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Realizing UtopiaThe Future of International Law$

The Late Antonio Cassese

Print publication date: 2012

Print ISBN-13: 9780199691661

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199691661.001.0001

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Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?

Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?

Chapter:
(p.187) 15 Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?
Source:
Realizing Utopia
Author(s):

Antonio Cassese

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199691661.003.0015

Abstract and Keywords

International law still proves unable effectively to bring about the necessary changes of domestic legislation at odds with international rules. Four measures would be necessary to change this state of affairs. There should be an international judicial body charged with authoritatively establishing, firstly, whether in a specific instance a state has breached a rule imposing to amend national legislation so as to make it consistent with international rules, and, secondly, in the affirmative, enjoining the state to modify its legislation forthwith. A monitoring body should be entrusted with ascertaining whether the state has followed up that ruling. States should pass a constitutional provision stating that any time a national piece of legislation is in conflict with an international norm, such legislation is automatically repealed or, at a minimum, courts, administrative bodies, and individuals are bound to disregard it. Whenever there is a doubt or a dispute on whether national legislation conforms to international rules, national courts as well as natural and legal persons should be empowered to bring the case before an international court, tasked to pass on the matter with legally binding effect. However, the current condition of the world community renders the implementation of the suggested reforms very difficult. Based on the experience of some regional courts, it is suggested that any progress may only occur within regional groupings, not at the universal level.

Keywords:   international law, domestic law, international judicial body, monitoring body, national courts, regional courts

International law still proves unable effectively to bring about the necessary changes of domestic legislation at odds with international rules. Four measures would be necessary to change this state of affairs. Two of them would operate at the international level only: (i) there should be an international judicial body (endowed with compulsory jurisdiction) charged with authoritatively establishing (a) whether in a specific instance a state has breached a rule imposing to amend national legislation so as to make it consistent with international rules and (b) in the affirmative, enjoining the state to modify its legislation forthwith. The power to set in motion proceedings before such a court should be granted not only to all parties to a multilateral treaty and any international body monitoring the implementation of the treaty, but also to any natural or legal person showing a direct legal interest in the implementation of the international rule; (ii) a monitoring body should be entrusted with ascertaining whether the state has followed up that ruling. Two other sets of devices would instead function at the domestic level; they would be more incisive: (i) states should pass a constitutional provision stating that any time a national piece of legislation is in conflict with an international norm, such legislation is automatically repealed or, at a minimum, courts, administrative bodies, and individuals are bound to disregard it, and (ii) whenever there is a doubt or a dispute on whether national legislation conforms to international rules, national courts as well as natural and legal persons should be empowered to bring the case before an international court, tasked to pass on the matter with legally binding effect. However, the current condition of the world community renders (p.188) the implementation of the suggested reforms very difficult. Based on the experience of some regional courts, it is suggested that any progress may only occur within regional groupings, not at the universal level.

1. Introductory remarks: international rules prevail over contrary national laws

One of the various thorny problems that international law has to face is the relative impermeability of national systems to international legal imperatives: many states fail to translate international rules into national legislative commands so as to make those rules operational. Too often states do not pass legislation in order to comply with international rules or, when under their constitution such legislation is not needed (because international rules are automatically incorporated into domestic law), they simply ignore them. How does the international legal system cope with this problem?

It is a truism that when an international rule expressly or implicitly imposes upon a state the obligation to change a law in order to comply with that rule, the state is duty-bound to put in place all the international procedures necessary to repeal or amend the law. The Permanent Court of International Justice (PCIJ) put it pithily in its Advisory Opinion of 21 February 1925 on Exchange of Greek and Turkish Populations: it spoke of

a principle which is self-evident, according to which a state which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken. (Series B, no. 10, at 20)

A closely connected principle is that a state may not invoke the status of its legislation to justify its failure to fulfil an international obligation: Article 27 of the 1969 Vienna Convention on the Law of Treaties codifies this principle (‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46’ [on the possible invalidity of a treaty for the breach of the internal law of a contracting state regarding competence to conclude treaties]).

However, too often the aforementioned ‘self-evident principle’ is not abided by and international rules remain a dead letter. I propose to discuss the principle first from a historical perspective and then from a theoretical viewpoint. I will then try to suggest a possible way forward.

2. The primacy of international rules in historical and theoretical perspective

If the above ‘principle’ is looked at in its historical context, it appears that in the old international community, where the so-called Westphalian model prevailed, generally speaking states were not interested in the national legislation of other states (p.189) per se, unless such legislation led to a violation of a foreign state's right. A state had no authority to call upon another state to bring its legislation into line with international rules, unless a private interest of the former state was at stake. And when national laws in some way breached the right of another state, this state was only interested in the cessation of the breach, which did not necessarily lead to the repeal or modification of the whole piece of relevant legislation. If the breach was not terminated the aggrieved state could set in motion the law of state responsibility and thus either request reparation or, if need be, take sanctions—an occurrence that realistically could not materialize if the victim country was a small or middle state and the delinquent party was a major political and military power.

Luckily, things have changed in the new international community, under the so-called UN Charter model. Now, international multilateral conventions often impose on contracting states not only the obligation to change their legislation so as to make it consistent with the provisions of the convention; they also set up a mechanism to supervise compliance by contracting states with their international obligations, including that of modifying domestic legislation. If a state party does not implement its obligations, the supervisory mechanism is empowered to issue exhortations, recommendations, moral and political censure, and so on. Sometimes the collective body also has the right to demand of state parties the repeal or change of their national legislation in order for it to be consonant with the convention's provisions.

As noted in another chapter in this volume (Chapter 24), the need for such supervisory mechanisms has been motivated by the fact that modern treaties normally do not necessarily protect reciprocal interests; they often safeguard community concerns (frequently in addition to reciprocal interests): this applies in particular to conventions on human rights, on the environment, and similar matters. Since normally any contracting party has no direct and immediate interest of its own in the implementation of the convention (eg it has no direct interest in a contracting state refraining from ill-treating its nationals), a collective body is established to take care of the matter, in the interest of the whole collectivity of contracting states.

One should not, however, be unmindful of the major limit of such ‘collective’ action: it is unable effectively to lead a recalcitrant state to change its laws.

The legal principle embodied in the dictum of the PCIJ cited above has also been the occasion for an interesting debate on the relationship between international law and domestic legal systems: we can thus move to a brief theoretical discussion of this thorny matter. For the supporters of the ‘dualist’ or ‘pluralist’1 theory, that dictum proves beyond any doubt that international law makes up a legal system that is totally separate and distinct from domestic legal orders, which (p.190) are autonomous from international law, have their own subjects and sources of law, and can abide by international imperatives only if domestic authorities decide so. It follows, among other things, that international law cannot as such quash or invalidate a national piece of legislation contrary to international rules. If such inconsistency arises, international law can only enjoin a state to change its legislation, and it will be for such state to decide whether or not to comply, and, in the affirmative, through which domestic mechanisms.

The legal principle under discussion has been viewed in a different way by a leading international lawyer, Alfred Verdross. Criticizing the approach of his mentor, Hans Kelsen, the author of the ‘monistic’ conception, Verdross rightly emphasized as crucial an issue already dealt with by Kelsen, noting that admittedly the international legal system is unable to render null and void national legislative or administrative acts contrary to international rules. Contrasting his ‘moderate monism’ to the ‘extreme legal monism’ advocated by Kelsen, Verdross emphasized that international law acknowledges the relative autonomy of national legal systems. For Verdross the fact remains, however, that international treaties (and customary rules) are ‘superior’ to national legal systems, and domestic procedures are subjected to international law: compliance by a contracting state with a treaty (or a customary rule) is subject to scrutiny by the aggrieved state and indeed if a dispute is brought before an international court, the relevant international rule will always be found to override the contrary domestic legislation. It follows, according to that prominent international lawyer, that national law cannot but produce its effects within the framework established by international law.2

I will not engage in a theoretical discussion of the conflict between the two theories (the ‘dualist’ or ‘pluralist’, on the one hand, and the ‘moderate monist’, on the other). It may suffice here to point out that the former approach in the end propounds a picture of legal systems juxtaposed to one another. Instead, the latter theory better expresses the notion that international rules are superimposed upon and should prevail over national domestic orders. In short, it is more internationally oriented. However, its drawback is that it remains at the level of aspiration. In fact, it turns a blind eye to the reality of sovereign states’ recalcitrance to obey international commands in their daily dealings and accordingly change their laws to meet international requirements. The international legal system is still powerless in its endeavour to penetrate national legal systems and make its commands operative there. If it is a bilateral treaty protecting interests of mutual concern to two states that imposes on the parties the requirement to change their national legislation, each party will do so under the impetus of reciprocity. If the treaty is multilateral but protects reciprocal interests, or such interests are solely taken into account at the level of customary law, only the state that is injured by the lack of (p.191) change in the legislation of another state will set in motion mechanisms, if any, for inducing compliance with the obligation. If the multilateral treaty or the customary rule protects community concerns, in practice no state will demand that another contracting state change its legislation. True, as noted above, whenever there exists a collective body charged with monitoring respect for the treaty, it will be for such mechanism to prompt the failing state to live up to its obligations. This, however, only applies to some multilateral treaties and in addition, as mentioned above, monitoring mechanisms have no enforcement power. Even when a private interest of a state is infringed by foreign internationally unlawful legislation, few aggrieved states—particularly if they are minor countries facing major powers—will set in motion an enforcement mechanism.

In short, in actual practice international law still proves unable effectively to bring about the necessary changes of domestic legislation at odds with international rules.

3. What would be needed to improve upon the current state of affairs

Four things would be necessary to change this state of affairs. Two sets of measures would operate at the international level only and would prove—at least in some respects—to be less audacious. Two other sets of devices would instead be more incisive and function at the domestic level.

Let us first consider the international mechanisms. For one thing, there should be an international judicial body (endowed with compulsory jurisdiction) charged with authoritatively establishing (i) whether in a specific instance a state has breached a rule expressly or implicitly requiring to amend national legislation so as to make it consistent with international rules and (ii) in the affirmative, enjoining the state to modify its legislation forthwith. The power to set in motion proceedings before such a court should be granted not only to all parties to a multilateral treaty and any international body monitoring the implementation of the treaty, but also to any natural or legal person showing a direct legal interest in the implementation of the international rule. This broadening of the range of subjects entitled to institute proceedings would a fortiori be required when the implementation of a customary rule were at stake, and it might therefore happen that no other state has a private interest in the implementation of that rule.

Secondly, a monitoring body should be entrusted with ascertaining whether the state has followed up that ruling and, if it has not, exposing this failure and restating the obligation to revise national legislation.

The limit of these two measures lies in the fact that any change in national laws still remains contingent upon the will of the failing state. If such a state persists in its failure to adjust its national legal system to international rules, no action can be taken to prompt it to do so against its will. A more effective action can be taken at the national level, provided of course that it is undertaken, if not by all states of the (p.192) world, at least by the overwhelming majority of them. Two main measures could be envisaged.

First, it would be necessary for states to pass a constitutional provision stating that whenever a national piece of legislation is in conflict with an international norm (be it customary or conventional), such legislation is automatically repealed or, at a minimum, courts, administrative bodies and individuals are bound to disregard it.

This action could be accompanied by another measure, to take account of the difficulty of establishing the scope and purport of international customary rules as well as the fact that some treaty provisions lend themselves to conflicting interpretations, and, in addition, national laws themselves may be susceptible to more than one construction. Whenever there is a doubt or a dispute on whether national legislation conforms to international rules, national courts as well as natural and legal persons should be empowered to bring the case before an international court, tasked to pass on the matter with legally binding effect. In these cases, if the matter has been referred to the international institution by a national court, proceedings before such court would be suspended until the international ruling is made.

In sum, a change in international legal mechanisms would not suffice. What would ideally be needed is a combination of international and national measures designed to bring about the implementation of the tenets of moderate monism, that is, true superiority of international law over national legal systems.

Clearly, putting into effect the measures just mentioned could only be predicated on a dramatic change in the domestic and international ethos—a process which is likely to occur only over many decades.

4. Are there institutions that have already taken the right path towards alignment of domestic law with international rules?

While, as I have just noted, the realization of the necessary international and national institutions to ensure full international superiority is a long shot, it is worth establishing whether some steps have already been taken in the right direction and, if so, what could be done to make them more effective.

Novel measures have indeed already been carried out, but only within a regional context. It may suffice to mention, for Europe, the Court of Justice of the European Union and the European Court of Human Rights, as well as for Latin America, the Inter-American Court of Human Rights. In addition, these are all international mechanisms that have been instituted. At the national level very few states have adopted constitutional provisions automatically incorporating international rules into their legal systems and in addition granting such incorporated rules higher standing than their domestic legislation.3 (p.193) I propose briefly to take a critical look at some aspects of these institutions.

(A) The Court of Justice of the European Union

It is common knowledge that this Court, which operates within the 27-member European Union and only with regard to the relatively limited matters subjected to its jurisdiction, has, among other things, the power to find that a national law or some of its provisions are contrary to EC rules. In this case the state is required to revise or amend the law.4 By virtue of the ratification of the relevant EU treaties, (p.194) each member state has attached automatic binding effects to the Court's judgments within the legal system of each of such states, thereby ensuring that such rulings are duly complied with. Nevertheless, if a state fails to abide by the Court's judgments, the Court may act again, pursuant to Article 228 and, if it finds that the member state concerned has not complied with its judgment ‘may impose a lump sum or penalty payment on it’. The practice of the Court has proved that the system works well and is effective in bringing about the necessary changes in national legislation.

(B) The European Court of Human Rights

At first sight the 1950 European Convention on Human Rights meets most of the conditions I mentioned above for a full adjustment of national law to international rules in a broad field: human rights. The Convention is a typical treaty imposing community-oriented erga omnes obligations: each of the 47 contracting states undertakes to respect human rights in territories subject to its jurisdiction, to the benefit not only of its nationals but also of all individuals, whatever their nationality, falling under its jurisdiction. This obligation entails that contracting states must not only treat individuals consistently with the Convention but also change the national legal system in such a way as to live up to all the Convention's provisions. The European Court of Human Rights, which can be triggered by states or by the victim of an alleged breach of the Convention, ensures that the state complained of remedies the breach. Under Article 46(1) ‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’. Under Article 46(2) ‘The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution’. Thus, another body, the Committee of Ministers, through a specialized sub-body, monitors respect for the Court's rulings, can call upon the failing state to heed those rulings, and also has some forms of ‘sanctions’ at its disposal. One would think that, pursuant to these provisions, each contracting state must not only change its legislation whenever it is inconsistent with the provisions, but also, if it fails to do so, the Court can enjoin it to make the necessary changes subject to the supervision of the Committee of Ministers.

Alas, in actual fact even the Convention and its supervisory bodies have not succeeded in breaking new ground and setting a seminal precedent. Indeed, Article 41 of the Convention stipulates that

If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.5

(p.195)

This provision leaves a huge loophole in the whole implementation system of the Convention. The provision lends itself to two different interpretations. One could first construe it to the effect that the Court, once it has made a finding of a breach of the Convention (eg on account of inhuman or degrading treatment of detainees, or of unlawful deprivation of the life of individuals by enforcement agents, or of a denial of fair trial, or for implementing national legal provisions that run counter to the Convention), may enjoin the state concerned to take all measures necessary to repair the damage (repeal of the inconsistent law, arrest and prosecution of the responsible state officials, adoption of judicial measures aimed at making good the denial of justice, and so on). Whenever the domestic measures necessary to remedy the breach of the Convention require a change in legislation, the Court may request such change, pending which it can order the state to pay to the victim ‘just satisfaction’.

Under a different, less liberal and more sovereignty-oriented construction, once it has satisfied itself that the Convention has been contravened, the Court can make such a finding and, without going into the specific national (legislative, administrative, or judicial) measures to be taken to make reparation, can grant ‘just satisfaction’ to the victim.

Regretfully, from the outset the Court has chosen the second interpretation and is continuing to do so.6 This unfortunate state of affairs is somewhat attenuated in (p.196) two respects. First, in a few instances the Court has indeed indicated the specific measures to be taken by the respondent state to remedy the breach.7 Secondly, the Committee of Ministers, through a subsidiary body,8 has somehow tried to substitute for the lack of specificity of the Court's determinations, and called upon states to comply with judgments.9

Faced with this condition, some member states that uphold the rule of law at the international level as well, after being found in breach of the Convention have amended or repealed the law impugned.10 Other states, in spite of the Committee of Ministers’ supervision, have instead ignored the findings of the Court, confining themselves to paying to the victim the just satisfaction imposed by the Court. Yet other states have found seemingly more astute ways out: for instance Italy, faced with hundreds of the Court's rulings that its civil and criminal trials were too lengthy contrary to Article 6 of the Convention, instead of changing the relevant legislation, has passed a law which entrusts Italian courts of appeal with the task of paying compensation for the excessive length of proceedings. Thus, instead of complying with the Court's rulings, it simply avoids being shamed at the international level. (p.197) Admittedly the entry into force of Protocol 14 and the strengthening of the supervisory powers of the Committee of Ministers are a step in the right direction.11 However, it would be necessary for the Court to place a strict interpretation on Article 41 and always indicate the measures to be taken (albeit when necessary in non-specific terms), while in addition affording ‘just satisfaction’, if need be. In other words, the Court should, after finding that a breach of the Convention has occurred on account of an inconsistent national law, enjoin the responsible state to change that law. This bolder stand, not barred by the text of the European Convention, is in my opinion imposed by a teleological interpretation.12 (p.198)

(C) The Inter-American Court of Human Rights

This Court is much better off than its European ‘sister’, although it lacks a supervisory body such as the Council of Europe Committee of Ministers.13

First of all, the American Convention on Human Rights includes a provision that unequivocally demands that member states adjust their laws to the Convention.14 Furthermore, in many cases the Court has explicitly enjoined a defendant state to change its legislation to bring it into line with the Convention;15 in addition, where the necessary legislative changes have not been made, the Court has again pronounced on the matter, requesting the state to comply with the previous judgment.16 (p.199)

5. What could be done to move forward?

As I pointed out above, given the present structure of the world community, international law by itself does not possess the force to amend or repeal internationally unlawful domestic legislative acts. At present, states would baulk at any such authority being conferred on the corpus of international rules, lest they should be deprived of some of their sovereign prerogatives, chiefly that of disregarding international legal prescriptions whenever they are in stark conflict with national short-term interests. To achieve the suggested result, it would also be necessary for domestic legal orders to change dramatically and accord international rules immediate and binding effect within each national legal system.

This, however, as noted above at Section 3, may only occur in future times. What, then, can be suggested in the shorter term?

Based on our current experience, as indicated in the above section, I would suggest that any progress may only occur within regional groupings, not at the universal level. Within such groupings one should endeavour to rely primarily on international mechanisms. It would fall to international judicial institutions to impose on member states the requirement to amend specific domestic laws or legal provisions conflicting with international rules and also subsequently to verify whether such a judicial determination has been brought into effect. Also, those states should try to introduce—albeit gradually—into their own legal systems a mechanism whereby any international ruling determining the inconsistency of a law with international rules would render that law null and void or, at a minimum, would oblige the competent national bodies to forthwith take all measures necessary to bring about a change in domestic legislation.

Admittedly, it would not be an epoch-making change. It would nevertheless improve the chances of international rules effectively guiding the conduct of states, at least within regional systems.

Notes:

(1) The term ‘dualist’ was first suggested by A. Verdross in 1914 (‘Zur Konstruktion des Völkerrechts’, 8 Zeitschrift für Völkerrecht (1914), 334–5, 337, 359). See also A. Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen: J.C.B. Mohr (Paul Siebeck), 1923), at VI. In 1927 Verdross, however, regretted having proposed that expression, and pointed out that it would have been more appropriate to speak of a ‘pluralist construction of law’ (‘Le fondement du droit international’, 16 HR (1927) at 289). As for the supporters of the pluralist view, it may suffice to refer to H. Triepel, ‘Les rapports entre le droit interne et le droit international’, 1 HR (1923) at 79–195; D. Anzilotti, Cours de droit international, vol. 1 (Paris: Sirey, 1929), 49–65.

(2) A. Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, n 1, 126–35, 159–71; ‘Le fondement du droit international’, n 1, 287–96; ‘Coïncidences: deux théories du droit des gens apparues à l’époque de la création de l'Académie de droit international’, in Livre jubilaire de l'Académie de droit international1923–1973 (Leiden: Sijthoff, 1973), at 86–9.

(3) Some states (eg Germany, Italy) automatically incorporate international customary rules solely but confer a higher status than legislative acts on them. Other states (eg Spain, the Netherlands) provide for the automatic incorporation of treaties duly ratified and approved by Parliament (whenever this is needed), and also grant them supra-legislative value. Very few states have constitutions referring both to customary and treaty law: see, eg, Greece and Russia.

Article 28(1) of the 1975 Greek Constitution provides that

The generally recognised rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.

Article 15(1) of the 1993 Russian Constitution stipulates that

The commonly recognized principles and norms of the international law and the international treaties of the Russian Federation shall be a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty shall apply.

(4) In many rulings the ECJ has asserted the primacy of EU law over national law in relation to matters covered by the Treaties. Eg see Costa v ENEL, judgment of 15 July 1964, Legal Grounds. The Court said:

By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set out in Article 5 (2) and giving rise to the discrimination prohibited by Article 7.

See also Amministrazione delle Finanze dello Stato v Simmenthal SPA, judgment of 9 March 1978, paras 13–24 (at para. 21 the Court said:

It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule’); R v Secretary of State for Transport, ex p Factortame Ltd and others, judgment of 19 June 1990, paras 18–22 (at para. 21 the Court stated that ‘the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule’); Peterbroeck, Van Campenhout & Cie SCS v Belgian State, judgment of 14 December 1995, paras 12–22.

(5) How the provision was born is worth a brief reminder. When the powers of the Court were discussed in the Council of Europe Consultative Assembly, it was held that the Court should be endowed with extensive powers, including that of requesting the amendment of laws (eg the French MP Teitgen said: ‘[The Court] could set aside governmental decisions, and legislative, administrative or legal measures which were clearly contrary to the principle of the guaranteed rights’, in Collected Edition of the Travaux Préparatoires, vol. 1 (The Hague: Martinus Nijhoff, 1975), at 48. The British MP Foster held that ‘The Court can prescribe measures of reparation, or it may require that the State concerned shall take penal or administrative action in regard to the persons responsible for the infringement, or it may demand the repeal, cancellation or amendment of the Act’, ibid, at 94. These suggestions were substantially upheld in Art. 23 of the Report submitted by Mr Teitgen on 5 September 1949 (ibid, at 212). There was no objection in the first session of the Consultative Assembly (see Collected Edition of the Travaux Préparatoires, vol. II, at 126 and 218). However, in the Committee of Experts that was called upon to review the initial draft, in the sitting of 7 February 1950 the Italian expert, Mr Perassi, proposed what in substance became (after some changes) the present Art. 41 (see Travaux Préparatoires of the European Convention on Human Rights, vol. 3, at 228–30). The proposed Art. G stipulated as follows:

If the Court finds that a decision or a measure taken by a legal authority, or any other authority of one of the Contracting parties, is completely or partially opposed to the obligations arising from the present Convention, and if the constitutional law of the said party only allows the consequences of this decision or measure to be imperfectly repaired, the decision of the Court shall, if necessary, accord just satisfaction to the injured party. (emphasis added)

However, in the event the Drafting Sub-Committee adopted the text as Art. 28, but the expression ‘the constitutional law’ was replaced by ‘the internal law’ (see ibid at 232 and 246). In the second session of the Consultative Assembly the text was endorsed by the Italian MP Azara (Travaux Préparatoires of the European Convention on Human Rights, vol. 5, at 248), but was harshly attacked by the French MP Teitgen (ibid, at 300–92).

(6) As for cases where the Court found that a national law was in breach of the European Convention, see among others Marckx v Belgium (1979), para. 31; Airey v Ireland (1979), para. 26; X and Y v Netherlands (1985), para. 23; Castello Roberts v United Kingdom (1993), para. 53; A v United Kingdom (1998), para. 22; Goodwin v United Kingdom (2002), para. 18; MC v Bulgaria (2003), para. 153; Babylonova v Slovakia (2008), para. 51; I v Finland (2009), paras 47–8; Ku v Finland (2009), para. 46.

(7) Eg see Assanidze v Georgia, judgment of 8 April 2004, and Ilascu v Russia, judgment of 13 May 2005, where the Court ordered the release of applicants who were being arbitrarily detained. See also the so-called pilot judgments where the Court requested the adoption of wide-ranging measures: Broniowski v Poland, judgment of 19 June 2006 (Grand Chamber), and Huten-Czapask v Poland (judgment of 19 June 2006 (Grand Chamber)).

(8) In Saghinadze v Georgia (judgment of 27 May 2010), the Court, after finding various violations of the Convention, with regard to the breach of the right to property stated:

As it transpires from the formulation of that claim, the first applicant seeks, in principle, restitutio in integrum, which the Court finds reasonable. It must be reiterated in this connection that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court. The respondent State is expected to make all feasible reparation for the consequences of the violation in such a manner as to restore as far as possible the situation existing before the breach (see, amongst others, Apostol v. Georgia, no. 40765/02, § 71; FC Mretebi v. Georgia, no. 38736/04, § 61, 31 July 2007; and Assanidze v. Georgia, cited above, § 198).

This is the Department for the Execution of Judgments of the Court, belonging to the Council General of Human Rights and Legal Affairs.

(9) Eg see the excellent 3rd Annual Report of the Committee of Ministers Supervision of the execution of judgments of the European Court of Human Rights, April 2010. However, it must be stressed that in many instances states do not heed the appeals of the Committee of Ministers. Eg see the Committee's Interim Resolution CM/ResDH (2010) 83, of 3 June 2010, relating to the case Ben Khemais v Italy, where the Committee deplored that Italy had failed in many instances to abide by interim measures indicated by the Court and urged once again Italy to fulfil its obligations.

(10) Eg as a result of the Marckx v Belgium judgment of 1979, Belgium amended its family law in 1987 (see Committee of Ministers Resolution DH (88) no. 3 of 4 March 1988). Interestingly, the Netherlands had already changed its own law in 1982 to take account of that judgment against Belgium. Furthermore, in 1980 Ireland changed an Irish law on legal aid as a result of the Airey v Ireland judgment of 1979 (the law was further revised and meliorated in 1990). In 2003 and 2004 the United Kingdom amended its laws on corporal punishment of children as a result of the A v United Kingdom judgment of 1998.

(11) Article 46 of the Convention, as amended by Protocol 14, after providing in para. 1 that ‘The High Contracting parties undertake to abide by the final judgment of the Court in any case in which they are parties’, adds in paras 4 and 5 the following:

If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. (para. 4)

If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case. (para. 5)

In this way the Court may be requested by the Committee of Ministers to pronounce on non-compliance with one of its judgments. Although this is a welcome step, it remains to be seen whether the required majority of two-thirds is reached in the Committee, and in addition what ‘enforcement’ measures the Committee can take in case of non-compliance.

(12) Taking into account the very object and purpose of the Convention, one can note that the Convention aims at safeguarding the fundamental rights of individuals in the territory of the contracting states and wherever such states exercise their jurisdiction over them; to this end, an important supervisory body, the Court, has been tasked to guarantee that human rights are really and fully respected by those States. It therefore follows that whenever a state infringes upon one of the rights, it must subsequently make good the damage and also ensure again, to the maximum possible extent, respect for the rights violated. This cannot be done solely by obliging the state concerned to pay money to the victim of the violation. If this were the case, in future the material and moral authors of the violation might simply escape any responsibility, with the consequence that they would be likely to commit the same breach anew, knowing that in any case they would not incur any responsibility and therefore would escape punishment. To realize human rights it is instead necessary to prevent perpetrators of serious human rights violations from repeating the same or other breaches by making their conduct illegal and punishing them at the domestic level.

The interpretation in question is also consonant with the very notion of justice. Where an individual is deprived of a fundamental right on account of a national law, how can one think that monetary satisfaction is sufficient to remedy an intolerable attack on his rights? Perhaps in some cases a monetary response can contribute to placating the suffering of the victim. However, it will not restore the national and international ‘public order’ (ordre public) injured by the misconduct. The possible meeting of subjective exigencies will not be matched by the objective need to provide a congruous and proportionate response to a blatant deviation from universal values. The only way to restore ‘public order’ is to impose upon the state concerned the requirement to take action at the national level to ensure that similar acts will not be repeated.

(13) However, the Court has constantly declared, in orders by which the Court's President ruled on compliance by states with the Court's judgments, that ‘That monitoring compliance with its decisions is a power inherent in the judicial functions of the Court.’ In addition, Art. 69 of the Court's Rules of Procedures provides for a complex mechanism designed to ensure that states abide by the Court's judgments.

(14) This is Art. 2, pursuant to which

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

(15) In Barrios Altos v Peru (Merits), Series C, no. 75 (14 March 2001), the Court, after examing the amnesty laws at issue (paras 41–3), held that

Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible…(para. 44)

In Olmedo Bustos et al v Chile (‘The last temptation of Christ case’), Merits, Series C, no. 73 ((5 February 2001), only in Spanish), after mentioning Art. 2 of the Convention, the Court stated that both an international customary rule and the Convention imposed on states the requirement to change their domestic laws to give effect to international rules (para. 87). It went on to say that Chile was bound to change its laws on the preventive censorship of films to comply with Art. 13 of the Convention (paras 97–8).

In Paniagua Morales et al v Guatemala (Reparations), Series C, no. 76 ((25 May 2001), only in Spanish), after mentioning Art. 2, the Court said that Guatemala had to change its laws on personal freedoms to forestall further violations similar to those found by the Court (para. 203).

In Del Caracazo v Venezuela (Reparations), Series C, no. 95 (29 August 2002, only in Spanish), the Court held that Venezuela was duty-bound to avoid applying amnnesties or statutes of limitation or rely upon circumstances excluding criminal responsibility in instances of serious and gross violations of human rights (para. 119). It concluded that the Venezuelan authorities were therefore to introduce into national legislation all the changes necessary to live up to its obligations, as set out in the previous paragraphs (para. 120).

(16) See, eg, the Order of the Court of 28 November 2003 (relating to the Court's judgment on Olmedo Bustos et al v Chile, n 15) at paras 19 and 25, finding that on 10 July 2001, the National Congress had adopted the draft constitutional reform designed to establish the right to freedom of artistic creation and the elimination of cinematographic censorship. See also the Court's Order of 22 September 2005 (relating to the Court's judgment in Barrios Alto v Peru, n 15), at paras 8(f) and 15(a), finding that the respondent state had passed amendments of the Criminal Code to comply with the judgment. See also the Order of 21 November 2007 (relating to the judgment in Trujillo Oroza v Bolivia (Reparations), Series C, no. 92 (27 February 2002)), at para. 5, finding that in 2006 Bolivia had approved the law that classifies the crime of forced disappearance of people. See further the Order of 27 November 2007 (relating to the Court's judgment in Paniagua Morales et al v Guatemala (Case of the White Van), Reparations, of 25 May 2001), at paras 27–8. The Court pointed out that

The State submitted during the private hearing a copy of the Decree No 33–2006 whereby the State approved the ‘Prisons Act’…The information system should allow knowing the identity of the detainee by means of the photograph and the period of time that the detention of each of the persons entered to the center lasts…The Commission, despite the fact that it valued the adoption of said law, stated that the same refers only to the prisons system and interpreted that the Court's decision regarding this issue ‘does not make any specific reference to the persons detained in the prison system but to a register of detainees technically speaking, that is to say, to every person deprived of freedom in Guatemala.

At para. 31 the Court concluded that

as a result of the foregoing, the Court considers that the State has partially complied with the operative paragraph four of the Judgment on the reparations and that, as a consequence, the State must set up a register to include all people who are deprived of freedom.