Euro Rights Blog: Diplomatic Protection and the Right of Third-party to Intervene in Cases before the ECHR

Although the case of I v Sweden (Application no 61204/09, 5 September 2013) is interesting from a viewpoint of the Court’s assessment of the domestic court in determining the credibility of an asylum-seeker, this post focuses on a different aspect of the case, that of the right of the applicant’s State of nationality to submit written comments and take part in hearings. The facts are simple: Mr. I, his wife and their child, all three of Chechen origins, unsuccessfully applied for asylum in Sweden and were due to be deported. In their application before the European Court of Human Rights, they claimed that as they faced a real and person risk upon return to Russia their deportation infringed Article 3 of the European Convention on Human Rights.

The case was lodged against Sweden, the State that denied asylum to these three individuals. However, Article 36 ECHR allows for third party to intervene in written and oral form and paragraph 1 specifically guarantees States whose national is an applicant the ‘right to submit written comments and to take part in hearings’. As the claimants were Russian nationals the Court, though without being prompted by the parties to do so, engaged in a discussion on the probity to notify Russia of the application. After ascertaining that ‘the right under Article 36(1) to intervene as a third party extends to offering a Member State the right to support those nationals whose rights and interests may have been injured by another Member State’ the Court concluded that Article 36(1) did ‘not apply in cases where the applicants’ reason for applying to the Court is fear or being returned to the relevant Member State, which allegedly will subject them to a treatment contrary to Articles 2 and 3 of the Convention’ (para 44).

Three points need to be raised here. First, this departs from previous similar cases dealing with ‘Chechen’ asylum-seekers whose claims have been rejected and are to be deported to Russia. In Bajsultanov v Austria (Application no 54131/10, 12 June 2012) and I K v Austria (Application no 2964/12, 28 March 2013) the Court notified Russia of the cases and Russia declined the invitation to comment on the cases (paras 6 and 6 respectively). This time the Court chose not to inform the Russian government and, so it seems, felt obliged to explain its decision. Why the Court changed its opinion is unclear: Bajsultanov, I K and I are very similar claims based on Articles 2 (I K) and Articles 3 (Bajultanov, I K and I) ECHR.

Second, the arguments presented by the Court are, in my opinion, weak and in need of further development especially, as the Court correctly observes, there is no precedent on the issue. The Court contends that Article 36(1) is akin to a right of diplomatic protection as it gives ‘a State an opportunity to protect its nationals in a situation where they suffer an injury as a result of a breach of public international law by another Member State’ (para 42). Later the Court stresses that it is a ‘right to support’ nationals (para 44, emphasis added). But does Article 36(1) indeed reflect the right of diplomatic protection? I have my doubts especially if I follow Articles 31-33 of the Vienna Convention on the Law of Treaties (as accepted in Litwa v Poland, Application no 26629/95, 4 April 2000, paras 57-59) which spell out the methods of interpretation of international treaties.

Article 31 of the the Vienna Convention on the Law of Treaties reiterates the general rules of interpretation, a ‘process [that] must start from ascertaining the ordinary meaning of the terms of a treaty – in their context and in the light of its object and purpose’ (Litwa, para  59). A literal interpretation of Article 36(1) leads to the conclusion that the State of a national applying to the Court is entitled to submit comments and taken part in the hearings. There is no reference here to the State ‘supporting’ the individual or intervening on his behalf, less in his favour, which is the very basis of diplomatic protection. Simply, the State is procedurally entitled to comment upon the case. The Court in para 42 implies that a literal interpretation does not go any further, for it quickly moves onto a contextual and teleological interpretation of Article 36(1) ECHR. Interestingly though the Court fails to proceed to a rigorous analysis of the ‘context’ and jumps into discussing the travaux préparatoires (para 43) which are only ‘supplementary means of interpretation’ according to Article 32 of the Vienna Convention on the Law of Treaties. A contextual analysis of Article 36(1) ECHR reveals that it contains a right to third-party intervention rather to a right of diplomatic protection. Indeed Article 36 as a whole is entitled “third party intervention” and paragraphs 2 and 3 allow respectively other State parties as well as the Council of Europe Commissioner of Human Rights to intervene in the proceedings. Whilst States must be invited by the President of the Court, the Commissioner may intervene as he/she deems fit. In fact Article 36(1) and (3) are phrased in a similar, albeit not identical, manner. Surely, the Commissioner does not have a right of diplomatic protection and even less other State parties that might be invited to take part in the proceedings. Article 36 ECHR focuses on third party intervention. Nonetheless, the Vienna Convention on the Law of Treaties accepts that to determine the meaning of a provision recourse may be had to ‘subsequent practice in the application of the treaty’ (Article 31(3)(b)) which the Court uses as it refers to previous cases where Article 36(1) ECHR was used (para 41). Undoubtedly such cases demonstrate that the right spelled out in Article 36(1) ECHR was exercised by States who wished to speak out in favour or protect their nationals (e.g. Slivenko v Latvia, Application no 48321/99, 9 September 2003 and Somogyi v Italy, Application no 67972/01, 18 May 2004). Yet, this does not prove that Article 36(1) ECHR cannot be used differently, just that so far I am aware of no State has taken the opportunity to intervene in other situations.

To confirm its weak, if not erroneous, position that Article 36(1) ECHR enshrines a right of diplomatic protection the Court uses supplementary means of interpretation (Article 32 of the Vienna Convention of the Law of Treaties) in the form of the travaux préparatoires. The Court explains that they ‘are silent on this point’ and surmises that it is unlikely that the drafters had meant to endow a State where the life and physical integrity of the applicant would be at stake with the ability to intervene in the proceedings. To my disappointment I am unable to locate the travaux on the relevant article online! Article 36 ECHR was introduced by Protocol 11 and there seems to have indeed been little debate on the Article. The explanatory report clarifies that the aim of the article is to ‘provide[] for States Parties and other interested persons to take part in proceedings before the Court’. There are no references to the special bond between a State and a national that is present in diplomatic protection. In fact, the common denominator of paragraphs 1, 2 and 3 is that legal actors must have a perceptible interest in the outcome of the case. This in fact supports my above conclusions using a contextual interpretation of Article 36(1) ECHR. I am also tempted to argue that if the drafters had wished the State to intervene with a view to solely protect its nationals, then it might have been more suited to integrate Article 36(1) into Article 34 ECHR (on individual applications), highlighting that States retain the right to support their nationals in their application before the Court. The Court does not examine the French authenticated version of the ECHR (in light of Article 33 of the Vienna Convention on the Law of Treaties), for it does not yield any different result than an interpretation of the English version. In conclusion, Article 36(1) is not to be interpreted as a right of diplomatic protection. Article 36 ECHR, as the UK Equality and Human Rights Commission research paper correctly explains, is a means for States to ‘enter into a conversation with the ECtHR’ when they ‘have concerns that the particular circumstances in their national jurisdiction may not be fully understood’ (p 170). Before the adoption of Protocol 11 third party intervention served the dual purpose of allowing States to defend their (or one of their nationals) interests and to assist the Court in establishing the facts.

Third, the Court also appears to give a new meaning to the right of diplomatic protection as it views it as the right of a State to support an applicant. Its original meaning is best explained by the Permanent Court of International Justice: ‘[b]y taking up the case of one of its subjects and by resorting to diplomatic action or international proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law’ to which the Permanent Court adds ‘Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’ (Mavrommatis Palestine Concessions Cases (Greece v Britain), 1924 PCIJ (ser B) No. 3 (30 August 1924), at 12) Diplomatic protection is based on the fiction that injury to a national constitutes injury to the State. Likewise, Article 1 of the 2006 Draft articles on Diplomatic Protection produced by the International Law Commission (and deemed to be of customary nature by the International Court of Justice (Ahamdou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Preliminary Objections, Judgment, [2007] ICJ Rep 582, para 39) defines diplomatic protection as ‘the invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility.’ In other words, the exercise of the right of diplomatic protection means that the State takes over the claim of the individual and litigates against another State. This can certainly not have been the intention of the drafters of the ECHR in relation to Article 36(1). In fact Article 33 ECHR provides for a dedicated inter State claims mechanism. Therefore Article 36(1) ECHR is best understood as a right to intervene in the proceedings rather than a right of diplomatic protection.

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