A.  Definition and Terminology

1  State complaints provide for the possibility for States or groups of States to file an application against another State before an international human rights treaty body or court, alleging one or several breaches of applicable human rights treaty obligations (see also Human Rights, Remedies; Human Rights, Treaty Bodies). This entry will deal with State complaints before United Nations human rights treaty bodies and regional human rights systems.

2  The terminology for State complaints under human rights treaties includes ‘inter-State application’, ‘petition’, ‘communication’, ‘complaint’, and ‘affaire interetatique’. This variation reflects the bandwidth of proceedings of this kind concerning the competent body dealing with the complaint, the level of judicialization, its jurisdiction, admissibility, and procedure, the material yardstick, and the possible outcomes and the remedies available. The persons called to opine about or decide upon such cases likewise vary from experts to judges.

3  State complaints are one avenue for the implementation of conventions on the protection of human rights on the State-to-State level, next to mechanisms such as, for example, monitoring through State reports (Human Rights, State Reports) and inquiries into allegations of grave and systematic violations (Inquiry Procedures: United Nations Human Rights Bodies; Gross and Systematic Human Rights Violations). State complaints can be contrasted with and compared to human rights implementation mechanisms that can be initiated by individuals/victims of human rights violations (Human Rights, Individual Communications/Complaints) or non-State entities such as non-governmental organizations (‘NGOs’; Human Rights, Role of Non-Governmental Organizations).

B.  Inter-State Complaint Mechanisms

4  The 1919 Constitution of the International Labour Organization (ILO) was the first legal instrument to provide for a specialized inter-State complaints procedure (Arts 26 to 34 ILO Constitution). Another example is offered by the 1960 UNESCO Convention against Discrimination in Education with its 1962 Protocol Instituting a Conciliation and Good Offices Commission (see Complaints Procedure: United Nations Educational, Scientific and Cultural Organization [UNESCO]; United Nations Educational, Scientific and Cultural Organization [UNESCO]).

C.  Jurisdiction

26  A distinction must be made between compulsory and optional jurisdiction of a court or treaty body. Compulsory jurisdiction means that States Parties by ratifying the respective convention have accepted the competence of the organ or court to receive complaints, whereas optional jurisdiction requires a separate agreement by the disputing States (see also International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). It is worthwhile to note that Art. 22 ICERD, the compromissory clause, requires that negotiations or the use of the procedures provided by ICERD has been unsuccessful.

27  At the universal level, human rights conventions usually take an optional approach. It is worthwhile to observe that of the 173 States Parties to the ICCPR (as of June 2022) 116 States have ratified the 1966 Optional Protocol to the ICCPR, which provides for an individual complaint mechanism, while only some 50 States have recognized the optional possibility of State complaints.

28  The ECHR and the AChHPR are based on compulsory jurisdiction. The ACHR has a compulsory system for individual complaints but allows inter-State complaints only on an optional basis.

D.  Admissibility

29  In the European system, the formal requirements to bring an inter-State application are lower than for individual applications (Admissibility: European Court of Human Rights [ECtHR]; see also Küchler [2020] 341 et seq). The cases are routinely, albeit not by default, dealt with by the Grand Chamber (Grand Chamber: European Court of Human Rights [ECtHR]; see on reform consideration on this A Nußberger ‘The Way Forward: A Pragmatic Approach in Addressing Current Challenges of Inter-State Cases’ [26 April 2021] in J Batura and I Risini (eds) ‘Symposium on Inter-State Cases Under the European Convention on Human Rights’). In view of the high number of individual complaints, the Court has in 2009 started to prioritize individual complaints according to certain criteria on the basis of Rule 41 Rules of Court (so-called priority policy; Individual Complaint: European Court of Human Rights [ECtHR]; Case Management: European Court of Human Rights [ECtHR]). The most important, serious, and urgent cases should be dealt with first. The prioritization initially also applied to inter-State applications, which were classified in the second most important of a total of seven categories. Since May 2017, inter-State applications have been placed beyond this formal prioritization. The Court justifies this with their special character, which in any event attracts special procedural treatment. In a document of 17 March 2021 entitled ‘A Court that Matters’ (<https://www.echr.coe.int/Documents/Court_that_matters_ENG.pdf> [accessed 13 July 2022]), which addresses case prioritization, inter-State applications are not mentioned specifically. States have slightly more procedural rights than in individual applications—for example, they can insist on hearings instead of a written-only procedure (see also Rules 46, 48, 51, and 58 Rules of Court).

30  The Articles on Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’; State Responsibility) proposed by the International Law Commission (ILC) provide that State responsibility may be invoked by the injured State (Art. 42 ARSIWA), but also by another State to the extent that the obligation is ‘owed to a group of States including that State, and is established for the protection of a collective interest of the group’ (Art. 48 (1) (a) ARSIWA). While the commentary to Art. 48 ARSIWA refers to ‘a regional system for the protection of human rights’ (at para. 7) as collective obligations protecting collective interests, there is no reason to exclude global human rights conventions from this category. The treaty obligations may thus be seen as establishing obligations erga omnes partes (Obligations erga omnes). The ICJ used these words in its judgment in the Barcelona Traction Case in 1970 to describe the ECHR regime:

31  The collective obligations and interest of the ICCPR are reflected in General Comment No 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004) by the Human Rights Committee (‘HRC’) (General Comments/Recommendations). The HRC states that

32  The former European Commission of Human Rights (ECommHR) stated that a complaining State ‘is not to be regarded as exercising a right of action for the purpose of enforcing its own right, but rather as bringing before the Commission an alleged violation of the public order of Europe’ (Pfunders Case [Austria v Italy] [ECommHR App 788/60] [1961] 4 YECommHR 116, 140). Similarly, the ECtHR has held that the ECHR ‘creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”’ (Ireland v United Kingdom [ECtHR] Series A No 25 para. 239). The IACommHR has in a similar vein stated that the inter-State complaints procedure ‘enshrines the collective intention of the American States to guarantee the preservation of the inter-American public order in the area of human rights’ (Nicaragua v Costa Rica para. 199).

33  States use their entitlements to initiate formal inter-State proceedings rather sparingly and usually do so only if some national interest is involved (Actio Popularis). Inter-State complaints procedures can be an avenue to address the common interest in human rights in relation to States with deficient democratic and judicial institutions. Examples of such cases are, however, few. They include the cases against Greece after the coup d’etat of the military junta in 1967 (Denmark, Norway, Sweden and the Netherlands v Greece (I)), and against Turkey under the military regime in the beginning of the 1980s (Denmark, France, the Netherlands, Norway and Sweden v Turkey [ECommHR App 9940–9944/82] [1984] 35 DR 143). The reason is that bringing an inter-State case may be considered an unfriendly act by the State accused of violating its human rights treaty obligations. The complaining State(s) may also become the target of legal and political retaliation, preventing States from acting, especially against more powerful States.

34  It is debatable whether States not only have a right to act in cases of other States’ human rights violations, but even have a duty to do so. The Consultative Assembly (now Parliamentary Assembly) of the Council of Europe (COE) referred to the ‘important and serious’ situation in Greece under the military junta, and held that ‘the Contracting Parties to the Convention [ECHR] have a duty to act under Article 24 of the Convention and that, if they do not act as requested, the mechanism of collective guarantee of human rights set up by the Convention runs the risk of becoming meaningless’ (Resolution 346 (1967) on the Situation in Greece, Consultative Assembly of the COE 19^th Ordinary Session [25–28 September 1967] Second Part para. 10). In 2000, during hostilities in Chechnya, the Parliamentary Assembly of the COE urged the High Contracting Parties to the Convention to make use of the inter-State application under Art. 33 ECHR, however, to no avail. The HRC, in its General Comment No 31, reminded the ‘States Parties of the desirability of making the [optional] declaration contemplated in article 41’ (para. 2; emphasis added).

35  In State complaint procedures, the most relevant admissibility requirement is usually the exhaustion of domestic remedies (Local Remedies, Exhaustion of). However, the exhaustion of domestic remedies is not required if the complaint relates to the abstract existence of legislation in force or an administrative practice.

36  The ECtHR has held that the mere existence of a law may represent a violation to the extent that it is ‘sufficiently clear and precise to make the breach immediately apparent’ (Ireland v United Kingdom para. 240).

37  An administrative practice may represent a violation if it involves a ‘repetition of acts incompatible with the Convention [ECHR] and official tolerance by the State authorities, has been shown to exist and is of such a nature as to make proceedings futile or ineffective’ (Cyprus v Turkey [Merits] [2001] para. 99). In the 2014 Georgia v Russia (I) (Merits) judgment (2014), the Court set out the case law regarding administrative practices in para 122 et seq. The Court described administrative practices as repetition of acts, ‘an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected not to amount to merely isolated incidents or exceptions but to a pattern or system’ (para. 123, citing Ireland v the United Kingdom and Cyprus v Turkey). Official tolerance means that illegal acts are tolerated in that the superiors of those immediately responsible, though cognizant of such acts, take no action to punish them or to prevent their repetition; or that a higher authority, in face of numerous allegations, manifests indifference by refusing any adequate investigation of their truth or falsity, or that in judicial proceedings a fair hearing of such complaints is denied (para. 124 citing Denmark, France, the Netherlands, Norway and Sweden v Turkey [ECommHR]).

38  The Court further mentioned that according to its case-law in inter-State cases, the exhaustion of domestic remedies rule does not in principle apply where the applicant Government ‘complain[s] of a practice as such, with the aim of preventing its continuation or recurrence, but does not ask … the Court to give a decision on each of the cases put forward as proof or illustrations of that practice’ (para. 125, citing Ireland v the United Kingdom). The Court further would ‘take realistic account not only “of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general and political context in which they operate, as well as the personal circumstances of the applicants”’ (para. 151, citing Akdivar and Others v Turkey [ECtHR] [16 September 1996] App 21893/93).

39  The IACommHR has likewise stated that

40  Similarly, the ICJ has held that the requirement of the exhaustion of domestic remedies does not apply where a pattern of conduct is at stake (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination [Ukraine v Russian Federation] [Preliminary Objections] [Judgment] [8 November 2019] para. 130).

41  The CERD Committee has similarly announced that the requirement of the exhaustion of domestic remedies does not apply where a ‘generalized policy and practice’ is complained of (‘Admissibility of the Inter-State Communication Submitted by Qatar against the United Arab Emirates’ [27 August 2019] UN Doc CERD/C/99/4 para. 40).

42  The ECtHR enjoys the discretion to join admissibility issues to the merits (Art. 29 (2) ECHR). It can use this power especially if there is a (prima facie) possibility that there are no effective remedies available.

43  Where the requirement to exhaust domestic remedies is dispensed with in view of a pattern, the body dealing with the complaint must usually ascertain the allegations similarly as a court of first instance. This makes complaints more complex and more fact-related, and these characteristics in turn demand more resources than are needed in cases where only legal issues are subject to review.

44  In the framework of the ECHR, interim measures under Rule 39 Rules of Court in inter-State cases have become more frequent in view of the steady rise of cases (Provisional Measures: European Court of Human Rights [ECtHR]; Interim [Provisional] Measures of Protection). The measures are, unlike in the context of the ICJ, not published as such. The Court usually provides information about them in press releases, a practice that limits the possibilities for legal analysis of the measures. The measures which the Court has taken in the context of inter-State cases are often broad in character. One example is the measure in Ukraine v Russia of 13 March 2014. The Court called upon ‘both Russia and Ukraine to refrain from taking any measures, in particular military action, which might bring about violations of the Convention rights of the civilian population, notably under Articles 2 and 3 of the Convention’ (‘European Court of Human Rights Deals with Cases concerning Crimea and Eastern Ukraine’ [26 November 2014] Press Release ECHR 345 [2014]; emphasis added). In the Georgia v Russia (II) case (App 38263/08), the Court had adopted a similar approach. The Court has also used Rule 39 Rules of Court measures to request information, for example in the case between Ukraine and Russia concerning the Kerch Strait (see ‘ECHR Puts Questions to Russian Government After Receiving New Inter-State Case from Ukraine concerning Events in the Sea of Azov’ [30 November 2018] Press Release ECHR 412 [2018]; and ‘ECHR Grants Interim Measure in New Inter-State Case Brought by Ukraine against Russia concerning Events in the Kerch Strait’ [4 December 2018] Press Release ECHR 421 [2018]). Thus, these measures need to be seen in the context of the obligation to cooperate with the Court under Art. 38 ECHR. The Court did not address the role of interim measures in inter-State proceedings in the judgment on the merits in Georgia v Russia II (Merits) (2021). Their role remains unclear, and divergent academic comments on the broad use of the measures show the ambiguity that surrounds the issue. The confidentiality of the interim measures over the whole lifecycle of the proceedings seems to be a deliberate choice of the Court.

E.  Multi-Forum Litigation

45  In recent State-to-State litigation based on human rights treaties, States have accessed multiple fora at the same time. Illustrative of recent multi-forum litigation is the conflict between Armenia and Azerbaijan as well as the conflict between Ukraine and Russia. Before the ECtHR, Ukraine has lodged ten inter-State applications since 2014, and two sets of proceedings before the ICJ under, inter alia, ICERD as well as the Genocide Convention. Outside of the human rights context, Ukraine has initiated State-to-State litigation based on the United Nations Convention on the Law of the Sea (‘UNCLOS’) in relation to the events in the Kerch Strait. The latter has the same factual background as the respective inter-State case before the ECtHR. (See International Courts and Tribunals, Multiple Jurisdiction; see also Fragmentation of International Law.)

46  While litigation based on human rights instruments is to be welcomed, it is desirable to ensure coherent jurisprudence. How this coherence is to be ensured is, however, regulated only in a fragmentary way. Furthermore, the applicable provisions are not uniform across the jurisdictions involved.

47  While the Optional Protocol to the ICCPR (‘OP-ICCPR’) in relation to individual petitions provides that the HRC shall declare inadmissible cases concerning matters examined by other international courts or procedures (Art. 5 (2) (a) OP-ICCPR), no such ground for inadmissibility is found for inter-State complaints. Rather, Art. 44 ICCPR establishes that its procedure shall apply without prejudice to those found in other international instruments.

48  The ACHR establishes that both individual and inter-State cases shall be declared inadmissible if their subject is pending before another court or procedure or is substantially the same as one previously heard by the IACommHR or by another international organization (Arts 46 (1) (c) and 47 (d) ACHR).

49  In the context of individual applications under the ECHR, Art. 35 (2) (b) ECHR provides that when substantially the same case is also submitted to other international courts or procedures, it shall be declared inadmissible. The provision does not, however, apply to inter-State applications under Art. 33 ECHR.

50  Article 55 ECHR is a provision that specifically addresses the inter-State application. Article 55 ECHR remained unchanged despite the reform of the supervisory architecture of the Convention via Protocol 11. Before the profound changes entered into force in 1998, the jurisdiction of the Court was optional under ex-Art. 46 ECHR. Thus, when States had the option to submit an inter-State application to the Court after the Commission had rendered its report, Art. 55 ECHR ensured that the ECtHR, not the ICJ, would be the default forum. It was also a provision to ensure that those States which had not accepted the optional jurisdiction of the ECtHR would not find themselves in another forum over issues of the application and interpretation of the ECHR. This purpose of Art. 55 ECHR is now obsolete as the jurisdiction of the ECHR is compulsory.

51  Today, Art. 55 ECHR ensures the monopoly of the ECtHR regarding the interpretation of the Convention. The norm makes sure that a dispute regarding the ECHR cannot reach the ICJ under Art. 36 (2) ICJ Statute (International Court of Justice, Optional Clause). Article 55 ECHR further ensures that other mechanisms, such as the European Convention for the Peaceful Settlement of Disputes (1957), which likewise provide for jurisdiction of the ICJ under Art. 36 (1) ICJ Statute, do not comprise matters regarding the interpretation of the ECHR. The provision arguably also bars an appeal before the ICJ by a dissatisfied party after proceedings under Art. 33 ECHR has ended with a final and binding judgment.

52  The Committee of Ministers of the COE has recommended to ‘normally utilise only the procedure established by the European Convention’ (COE Committee of Ministers ‘Resolution on the UN Covenant on Civil and Political Rights and the European Convention on Human Rights: Procedure for Dealing with Inter-State Complaints’ Res(70)17 [15 May 1970]) instead of using the ICCPR’s inter-State complaint mechanism under Art. 41 ICCPR.

53  In the case of an accession of the European Union to the ECHR, the Court of Justice of the European Union has postulated the ‘express exclusion of the ECtHR’s jurisdiction under Article 33 of the ECHR over disputes between Member States or between Member States and the EU in relation to the application of the ECHR within the scope ratione materiae of EU law’ at para. 213 of its Opinion 2/13 of 18 December 2014 (Opinion 2/13; European Union, Court of Justice and General Court; Opinion: European Court of Justice [ECJ]). The matter of multi-forum litigation between the ECtHR and the ECJ was not addressed in the Court’s decision on the first intra-EU inter-State application between Slovenia and Croatia. One of the reasons for the ECtHR to decline to exercise jurisdiction over the matter might, however, be also found against the background of the EU membership of both countries.

54  The CERD Committee treated the question as one of admissibility in its case between Qatar and the United Arab Emirates. In its decision of August 2019, the Committee adhered to a reading that permits simultaneous proceedings between the parties in both the ICERD context and the ICJ. It further underlined that the Committee was an ‘expert monitoring body entitled to adopt non-binding recommendations’ and contrasted this type of work with that of the ICJ, ‘a judicial body entitled to adopt a legally binding judgment’ (at para. 49).

55  In its judgment of 8 November 2019 in the case of Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Preliminary Objections) the ICJ was of the opinion that the proceedings under Arts 11–13 ICERD before the Committee and Art. 22 ICERD before the ICJ were alternative, not cumulative mechanisms (at para. 113).

F.  Conciliation and Friendly Settlements

56  Friendly Settlements have their advantages as they might be less resource-consuming for the competent bodies (Friendly Settlement: Human Rights Bodies). Further, the need to ensure implementation by the respondent State does speak in favour of settlements in inter-State cases.

57  The ICCPR, CAT, ICRMW, and OP-ICESCR require the complaining State first to address the State accused of a violation. The receiving State shall respond to the complaint, but if the matter is not resolved to the satisfaction of both parties, the complaint may be brought to the relevant committee. The 2011 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure does not require a formal procedure previous to an inter-State communication; it seems the Convention is more tailored to child-sensitive exigencies and procedures are thus designed to be faster. The International Convention for the Protection of All Persons from Enforced Disappearance contains only a single article, Art. 32, that allows for State complaints, without further procedural regulations. The procedural arrangements governing the process in the committees aim at finding an amicable solution. As stated in Art. 41 (1) (e) ICCPR, the HRC ‘shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant’ (Good Offices).

58  ICERD, ICCPR, and CAT provide for the appointment of an ad hoc Conciliation Commission (‘Commission’) for finding a mutually acceptable solution, although the modalities vary somewhat. While ICERD establishes that such a Commission shall be appointed by the chairperson of the CERD Committee (Art. 12 (1) (a) ICERD), CAT provides that the United Nations Committee against Torture (CAT) may set up a Commission (Art. 21 (1) (e) CAT), and the ICCPR stipulates that a Commission may only be established by the HRC if the matter is not resolved to the satisfaction of the concerned parties, and with their prior consent (Art. 42 (1) (a) ICCPR). ICCPR, CAT, and ICRMW all require their respective Committees to deal with the complaint in closed meetings, whereas the process under ICERD is public. The reason for confidentiality is that the process shall not be abused for political reasons against the accused State. The disputing States have a right to be represented in the Committee and to make written and oral submissions. The Committee relies on information provided by the concerned parties, either on their initiative or at the request of the Committee, and may not collect its own information by conducting investigations or questioning witnesses. While Art. 5 (1) OP-ICCPR on individual complaints provides that decisions shall be based on submissions from the Parties, no corresponding provisions exist for inter-State complaints. It may therefore be argued that third party interventions, such as by amici curiae, are not necessarily prevented (see also International Courts and Tribunals, Amicus Curiae; Amicus Curiae: Human Rights Bodies). The restrictions on what may be included in the Committee’s report may, however, be taken as an indication that such intervention is not permitted.

59  The amicable approach is also reflected in the outcome of the procedure, in the sense that the Committees are not competent to make findings on any violations. The ICCPR and CAT provide that the relevant Committee in its report shall either make a brief statement of the facts and the content of any solution found between the parties, or if no solution is reached it ‘shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report’ (Arts 41 (1) (h) (ii) ICCPR and 21 (1) (h) (ii) CAT). A similar arrangement can be found in Art. 76 (1) (h) (ii) ICRMW, but it is added that the Committee ‘may also communicate only to the States Parties concerned any views that it may consider relevant to the issue between them’. The report of the Committee shall be forwarded to the States Parties concerned. This could be taken as a prohibition against publication of the outcome. But contrary to the proceedings, it is not explicitly stated that the conclusions shall be confidential. Possibly, this may leave the Committees and involved States Parties to determine whether the report should be published.

60  As indicated by its name, a Conciliation Commission is also guided by its function to facilitate a solution acceptable to the disputing Parties, and is not empowered to express its own opinion on violations of human rights obligations. While the ICCPR provides that the report shall contain the Commission’s ‘views on the possibilities of an amicable solution’ (Art. 42 (7) (c) ICCPR), the ICERD is somewhat stronger in establishing that the report shall present ‘such recommendations as it [the Commission] may think proper for the amicable solution’ (Art. 13 (1) ICERD). But in either case the focus is on a friendly solution, not on expressing any opinion on violations. Whereas the ICCPR says that the Commission’s report shall be sent to the States Parties concerned and thus raises the question of confidentiality, the ICERD provides that after communicating the report to the disputing States, it shall be sent to the other States Parties, including any views expressed by the disputing States.

61  In the few cases which were ended with a friendly settlement under the ECHR, the results achieved were usually not favourable for the human rights situation on the ground (Friendly Settlement: European Court of Human Rights [ECtHR]). This is especially true for the 1985 friendly settlement in Denmark et al v Turkey. According to the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), between 1990 and 1992, the practice of torture and other forms of severe ill-treatment of persons in police custody—both ordinary criminal suspects and persons held under anti-terrorism provisions—remained widespread in Turkey (see CPT ‘Public Statement on Turkey’ [15 December 1992] Doc CPT/Inf (93) 1, reprinted in [1993] 14 HRLJ 49). In the assessment of the 1985 settlement it is worthwhile to observe that Turkey did accept the right of individual petition in the wake of the settlement, even if the acceptance was not formally part of the agreement. Friendly settlements can be a desirable outcome for inter-State proceedings in view of a sustainable solution of a human rights issue, which ultimately always depends on the political will of the respondent State (see on this H Keller and R Piskóty ‘Friendly Settlements as the Sleeping Beauty in Inter-State Cases: Opportunities and Risks for the European Court of Human Rights’ [28 April 2021] and N Wenzel ‘Rethinking Friendly Settlements under the European Convention on Human Rights: Why We Should Design a New Friendly Settlement Procedure for Inter-State Cases’ [28 April 2021] in J Batura and I Risini [eds] ‘Symposium on Inter-State Cases Under the European Convention on Human Rights’).

G.  Inter-State and Individual Claims

62  In the ECHR context, overlapping individual and inter-State applications have become the rule rather than the exception. Their relationship at all stages of the proceedings (interim phase, admissibility, merits and just satisfaction) is one of the issues on the current reform agenda. Inter-State and individual complaints do not mutually exclude each other. A State, by bringing an inter-State application, does not deprive individuals of the right to bring an individual application. For the ECHR, the ECtHR clarified this state of affairs in Varnava and Others v Turkey ([ECtHR] Reports 2009-V 13 para. 118). The case between the Netherlands and Russia concerns the downing of flight MH17 over Ukrainian territory in July 2014. The individual applications of Ayley and Others v Russia and Angline and Others v Russia already raised allegations against Russia in the context of flight MH17. In those cases, the Netherlands made use of its option to participate in the proceeding as a third party under Art. 36 ECHR (International Courts and Tribunals, Intervention in Proceedings). In the admissibility hearing in the case of Ukraine and the Netherlands v Russia in early 2022, the Netherlands shared its speaking time with a representative of the individual victims of the downing of MH17. The general idea of non-interference between individual and inter-State proceedings is also reflected in the commentary to Art. 16 ILC Draft Articles on Diplomatic Protection.

63  In the context of the cases between Ukraine and Russia, already before the 2022 war in Ukraine, some 8,500 to 11,000 individual applications before the Court related to the events in Crimea or the hostilities in Eastern Ukraine had been lodged (Press Release ECHR 220 [28 June 2022], see also CDDH Drafting Group on the Effective Processing and Resolution of Inter-State Disputes (DH-SYSC-IV) Meeting Report [7 April 2022] <https://rm.coe.int/dh-sysc-iv-2022-r5-en/1680a6266e> [accessed 13 July 2022]). In an effort to deal with these large numbers of potentially well-founded applications, the Court relates the individual cases to the inter-State proceedings. According to Press Release ECHR 432 (2018) of 17 December 2018 (‘ECHR to Adjourn Some Individual Applications on Eastern Ukraine Pending Grand Chamber Judgment in Related Inter-State Case’), individual applications under Art. 34 ECHR against Ukraine or Russia or both will be communicated to the appropriate respondent government or governments for observations in parallel with the inter-State cases. After receiving the Governments’ and applicants’ observations in reply, the Court intends to record an adjournment for each case, pending a judgment in the inter-State cases, with a view to having the files complete and ready for decision or judgment as soon as possible thereafter (see for a critical take of this practice H Tigroudja ‘Could the Collective Guarantee Mechanism be Detrimental to Individuals’ International Litigation Capacity? Thoughts on Parallel Inter-State and Individual Applications Before the ECtHR’ [30 April 2021] in J Batura and I Risini (eds) ‘Symposium on Inter-State Cases Under the European Convention on Human Rights’). The ECtHR has found the case of Ukraine v Russia (re Crimea) (2020) to be largely admissible.

64  A similar approach, albeit on a smaller scale, was followed in the context of the first set of inter-State proceedings between Georgia and Russia. Parallel individual applications have been adjourned pending the outcome of the proceedings in the inter-State case Georgia v Russia I (Berdzenishvili and others v Russia [ECtHR] [20 December 2016] App 14594/07 para. 4; Shioshvili and others v Russia [ECtHR] [20 December 2016] App 19356/07 para. 6).

H.  Substantive Issues

65  States, more often than not, pursue litigation strategies beyond the protection of human rights when they use an inter-State mechanism based on a human rights treaty. Some human rights treaty bodies are relatively easily accessible while general dispute settlement fora are not readily available. Thus, often the wider political conflict is outside of the purview of the human rights body. The implications of international humanitarian law may also pose a challenge to the work of human rights treaty bodies (Humanitarian Law, International). In Georgia v Russia II (Merits) the Grand Chamber of the ECtHR reasoned that it lacks the legal basis to assess acts of war and active hostilities in the context of an international armed conflict outside the territory of a respondent State (para. 142). The Court did, however, pass judgment on the pertinent five-day hostilities inter alia with regard to the procedural leg of Art. 2, the right to life. It refrained from reviewing allegations concerning the substance of the right to life.

66  The HRC has opined, in para. 70 of its 2018 General Comment No 36 ([30 October 2018] UN Doc CCPR/C/GC/36), that

67  The material yardstick for the treaty body or court is limited to the respective convention. This limitation poses the question of how the respective treaty body or court should deal with an underlying conflict of territorial character. Regularly, human rights treaties entail obligations for the States Parties when they exercise factual control over a certain territory. However, it is not within the purview of the treaty bodies to pass judgment on the lawfulness itself of the exercise of factual control.

68  Inter-State proceedings under the ICCPR would, theoretically, provide for the possibility to procedurally address the right to self-determination contained in Art. 1 ICCPR, which cannot be relied on in individual complaints. In view of the recent rise in inter-State applications with a dimension that also involves competing sovereignty claims, the mechanism might become attractive in instances of territorial conflicts.

69  The scope of inter-State disputes may be more extensive than that of individual complaints. Whereas individuals’ complaints shall protect the individual against violations of their human rights (see also Individuals in International Law), the States Parties have an interest in acting to ensure that any treaty obligation is fulfilled (see also Compliance). Hence, individual complaints are restricted to violations of substantive human rights obligations, but inter-State complaints may concern any violation of the relevant convention. Article 41 ICCPR refers accordingly to complaints that another State ‘is not fulfilling its obligations under the present Covenant’. Under the ECHR, Art. 33 ECHR refers to ‘any alleged breach of the provisions of the Convention and the protocols thereto’. It would be conceivable for a member State to raise the question whether another State is compliant with a final and binding judgment under Art. 46 (1) ECHR. Currently, the issue how much more far-reaching inter-State applications are in comparison to individual applications is before the Grand Chamber of the ECtHR in the Slovenia v Croatia case. Article 45 (1) ACHR is restrictive, in limiting any complaints to cases concerning ‘a violation of a human right’.

I.  Fact-Finding and Resources

70  Not all human rights treaty bodies are allowed or have the resources to engage in their own fact-finding efforts. However, especially in those cases where no domestic remedies are available, the treaty bodies find themselves in the situation of a body/court of first instance. The resources needed to ascertain largely disputed facts concerning events that took place or are taking place in other countries usually present a challenge. On the other hand, the objective ascertainment of facts is key for the authority of treaty bodies dealing with State complaints. The issue of fact-finding in the context of inter-State proceedings under the ECHR occupies a prominent position on the reform agenda (Fact-Finding: European Court of Human Rights [ECtHR]; see also P Leach ‘Enhancing Fact-finding in Inter-State Cases: A Critical Challenge for the European Court of Human Rights’ [29 April 2021] and T Marauhn ‘Less is More: Limited Fact-Finding to Avoid Overburdening the European Court of Human Rights in inter-State Cases’ [29 April 2021] in J Batura and I Risini (eds) ‘Symposium on Inter-State Cases Under the European Convention on Human Rights’). For the ECtHR today, it is a special challenge to engage in fact-finding in view of the considerable backlog of almost 70,000 pending individual cases as of fall 2021. The ECtHR does benefit, to some extent, from the duty to cooperate with it under Art. 38 ECHR. In Georgia v Russia II (Merits) the Grand Chamber held the Russian Federation in violation of its duty to cooperate under Art. 38 ECHR because it did not disclose the combat reports requested (para. 345). Unlike in Georgia v Russia (I) (Merits) (2014), where Russia’s violation of its duty to cooperate was the first operative paragraph of the judgment, in Georgia v Russia II (Merits) the Court does not assign a prominent role to Russia’s failure with regard to Art. 38 ECHR. In para. 12 of the operative part of the Georgia v Russia II (Merits) judgment, however, the Grand Chamber unanimously found a violation of the procedural leg of Art. 2 ECHR. For non-permanent treaty bodies, the scale of inter-State proceedings is a challenge in itself. Statements of May 2019 to the media about the ‘legal complexity of the issues broached and a lack of resources’ called into question whether the CERD Committee could deal with the applications (Press Release ‘Committee on the Elimination of Racial Discrimination Concludes its Ninety-Eighth Session’ [10 May 2019] <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24601&LangID=E> [accessed 13 July 2022]).

J.  Remedies

71  The possible outcomes of inter-State complaints range on a spectrum between non-binding (confidential) reports, opinions or views over outcomes as the products of conciliation, interim measures, friendly settlements, and binding judgments (Judgments of International Courts and Tribunals), including the possibility to award monetary compensation.

72  In 2014, the Grand Chamber of the ECtHR awarded €90 million in non-pecuniary damages to Cyprus under Art. 41 ECHR, intended to compensate certain Greek-Cypriot victims of large-scale human rights violations attributed to Turkey.

73  In Georgia v Russia (I), the Grand Chamber issued a just satisfaction judgment in January 2019, awarding €10 million to Georgia and intended to compensate a group of ‘at least’ 1,500 Georgian nationals who had been the victims of a ‘coordinated policy of arresting, detaining and expelling Georgian nationals’ in 2006 (at para. 159).

74  In the 2014 Cyprus v Turkey judgment, the Court held that awards of just satisfaction under Art. 41 ECHR in inter-State cases were possible ‘as such’ while the provision retains its lex specialis status with respect to general international law (paras 42–43). The lex specialis characterization refers to the legal consequences of an award of just satisfaction in an inter-State context, namely that the beneficiary of the award is one or more individuals. Therefore, States do not vindicate their own rights but rather the human rights of individuals when they use the inter-State application. It is also noteworthy that not all claims that can be brought under the inter-State application can lead to a monetary award. The guiding factor in determining the appropriateness of an award of just satisfaction in inter-State cases under Art. 41 ECHR is whether the victims can be individualized in a sufficiently precise and objective manner.

75  The Court has, in parallel to inter-State proceedings, also awarded just satisfaction in the context of individual applications (eg Berdzenishvili and others v Russia [Just Satisfaction] [ECtHR] [26 March 2019] App 14594/07; see for the relationship with the inter-State proceedings para. 6).

K.  Assessment

76  States may have several reasons for acting through inter-State complaints: they may want to protect their own citizens, that is, provide diplomatic protection for them; or they may want to protect other national interests, eg protecting national minorities as a kin State; or they may act in the common interest of protecting human rights. Such complaints may address concrete instances of human rights violations, but may also provide an opportunity to scrutinize abstract legislation and general practices of other States in relation to their human rights obligations. Inter-State complaint proceedings give States a procedural avenue to address human rights issues without the necessity to demonstrate a legal interest, eg based on the nationality of possible victims. The beneficiaries of such actions are individual human rights bearers. Likewise, when monetary awards are rendered in such inter-State proceedings, individuals remain beneficiaries. However, they acquire no legal rights to be compensated for the breaches of their rights directly against the respective respondent State. The applicant State is the formal recipient of an award. The awards, in the words of the Grand Chamber of the ECtHR ‘shall be distributed’ to the pertinent individual victims (Cyprus v Turkey (IV) [Just Satisfaction] [12 May 2014] App 25781/94 dispositif 4 (c); Georgia v Russia (I) [Just Satisfaction] dispositif 2 (c)).

77  The use of the inter-State procedures at the global level is inhibited by legal limitations. One of them is certainly the optional nature of the type of proceeding, which is common to many instruments. The international human rights conventions aim at reaching amicable solutions, if necessary at the expense of human rights protection. Some procedures are confidential; and the relevant mechanisms lack the competence to make a binding determination on violations.

78  The ECtHR has witnessed a steady rise of inter-State applications, especially against Russia, reflecting a troubled continent, where armed conflict and all related aspects are unfortunately a thing of the present, not of the past. How the Russian departure from the Council of Europe and the ECHR will affect the Court’s workload and the organization at large remains to be seen. Russia was the largest member State, and its membership was tumultuous from the start in 1996, when the Russian Federation was admitted to the organization despite an ongoing war in Chechnya. In the beginning of 2022, Russia accounted for almost 25% of pending applications before the Court; in absolute numbers some 18,000 applications were pending in February 2022. It is very much desirable that the Court will be put in a position to legally assess the large-scale human rights violations by Russia in Ukraine since February 2022 and before.

79  The cases against Russia are certainly a serious challenge for the Strasbourg machinery concerning their dimension and the resources needed to adequately deal with the issues and individual fates involved. Certainly, fact-finding in the context of armed conflict and situations in transition is not a small challenge for a court which is already dealing with tens of thousands of individual applications. A well-considered and resource-efficient handling of overlapping individual and inter-State applications therefore becomes imperative. The involved States, including Russia, have a responsibility and are under an obligation to enable the Court to perform its judicial functions by the best-possible cooperation with the Court (see also Art. 38 ECHR).

80  Arguably, there is no comparable or better-suited institution which would equal or exceed the Strasbourg court in terms of experience and know-how as well as political standing to deal with such cases within a reasonable time, and with the possibility to provide remedies for affected individuals by way of final and binding judgments. These cases raise issues of a political, legal, and practical character. However, it is essential that the Court be allocated sufficient resources to deal with cases of this kind.