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Published online by Cambridge University Press: 27 October 2017
It is commonly assumed that the European Convention on Human Rights, being a treaty of specific nature, embodies elements of European public order. However, there seems to be no authoritative or generally accepted definition of the public order of Europe, of its essential components, and of its relationship with the notion of international public order. This article will examine these questions. In pursuing this goal, the law-enforcement resources accumulated within the European system of human rights protection will be examined in the context of interaction between the public order of Europe as part of the law of the European Convention, and international public order as part of general international law.
1 Jacobs, FG and White, R, The European Convention on Human Rights 2nd edn (Clarendon Press 1996), 27–28 Google Scholar.
2 See, for instance, the decision of the PCIJ on Free Zones of Upper Savoy, PCIJ, Series A/B,
3 Jacobs and White above n 1 at 3; Similar approach expressed by Robertson, AH and Merrills, JG, Human Rights in Europe (Manchester University Press 1993) 2–3 Google Scholar.
4 Sudre, F, ‘Existe t-il un ordre public Europeen?’ Tavernier, P Quelle Europe pour les droits de l’homme? (Economica 1996), 42 Google Scholar.
5 Austria v Italy (1961) 4 YB ECHR 140.
6 Ireland v UK, 58 ILR 188, at 291.
7 Cyprus v Turkey, 8007/77, 13 DR 145, at 147; cf also van Dijk, P, and van Hoof, GJH, Theory and Practice of the European Convention on Human Rights (Kluwer 1998), 40–41 Google Scholar.
8 ICJ Reports, 1951, 23.
9 Effect of Reservations, para 27, 67 ILR 568.
10 Ibid, para 29, 67 ILR 568.
11 Ibid, para 30, 67 ILR 569.
12 General Comment 24(52), (1995) 2 IHRR 10 para 17.
13 Kuprsekic, Judgment of 14 January 2000, para 518.
14 See Art 53 of the Vienna Convention on the Law of Treaties of 1969.
15 Barcelona Traction, ICJ Reports, 1970, para 33.
16 Kupreskic, Judgment of 14 January 2000, para 519.
17 Furundzija (1999) 38 ILM 349.
18 Frowein, JA, ‘Jus Cogens’ 7 Encyclopaedia of Public International Law 329 Google Scholar.
19 Brundner, A, ‘The Domestic Enforcement of International Covenants on Human Rights’ (1985) 35 University of Toronto Law Journal 249–250 Google Scholar.
20 Frowein, JA ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ 248 Recueil des Cours (IV–1994), 365 Google Scholar.
21 Suy, E, ‘The Concept of Jus Cogens in International Law’, 2 Lagonissi Conference: Papers and Proceedings (1975), 13 Google Scholar; Jaenicke, G, ‘Zur Frage des Internationalen Ordre Public’, 7 Berichte des Deutschen Gesellschaft für Völkerrecht (1967), 87 Google Scholar.
22 Verdross, A, ‘Jus Dispositivum and Jus Cogens in International Law’ (1966) 60 American Journal of International Law 58 CrossRefGoogle Scholar.
23 Fitzmaurice, G, ‘Third Report on the Law of Treaties’ (1958) Yearbook of the International Law Commission Vol II 40 Google Scholar.
24 Without prejudice of existence of evidence of jus cogens nature of all human rights, would it be possible to consider any treaty concluded between States which derogates from any human rights obligations as lawful? The Erga omnes nature of human rights obligations may, without prejudice of validity of such a treaty inter partes, make possible the invocation of its invalidity by third parties. Such a treaty may therefore not be used either as defence against claims or as a circumstance precluding wrongfulness. Therefore, it might be argued that all human rights have legal force of jus cogens, with the reservation, of course, that the regime of State responsibility shall be determined according to gravity and extent of the breach. Nevertheless, this approach is only a suggestion here and not a categorical one.
25 The notion of jus cogens does not exhaust the concept of public order, but it is in any case the core element of it: Jaenicke, G, ‘International Public Order’, 7 Encyclopaedia of Public International Law, 315 Google Scholar.
26 According to the Preamble, the State parties, ‘Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948; Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared,’ are ‘resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.’
27 For instance, Art 26 (exhaustion of local remedies) and Art 1 of Protocol 1 (right to property).
28 Such a resort to general international law may be necessary to clarify the content and scope of rights and freedoms enshrined in the Convention, Selmouni, para 97–98; to clarify the status of the applicant or respondent, 6780/74 and 6950/75, Cyprus v Turkey, 2 DR, 145ff, 8007/77, Cyprus v Turkey, 13 DR, 146ff, An v Cyprus, 13 HRLJ, 153, Loizidou (Preliminary Objections), para 57; to clarify the role of reciprocity in jurisdictionnal issues, Turkish (Admissibility), paras 35–43, 4 Human Rights Law Journal, 555–557; to clarify the issue of permissibility of reservations to the Convention, Loizidou, paras 65–73; to clarify the legal force of provisional measures, Cruz Varas, (Judgment by the Court), para 101; to interpret the provisions of the Convention, Golder, paras 29–30, Johnston, para 51; Loizidou, para 73; to clarify the relationship between Convention obligations and domestic law, Cruz Varas, (Decision by the Commission), Series A, Vol 201, para 124, at 52. This record is of course, far from being exhaustive. See generally also Charney, ‘International Law and Multiple International Tribunals’, Recueil des Cours, 1998, Vol 271, 210–216, 241–244.
29 Here and elsewhere in the text the expressions ‘the Convention organs’ or ‘the Convention bodies’ refer to the European Commission and European Court of Human Rights. Although the European Commission has been abolished through Protocol No 11 to the European Convention, some of its practice is relevant for the present analysis and is respectively dealt with here.
30 Indeed, the relevance of jus cogens has been confirmed in 1969 by adoption of VCLT; the erga omnes nature of human rights obligations has been stressed by the ICJ in 1970; and the ILC announced its concept of international crimes in 1976 only. The absence of those established categories in 50s and early 60s may help understand the necessity to distinguish between the nature of obligations enshrined in European Convention and other international obligations. At the present stage of development of international law, however, those categories of public order are clearly established and may provide useful guidance for Convention bodies in enforcememt of the Convention.
31 See, generally, Art 15 of the Convention.
32 Golsong, H, ‘Interpreting the European Convention on Human Rights beyond the Confines of the Vienna Convention on the Law of Treaties?’ in Macdonald, R, Matscher, F, and Petzold, H, The European System for the Protection of Human Rights (Nijhoff 1993) 154 Google Scholar at 158.
33 Ibid, 152, 159.
34 Loizidou (Preliminary Objections), Judgment of 23 March 1995, Series A310.
35 Former Art 19 (on the European Commission), current Art 19 (on the European Court).
36 Sudre above n 4 at 65.
37 Golsong above n 32 at 150.
38 See, generally, Arts 31 and 32 of the Vienna Convention on the Law of Treaties of 1969.
39 Admission to the United Nations, ICJ Reports, 1947–48, at 68; See also Loizidou (Preliminary Objections), 1995, para 71; See also Charney, , ‘International Law and Multiple International Tribunals’ (1998) 271 Recueil des Cours 159 Google Scholar at 161.
40 Above notes 19–21 and the accompanying text.
41 Frowein, JA, ‘Reactions by Not Directly Affected States on Breaches of Public International Law’, Recueil des Cours, 1994(IV), 389–394 Google Scholar.
42 Harris, DJ, O’Boyle, M, and Warbrick, C, The Law of the European Convention of Human Rights (Butterworths 1995) 587 Google Scholar.
43 Frowein, JA, and Peukert, W, EMRK Kommentar (Engel Verlag 1995), 18 Google Scholar.
44 For instance, only shortly commented upon as a marginal issue in Robertson and Merrills above n 3 at 254–55; not mentioned at all in Jacobs and White above n 1; practically no analysis in Merrills, Development, 1988.
45 Ireland v UK, 19 YB ECHR, 756; the case contains wide references to Greek and First Cyprus cases while considering the issues of administrative practice.
46 Ireland v UK, 19 YB ECHR, 754, 756; Greek, 12 YB ECHR, 195–96; So was considered, for instance, the repetition of tortures, Ireland v UK, 19 YB ECHR, 750–52.
47 Ireland v UK, 19 YB ECHR, 754.
48 5310/71, Ireland v UK, 15 YB ECHR, 178, 180.
49 Ireland v UK, 19 YB ECHR, 754, 758, 766; 9940–44/82, Turkish case (admissibility), 4 HRLJ, 550.
50 Ireland v UK, 19 YB ECHR, 764.
51 Ireland v UK, 19 YB ECHR, 762–64.
52 Draft Art 19 of the ILC draft on State Responsibility, (1976) Yearbook of the International Law Commission Vol II, part two, 97ff.
53 Arangio-Ruiz, G, Seventh Report on State Responsibility, UN Doc A/CN 4/469.
54 Art 46 of the Convention.
55 Arts 40–41, A/CN 4/L/602/Rev 1.
56 Frowein and Peukert, above n 43 at 17.
57 788/60, Austria v Italy, 2 YB ECHR, 132–44.
58 299/57, 2 YB ECHR, 190; 9940–44/82, Turkish case (admissibility), 4 HRLJ, 547–48.
59 9940–44/82, Turkish case (admissibility), 4 HRLJ, 548; an applicant government, unlike an individual applicant, is not required to show evidence of administrative practice at the admissibility stage; an individual applicant must show some evidence, by virtue of Art 27(2) to make at least a threshold case, Harris, O’Boyle and Warbrick above n 42 at 615.
60 9940–44/82, Turkish case (admissibility), 4 HRLJ, 549.
61 For instance, Art 27, paras 1 and 2 apply only to individual applications procedure, Greece v UK, 2 YB ECHR, 184; 788/60, Austria v Italy, 4 YB ECHR, 178–182; 3321/67, Greek, 11 YB ECHR, 726; Greek (Additional Allegations), 11 YB ECHR, 764; 5310/71, Ireland v UK, 15 YB ECHR, 248; 25781/94 Cyprus v Turkey (www.echr.coe.int, on file with the author).
62 8007/77, Cyprus v Turkey, 13 DR, 154; 25781/94; the view reiterated on merits of the same case, 72 DR, 22; Cyprus v Turkey, objection to admissibility II, dealing with this issue was joined to the merits.
63 8007/77, Cyprus v Turkey, 13 DR, 156.
64 3321/67, Greek, 11 YB ECHR, 764.
65 6780/74 and 6950/75, Cyprus v Turkey, 2 DR, 138; essence of an abuse may consist in the use of the application procedure for purposes (exclusively) other than human rights protection or in submitting allegations unacceptable in nature or in form, 8007/77, Cyprus v Turkey, 13 DR, 156; It has been noted that in the majority of cases the applicant governments had their own political interests in submitting applications, Harris, O’Boyle and Warbrick above n 42 at 587; Frowein and Peukert above n 43 at 517. This circumstances do not in any way prejudice the nature of inter-State complaints. It is understandable that in several cases the appli cant governments might have ethnic or nationality bonds with persons whose rights are alleged to have been violated. However, this cannot outweigh the fact that applicant governments do not seek individual benefits but complain of violations of human rights enshrined in the Convention as such and in objective sense.
66 25781/94, Cyprus v Turkey.
67 176/56, 299/57, 2 YB ECHR, 184, 190 (Generally, a respondent should demonstrate that remedies, which had to be exhausted, did exist, ibid, 192; applicants should demonstrate that existing remedies are ineffective, ibid, 193–94); 3321/67, Greek, 11 YB ECHR, 726; 4448/70, Second Greek, 13 YB ECHR, 134; 5310/71, Ireland v UK, 15 YB ECHR, 120; Ireland v UK, 19 YB ECHR, 762, 768; 9940–44/82, Turkish case (admissibility), 4 HRLJ, 550; The rule applies however to inter-State cases referring to concrete violations, 788/60, Austria v Italy, 2 YB ECHR, 150–52, 182.
68 5310/71, Ireland v UK, 15 YB ECHR, 164.
69 6780/74 and 6950/75, Cyprus v Turkey, 2 DR, 137–38; 8007/77, Cyprus v Turkey, 13 DR, 151; 25781/94, Cyprus v Turkey.
70 8007/77, Cyprus v Turkey, 13 DR, 151.
71 9940–44/82, Turkish case (admissibility), 4 HRLJ, 550.
72 8007/77, Cyprus v Turkey, 13 DR, 153 (it seems to be connected with the fact of violation and not with local remedies).
73 8007/77, Cyprus v Turkey, 13 DR, 154; 25781/94, Cyprus v Turkey (objection to admissibility IV).
74 Expression by Teitgen at the stage of preparation of the European Convention, cited in Robertson and Merrils, Human Rights in Europe, 3–4; See also Frowein, Reaction by Not Directly Affected States on Breaches of Public International Law, Recueil des Cours 1994(IV), emphasising that inter-State litigation under the ECHR emphasises the role of States as guarantors of the public order of Europe, 394.
75 The following analysis on friendly settlement (Arts 38–39 of the Convention) applies also, unless otherwise indicated, to the discontinuance of proceedings before the Convention bodies (Art 37), due to the similar consent-based legal nature of these two institutions.
76 Harris, O’Boyle and Warbrick above n 42 at 680; Robertson and Merrills above n 4 at 282.
77 Kiss, A, ‘Conciliation’, in Macdonald, Matscher and Petzold above n 32 at 703.
78 Harris, O’Boyle and Warbrick, above n 42 at 681.
79 Jacobs and White above n 1 at 373, see also 378–79.
80 Frowein and Peukert above n 43 at 626.
81 The additional concern has been, in the past, the probability of difference of opinion between the European Convention on Human Rights and the European Court of Human Rights, Jacobs and White above n 1 at 374. With the reform of Convention machinery according to Protocol 11, this circumstance has been set aside and may, no longer operate by necessitating achievment of friendly settlements or discontinuance of a case.
82 Van Dijk and van Hoof above n 7 at 179.
83 Cf Rolin, H, ‘Vers un ordre public reelement international’, in Hommage d’une generation des Juristes au President Basdevant (1961), 462, suggesting that the agreement between the parties cannot be a sufficient factor to stop proceedings before the European Court of Human Rights.
84 Jacobs and White above n 1 at 373.
85 Alam, Khan and Singh v UK, 10 YB ECHR, 478.
86 Pfleger, Judgment of 4 April 2000 (available at the website of the Court, www.court.coe.int; on file with the author).
87 Turkish case (Admissibility), 4 HRLJ, 1983, 534–36.
88 Turkish case (Friendly Settlement), 6 HRLJ, 1985, 337.
89 Turkish case (Friendly Settlement), 6 HRLJ, 1985, 335–36.
90 Van Dijk and van Hoof above n 7 at 188; Robertson and Merrills abive n 3 1993, 284.
91 Turkish case (Friendly Settlement), 6 HRLJ, 1985, 336.
92 Turkish case (Friendly Settlement), 6 HRLJ, 1985, 335–336, see, in particular, settlement condition A, in para 39.
93 Harris, O’Boyle and Warbrick above n 42 at 602.
94 Kamminga, M, ‘Is the European Convention on Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations?’ (1994) 2 Netherlands Quarterly for Human Rights 158–59Google Scholar.
95 Robertson and Merrills above n 3 at 284. It is argued sometimes that it was because of that friendly settlement that Turkey has subsequently accepted the compulsory jurisdiction of the Court. But the direct and inviolable link between those two facts would be too difficult to consider as an absolute. Moreover, the acceptances, assurances and public commitments by the respondent governments is one thing and the real improvement of the human rights situation in a country concerned, is another. The practice shows that the former does not necessarily result in the latter.
96 Van Dijk and van Hoof above n 7 at 188–89; Kamminga, above n 94.
97 299/57, 2 YB ECHR 178.
98 Ibid, 178–79.
99 Robertson and Merrills above n 3 at 285.
100 Fribergh M, and Villiger, M, ‘The European Commission on Human Rights’, Macdonald, Matscher and Petzold above n 32 at 612.
101 Sudre above n 4; Ben Yaacoub, Series A, No 127–A, 8–9.
102 The necessity of application of Convention provisions in a way making effective and practical its safeguards was stressed in Loizidou (Preliminary Objections), 1995, para 72; See also Soehring, para 87
103 Van Dijk and van Hoof above n 7 at 249; Danneman, G Schadenersatz bei Verletzung der Europäischen Menschenrechtskonvention (Möhr 1994) 237 Google Scholar, considering this discretion as a limitation on entitlement to full reparation; Monsterrat Enrich Mas, ‘Right to Compensation Under Art 50’, in Macdonald, Matscher and Petzlold above n 32 at 783; Penopää, M, in Randelzhofer, A, and Tomuschat, C (eds), State Responsibility and the Individual. Reparation in Instances of Grave Violations of Human Rights (Nijhoff 1999) 112 Google Scholar; Pisillo-Mazzechi, R, ‘International Obligations to Provide for Reparation Claims?’ in ibid at 169.
104 Chorzhow Factory, PCIJ Series A, 1928, No 17, 2ff (47).
105 Polakiewicz, J, Die Verpflichtungen der Staaten aus den Urteilen des Europäischen Gerichtshofs für Menschenrechte (Möhr 1993) 97 Google Scholar; See also Recommendation NoR (2000) 2 of the Committee of Ministers of the Council of Europe concerning re-opening cases at domestic level, preamble and para I. See also Charney, , International Law and Multiple International Tribunals, Recueil des cours, 1998, Vol 271, 274–75Google Scholar
106 Papamichalopoulos, A–330B, 56ff, in particular, 64.
107 Polakiewicz above n 105 at 97–98.
108 Art 36(1) of the ILC’s Articles on State responsibility, ILC Report 2001, 52.
109 Art 36(2) and 38 of the ILC’s Articles on State responsibility, ILC Report 2001, 52–53.
110 Frowein and Peukert above n 43 at 670.
111 Monsterrat Enrich Mas above n 103.
112 Harris, O’Boyle and Warbrick above n 42 at 683–84.
113 Ibid, 684; Ireland v UK, para 187; Penopää above n 103 at 110; Pisillo-Mazzechi, above n 103 at 169; Robertson and Merrills above n 3 at 311.
114 Polakiewicz above n 105 at 147.
115 The Inter-American Court has awarded such remedy in a number of cases, such as Castillo Petruzzi, para 221 and operative para 13, 7 International Human Rights Reports 744–46 (2000); Loayza Tamayo, para 189 and operative para 9, 116 ILR, at 439, 442; Suarez Rosero, para 76 and operative paras 1 and 4, 118 ILR, at 113, 119–120. Concerning the ICJ, see the cases quoted in infra n124.
116 Polakiewicz, 165.
117 Selmouni v France 1999 ECHR (25803/94), para 133.
118 Ibid, para 126.
119 The Court referred to Philis v Greece, Decision of 27 August 1991, ECHR (Ser A 209), at 27; Allenet de Ribemont v France, Decision of 7 August 1996, paras 63–65.
120 See, generally, Art 15 of the European Convention.
121 As distinguished from the word ‘satisfaction’ used in the Convention. Satisfaction as understood by the ILC is related to immaterial or moral injury only and covers both material and immaterial remedies in this regard; Art 37 of the ILC’s Articles, ILC Reports 2001, 52.
122 Krusilin case (para 39) and Aquilina case (para 59) for example; See also Robertson and Merrils, Human Rights in Europe, 1993, 313–314.
123 Kamminga, M, Legal Consequence of an Internationally Wrongful Act of a State against an Individual, Bakhuysen, et al (eds), Execution of Strasbourg and Geneva Human Rights Decisions in National Legal Orders, 67 Google Scholar, 72; Penopää above n 103 at 118; Dannemann above n 103 at 365.
124 Corfu Channel case, ICJ Reports, 1948, 35, referring to the respective submission by Albania. In two recent cases the ICJ did not stop at pronouncing the illegality of the respondent’s conduct, but ordered further remedies such as restitution and guarantees of non-repetition. See LaGrand, General List No 104 (27 June 2001); and Arrest Warrant, General List No 124 (12 February 2002).
125 Rainbow Warrior case, XX RIAA, 275, also having awarded decent compensation.
126 Dannemann above n 103 at 368.
127 This circumstance obviously is one of the determining factors in the calculation of compensation when the Court decides to award it, van Dijk and van Hoof above n 7 at 251. This may justify our above assumption by analogy.
128 Van Dijk and van Hoof above n 7 at 252.
129 Harris, O’Boyle and Warbrick above n 42 at 687.
130 Aydin, 23178/94, paras 127–130; Aksoy, 21987/93, para 113.
131 Selçuk and Asker, 23184/94, 23185/94, paras 116, 119; Tekin, 22496/93, paras 75, 78.
132 Frowein and Peukert above n 43 at 672–73.
133 ILC Draft on State Responsibility, Art 45.2(c), adopted by the first reading, ILC Report 1996. This provision disappeared from the draft adopted by the second reading, A/CN 4/L/602/Rev.1. However, the ILC emphasised that satisfaction may comprise remedies other than those mentioned in the draft articles, including monetary payments (commentary to Arts 36–37, ILC Report 2001, 244–68). On the other hand, whatever the ILC’s approach, the European Court is unlikely to abandon its established approach of awarding monetary compensation for non-material injury.
134 Kamminga, Legal Consequences, Bakhuysen above n 123.
135 See the practice of the Inter-American Court, Velasquez-Rodriguez (Compensation), 95 ILR, p 315, and Loayza Tamayo, 116 ILR, p 435.
136 Chorzhow Factory, PCIJ Series A, 1928, No 17, 23; Corfu Channel, ICJ Reports, 1948, 26; Nicaragua, Merits, ICJ Reports, 1986, 142.
137 Haya de la Torre, ICJ Reports, 1951, 79.
138 Kamminga above n 123 at 73; See also the decision of the UN Human Rights Committee on communications No 623–24 and 626–627/1995, Domukhovski et al v Georgia, para 20, internet version: www.unhchr.ch (on file with the author).
139 Polakiewicz above n 105 at 150–152.
140 Art 48, ILC’s Articles State responsibility, ILC Report 2001, 6.
141 Frowein and Peukert above n 43 669; See also Monsterrat Erich Mas, ‘Right to Compensation Under Art 50’, in Macdonald, Matscher and Petzold above n 32 at 776–77.
142 For the description of such a role of judicial policy in the EC law see Hartley, T, Foundations of European Community Law 4th edn (Oxford UP 1998), 78ffGoogle Scholar; with respect to the ICJ see the Separate Opinion of Judge Lauterpacht in Bosnian Genocide [1993] ICJ Reports 408.