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I. EUROPEAN COURT OF HUMAN RIGHTS BIJELIC V MONTENEGRO AND SERBIA (APPLICATION NO 19890/05) JUDGMENT OF 11 JUNE 2009

Published online by Cambridge University Press:  03 August 2010

Benjamin E Brockman-Hawe
Benjamin E Brockman-Hawe
Affiliation:
ASIL International Law Fellow.
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Extract

What happens when a European State breaches its international obligations and then ceases to exist? Does its obligation to repair the harm caused by the breach devolve to a new state that occupies part of the territory of an old state? When will a new European State be held accountable for violations that took place before the entry into force of a human rights treaty? This comment examines the European Court of Human Rights' (hereinafter ‘the Court’ or ‘the ECtHR’) encounter with the law of state succession, specifically succession to treaty obligations and succession to responsibility for the wrongful acts of a predecessor state. In Bijelic v Montenegro and Serbia the Court held that Montenegro was to be automatically regarded as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’), as well as Protocol No 1 thereto, from the date of its declaration of independence from the State Union of Serbia and Montenegro (hereinafter ‘the State Union’), and that Montenegro alone could be held responsible for violations of these instruments occurring in the territory of the State Union that began before March 2004 (the date of ratification of the Convention and Protocol 1 by the State Union) but continuing through 2009. Bijelic is not the first time the Court has been called upon to decide a question of succession to treaty obligations or responsibility, but the judgment is noteworthy for the unique approach the Court adopted to deciding both of these issues. This comment will place the decision in the larger context of Court practice with respect to both of the implicated succession issues, identify the aspects the Trial Chamber's analysis that distinguish it from its predecessors and discuss the decision of the Court in light of general and emerging trends in international law. In the process, this comment will provide a uniquely thorough examination of ECtHR practice with respect to succession to responsibility and identify the trends, to the extent that such trends exist, that characterize the Court's approach to this area of law.

Type
Current Developments: International Courts and Tribunals
Information
International & Comparative Law Quarterly , Volume 59 , Issue 3 , July 2010 , pp. 845 - 867
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 Bijelic v Montenegro and Serbia (App no 19890/05) ECHR 11 June 2009 (hereinafter Bijelic).

2 Strictly speaking, it may not be fair to refer to the State Union as a confederacy. As Vojislav Koštunica, the last President of the Federal Republic of Yugoslavia, noted:

When it comes to the State Union of Serbia and Montenegro, it does contain Confederal elements, but not solely confederal. The state union of Serbia and Montenegro is not based on a contract, but rather on constitutional act (charter), which is why it is not a mere union. The laws to be endorsed by the parliament refer to its citizens, not the member states, so it is not a confederation either. The first sentence of the Belgrade Agreement reading ‘the Agreement on principles of relations between Serbia and Montenegro within the state union,’ makes this perfectly clear. This is not a union of independent states […].

Raoul Blindenbacher and Arnold Koller (eds), Federalism in a Changing World: Learning from each other (McGill-Queen's University Press 2003) 565 (plenary speech delivered in 2003). Nevertheless, the overwhelming tendency among scholars is to regard the State Union as an example ‘of the most extensive form of self government, establishing in effect merely a loose union of two states, each of which is already essentially a sovereign entity.’ Marc Weller and Stefan Wolff (eds), Autonomy, Self Governance and Conflict Resolution: Innovative approaches to Institutional Design in Divided Societies (Routledge 2005) 68. In either case, the question of the precise nature of the State Union is irrelevant; for purposes of a discussion of succession issues, it is only important to note that, prior to the secession of Montenegro, only the State Union itself, not its constituent republics, could be held responsible for violations of the Convention at the ECHR.

3 For more on the events leading up to Montenegro's 21 May 2006 referendum on independence see Office for Democratic Institutions and Human Rights, ‘OSCE/OHIDR Needs Assessment Report’ (7–9 March 2006) <http://194.8.63.155/documents/odihr/2006/03/18369_en.pdf>

4 European Commission for Democracy through Law, ‘Amicus Curiae Brief in the case of Bijelic v. Montenegro and Serbia (Application N°11890/05)’, adopted 17–18 October 2008, CDL-AD(2008)021) para 5 <http://www.venice.coe.int/docs/2008/CDL-AD(2008)021-e.asp#_ftnref15> (hereinafter ‘Venice Commission Amicus Brief’).

5 Council of Europe Committee of Ministers, Resolution CM/Res(2007)7 inviting the Republic of Montenegro to become a member of the Council of Europe, Adopted by the Committee of Ministers on 9 May 2007 at the 994bis meeting of the Ministers’ Deputies <https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Res%282007%297&language=lanEnglish&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864> (hereinafter ‘Res(2007)7’).

6 Bijelic (n 1) para 10–15.

7 ibid paras 16–23.

8 ibid paras 30–33.

9 ibid para 60.

10 ibid para 61.

11 ibid para 9.

12 ibid paras 70, 85, 92–99.

13 Press release issued by the Registrar, ‘Requests for Referral to the Grand Chamber 2009’ (12 December 2009) <http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=859915&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649>.

14 Bijelic (n 1) para 64.

15 Written Observations of 10 October 2008 concerning the Written Observations of the Government of the Republic of Serbia, Milan Savatovic to S Dollee, Section Registrar, Answer to letters ECHR-LE4.3aR of 5 September 2008, para. 1.1. The applicants also sought to hold Serbia accountable on the basis of the fact ‘the State Union Agent practically accepted responsibility [sic] in this case by offering a compensation of 5,000 euros.’ Written Observations of 20 November 2008 concerning the Written Observations of the Government of the Republic of Serbia, Milan Savatovic to S. Dollee, Section Registrar, Answer to letters ECHR-LE14.9bR, ECHR-LE4.6R and ECHR-LE4.5aR of 5 November 2008, sec 1.

16 Written Observations of 10 October 2008 (n 15) para. 1.2.1.

17 Written Observations of 10 October 2008 concerning the Written Observations of the Government of Montenegro, Milan Savatovic to S Dollee, Section Registrar, Answer to letters ECHR-LE4.3aR of 5 September 2008, para 1.1. The Observations of the Applicants do not make it clear whether the Applicants sought damages from Montenegro solely for its role in failing to enforce the judgement after independence was declared in 2006, or for actions that, but for the declaration of independence, would have been attributed to the State Union. Section 1.1.1 of both sets of aforementioned Written Observations submitted by Applicants on 10 October 2008 would seem to support the latter view, however, the Applicants emphasis of the circumstance that Serbia is the sole successor state to the State Union would seem to preclude Montenegro's liability for actions attributable to the State Union.

18 Additional Observations of the Government of the Republic of Serbia, Concerning the Application No. 11890/05, November 2008, para 4.

19 ibid para 6.

20 Written Observations of the Republic of Serbia (pursuant to Rule 38), concerning the Application No. 11890/05, August 2008, para 21.

21 Additional Observations (n 18) para 13.

22 ibid para 24–27.

23 Written Observations (n 20).

24 Reply by Montenegro, 3 September 2008, Sec 2.

25 Bijelic (n 1) para 69.

26 ibid.

27 ibid para 70. The ECtHR has determined that for a complaint to be compatible with the Convention's ratione personae requirements and applicant must come within the jurisdiction of one or more of the accused contracting states and that an alleged violation be attributable to one or more of those states. European Court of Human Rights, ‘Key Case-Law Issues – Compatibility Ratione Loci and Ratione Personae’ (30 July 2006) <http://www.echr.coe.int/NR/rdonlyres/C95BA3E4-BEF1-4E5F-9FFA-3F4586CFE07C/0/COURT_n1729701_v3_Key_caselaw_issues__Compatibility_Ratione_loci_and_personae3.pdf>.

28 Bijelic (n 1) para 71.

29 ibid para 76.

30 ibid para 83 (citing Oneryildiz v. Turkey [GC], no. 48939/00, § 134, ECHR 2004-XII).

31 ibid para 85.

32 ibid para 84.

33 ibid para 88.

34 ibid para 90.

35 State succession is defined as ‘the replacement of one state by another in the responsibility for the international relations of territory.’ Vienna Convention on Succession of States in Respect of Treaties (adopted 23 August 1978) 1946 UNTS 3 art 2; Craven, M, ‘The Problem of State Succession and the Identity of States under International Law’ (1998) 9 EJIL 142, 145CrossRefGoogle Scholar. At the highest level of abstraction the law of state succession is typically conceptualized as having four aspects: (1) succession to treaties, (2) succession to State property, State debt and State archives, (3) succession to membership in international organizations, and (4) succession and its impact on the nationality of natural and legal persons. Sozen, A and Oersay, K, ‘The Annan Plan; State Succession or Continuity’ (2007) 43 Middle Eastern Studies 1CrossRefGoogle Scholar, 125, 131; Beemelmans, H, ‘State Succession in International Law: Remarks on Recent Theory and State Praxis’ (1997) 15 BUILJ 71, 73–74Google Scholar. Recently however, increased attention has been paid to a fifth category, the effects of succession on state responsibility for an act that violated an international obligation. P Dumberry, State Succession to International Responsibility' (Matinus Nijhoff Publishers, Leiden, 2007) 11. State succession is an aspect of international law almost universally regarded as frustratingly indeterminate and is plagued by polarized thinking concerning the suitability of codification of this area of law. K Marek, Identity and continuity of States in Public International Law, (2nd edn, Librare Droze, 1968) 10; MN Shaw, International Law (CUP, Cambridge, 2003) 863; Oeter, S, ‘German Unification and State Succession’ (1991) 51 ZaöRV 349, 352Google Scholar (describing the status of the law of state succession as ‘chaotic’); O'Connell, DP, ‘Reflections on the State Succession Convention’, 39 ZaöRV (1979) 725, 726Google Scholar (‘State succession is a subject altogether unsuited to the process of codification.’); K Bühler, State Succession and Membership in International Organizations—Legal theories versus political pragmatism (Kluwer Law, The Hague, 2001) 309 (Stating that ‘in several respects the traditional theoretical categories of state identity, continuity and succession appear to be too rigid, outdated and no longer in line with reality, as they have failed to offer adequate explanations for numerous phenomena in practice’).

36 Defined as the ‘rules and principles of a general nature that are binding on a large number of states either because they are part of customary international law, general principles of law and judicial decisions or because they are contained in widely ratified multilateral treaties’ Kamminga, MT, ‘Final Report on the Impact of Human Rights Law on General International Law’ [2008] Final Report of the 73d Conference of the International Law Association, 1Google Scholarhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1150664.

37 Vienna Convention (n 35) art 2 para ff. cf Venice Commission Amicus Brief (n 4) para 35 (‘The discussion surrounding the adoption of both treaties indicates that many states were sceptical of the idea that a ‘newly independent state’ should start its life with a totally ‘clean state.’’).

38 Tichy, H, ‘Two Recent Cases of State Succession—An Austrian Perspective’ (1929) 4 AJPIL 117, 123–124Google Scholar; Restatement (Third) of the Foreign Relations Law of the United States (1987), § 210(3), Reporters' note 4; A Cassese, International Law (2nd edn, OUP, Oxford, 2005) 78; Craven, M, ‘The Genocide Case, the Law of Treaties and State Succession’ 68 BYIL (1997) 127, 147–151Google Scholar; A Zimmermann, ‘Secession and the Law of State Succession’, in M Kohen, Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006) 214–25; Shaw, International Law (5th edn, CUP, Cambridge, 2003) 875. cf Ong, DM, ‘The Legal Status of the Australia-Indonesia Timor Gap Treaty Following the End of Indonesian Rule in East Timor’ (2000) 31 Neth YBIL 67Google Scholar, 94 (noting that ‘[h]aving submitted the Convention for consent by the Dutch Parliament in March 1990, by December 1994 the Dutch government withdrew its bill of approval, arguing that the Convention had lost its value as codification of international law, inter alia because State practice was not in accordance with the Convention rules.’).

39 A Aust, Modern Treaty Law and Practice (CUP, Cambridge, 2000) 306; Bello, E, ‘Reflections on Succession of states in the Light of the Vienna Convention on the Succession of States in Respect of Treaties’ 23 GYIL (1989) 309Google Scholar (‘No newly independent state can exist entirely on its own in the limbo of the clean slate in respect of treaties. The situation has never arisen, and it is unthinkable that it ever will arise in the community of nations.’); Sinclair, I, ‘Some Reflections on the Vienna Convention on Succession of States in Respect of Treaties’, in Essays in Honour of Erik Castrén (1979) 149, 153Google Scholar (acknowledging that the Treaty might be subject to criticism).

40 Statement by the Chairperson on behalf of the Human Rights Committee, 20 October 1995, UN Doc. CCPR/C/79/Add.57, at 6; Human Rights Committee, General Comment No 26: Continuity of obligations, 8 September 1997. See also statements made at the 1994 the 5th meeting of chairpersons of human rights treaty bodies, where it was declared that ‘… successor States were automatically bound by obligations under international human rights instruments from the respective date of independence and that observance of the obligations should not depend on a declaration of confirmation made by the Government of the successor State.’ UN Doc E/CN.4/1995/80 at 4.

41 Kamminga, MT, ‘State Succession in Respect of Human Rights Treaties’ (1996) 7 EJIL 469CrossRefGoogle Scholar; R. Higgins, ‘The International Court of Justice and Human Rights’ in K Wellens (ed), International Law: Theory and Practice. Essays in Honour of Eric Suy, (Martinus Nijhoff, The Hague, 1998) 691, 696–697; Shaw, MN, ‘State Succession Revisited’ 5 Finn YIL (1994) 34, 84Google Scholar (noting that ‘one is on the verge of widespread international acceptance of the principle that international human rights treaties continue to apply within the territory of a predecessor State irrespective of a succession’); Flauss, JF, ‘Convention européenne des droits de l'homme et succession d'Etats aux traités: une curiosité, la décision du Comité des Ministres du Conseil de l'Europe en date du 30 juin 1993 concernant la République tchèque et la Slovaquie,’ 6 RUDH (1994) 1–5Google Scholar; Stern, B, ‘La succession d'Etats’ (1996) 262 Receuil des cours 297–306Google Scholar; Jayawickrama, N, ‘Human Rights in Hong Kong: The Continued Applicability of the International Covenants,’ 25 Hong Kong L J (1995) 171, 178Google Scholar. Not all scholars are in agreement however. cf Rasulov, A, ‘State Succession to Humanitarian Treaties; is there a case for Automaticity?’ (2003) 14 EJIL 141CrossRefGoogle Scholar (noting that ‘[t]he opinio juris currently held by the successor states strongly disfavours any automaticity of succession’); A Bos, ‘Statenopvolging in het bijzonder met betrekking tot verdragen’ [State Succession: Particularly with Regard to Treaties], 111 Mededelingen van de Nederlandse Vereniging voor Internationaal Recht (1995) 18. Beemelmens, H ‘State Succession in International Law; Some Remarks on Recent Theory and Praxis’ (1997) 15 Boston UILJ 71, 91Google Scholar (while commenting on the Council of Europe's supposed exception to the otherwise prevailing rule of depository neutrality, noting that ‘the Council of Europe's position is controversial within the Council itself. The Austrian delegation resolutely defended the tabula rasa doctrine as it traditionally does in its bilateral relationships.’); M Kamminga specifically responded to the issues raised by A Rasulov through a 2005 Venice Commission outcome document, in which he highlighted the issues raised by the latter but nevertheless concluded ‘In sum, there are ample reasons to conclude that international practice with regard to state succession in respect of human rights treaties both at the European and the worldwide level supports the view that human rights treaties are a special category of treaties.’ European Commission for Democracy through Law, ‘Preliminary Report ‘Human Rights Treaties and State Succession’’ (October 2005)<http://www.venice.coe.int/docs/2005/CDL-UD(2005)013rep-e.asp#_ftnref14> (hereinafter ‘Venice Commission Preliminary Report’).’

42 Bijelic (n 1) para 68(iii), 69.

43 ibid; Venice Commission Preliminary Report (n 41).

44 Konecny v Czech Republic (App nos. 47269/99; 64656/01; 65002/01) ECHR 26 October 2004 para 62, 26; Brezny and Brezny v Slovak Republic (App no 23131/93) EComHR 4 March 1996, 3–4; Venice Commission Preliminary Report (n 41).

45 Matijasevic v Serbia (App no 23037/04) ECHR 19 September 2006 para 25 (‘In its decision of 14 June 2006 the Committee of Ministers of the Council of Europe noted inter alia: (i) that ‘Serbia … [had continued] … membership of [the State Union of] Serbia and Montenegro in the Council of Europe with effect from 3 June 2006’, and (ii) that it had remained a party to a number of Council of Europe conventions signed and ratified by the former State Union of Serbia and Montenegro, including the Convention for the Protection of Human Rights and Fundamental Freedoms.).

46 Bijelic (n 1) para 58 (citing General Comment No 26; Continuity of Obligations: 08/12/97/ CCPR/ C/21/Rev.1/ Add.8/Rev.1) 69.

47 With respect to the breakup of Czechoslovakia, M Kamminga believes that the Committee of Ministers has the automatic succession approach, noting that ‘The unorthodox procedure followed in [the case of this dissolution] apparently reflected the strong desire on the part of both the existing members of the Council of Europe and its two new members to ensure seamless continuity of obligations under the Convention’ and that the Court has adopted an attitude ‘consistent with’ that of the Committee of Ministers. Venice Commission Preliminary Report (n 41) citing COE Doc. H/INF (94)1, at 1. Read also Kamminga (n 41) 465. A Rasulov however, is careful to note that the decision to list the Czech and Slovak Republics as parties to the Convention was at the express behest of both states (which implies that there was nothing automatic about the succession at all) and that it was in fact the European Commission on Human Rights that ‘forced’ the successor states to succeed to the Convention through a series of decisions that conflicted with the approach of the Council of Europe. Rasulov (n 41) 167.

48 Resolution CM/Res(2007)7 inviting the Republic of Montenegro to become a member of the Council of Europe (Adopted by the Committee of Ministers on 9 May 2007 at the 994bis meeting of the Ministers' Deputies) <https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Res%282007%297&Language=lanEnglish&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864>.

49 See (n 47).

50 Bates, E, ‘Avoiding Legal Obligations Created by Human Rights Treaties’ (2008) 57 ICLQ 75CrossRefGoogle Scholar.

51 The significant time that had elapsed between Montenegro's succession announcement in June 2006 and the Council of Ministers decision to invite Montenegro to become a member, as well as the wording of the invitation itself, which takes note of Montenegro's specific intention to be bound by the Convention agreed to by the State Union, implies that the automatic succession to the Convention was not contemplated by the Council, even though continuity of obligations was. Letters dated 6 and 12 June 2006 from Mr Miodrag Vlahovic, Minister of Foreign Affairs of the Republic of Montenegro, to Mr Terry Davis, Secretary General of the Council of Europe, concerning a request for accession from the Republic of Montenegro to the Council of Europe.CM(2006)106 14 June 2006 <https://wcd.coe.int/ViewDoc.jsp?Ref=CM%282006%29106&language=lanEnglish&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864> (‘The Government of the Republic of Montenegro accepts in their entirety the commitments and Responsibilities included in those documents [the Conventions and Protocols of Council of Europe that the State Union of Serbia and Montenegro has signed and ratified so far], and affirms its determination to act in accordance with these provisions.’); Res(2007)7 (n 7) (‘Having regard to the declaration of succession of the Republic of Montenegro, by the letter of 6 June 2006, in respect of the conventions to which the State Union of Serbia and Montenegro had been a Party or Signatory, confirmed by the letter of 23 March 2007, and to the decision by the Committee of Ministers according to which the Republic of Montenegro is, with retroactive effect from 6 June 2006, the date of the declaration of succession, Party to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols No. 1, 4, 6, 7, 12, 13 and 14 thereto and to the European Convention on the Suppression of Terrorism’) Compare Montenegro's nearly year-long wait to the one week Serbia waited for an invitation to accession to membership in the Council, and the much more vague wording of that decision by the Deputies of the Council of Europe with respect to the issue of automatic succession to the Convention. To some extent these facts imply that, unlike Montenegro, automatic succession in to the Convention was assumed by the COE in the case of Serbia. Council of Europe' Continuation of the Republic of Serbia as a Member State in the Council of Europe' CM/Del/Dec(2006)967 16 June 2006.<https://wcd.coe.int/ViewDoc.jsp?id=1010947&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383> Sec 2.3(a) (The Deputies of the Council of Europe declared that Serbia ‘will assume the attendant obligations and commitments’ associated with membership in the Council of Europe and ‘noted that the Republic of Serbia was either a signatory or a party to the Council of Europe conventions.’).

52 Kamminga (n 36) 13 (‘In the Bosnian Genocide case, the Court decided not to respond to an argument in favour of automatic succession in respect of human rights treaties made by Bosnia-Herzegovina. Among the separate opinions to this judgment, only Judge Weeramantry expressed the view that there was indeed a rule of automatic succession with regard to the Genocide Convention. President Higgins has expressed sympathy for the idea in an academic article.’)

53 P Capps, MD Evans and SV Konstadinidis, Asserting jurisdiction: International and European Legal Perspectives (Hart Publishing, Oxford, 2003) 237.

54 Czaplinski, W, ‘State Succession and State Responsibility’ (1990) 28 Canadian YIL 339Google Scholar.

55 Dumberry (n 35) 40–47; Volkovitsch, MJ, ‘Righting Wrongs: Towards a New Theory of Delictual Responsibility for International Delicts’ (1992) 92 Columbia LR 2162CrossRefGoogle Scholar, 2173.

56 M Milanovic, ‘Territorial Application of the Genocide Convention and State Succession’ 19 in P Gaeta (ed), The UN Genocide Convention: A Commentary (OUP, Oxford, 2009).

57 See generally Dumberry (n 35); Volkovitsch (n 55) 2177, 2187, 2193–2195.

58 Dumberry (n 35) 13, 222; Volkovitsch (n 55) 2200; Dumberry, P, ‘Is a New State Responsible for Obligations Arising from Internationally Wrongful Acts Committed before its Independence in the Context of Secession?’, 43 Canadian YIL (2005) 419, 422Google Scholar.

59 Dumberry (n 35) 202. For an important exception to this trend in general international law, see Sec 2(d) below.

60 ibid 200–203.

61 The label ‘continuator’ is used to denote a state that continues the legal personality of a predecessor state, whereas the term 'successor', for purposes of this paper, is used to broadly to denote a state with a new legal personality. For an excellent summary of the debate over whether or not the Republic of Serbia is a ‘continuator’ or 'successor' state to the State Union, as well as justification for why it continues the legal personality of the State Union, read the arbitration decisions of Republic of Serbia v ImageSat International NV [2009] EWHC 2853 (Comm) para 22–37. See also Mytilineos v (1) State Union of Serbia and Montenegro (2) Republic of Serbia (8 September 2006) Partial Award on Jurisdiction para. 158 (‘The Tribunal has taken note that in June 2006, well after the filing of Claimant's Statement of Claim in April 2005, Montenegro, a constituent unit of the State Union of Serbia and Montenegro, declared its independence. While the Tribunal has not been requested to rule on any ensuing State succession issues, it takes note that it appears uncontroversial that the Republic of Serbia will continue the legal identity of the State Union of Serbia and Montenegro on the international level.’).

62 Bijelic (n 1) paras 69–70 (emphasis added).

63 Venice Commission Amicus Brief (n 4) paras 26–31; Human Rights Action, Third Party Intervention, 7 August 2008, para 11. The Court noted the opinions of these third party interveners in paras 65 and 66 of its opinion. Bijelic (n 1).

64 Buyse, A, ‘A Lifeline in Time—Non-Retroactivity and Continuing Violations at the ECHR’ (2006) 75 Nordic JIL 63Google Scholar, 86–87 (noting that ‘when procedures are formally separate, but closely connected in content, the Court views them as a continuous situation.’).

65 Bijelic (n 1) para 84.

66 ibid para 32.

67 Secretary General of the Council of Europe ‘Montenegro: Compliance with obligations and commitments contained in PACE Opinion 261—Addendum to the Third Report (May 2008–August 2009)’ SG/Inf (2009) 13 Addendum final 28 September 2009 <www.coe.co.me/REPOSITORY/1612_mn_third_report_addendum.doc> sec. 19.2.1.6. Read also the Venice Commission's Interim Opinion on the Draft Constitution of Montenegro, adopted on 1 June 2007, which in paragraph 98 endorsed the idea of transitional constitutional provisions covering the retroactive applicability of the Convention, presciently adding that ‘[u]nless clear provision is made for this, it is probable that past infringements of human rights, however serious, will remain without a remedy under the new Constitution’.

68 Dumberry (n 35) 29–30.

69 The phrase ‘judicial institutions’ is used here to include the Court as well as the European Commission of Human Rights (hereinafter EComHR or ‘the Commission’).

70 Jasinskij and Others v Lithuania (App no 38985/97) EComHR 9 September 1998.

71 ibid s 1.

72 ibid s 2.

73 JA v Repulique Tcheque (App no 22926/93) EComHR 7 April 1994.

74 Szmora and Hlavsova v Republique Tcheque (App no 23122/93) EComHR 7 April 1994.

75 Brezny (n ) p 15.

76 Gasperetz v. Slovak Republic (App no 245056/94) EComHR 28 June 1995; Sulko v Slovak Republic 26962/95, EComHR 6 September 1995l. For an discussion of a few additional Commission decisions implicating the breakup of Czechoslovakia, read Rasulov (n 41) 166–167.

77 For example, Konecny (n 44); Skodakova v Czech Republic (App no 71551/01) ECHR 21 December 2004, para 30; Chovancik v. Slovakia (App no 54996/00) ECHR 17 June 2003 para 18.

78 See (n 44).

79 Jiri Kuchar & Petr Stis v Republique Tcheque (App no 37527/97) ECHR 23 May 2000 (judgment available in French only). Note that this contradicts Kamminga's assertion that the application of the ‘standard formula’ ‘allowing for accountability of conduct by the predecessor state apparently has not prompted any objections by the Czech Republic or Slovakia.’ Venice Commission Preliminary Report (n 41).

80 Kuchar (n 70).

81 Matijašević v Serbia (App no 23037/04) ECHR 19 September 2006 paras 22–25.

82 ibid para 25.

83 EVT Company v Serbia (App no 3102/05) ECHR 21 September 2007 para 32; Vrencev v Serbia (App no 2361/05) ECHR 23 Sept 2008 para 35; Jevremovic v Serbia (App no 3150/05) 17 July 2007 para 63; V.A.M. v Serbia (App no 39177/05) ECHR 13 March 2007 para 76; Lepojic v. Serbia (App no 13909/05) ECHR 31 March 2009 para 24.

84 Lepojić (n 74) Dissent para 11.

85 ibid.

86 Wolf-Ulrich von Maltzan and Others, Margarete von Zitzewitz and Others, and Man Ferrostall and Alfred Topfer Stiftung v Germany (Applications nos. 71916/01, 71917/01 and 10260/02) ECHR 2 March 2005.

87 Council of Europe, European Convention for the Protection of Human Rights and fundamental Freedoms, Chart of Signatories and Ratifications (updated 14 March 2010) <http://conventions.coe.int/treaty/Commun/ChercheSig.asp?NT=005&CM=8&DF=14/03/2010&CL=ENG>.

88 ibid para 82. Specifically, the Court noted that it ‘lacks competence ratione temporis and ratione personae to examine the circumstances in which the expropriations were carried out or the continuing effects produced by them up to the present date.’

89 ibid para 81.

90 ibid para 83.

91 Andrejeva v Latvia (App no 55707/00) ECHR 18 February 2009.

92 ibid para 51.

93 ibid para 52–53.

94 ibid para 56.

95 ibid para 78 (emphasis added).

96 ibid Dissent para 2.

97 Judge Ziemele argues ‘The judgment treats the submissions concerning the ‘jurisdiction’ of Latvia for the acts complained of by the applicant as a question relating to the Government's objections to the admissibility of the case. […] Of course, this is not a question of jurisdiction strictly speaking, as the Court demonstrates to the Government in this part of the judgment, but it is one of responsibility for events that took place in the USSR. It is clearly an argument on the merits, the conclusion at which the majority finally arrive two paragraphs later, only to dismiss it without any elaboration as irrelevant in paragraph 78. ibid Dissent para 14 (citations removed).

98 ibid Dissent para 17 (citations removed).

99 ibid Dissent para 28 (citations removed).

100 Based on the dissents in Andrejeva and Lepojic, it is also fair to say that there is, if not a trend, at least a some amount of increased pressure being placed on the majority of ECHR justices to incorporate the ‘language’ of general international law on state succession into its decisions.

101 As an aside it is interesting to contrast the ECHR's willingness to hold states accountable for acts of predecessor states with the practice of its peers. The Human Rights Committee has been confronted with questions to succession to responsibility fewer times than even the ECHR, but it has sent a more mixed message about what it will do when facing such facts. The HRC has twice dismissed complaints raising succession issues with a tortured assertion that the petitioner had failed to exhaust domestic remedies (Dusan Soltes v the Czech Republic and the Slovak Republic, CCPR-OP-5-2-b/CCPR-OP-2, inadmissibility decision of 28 October 2005, para 7.5; Wan Kuok Koi v Portugal, CCPR-OP-3/CCPR-OP-2/CCPR-OP-5-2-b, inadmissibility decision of 22 October 2001), but has also implied, through one case and one comment adopted during a review of a periodic report of Portugal, that an obligation to repair arising out of a breach of an international obligation will be transferred to a successor state when the impugned acts arose on a territory covered by the relevant treaty provision at the relevant time (HRC, CCPR/C/70/Add.9, 10 April 1997; Alina Simunek et al v Czech Republic, CCPR/C/54/D/516/1992, decision on the merits 31 July 1995, para 11.7–11.8).

102 P Eisemann and M Koskenniemi, State Succession: Codification Tested Against the Facts (Springer, London, 2000) 487.

103 Written Observations of 10 October 2008, Answer to letters ECHR-LE4.3aR of 5 September 2008 (n 15) para. 1.1. In fact, the ECHR had already found that the Court of Serbia and Montenegro constituted by the State Union had failed as an institutional mechanism for redressing human rights claims. Matijasevic (n) paras 34–37. In fact, the entirety of the Court's decision in Bijelic is difficult to square with the Court precedents that ‘require States not only to respect and apply, in a foreseeable and consistent manner, the laws they have enacted, but also, as a corollary of this duty, to ensure the legal and practical conditions for their implementation.’ Broniowski v Poland (App no 31443/96) ECHR 22 June 2004 para 184. Read also Sovtransavto Holding v Ukraine (App no 48553/99) ECHR 25 July 2002 para 96 (stating that ‘The obligation to secure the effective exercise of the rights defined in that instrument may result in positive obligations for the State. […] As regards the right guaranteed by Article 1 of Protocol No. 1 … States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees […].) Why shouldn't Serbia, as the continuator of the State Union, share responsibility with Montenegro for failing to constitute an effective adjudicatory mechanism? In light of the clarity of the precedents and the fact that this issue was specifically raised by the applicants, it's clear that the Court simply did not want to deal with the issue of joint responsibility, preferring instead to pursue the easier but equitably and legally more suspect route of ignoring the issue entirely.

104 Section E below.

105 AM Slaughter, A New World Order (Princeton University Press, Princeton, 2004) 80–82; Judge Patrick Robinson (President of the ICTY) ‘Fifty Years of the European Court of Human Rights Viewed by its Fellow International Courts’ address delivered 30 January 2009 <http://www.echr.coe.int/NR/rdonlyres/851247E2-0E9A-4CB3-B81B-F72482E26E3B/0/30012009PresidentRobinsonSeminar_eng_.pdf>; Slaughter, A M ‘Judicial Globalisation’ (2000) 40 Virginia JIL 1103, 1104–11Google Scholar (2000); Attanasio, JB ‘Rapporteur's Overview and Conclusions: of Sovereignty, Globalization, and Courts’ (1996) 28 NYU JILP 1Google Scholar.

106 Milanovic (n 56) 18.

107 Dumberry (n 35) 260; Craven, MCR ‘The Problem of State Succession and the Identity of States under International Law’ (1998) 9 EJIL 142, 160CrossRefGoogle Scholar.

108 Dumberry (n 35) 261 citing Samos (Liability for Torts) Case, Greece, Court of the Aegean Islands, 1924, N 27, in Themes, vol 35, 294, in Annual Digest, 1923–1924, 70.

109 ibid citing Lighthouse Arbitration case, Award of 24/27 July 1956, in: 23 ILR, 1956, 81. See also Volkovitsch (n 55) p 2190 (‘Although the decision stops short of declaring a rule of succession to liability, one must note that it did hold Greece liable for its predecessor's acts in the one case the tribunal was able to describe as truly delictual and which was not complicated by issues approximating those implicated by the municipal law concepts of laches and contributory negligence.’)

110 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovenia), Judgement of 25 #September 1997, <http://www.icj-cij.org/docket/files/92/7375.pdf> para 124.

111 Dumberry (n 35) 262 fn 221.

112 Final Report (n 36) p 1, 18–19; Koskenniemi, M & Leino, P ‘Fragmentation of International Law? Postmodern Anxieties’ 15 Leiden JIL 553, 567–570 (2002)CrossRefGoogle Scholar; Pronto, AN, ‘Human-Rightism and the Development of General International Law’ 20 Leiden JIL 753 (2007)CrossRefGoogle Scholar (asserting that international human rights norms are increasingly ‘mainstreamed’ into general international law); Simma, B, ‘International Human Rights and General International Law: A Comparative Analysis’ in Collected Courses of the Academy of European Law (Dordrecht: Kluwer, 1993) vol IV–2, 153–256Google Scholar.

113 JB Quigley, The Genocide Convention: an International Law Analysis (Ashgate Publishing, Kent, 2006) 77. Speech by HE Judge Rosalyn Higgins, President of the International Court of Justice, at the Conference Honouring Professor John Dugard, Leiden University Law Faculty, 20 April 2007 in 20 Leiden JIL (2007) 745–775.