INTER-STATE HUMAN RIGHTS LITIGATION

THE POSSIBILITIES AND LIMITATIONS OF COLLECTIVE ENFORCEMENT

Abstract

The previous years have witnessed an unprecedented rise in inter-State litigation within the framework of the universal and European human rights mechanisms. Even though their number in absolute terms is still very small, inter-State cases are very important by reason of their political nature and their impact on a large number of individuals. The objective of this paper is to shed a light on various aspects of this upswing of cases. After a brief survey of the developments before the Committee on the Elimination of Racial Discrimination, which was seized by three inter-State communications in 2018, the paper will focus on the inter-State cases submitted to the European Court of Human Rights. While originally considered a hostile and drastic diplomatic step, thus rarely used, the situation has unquestionably changed in the last decade, partly owing to the relatively easy access to the Court, and partly as a result of the growing membership of the Council of Europe, which now include numerous fragile democracies that acceded after the end of the Cold War. Based on the typology of inter-State cases developed by the former president of the European Court Dean Spielmann, the paper distinguishes between what can be termed as public interest litigation on the one hand, and cases where the applicant State has a particular link to, and act on behalf of, the victims, on the other. It must be added, however that thousands of individual applications in fact arise out of inter-State conflict, which in turn raises the question as to how to deal with overlapping inter-State and individual applications. The paper argues that even though the procedure was designed to secure collective enforcement of the Convention, in line with its erga omnes partes character, experience shows that States are more inclined to bring inter-State cases when they have an interest on their own. The paper also investigates the various procedural and substantive challenges of inter-State cases, including the admissibility criteria, e.g. the exhaustion of domestic remedies in cases of violations stemming from legislation or administrative practice; or the problem of assessing immense amount of factual information in cases involving large-scale human rights violations. The specific issues raised in the context of multiforum litigation will be investigated as well, e.g. the parallel proceedings before the ICJ and various human rights bodies, which might lead to diverging or conflicting jurisprudence. By exploring these issues, the paper aims to address whether the Court is capable to live up to the challenge of constant increase of inter-State cases, most of them relating to acute or protracted armed conflict.