David Keane (Dublin City University)
On 19 January 2024, Ireland lodged a new inter-State case against the United Kingdom under Article 33 of the European Convention on Human Rights (ECHR). In its application, Ireland will argue that the provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 are incompatible with the UK’s obligations under the ECHR. Ireland has been a pioneer in relation to inter-State cases. Its first case against the UK resulted in the very first judgment of the European Court of Human Rights (ECtHR/the Court) in an inter-State case, the well-known Ireland v UK decision of 1978. Ireland was also the first State to trigger the revision procedure in an inter-State case in relation to that judgment, which was rejected by the Court. However, while Ireland’s application is indicative of a rise in inter-State cases in the European human rights context, the mechanism remains under-utilised under other regional and international instruments.
Inter-State Cases outside Europe
There have been over 30 inter-State cases since the ECHR entered into force in 1953, with around half of these currently pending before the Court. This forms a significant body of caselaw which appears to be growing, with 20 of these cases coming since 2007. By contrast, observers of the inter-American system consider its inter-State dispute mechanism to have ‘virtually no relevance’, with only two such cases before the Inter-American Commission on Human Rights. Only one of these, Ecuador v Colombia, was found admissible. Similarly, the African system is considered to have potential for such cases given the compulsory jurisdiction of the African Commission on Human and Peoples’ Rights. But there have been only three such communications to date, and just one of these, DRC v Burundi, Rwanda and Uganda, was decided on the merits. A considerable increase is seen as unlikely.
Both the Inter-American and African systems have more limited access to their Courts and judicial resolution of inter-State disputes in these regions will be even more of a rarity; the decisions to date were all taken by the regional Commissions rather than Courts.
At the international level, the UN human rights treaty bodies saw no inter-State cases until 2018, when three were submitted under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – the only UN human rights treaty with a compulsory inter-state complaints mechanism. Two of these involved Qatar and were discontinued at an intermediate stage, following a diplomatic agreement. The third, Palestine v Israel, awaits a final decision of the Committee on the Elimination of Racial Discrimination (CERD). Given Palestine submitted this communication almost six years ago, the delay in arriving at an outcome will hardly encourage future engagement with an already under-utilised mechanism. CERD must reach a decision soon if the procedure is not to be undermined.
A further factor is the increased use of compromissory clauses found in some UN human rights treaties to bring inter-State disputes related to human rights violations before the International Court of Justice (ICJ). States do not first have to go before UN treaty bodies in order to access the ICJ and will bypass these mechanisms as a result, seen in recent cases taken under the Convention Against Torture (e.g. Canada and the Netherlands v Syria) and ICERD (e.g. Armenia v Azerbaijan). However, UN treaty bodies retain a role – Palestine v Israel for example cannot go before the ICJ given Israel’s reservation to ICERD’s compromissory clause.
Inter-State Cases under the ECHR
Hence, the ECHR provides by far the greatest number of inter-State cases before a specialist human rights body. Nevertheless, it took time for the mechanism to receive the attention it deserved, with the first English-language book on inter-State cases (by Isabella Risini) not published until 2018. The relative “success” of Article 33 ECHR applications lies in its combination of a compulsory inter-State mechanism with a relatively low bar to bringing an action, and resultant judicial remedy. Other regional systems as well as UN treaty body mechanisms tend to lack one or more of these features.
However, the increase in engagement by States with the ECHR’s inter-State mechanism has not been viewed with satisfaction. Indeed, the Court appears deeply troubled by inter-State cases. During his ECtHR Presidency, Judge Robert Spano emphasised that inter-State caselaw ‘remains a very challenging part of the Court’s work and has implications for our authority and legitimacy moving forward’. Similarly, the current ECtHR President Judge Siofra O’Leary recently described inter-State cases as ‘worrying and institutionally distressing’ at a joint dialogue of the regional human rights courts in Costa Rica.
This is because the great majority of inter-State cases before the ECtHR relate to situations of armed conflict, with 13 of the 14 pending cases engaging such issues. The Court responded in 2021 by forming a specialised Conflicts Unit within the Registry of the Court to deal with inter-State cases, including the three major inter-State conflicts between Ukraine and Russia, Georgia and Russia and Armenia and Azerbaijan. A further complication has been deciding cases in relation to Russia, given the respondent State has been expelled from the Council of Europe. The Court’s attempt to sidestep its role in the judgment in Georgia v Russia II, in which it considered it had no jurisdiction during the active phase of hostilities, met with severe criticism including from dissenters.
For that reason, Judge O’Leary spoke of the ‘strains which inter-State and conflict cases place on the overall effectiveness of the Convention system’. On the one hand, the Court appears under-equipped to deal with inter-State cases that relate to conflict; on the other, this is where it is most needed. Hence, Judge O’Leary also affirmed the importance of the inter-State application, underlining how ‘the idea of collective enforcement of human rights referred to in the Preamble to the Convention, is the possibility of an inter-State complaint under Article 33.’
Conclusion
Ireland’s latest application against the UK is unlikely to challenge the Court in a similar vein. It relates to a past rather than a present conflict, and is not accompanied by a flood of thousands of individual applications as with the cases involving Ukraine, Georgia or Nagorno-Karabakh. But this is not to undermine its significance, engaging, as inter-State cases often do, with large numbers of past victims as well as systemic issues. The application relates to the wider absence of truth and reconciliation in Northern Ireland, with a clear line to the first “hooded men” case in spotlighting British involvement in the conflict. It is little wonder it has been vigorously opposed by the UK.
Inter-State cases challenge the Court profoundly, and a body like the ECtHR cannot “settle” a wider conflict or its legacies. But litigating human rights violations in relation to past and present conflict situations appears to be increasingly viewed as an important element in their resolution. Inter-State cases are an essential tool in the collective enforcement of human rights, which is very much a strong feature of the contemporary human rights landscape.
Dr. David Keane is Assistant Professor in Law at the School of Law and Government, DCU. Dr. Keane’s research is in international human rights law, with a particular focus on the International Convention on the Elimination of Racial Discrimination (ICERD), caste-based discrimination, minority rights and related aspects of the UN human rights system. He tweets from @keane_dave.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.