What is the relationship between a regional human rights system, like the one set up by the European Convention on Human Rights, and general international law? This question has occupied legal minds for quite some time. Monday’s judgment by the European Court for Human Rights does not provide an unambiguous answer.
On Monday, the Court ordered Turkey to pay the Cypriot government a total of 90 million euros in respect of non-pecuniary damage suffered by Greek Cypriots in 1974 during the Turkish invasion of Cyprus. As has already been pointed out on this blog, the judgment must be seen in conjunction with a Court judgment delivered in 2001, where the Court had found that Turkey had violated a number of obligations under the European Convention on Human Rights. In the 2001 judgment, the Court had adjourned the question of a just satisfaction to the victims’ families. This week’s judgment is the first in the history of the ECtHR’s history awarding just satisfaction in an inter-state case, and while Turkey has announced that it does not intend to comply with the judgment, the Court’s reasoning on the applicability of Article 41 ECHR to inter-state claims and as to how general international law and the Convention interact merits a closer examination.
Article 41 ECHR: an expression of a general principle of international law or a rule of its own?
Helmut Aust has pointed to the seemingly irreconcilable foundations of the judgment: on the one hand, the Court relies on general international law (the law of state responsibility and reparations as well as the law of diplomatic protection) to justify that the just satisfaction-rule also applies to inter-state claims, on the other, the Court submits that it is the individual that is entitled to just satisfaction, not the state (para. 47). By doing so, he argues, the Court renders void its own reasoning that Article 41 is no more than a concretization of the general rule of international law that the breach of an international engagement entails an obligation to make reparation. While this objection to the Court’s reasoning carries considerable weight, I believe that there exists a possible reading of the judgment that allows for accommodating both points, and I submit that the key to such a reading lies in the Court’s characterization of Article 41 being a lex specialis in relation to the general rules and principles of international law (para. 42). If we take the lex specialis principle seriously, then the references to the principles of reparation under general international law and to the law of diplomatic protection could be read as a means of interpretation rather than “rooting” Article 41 in the general law of reparation.
The difficult nature of the lex specialis rule
While it is widely accepted that the lex specialis rule applies in international law, its content is not always clear. In the seminal report of the International Law Commission’s Study Group on fragmentation of international law, two possible variants of the lex specialis rule were distinguished: While a narrow understanding of lex specialis only covers the case where two rules provide incompatible direction on how to deal with a specific set of facts, a broader understanding conceives the lex specialis principle as one that also applies to cases where a specific rule should be “read and understood within the confines or against the background of the general standard, typically as an elaboration” (paras. 56-57). If we accept this broad understanding of lex specialis, it is not harmful that general international law does not conceive of diplomatic protection as being centered on the individual. Rather, we could read the Court’s approach as one that is confined to the Court and deviates or derogates from general international law in this point.
The Court’s use of general international law
But why then did the Court choose to refer to general international law to begin with? I submit that it did so as a means of interpretation of Article 41. Before examining more specific questions of applicability, the Court clarified:
“Despite its specific character as a human rights instrument, the Convention is an international treaty to be interpreted in accordance with the relevant norms and principles of public international law, and, in particular, in the light of the Vienna Convention on the Law of Treaties” (para. 23)
This perception of the ECHR as an instrument of international law is not new. In fact, the Court has reiterated numerous times that the Convention could not be interpreted in a vacuum, but had to take into consideration general international law (e.g. in its judgments in the Al Jedda, Loizidou and Banković cases). However, does that mean that general international law determines the material content of the rule at hand? I submit that the reference to general international law must be seen as a technique of interpretation, rather than a teleological end (a similar distinction can be found here, at p. 622). According to Article 31 of the Vienna Convention on the Law of Treaties, treaty terms are to be interpreted in accordance with their ordinary meaning, taking into account the context of the treaty, its application and any subsequent agreement between the parties, and, most importantly for my argument here, “any relevant rules of international law applicable in the relations between the parties” (Art. 31 (3) c) VCLT, also known as “systemic integration”). In determining whether Article 41 ECHR is applicable to inter-state claims, the Court uses all of these means of interpretation: it looks at the ordinary meaning of “injured party” (to which just satisfaction can be awarded according to Article 41 ECHR, para. 42 of the judgment), it looks at the application of the provision in previous cases of the Court (only to find that until now, the question has not been answered, para. 39), it looks at the travaux préparatoires, another means of interpretation according to the VCLT (if only a subsidiary means, cf. Art. 32 VCLT). And it also looks at general international law, more specifically at the law of reparations, to emphasize the well-established principle that a state must make reparation where it breaches a treaty obligation. (On an interesting side-note, the Court chooses to refer to an ICJ case – the Gabčikovo Nagymaros judgment – where the ICJ emphasized the importance of the lex specialis principle, cf. para. 132.) Rather than rooting Article 41 ECHR in the general law of state responsibility and ensuing reparation obligations, I submit that the Court uses this reference merely as an interpretative tool. The wording of Monday’s judgment supports such a reading: whenever a reference to general international law is made, the “specific character” or “very nature of the Convention” are immediately highlighted. Coupled with the explicit mentioning of Art. 31 (3) c) VCLT and the explicit mentioning of Article 41 ECHR being lex specialis, I believe that there is good reason to consider the references made by the Court both with regard to the general law of reparation for internationally wrongful acts as well as the reference to the law of diplomatic protection as means of interpretation, as a clarification of the status quo of general international law, from which the Convention (in the Court’s interpretation) then consciously derogates by means of the lex specialis rule.
If we adopt such a reading, two conclusions seem possible: First, the Court does not conceive of itself as the guardian of a self-contained regime or distinct legal system (as a domestic court would normally do, and as the European Court of Justice has done in the past). Rather, it considers the Convention to be part of the international legal system. Second, the Court will apply its own treaty law first, and as lex specialis to any other provision of general international law. Through this approach, the Court tries to embed the Convention within the international legal system without closing it off, using rules of interpretation stemming from the law of treaties, but preserving its unique character as a human rights instrument whose first and foremost end remains the protection of the individual. This is only applicable to its own system, however. To what extent this would also be a contribution to a general shift away from a state-centered approach to a system that places the individual at its center could remain an open question – at least for the Court.