ABSTRACT

While the European Convention on Human Rights (ECHR) provides to its States Parties the possibility to lodge applications against other States Parties, so far the European Court of Human Rights (ECtHR) has delivered only a few judgments in such cases. Their execution has proven to be lengthy and incomplete, despite several efforts undertaken by the Committee of Ministers (CoM), supervising this process under Article 46(2) ECHR. The same concerns the few individual cases related to inter-state disputes, such as the group of cases Catan and others v Russia; and cases concerning the military conflict between Armenia and Azerbaijan in the Nagorno-Karabakh region between 1988 and 1994 – Chiragov and others v Armenia and Sargsyan v Azerbaijan.

Therefore, it would be useful to have a closer look at this problem, and to reflect on the adequacy of the reactions of the respondent states and the CoM. Are these judgments ‘executable’? Some of them are relatively recent (Georgia v Russia (I) and Georgia v Russia (II)), but the judgment Cyprus v Turkey has been pending before the CoM since 2001, although some of the aspects of this case have already been closed. This contribution will refer to all the abovementioned judgments, which are under ‘enhanced supervision’ of the CoM, and to the measures taken by the respondent states to execute them, in the context of the proceedings before the CoM on the basis of Article 46(2) ECHR. It will not focus on proceedings before the ECtHR in inter-state cases or individual cases related to inter-state disputes.

INTRODUCTION

Since the entry into force of the European Convention on Human Rights (ECHR) in 1953, the European Commission of Human Rights and the European Court of Human Rights (ECtHR) have dealt with 31 inter-state cases, lodged on the basis of Article 33 ECHR.

INTRODUCTION

DEFINITION OF NATIONALITY

It is now commonly accepted that nationality designates the legal bond existing between a person and a State and that States should not grant their nationality in the absence of a clear relation between the individual and the State This definition of ‘nationality’ comes from the 1955 Nottebohm (Liechtenstein v Guatemala) judgment of the International Court of Justice (ICJ), in which the ICJ upheld the principle of ‘effective nationality’, according to which it is the ‘effective (or genuine) link’ between a State and an individual which conferred upon the State the opportunity to afford diplomatic protection.

Although nationality is an institution of domestic legal order, it also plays a role at the international level, since it serves to distinguish a State's population and its jurisdiction over a particular person. In the doctrine, many authors consider it as an ‘empty’ notion, entailing no inherent rights and duties. Determining rules on the acquisition of nationality at birth has traditionally been the prerogative of States (see, in particular Article 3(1) of ECN). Therefore, there are no hard Therefore, there are no hard rules on criteria for the acquisition or loss of nationality in international law and there is very little case law by international courts on nationality matters.

ABSTRACT

According to Article 46 paragraph 2 of the European Convention on Human Rights (ECHR), the Committee of Ministers is in charge of supervising the execution of judgments of the European Court of Human Rights (ECtHR). Th ere are currently nearly 7,500 judgments pending before the Committee of Ministers and the implementation of some of them meet serious obstacles from the respondent States. As noted by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe in their reports on this matter, the implementation of certain ECtHR judgments may reveal some ‘ pockets of resistance ‘. This article focuses on the ECtHR judgments concerning electoral issues: Hirst v the United Kingdom (no. 2) ; Paksas v Lithuania and Sejdic ; and Finciv Bosnia and Herzegovina, which have not been executed for several years. It is argued that, since these judgments touch upon serious political issues, their implementation is complex, both legally and politically. When these judgments were delivered, the fact that some ECtHR judges had expressed their dissenting opinions was an early sign of the problems which were later encountered in their execution.

INTRODUCTION

Under the system of the European Convention on Human Rights (the Convention), two bodies–the European Court of Human Rights (ECtHR) and the Committee of Ministers (CM)–are responsible for the good operation of its human rights protection system. The ECtHR may receive individual or inter-State applications (see Articles 34 and 33 of the Convention). If it finds a violation of the Convention, its judgment is transmitted to the Committee of Ministers, the Council of Europe‘s statutory body, which supervises the implementation of its judgments under Article 46 paragraph 2 of the Convention. In fulfilling this role, the CM is assisted by its Secretariat and especially the Department for the Execution of Judgments of the ECtHR (in the Council of Europe‘s Directorate General Human Rights and Rule of Law–DGI). As of 31 December 2017, some 7,500 judgments of the ECtHR were pending before the CM. Some of these judgments have been partially or almost fully implemented, while the execution of others is lagging behind; as long as the CM has not decided to close their supervision by adopting a final resolution, they are still pending before the CM, although they might be at various stages of execution.