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Matthews v United Kingdom, ECtHR, App. No. 24833/94, 18 February 1999

Ana Sofia Barros

Relevance of the case

In judging cases involving the responsibility of state members of international organizations, the European Court of Human Rights (ECtHR) has consistently emphasized that even after having transferred competences to an international organization, state parties to the European Convention on Human Rights (ECHR) remain bound by the obligations prescribed therein. The present case lies among the first setting the tone for such jurisprudential development. Importantly, it constitutes the only example, among a significant number of cases, where a state was actually found responsible for not having secured ECHR rights when acting in compliance with its obligations flowing from membership of an international organization.

I. Facts of the case

On the occasion of the 1994 elections for the European Parliament, residents of Gibraltar, a dependent territory of the United Kingdom, were denied their right to vote under the terms of the EC Act Concerning the Election of the Representatives of the European Parliament by Direct Universal Suffrage of 1976 (1976 Act), and its Annex II, which did not include Gibraltar in the franchise for the said elections. The 1976 Act had been adopted by the United Kingdom, together with the member states of the then European Community (EC), following the requirements of art. 138(3) of the EEC Treaty and of Council Decision 76/787. Against this backdrop, the applicant argued that the United Kingdom had failed to comply with art. 3 of Protocol 1 to the ECHR, a provision that secured her right to free elections.

The United Kingdom premised its counter-argumentation on the fact that the 1976 Act, having been adopted within the EC framework, could not be imputed to the member states, together or individually, and could not be unilaterally varied or revoked. Next to this, the United Kingdom upheld the non-applicability of art. 3 of Protocol No. 1 to the facts under discussion on grounds that the ECHR did not impose upon states obligations relating to the undertakings of a supranational organization, in respect of which member states had limited their own sovereignty.

II. The legal question

Although the applicant’s complaint regarded the operations of the EC, and thus, issues of an institutional nature and character, it raised the question of whether the responsibility of a member state could be engaged in respect of such concerns, notably for participating in the process of adoption of legal instruments informing the Community legal system. So as to answer this, the Court’s analysis drew on the extent to which the member state remained bound to secure European Convention rights after having transferred the exercise of certain competences to the EC.

In making such an assessment, it is essential to clarify the relationship between the member state and the international organization in a context where the conduct of the former is directly related to the operations of the latter: this will determine the criteria on the basis of which state responsibility is to be established, that is, whether the member state is responsible for an act of the organization or rather for its own conduct performed in an institutional context.

III. Excerpts

  • 26. According to the Government, the applicant’s real objection was to Council Decision 76/787 and to the 1976 Act concerning elections to the European Parliament (see paragraph 18 above). That Act, which had the status of a treaty, was adopted in the Community framework and could not be revoked or varied unilaterally by the United Kingdom. The Government underlined that the European Commission of Human Rights had refused on a number of occasions to subject measures falling within the Community legal order to scrutiny under the Convention. Whilst they accepted that there might be circumstances in which a Contracting Party might infringe its obligations under the Convention by entering into treaty obligations which were incompatible with the Convention, they considered that in the present case, which concerned texts adopted in the framework of the European Community, the position was not the same. Thus, acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself. At the hearing, the Government suggested that to engage the responsibility of any State under the Convention, that State must have a power of effective control over the act complained of. In the case of the provisions relating to the elections to the European Parliament, the United Kingdom Government had no such control.
  • 27. The applicant disagreed. For her, the Council Decision and 1976 Act constituted an international treaty, rather than an act of an institution whose decisions were not subject to Convention review. She thus considered that the Government remained responsible under the Convention for the effects of the Council Decision and 1976 Act. In the alternative—that is, if the Council Decision and 1976 Act were to be interpreted as involving a transfer of powers to the Community organs—the applicant argued, by reference to Commission case-taw, that in the absence of any equivalent protection of her rights under Article 3 of Protocol No. 1, the Government in any event retained responsibility under the Convention.
  • 30. The Court notes that the parties do not dispute that Article 3 of Protocol No. 1 applies in Gibraltar. It recalls that the Convention was extended to the territory of Gibraltar by the United Kingdom’s declaration of 23 October 1953 (see paragraph 19 above), and Protocol No. 1 has been applicable in Gibraltar since 25 February 1988. There is therefore clearly territorial ‘jurisdiction’ within the meaning of Article 1 of the Convention.
  • 31. The Court must nevertheless consider whether, notwithstanding the nature of the elections to the European Parliament as an organ of the EC, the United Kingdom can be held responsible under Article 1 of the Convention for the absence of elections to the European Parliament in Gibraltar, that is, whether the United Kingdom is required to ‘secure’ elections to the European Parliament notwithstanding the Community character of those elections.
  • 32. The Court observes that acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be ‘secured’. Member States’ responsibility therefore continues even after such a transfer.
  • 33. In the present case, the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act (see paragraph 18 above), and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom. Indeed, the 1976 Act cannot be challenged before the European Court of Justice for the very reason that it is not a ‘normal’ act of the Community, but is a treaty within the Community legal order. The Maastricht Treaty, too, is not an act of the Community, but a treaty by which a revision of the EEC Treaty was brought about. The United Kingdom, together with all the other parties to the Maastricht Treaty, is responsible ratione materiae under Article 1 of the Convention and, in particular, under Article 3 of Protocol No. 1, for the consequences of that Treaty.
  • 34. In determining to what extent the United Kingdom is responsible for ‘securing’ the rights in Article 3 of Protocol No. 1 in respect of elections to the European Parliament in Gibraltar, the Court recalls that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, for example, the above-mentioned United Communist Party of Turkey and Others judgment, pp. 18-19, § 33). It is uncontested that legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly. To this extent, there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to ‘secure’ the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be ‘secured’ in respect of purely domestic legislation. In particular, the suggestion that the United Kingdom may not have effective control over the state of affairs complained of cannot affect the position, as the United Kingdom’s responsibility derives from its having entered into treaty commitments subsequent to the applicability of Article 3 of Protocol No. 1 to Gibraltar, namely the Maastricht Treaty taken together with its obligations under the Council Decision and the 1976 Act. Further, the Court notes that on acceding to the EC Treaty, the United Kingdom chose, by virtue of Article 227(4) of the Treaty, to have substantial areas of EC legislation applied to Gibraltar (see paragraphs 11 to 14 above).
  • 35. It follows that the United Kingdom is responsible under Article 1 of the Convention for securing the rights guaranteed by Article 3 of Protocol No. 1 in Gibraltar regardless of whether the elections were purely domestic or European.

B. Whether Article 3 of Protocol No. 1 is applicable to an organ such as the European Parliament

  • 36. The Government claimed that the undertaking in Article 3 of Protocol No. 1 was necessarily limited to matters falling within the power of the parties to the Convention, that is, sovereign States. They submitted that the ‘legislature’ in Gibraltar was the House of Assembly, and that it was to that body that Article 3 of Protocol No. 1 applied in the context of Gibraltar. For the Government, there was no basis upon which the Convention could place obligations on Contracting Parties in relation to elections for the parliament of a distinct, supranational organisation, and they contended that this was particularly so when the member States of the European Community had limited their own sovereignty in respect of it and when both the European Parliament itself and its basic electoral procedures were provided for under its own legal system, rather than the legal systems of its member States.
  • 37. The applicant referred to previous decisions of the European Commission of Human Rights in which complaints concerning the European Parliament were dealt with on the merits, so that the Commission in effect assumed that Article 3 of Protocol No. 1 applied to elections to the European Parliament (see, for example, Lindsay v. the United Kingdom, application no. 8364/78, decision of 8 March 1979, Decisions and Reports (DR) 15, p. 247, and Tete v. France, application no. 11123/84, decision of 9 December 1987, DR 54, p. 52). She agreed with the dissenting members of the Commission who did not accept that because the European Parliament did not exist when Protocol No. 1 was drafted, it necessarily fell outside the ambit of Article 3 of that Protocol.
  • 38. The majority of the Commission based its reasoning on this jurisdictional point. It considered that ‘to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision ... [T]he role of Article 3 is to ensure that elections take place at regular intervals to the national or local legislative assembly, that is, in the case of Gibraltar, to the House of Assembly’ (see paragraph 63 of the Commission’s report).
  • 39. That the Convention is a living instrument which must be interpreted in the light of present-day conditions is firmly rooted in the Court’s case-law (see, inter alia, the Loizidou v. Turkey judgment of 23 March 1995 (preliminary objections), Series A no. 310, pp. 26-27, § 71, with further reference). The mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols. The question remains whether an organ such as the European Parliament nevertheless falls outside the ambit of Article 3 of Protocol No. 1.
  • 40. The Court recalls that the word ‘legislature’ in Article 3 of Protocol No. 1 does not necessarily mean the national parliament: the word has to be interpreted in the light of the constitutional structure of the State in question.
  • 42. The Court reiterates that Article 3 of Protocol No. 1 enshrines a characteristic of an effective political democracy (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 22, § 47, and the above-mentioned United Communist Party of Turkey and Others judgment, pp. 21-22, § 45). In the present case, there has been no submission that there exist alternative means of providing for electoral representation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any.
  • 43. The Court thus considers that to accept the Government’s contention that the sphere of activities of the European Parliament falls outside the scope of Article 3 of Protocol No. 1 would risk undermining one of the fundamental tools by which ‘effective political democracy’ can be maintained.
  • 44. It follows that no reason has been made out which could justify excluding the European Parliament from the ambit of the elections referred to in Article 3 of Protocol No. 1 on the ground that it is a supranational, rather than a purely domestic, representative organ.
  • 63. The Court recalls that the rights set out in Article 3 of Protocol No. 1 are not absolute, but may be subject to limitations. The Contracting States enjoy a wide margin of appreciation in imposing conditions on the right to vote, but it is for the Court to determine in the last resort whether the requirements of Protocol No. 1 have been complied with. It has to satisfy itself that the conditions do not curtail the right to vote to such an extent as to impair its very essence and deprive it of effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate. In particular, such conditions must not thwart ‘the free expression of the people in the choice of the legislature’ (see the above-mentioned Mathieu-Mohin and Clerfayt judgment, p. 23, § 52).
  • 64. The Court makes it clear at the outset that the choice of electoral system by which the free expression of the opinion of the people in the choice of the legislature is ensured—whether it be based on proportional representation, the ‘first-past- the-post’ system or some other arrangement—is a matter in which the State enjoys a wide margin of appreciation. However, in the present case the applicant, as a resident of Gibraltar, was completely denied any opportunity to express her opinion in the choice of the members of the European Parliament. The position is not analogous to that of persons who are unable to take part in elections because they live outside the jurisdiction, as such individuals have weakened the link between themselves and the jurisdiction. In the present case, as the Court has found (see paragraph 34 above), the legislation which emanates from the European Community forms part of the legislation in Gibraltar, and the applicant is directly affected by it.
  • 65. In the circumstances of the present case, the very essence of the applicant’s right to vote, as guaranteed by Article 3 of Protocol No. 1, was denied.

It follows that there has been a violation of that provision.

IV. Commentary

States’ co-operative engagements towards the achievement of common goals grew exponentially in the post-war period, through the creation of international organizations. This evolution was accompanied by increased concern within the legal epistemic community regarding the implications of states’ joint endeavours in terms of human rights protection. At the same time, the question of how to establish international responsibility for human rights violations linked to the activities of international organizations found its way in international litigation, especially within the European human rights regime. In a string of cases decided by the supervisory bodies of the ECHR, the legal analysis drew on the terms in which the Convention would apply following the transfer of portions of sovereignty to an international body.1 Given the European Commission of Human Rights’ prompt assertions of lack of jurisdiction rationepersonae to examine complaints directed against an international organization such as the EC,[1] [2] the inquiry was raised as to whether responsibility for acts performed in an institutional framework allegedly in violation of the ECHR would lie instead with the member states.

Early applications submitted against member states of the EC dealt with the responsibility of the former for the violation of European Convention rights in the context of the adoption and mostly of the implementation of EC measures.[3] [4] The issue was first addressed by the European Commission of Human Rights in the case of M. & Co. v Germany4 regarding the responsibility of Germany for having given effect to a decision of the European Court of Justice. Here, a principled approach was put forward by the Commission, one that would highly influence the unfolding of the Matthews decision and subsequent jurisprudence: the understanding that the transfer of powers to an international organization ‘does not necessarily exclude a state’s responsibility under the Convention with regard to the exercise of the transferred powers’.[5] Such a compromise coherently emerged as a corollary of the general principle advanced by the Commission already in 1958 whereby ‘if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty’.[6] In this vein, the Commission ascertained that the European Convention does not prohibit the transfer of the exercise of certain competences to an international organization provided that, within the organization, fundamental rights receive an ‘equivalent protection’.[5]

The line of argument advanced in the case-law prior to Matthews, and further developed in the latter, has been used as a benchmark in subsequent cases decided by the ECtHR, such as the Bosphorus and Gasparini cases, also commented upon in this book.

Although these judgements followed the same principled basis upon which the Matthews case was decided, member state responsibility by virtue of the transfer of powers to an international organization has not been established since the latter. The relevance of the Matthews case is also reflected in the work of the ILC, which grounded art. 61 on ‘Circumvention of international obligations of a state member of an international organization’ of its ARIO on the approach put forward by the ECtHR.[8]

In the present case, the first question to solve was whether the state of affairs complained of could actually be subjected to the Court’s review. Although the applicant’s contention regarded the exercise of her right to vote in European Parliament elections, and thus, a matter of Community ‘nature’ and ‘character’, the possibility to somehow engage the responsibility of the United Kingdom in the particular circumstances of the case would have to be present.[9] Essentially, this would entail categorizing the adoption of the 1976 Act and its Annex II (determining the absence of elections to the European Parliament in Gibraltar), allegedly incompatible with the ECHR, as state— and not institutional—conduct. This points to the significance of clarifying the position of member states within the Community legal system and, in particular, what constitutes conduct attributable to the former and conduct attributable to the EC.

Mindful of this prerequisite, both the applicant and the respondent centred part of their argumentation on the classification and imputability of the contentious acts at stake. The applicant maintained that the 1976 Act constituted an international treaty, and that Annex II to the Act had been included therein under the unilateral will of the respondent.[10] [11] [12] [13] Against this backdrop, the conclusion of the 1976 Act, whilst an act disabling the respondent from complying with its obligations under the ECHR, could only render the latter responsible for any resulting breaches of the Convention. In its turn, the respondent insisted that the 1976 Act and Annex II could not be subjected to the ECtHR’s review on grounds that they fell within the EC legal order." Despite its status as an international treaty, the respondent reckoned, the 1976 Act was not an ordinary treaty but one of a ‘special nature’, which operationalized art. 138(3) of the EEC Treaty and Council Decision 76/787. Moreover, responsibility for Annex II could not fall upon the respondent as it could not have been revoked or unilaterally amended by the latter (Report of the European Commission, para. 30). Hence, based on the argument that the acts had been adopted by the Community or consequent to its requirements, and thus formed part of a distinct legal order, the respondent underlined that they could not be imputed to the member states, together or individually."

Inasmuch as EC conduct (and, generally, acts adopted by any international organization) as such cannot be challenged before the ECtHR,i3 as said above, the latter’s

competence to review acts adopted within the Community legal order is dependent upon the notion of member state responsibility applied.14 While measures adopted within such legal framework on the basis of a transfer of competences from states could generally be regarded, as advanced by the respondent, as institutional conduct which would thereby solely engage the responsibility of the EC, the ECtHR adopted a different approach. Based on the understanding that member state responsibility persists after the transfer of powers to an international organization, the Court was bound to identify a legally relevant margin for the member state to act, as a subject of international law, within the Community framework. Whilst the Commission did not take a stand on this point, the ECtHR followed the applicant’s contention and vindicated, quite audaciously, that the adoption of EC primary law qualified as state conduct.15 Indeed, as noted by the Court: ‘the alleged violation of the Convention flows from an annex to the 1976 Act, entered into by the United Kingdom, together with the extension to the European Parliament’s competences brought about by the Maastricht Treaty. The Council Decision and the 1976 Act [...] and the Maastricht Treaty, with its changes to the EEC Treaty, all constituted international instruments which were freely entered into by the United Kingdom’/6

The 1976 Act and its Annex II, alongside the extension of the competences of the European Parliament provided by the Maastricht treaty, were thus considered by the ECtHR to be attributable to the respondent, thereby engaging the responsibility ratione materiae of the latter under art. 3 of Protocol No. 1 to the ECHR for the consequences of the said instruments/7 In this light, the respondent’s contention that it did not have a power of effective control over the state of affairs complained of was rejected by the Court, as the responsibility of the United Kingdom derived from its own conduct of entering into treaty commitments/8 Indeed, the control theory, now envisaged in art. 59 of the ARIO/9 is only applicable in cases of derived responsibility, that is, where the member state is found responsible for the wrongful acts of a given international organization, and not for its own conduct performed in an institutional context. That being the case, the respondent’s suggestion did not, presumably, come out of the blue, as the argument of effective control over institutional conduct had been made in a previous case, namely, in Arab Organization for Industrialization and

!4 cf. G. Cori et F. Kauff-Gazin, ‘L’arret Matthews: une Protection Globale des Droits de L’Homme par une Vision Reductrice de L’Ordre Juridique Communautaire?’, in Europe 1, 2000, p. 5.

  • 15 The ECtHR’s decision to exclude the adoption of EC primary law from the category of institutional conduct is somewhat controversial. Already in his concurring opinion with the European Commission of Human Rights, had F. Martinez expressed his strong disagreement with such an understanding (see: Report of the European Commission). G. Cori and F. Kauff-Gazin view the ECtHR’s approach as having been driven, to a great extent, by a purely internationalist intent and the desire to ensure the protection of fundamental rights in Europe, without taking sufficient account of the specificities inherent in the EC legal order. See: G. Cori et F. Kauff-Gazin (n. 14), pp. 2, 4.
  • 16 cf. Matthews decision, para. 33. 17 cf. ibid., para. 33. 18 cf. ibid., paras 26 and 34.
  • 19 Art. 59(1) ARIO prescribes that:

A State which directs and controls an international organization in the commission of an internationally wrongful act by the latter is internationally responsible for that act if:

  • (a) the State does so with knowledge of the circumstances of the internationally wrongful act; and
  • (b) the act would be internationally wrongful if committed by that State.

others v Westland Helicopters Ltd,20 litigated in the Swiss Federal Supreme Court. This argument was ultimately dismissed by the Supreme Court in view of the need to preserve the legal personality of international organizations and the independence with which they are meant to operate^1

Having ascertained that the exclusion of Gibraltar from the European Parliament elections was the result of various international instruments freely entered into by the respondent, the ECtHR moved on to an analysis of the terms in which the United Kingdom was responsible for ‘securing’ the rights contained in art. 3 of Protocol No.

1. In practice, examining whether the 1976 Act entered into by the respondent would not detract it from guaranteeing its Convention obligations entailed a judgment on the compatibility of a provision pertaining to the EC legal system with the European Convention. This was the first case where an analysis of the sort was undertaken within the European human rights system, and thus, constitutes a turning point in the jurisprudence of the ECtHR.

It is important to note that, in embarking on such an assessment, although the Court did not explicitly refer to the ‘equivalent protection’ criteria espoused by the Commission in earlier case-law (referred to above), it presupposed such an approach in its reasoning. In fact, the ECtHR observed that the 1976 Act, while a treaty within the Community legal order, could not be challenged before the European Court of Justice, which essentially meant that the Community legal system did not offer a level of protection of the right to free elections equivalent to that required of states under art. 3 of Protocol No. 1 to the ECHR.22

The ECtHR’s concern with states’ duty to ensure the protection of European Convention rights within a given institutional context has been interpreted as being based on the principle of good faith, in particular, the principle of pacta sunt servanda.23 According to this interpretation, the obligations set forth in the ECHR must be performed in good faith, which conditions the way in which state parties are to enter into subsequent treaty commitments. As explained by Judge Ress in his [14] [15] [16] [17]

concurring opinion in the Bosphorus decision: ‘as the Court recognised in Matthews v. the United Kingdom [...] international treaties between the Contracting Parties have to be consistent with the provisions of the Convention. The same is true of treaties establishing international organisations. The importance of international cooperation and the need to secure the proper functioning of international organisations cannot justify Contracting Parties creating and entering into international organisations which are not in conformity with the Convention’.[18]

An alternative view contends that the principle under which member state responsibility is to be ascertained in this case is that of due diligence. More comprehensively than the good faith principle perhaps, the principle of due diligence provides a solid basis upon which to ground the ECtHR’s widely cited assertion, made in the present case, that: ‘The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be ‘secured’. Member States’ responsibility therefore continues even after such a transfer. (Cf. Matthews decision, para. 32 (emphasis added))’.

In this vein, it is not solely the initial act of establishing the international organization and drawing up its operational framework that is taken into account, but also the continued participation of member states in institutional affairs. Hence, according to the notion of due diligence, states must ensure that while entrusting an international organization with certain competences, they will still have at their disposal sufficient tools to oversee the impacts of the organization’s activities on human rights” In Matthews, this would imply a duty upon the respondent to diligently monitor and oversee EC operations, in particular, the occurrence of elections to the European Parliament, so as to make sure that these would not run counter to the protection of ECHR rights.

Underlying the ECtHR’s assessment of the respondent’s guaranteeing functions was the Court’s realization that: legislation emanating from the legislative process of the European Community affects the population of Gibraltar in the same way as legislation which enters the domestic legal order exclusively via the House of Assembly [of Gibraltar]”

Accordingly, inasmuch as the ECHR was intended to guarantee practical and effective rights, the respondent’s responsibility could be engaged regardless of whether the source of the violation was to be found in domestic or European legislation.[19] Certainly, the question could only merit a positive response in case the ECHR would be interpreted as imposing upon state parties obligations extending to the legal system of a supranational representative organ. The issue was addressed by the ECtHR in paras 36-44 of the decision, and mainly drew on whether the term ‘legislature’, in the sense of art. 3 of Protocol No. 1, could be interpreted as encompassing elections to the European Parliament.

In accordance with the respondent, the ECHR did not impose upon states obligations relating to the undertakings of a distinct supranational organization, in respect of which member states had limited their own sovereignty.2[20] [21] Art. 3 of Protocol No. 1 would therefore only apply to a purely domestic representational organ. The European Commission of Human Rights supported the respondent’s approach, asserting that to apply such a provision to ‘supra-national representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision’” In the Commission’s view, the purpose of art. 3 was to ‘ensure that elections take place at regular intervals to the national or local legislative assembly’, and not to provide any guarantees with respect to a ‘nonnational’ institution such as the European Parliament.[22]

The ECtHR concluded for the opposite. Based on the character of the Convention as a living instrument and the need to interpret the obligations prescribed therein in light of present day conditions, the ECtHR found art. 3 to encompass electoral representation in the European Parliament” The Court’s reasoning brings to the fore an important message: it proves that, although human rights provisions do not immediately seem to apply to institutional contexts, it is possible to find in their scope of application the imposition, upon states, of particular obligations conditioning their participation in the operations of international organizations. International law must be able to accompany the new ways in which states decide to cooperate internationally (including the strengthening of their ties in the form of European integration). In this vein, as observed by the ECtHR, ‘[to] the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols’.32 Eventually, the respondent was found responsible for failing to ensure respect for the right to vote of the residents of Gibraltar, as this right had been deprived of its essence and effectiveness”

Arguably, the ECtHR would not apply the same reasoning if the issues complained of related to the adoption of ‘normal’ Community acts, that is, secondary EU law—and, generally, if the contention regarded member state participation in decision-making processes occurring in any other international organization. This important question was latent in the present case, but went unnoticed. In fact, the applicant referred to the respondent’s responsibility under the Convention ‘for the effects of the Council

Decision’, apart from the 1976 Act.[23] [24] [25] [26] Also, the ECtHR stated that the Council Decision, alongside with the 1976 Act and the Maastricht Treaty, constituted an international instrument ‘freely entered into’ by the Respondent (cf. Matthews decision, para. 33).

In commenting on the Matthews decision, Lawson and Schermers pointed to the possibility of extending the ECtHR’s reasoning to genuine Community acts, noting that ‘[s]ince the Member States enabled the Community institutions to adopt these binding measures, they should bear the consequences if violations of the Convention occur’.35 On the one hand, it is true that the Court has proved its readiness to assess member state responsibility where the object of the dispute regards issues of a purely institutional ‘nature’ and ‘character’ (in the present case, elections to the European Parliament). On the other hand, however, the Court would probably easily discard a contention regarding state responsibility for the adoption of institutional measures by claiming that the conduct complained of was solely attributable to the international organization, and thus, lay outside the Court’s jurisdiction ratione personae. It should be noted, however, that the European regime will surely merit a particular approach in view of the EU’s accession to the European Convention^6

The particular issue of member state responsibility for participation in the process of adoption of EU acts was raised in the earlier CFDT case, referred to above. After negating its jurisdiction ratione personae to consider the complaint against the EC Council’s decision (not to designate the French trade union as a representative organization to submit a list of candidates for the Consultative Committee of the ECSC)” the Commission examined the question of whether the member states could be found individually responsible with relation to such adA8 The Commission easily dispensed with the argument that France had unlawfully omitted to include the applicant’s name in the abovementioned list by ascertaining that France had not yet recognized the right to individual petition under art. 25 of the Convention^9 It did not, however, discard the possibility of establishing France’s responsibility if that were not the case. With respect to the other eight member states, the Commission considered the matter to lie outside its jurisdiction ratione personae in that ‘these States by taking part in the decision of the Council of the European Communities had not in the circumstances of the instant case exercised their “jurisdiction” within the meaning of Article 1 of the Convention’.[27] [28] [29] [30] [31] [32] [33] Finally, the question was also raised as to whether the member states could be found jointly responsible for the acts complained of/11 Unsurprisingly, the possibility was also discarded for lack of jurisdiction, although the Commission still remarked that ‘the applicant ha[d] not defined what it mean[t] by [joint member state responsibility]’/0 It is noteworthy that the Matthews case was the first one where the ECtHR seemed to be prepared to establish such collective responsibility, at least with regard to primary EU law. Following the ECtHR’s reasoning, even where the acts at stake form part of the EU legal order, member states are bound to respect ECHR obligations, and thus, the respondent’s responsibility for the consequences of the—in casu—Maastricht Treaty would be engaged ‘together with all the other parties’ to such treaty/0 Importantly, this line of reasoning implies that the ECHR can generally have an extraterritorial scope of application, inasmuch as the responsibility of all the other member states would be determined with respect to the rights of the residents of Gibraltar.

The possibility of establishing state responsibility for/i n connection with institutional measures has not merited a clear-cut response in the ECtHR’s subsequent case- law. While the European Commission of Human Rights had peremptorily declared, in the aforementioned CFDT case, its lack of jurisdiction rationaepersonae to examine member state responsibility on grounds that the states parties had not acted within their jurisdiction in the sense of art. 1 of the ECHR, in the later case Senator Lines v Austria et. al! which was filed against the then fifteen EU member states collectively, the ECtHR, interestingly, proceeded to an analysis of whether the applicant company could claim to be a victim, without actually declaring the application inadmissible at the outset! Ultimately, it all depends on how the position of member states vis-a-vis an international organization is perceived and how certain acts can be categorized as being performed by states within their jurisdiction in the sense of art. 1 of the ECHR.

Conceptually, the answer to the question as to whether member state participation in the processes of adoption of institutional measures engages state responsibility for/ in connection with institutional acts, or rather, for its own conduct performed in an institutional framework, leads to significantly different outcomes.46 Accordingly, if the

ECtHR were to perceive member state participation in decision-making processes— through the exercise of voting rights or the assumption of a specific position in consensus-based decision-making—as state conduct, it could more easily reason that the state had acted within its jurisdiction (see the ICJ case Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v Greece), also discussed in this book, where the legality of the individual conduct of a member state in the decision-making process of an international organization was at stake).

Following the Court’s own words in Matthews, the adoption of an institutional act is also ‘freely entered into’ by member states through the discretion state representatives have when casting a vote in favour of the decision eventually adopted in the Council. This was even somehow admitted by the ECtHR—albeit unintendedly perhaps—when it claimed that the Council Decision, together with the 1976 Act and the Maastricht Treaty, constituted an international instrument freely entered into by the United Kingdom.47 Moreover, an important nuance (already referred to above) was introduced in the Matthews case, notably, the ECtHR’s focus on the effects that the contentious act had on the population of Gibraltar: having acknowledged that the latter would be affected in the same way regardless of the European or domestic source of the legislation at stake, the Court noted that: there is [...] no reason why the United Kingdom should not be required to ‘secure’ the rights in Article 3 of Protocol No. 1 in respect of European legislation, in the same way as those rights are required to be ‘secured’ in respect of purely domestic legislation^8

In this light, by accepting, on the one hand, that states are prominent actors steering decision-making processes through the exercise of voting rights and, on the other hand, that ‘genuine’ Community acts (and generally, international organizations’ acts) may well impact upon individuals in terms that are equivalent to national measures, it is possible to engage the responsibility of member states for failure to ‘secure’ ECHR rights when participating in the process of adoption of said institutional acts. Such a solution is not only legally viable but also desirable, if the ECHR is meant to protect not theoretical or illusory rights, but rights that are practical and effective.

47

cf. Matthews decision, para. 33

48

cf. ibid., para. 34.

  • [1] For an overview of relevant case-law prior to the Matthews decision (Matthews v United Kingdom,ECtHR, App. No. 24833/ 94, 18 February 1999), see: R.A. Lawson and H.G. Schermers, Leading Casesof the European Court of Human Rights (Ars Aequi Libri Nijmegen, 1999), pp. 677, 678; for an accountof subsequent ECtHR decisions endorsing the Matthews approach, see: C. Ryngaert, ‘The EuropeanCourt of Human Rights’ Approach to the Responsibility of Member States in Connection with Acts ofInternational Organizations’, (2011) International & Comparative Law Quarterly 997.
  • [2] cf. Confederation Frangaise Democratique du Travail v The European Communities, App. No. 8030/77, 10 July 1978, p. 240 (CFDT case).
  • [3] As noted by Kuijper and Paasivirta, there are significant differences between cases where memberstate responsibility is invoked with respect to the implementation of EC measures (be it the executionof a decision of the European Court of Justice or the implementation of a directive or regulation) andcases involving the responsibility of member states for the adoption of institutional acts (see: P.J. Kuijperand E. Paasivirta, ‘Further Exploring International Responsibility: The European Community and theILC’s Project on Responsibility of International Organizations’, (2004) International Organizations LawReview 1, p. 21). As will be seen below, member state responsibility for participation in the adoption ofacts within the Community legal order raises further complications, in that the question seems to leadto different outcomes depending on whether the adopted act pertains to primary or secondary EC law.
  • [4] Decision of 9 February 1990, App. No. 13258/87, Decisions and Reports, vol. 64, p. 138.
  • [5] cf. M. & Co. v Germany (n. 4), p. 145.
  • [6] cf. X v the FRG, Decision of 10 June 1958, Application No 235/56, Yearbook 2 p. 256 (300), as quotedin the M. & Co. case (n. 4): at 145.
  • [7] cf. M. & Co. v Germany (n. 4), p. 145.
  • [8] cf. ARIO commentary to art. 61, paras 3-5 in Report of the Law Commission on the Work of itsSixty- Third Session, Official Record of the General Assembly, 66th Sess., Supp. 10 (A/ 66/ 10), 2011.
  • [9] cf. Matthews decision, para. 31.
  • [10] cf. European Commission of Human Rights Report, adopted on 29 October 1997, paras 43, 44 (hereinafter Report of the European Commission) and Matthews decision, para. 27.
  • [11] cf. Report of the European Commission (n. 10), para. 28.
  • [12] 12 cf. Matthews decision, para. 26.
  • [13] cf. ibid., para. 32.
  • [14] Swiss Federal Supreme Court (First Civil Court), 19 July 1988, 80 ILR 652. (also commented uponin this book)
  • [15] cf. ibid., p. 658.
  • [16] cf. Matthews decision, para. 33. See also para. 42 of the decision, where the ECtHR noted that, in thepresent case, there had been ‘no submission that there exist alternative means of providing for electoralrepresentation of the population of Gibraltar in the European Parliament, and the Court finds no indication of any’. The interpretation of para. 33 of the decision as being based on the principle of equivalentprotection has been put forward by, inter alia, R. A. Lawson and H. G. Schermers (n. 1), p. 679 and P.Klein, ‘The Attribution of Acts to International Organizations’, in J. Crawford, A. Pellet, and S. Olleson(eds), The Law of International Responsibility (Oxford, Oxford University Press, 2010), p. 313. In contrast,Ciampi contends that the application of the ‘equivalent protection’ criteria in the present case would beredundant. This is explained by the fact that the author views the adoption of the acts under contentionas not constituting conduct performed by the United Kingdom in light of its obligations flowing frommembership of the EC. See: A. Ciampi, ‘L’Union Europeenne et le Respect des Droits de L’Homme Dansla Mise en Ouvre des Sanctions Devant la Cour Europeenne des Droits de L’Homme’, in (2006) RevueGenerale de Droit Internationale Public 91.
  • [17] 23 For a detailed analysis of the application of the good faith principle in the framework of member state participation in international organizations, see: O. Murray, ‘Piercing the Corporate Veil: TheResponsibility of Member States of an International Organization’, (2011) 8 International OrganizationsLaw Review 291-347.
  • [18] cf. Bosphorus Hava Yollari Turizm veTicaret Anonim Sirketi v Ireland, App. No. 45036/98, 30 June2005, Concurring Opinion of Judge Ress, para. 5. 25 cf. P. Klein (n. 22), pp. 310-14. On states’ duty of due diligence in an institutional framework, see alsothe study of the Institut de Droit International entitled, ‘The Legal Consequences for Member States ofthe Non-Fulfilment by International Organizations of their Obligations Toward Third Parties’, Annuairede l’Institut de Droit International, Session de Lisbonne, Vol. 66-I, 1995, and the response of M. JeanSalmon to the ‘Questionnaire’ prepared by Rapporteur R. Higgins, pp. 340, 344, and 345. The notion that states must act diligently when participating in institutional affairs has also beenupheld by the UN Committee on Economic Social and Cultural Rights in its General Comments andConcluding Observations. See, inter alia, General Comment No. 19 on the Right to Social Security, UNDoc. E/C.12/GC/19 (2008), para. 58. 26 cf. Matthews decision, para. 34.
  • [19] cf. ibid., para. 34. 28 cf. Matthews decision, para. 36.
  • [20] 29 cf. Report of the European Commission, para. 63. зо cf. ibid., para. 63.
  • [21] 3i cf. Matthews decision, para. 39. 32 cf. Matthews decision, para. 39.
  • [22] 33 cf. ibid., paras 63-5.
  • [23] cf. ibid., para. 27. In their dissenting opinion with the European Commission of Human Rights,M.A. Weitzel, C.L. Rozakis, M.P. Pellonpaa, B. Conforti, and N. Bratza further note the applicant’s argument that the Council Decision was not in any case a typical EC act, as it had been signed not only by thePresident of the Council but also the member states’ ministers.
  • [24] R. A. Lawson and H. G. Schermers (n. 1), p. 679. Following the same line of thought, Cori andKauff-Gazin note that: ‘[p]ousse jusqu’a ses ultimes consequences, le raisonnement de la Cour pourraitconduire a une extension ulterieure de sa competence a l’egard des actes communautaires. En effet, enappliquant une logique de droit international quant a la paternite des actes communautaires, ces derni-ers, au moins les actes adoptes a l’unanimite, pourraient etre consideres comme des actes pour lesquelsles Etats membres restent les ultimes responsables, meme s’ils les adoptent dans l’enceinte communau-taire.’ (See: G. Cori et F. Kauff-Gazin (n. 14), p. 4).
  • [25] See, inter alia, O. de Schutter, ‘The Two Lives of Bosphorus: Redefining the Relationships Betweenthe European Court of Human Rights and the Parties to the Convention’, (2013) 4 European Journal ofHuman Rights 584, in particular pp. 596-615, discussing the various possible scenarios following theEU’s accession to the ECHR when it comes to the application of the presumption of equivalent protection.
  • [26] cf. CFDT case, pp. 239-40, paras 1-3. 38 cf. ibid., p. 240, para. 5. 39 cf. ibid., p. 240, para. 6.
  • [27] cf. ibid., p. 240, para. 7. 11 cf. ibid., para. 4. 12 cf. ibid.
  • [28] I3 cf. Matthews decision, para. 33 (emphasis added). In the later case Societe Guerin Automobiles c. 15Etats de I’Union Europeenne, App. No. 51717/99, 4 July 2000, where the applicant invoked the responsibil
  • [29] ity of all fifteen EU member states for the transfer of competences to the European Court of Justice, theopportunity to clarify the Court’s position was not seized, in that the Court declared the case inadmissible for lack of jurisdiction ratione materiae.
  • [30] n Senator Lines v Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,
  • [31] The Netherlands, Portugal, Spain, Sweden, and the United Kingdom, App. No. 56672/00, 10 March 2004.
  • [32] cf. F. Hoffmeister, ‘Litigating against the European Union and Its Member States—Who Respondsunder the ILC’s Draft Articles on International Responsibility of International Organizations?’, (2010) 21No 3 European Journal of International Law 723, 730.
  • [33] In the first cases (i.e. cases of derived responsibility), the ARIO (n. 8) would apply and the commission of internationally wrongful conduct by the international organization would have to be established(see arts. 58 and 59); in the latter, the question of state responsibility would be analyzed independentlyfrom the international organization’s conduct, and thus, the ILC’s 2001 Articles on Responsibilityof States for Internationally Wrongful Acts would rather apply (see: Report of the International LawCommission on the Work of Its Fifty-third Session, UNGAOR, 56th Session, Supp. 10 (A/56/10), 2001).
 
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