acts as provided in the ILC Articles.
Chapter VII also includes considerations on the existence of a “right to reparation”
for victims of human rights violations in general international law. It was observed
that despite the recognition of the right to remedy in national and international
systems for human rights protection, as well as certain developments within the soft-law standards (cf. the Basic Guidelines referred to above), the general international law does not include at present a clear-cut norm endowing individuals with a right to reparation in every instance. Some treaty systems of human rights protection, in particular the ones based on the ECHR and the 1969 American Convention on Human Rights, do provide a legal basis to claim reparations. So far there is hardly a sufficient state practice and opinio iuris allowing for a submission that victims of human rights violations have always the right to reparation under international customary law. But it also cannot be ruled out that international law will gradually develop in this direction. |
Ta pozycja jest udostępniona na licencji Attribution-NonCommercial-NoDerivs 3.0 Poland