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22nd December 2020
Human Rights Justice & Litigation

Op-Ed: “Expanding on the Privatisation of the Inter-State Application: the ECtHR’s decision in the Slovenia v Croatia case” by Edoardo Stoppioni and Olivier Baillet

The European Court of Human Rights (ECtHR) recently held that it did not have jurisdiction to hear an inter-State case between Slovenia and Croatia, in relation to the violation of fundamental rights of the Ljubljanska Banka by Croatian companies, for debts dating back to the time of former Yugoslavia. The decision constituted an occasion for the Court to reflect on the legal nature of inter-State applications in relation to the ontology of individual ones. The main allegation of the Slovenian Government in relation to the bank, that it had nationalised right after the independence of the country, was the refusal of Croatian courts to recognise its locus standi to recover various unpaid debts, because of the transformation of the legal nature of that claimant. The ECtHR had even already rejected jurisdiction in the context of an individual application directly referred by the bank under Article 34 (Ljubljanska D.D. Banka v. Croatia). In the instant case, the Court elaborated and clarified long-standing case law that had progressively subjugated the legal structure of the inter-State application to the philosophy of the individual ones.

 

The hegemony of Article 34 in the inter-State context

The Court had to answer several questions regarding the procedural conditions of an inter-State application under Article 33, in the silence of such a sibylline provision. While the applicant considered that this silence implied the absence of admissibility conditions, the Court requalified the fundamental issue raised here into a matter of jurisdiction. It then concluded that Article 32 allowed it to examine such matters at any stage of the proceedings and rejected the possibility that a State lodge an inter-state application under Article 33 on behalf of an organisation which is not ‘not governmental’ for the purposes of Article 34. It therefore dismissed the application on the grounds that the bank, whose interests were harmed, did not qualify as a ‘non-governmental’ entity under Article 34.

The Court’s reasoning gives a hegemonic position to the provisions of Article 34 even in the inter-State context, notably by extending some of Article 34’s procedural requirements to Article 33. Article 33 normally allows States to ‘refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party’. However, because the Convention only attributes rights to individuals, the Court held at paragraph 66 that no claim can be made by the State under Article 33 on behalf of an entity that does not satisfy the requirements laid down by Article 34. The fundamental reason for this would be that such an entity does not have substantial rights and the State could therefore not invoke any violation on its behalf. Clearly, the Court bootstrapped the substantive scope of Convention rights to Article 34. It held that ‘only individuals, groups of individuals and legal entities which qualify as non-governmental organisations can be bearers of rights under the Convention’ (paragraph 66).

 

Overthrowing the Mavrommatis fiction

On this point, the Court claimed that the question raised by this application, whether or not the Convention can create fundamental rights for State-owned and State-run entities, ‘goes beyond the boundaries of the Convention mechanism and touches upon a general issue of international law’ (paragraph 44). By so doing, using references to the International Court of Justice (ICJ) and the Inter-American Court simply recalling the particularism of international human rights treaties, it used an international law argument to hide its own construction of Articles 33-34. The Court construed its interpretation as a harmonious reading of the Convention as a whole and of the ECHR in the light of general international law. It described as internal ‘harmony’ the fact of translating a procedural condition inscribed in Article 34 to a totally different procedure, foreseen in Article 33. This outcome is euphemised by the Court at paragraph 76 under a ‘systemic correlation between Articles 33 and 34’.

The reason for such a choice may lie in the fact that the Court considers the procedural tools of human rights protection as a Copernican revolution within the structure of traditional international law. Reading the inter-State application under Article 33 as a peculiar procedure strictly linked to the philosophy of an individual application under Article 34, the Court carried through to the end a reflection on the role of the individual in international dispute settlement. When the individual entered international law adjudication within the institution of diplomatic protection at the beginning of the 20th century, the PCIJ had crafted the so-called ‘Mavrommatis fiction’: a State can take stance for its national but, by so doing, it simply defended State rights. This position, linked to the denial of legal subjectivity of the individual in traditional international law, progressively evolved in the case law of the ICJ. In the LaGrand and Avena cases, the Court accepted ‘mixed claims’ where a State would defend, via diplomatic protection, both State rights and strictly individual rights. Here, the ECtHR relied on the particularism of human rights treaties to deduce procedural consequences from the full emancipation of the individual in the international legal order. The nature of human rights treaties located the individual at the heart of the mixed litigation that they institute, so that the State acting in this context becomes a purely secondary actor. Reading Article 33 as subjugated to the respect of the philosophy of Article 34, the Court totally reversed the Mavrommatis fiction and restricted the inter-State litigation conditions in the name of the primacy of the procedural dignity of the individual in the human rights setting.

 

Impact and Repercussions

It remains unclear whether the hegemony of Article 34 will extend to all inter-State applications. It seems possible that the Court has left open inter-State applications ‘pertaining to general issues with a view to protecting the public order of Europe’ (paragraph 67). Even if maintained, however, such a distinction between States acting out of self-interest and States’ actio popularis seems hard to implement. In the past, only two previous applications can be strictly considered as actio popularis: in 1967 and 1982, respectively regarding Greece and Turkey’s then military governments. Other cases where States had lodged complaints about non-nationals always involved populations they had strong cultural or linguistic ties to (such as Austria v. Italy, 788/60).

The Court privatised inter-State applications by building on the idea that applications either only benefit the individual, in which case they are admissible, or the State, in which case they are barred. In light of the Court’s previous case law, the application of the ruling might lead to ambivalent results. For instance, the Court once held that Radio France, the French public broadcasting company, was deemed private enough to lodge an individual application despite being almost entirely State-funded and operating a public service (Radio France v. France, 53984/00). Under the Slovenia v. Croatia standard, the French State would be entitled to lodge an application on Radio France’s behalf if the company’s rights were allegedly injured by another State’s regulations. On the other hand, it may not represent a city which suffered transboundary environmental damages, or a university that sets up a branch abroad.

Finally, despite its focus on procedural aspects, the ruling’s significance for substantive aspects is unquestionable. The Court clearly stated that governmental entities cannot bear any substantive rights under the Convention. In that sense, it will also be of interest to domestic adjudication. Within several European orders, public entities have sought relief through Convention rights. In France, cities have contested central budgetary decisions by relying on Articles 6 and Article 1 Protocol no. 1. After judicial hesitations, the Conseil d’État had eventually dismissed the claims. In Spain, the Tribunal Supremo recently relied on previous decisions by the ECtHR to rebuke a claim by a city based on the right of honour as protected by the Spanish Constitution. Unlike its French counterpart, however, it appeared to have considered different outcomes for different rights. Convention-wise, the Strasbourg Court might have put an end to such litigation.

 

Edoardo Stoppioni is a Professor of Public Law at the University of Strasbourg.

Olivier Baillet is a Senior Research Fellow at the Max Planck Institute for Procedural Law, Luxembourg.

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