A. Introduction
What happens when a European State breaches its international obligations and then ceases to exist? Does its obligation to repair the harm caused by the breach devolve to a new state that occupies part of the territory of an old state? When will a new European State be held accountable for violations that took place before the entry into force of a human rights treaty? This comment examines the European Court of Human Rights' (hereinafter ‘the Court’ or ‘the ECtHR’) encounter with the law of state succession, specifically succession to treaty obligations and succession to responsibility for the wrongful acts of a predecessor state. In Bijelic v Montenegro and Serbia Footnote 1 the Court held that Montenegro was to be automatically regarded as a party to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ‘the Convention’), as well as Protocol No 1 thereto, from the date of its declaration of independence from the State Union of Serbia and Montenegro (hereinafter ‘the State Union’), and that Montenegro alone could be held responsible for violations of these instruments occurring in the territory of the State Union that began before March 2004 (the date of ratification of the Convention and Protocol 1 by the State Union) but continuing through 2009. Bijelic is not the first time the Court has been called upon to decide a question of succession to treaty obligations or responsibility, but the judgment is noteworthy for the unique approach the Court adopted to deciding both of these issues. This comment will place the decision in the larger context of Court practice with respect to both of the implicated succession issues, identify the aspects the Trial Chamber's analysis that distinguish it from its predecessors and discuss the decision of the Court in light of general and emerging trends in international law. In the process, this comment will provide a uniquely thorough examination of ECtHR practice with respect to succession to responsibility and identify the trends, to the extent that such trends exist, that characterize the Court's approach to this area of law.
B. Background Information
Until 1992 Serbia, Montenegro, Bosnia-Herzegovina, Croatia, Slovenia, and Macedonia were constituent republics of the SFRY. When Bosnia-Herzegovina, Croatia, Slovenia, and Macedonia declared their independence and seceded from the SFRY, Serbia and Montenegro declared themselves the Federal Republic of Yugoslavia. In 2003 the FRY was reconstituted as a confederacy,Footnote 2 officially changing its name to the State Union of Serbia and Montenegro. On 3 June 2006 Montenegro formally brought an end to the existence of the State Union and adopted a Declaration of Independence.Footnote 3 Serbia followed suit and declared its independence two days later.
The State Union ratified the Convention on 26 December 2003 and the ratification took effect within the territories of Serbia and Montenegro on 3 January 2004.Footnote 4 After Montenegro's declaration of independence, the Committee of Ministers of the Council of Europe decided, in a resolution dated 9 May 2007, that the Republic of Montenegro was to be regarded as a party to the Convention and related Protocols with effect from 6 June 2006.Footnote 5
C. Proceedings before the ECtHR
The application was brought by three Serbian nationals, Ms Nadezda Bijelić (‘the first applicant’), Ms Svetlana Bijelić (‘the second applicant’) and Ms Ljiljana Bijelić (‘the third applicant’). In 1989 the first applicant and her husband divorced. She was granted custody of the two other applicants. In 1994 the first applicant obtained a decision from the Court of First Instance declaring her the sole holder of the tenancy on the family's flat in Podgorica, Montenegro. Her former husband (‘the respondent’) was ordered to vacate the flat within 15 days from the date when the decision became final. On 27 April 1994 the decision of the Court of First Instance was upheld by the High Court and became final, but the respondent refused to comply with the order to vacate.Footnote 6
On 31 May 1994 the first applicant was issued a formal enforcement order by the Court of First Instance. Between July 1994 and February 2006 bailiffs and police attempted over a dozen times to evict the respondent. In light of repeated threats made by the first applicant's ex-husband to blow up the building these attempts were unsuccessful. In the meantime the first applicant purchased and gifted the property to the second and third applicants.Footnote 7
On 3 June 2006 Montenegro declared its independence from the State Union of Serbia and Montenegro. Subsequent to the dissolution of the State Union the enforcement judge repeatedly contacted Montenegrin authorities seeking assistance in securing respondents eviction.Footnote 8 As of April 2009 the flat had not been vacated and no additional eviction attempts had been made.
The three applicants lodged complaints against the State Union with the ECtHR on 24 March 2005 and 31 January 2006 respectively, arguing that the non-enforcement of the final decision issued by the Court of First Instance on 26 January 1994, as well as their consequent inability to live in the flat at issue, was a violation of articles 6(1) and 8 of the Convention, and a violation of article 1 of Protocol No 1.Footnote 9 Subsequent to Montenegro's declaration of independence and pursuant to the applicants' stated wish to proceed against both Serbia and Montenegro, on 10 April 2008 the President of the Second Section re-communicated the application to both Governments, putting to them the question of ‘[w]hich State, Montenegro or Serbia, could be held responsible for the impugned inaction of the authorities between 2 March 2004 and 5 June 2006?’Footnote 10 The President also decided that the admissibility and the merits of the application would be considered at the same time.Footnote 11
In its decision, the Court unanimously held that the claims of the second and third applicant were admissible with respect to Montenegro, declared that there had been a violation of article 1 of Protocol No. 1, and by 6 votes to 1 ordered the government of Montenegro to enforce the 1994 Court of First Instance judgment order within three months of the decision becoming final.Footnote 12 The Court also ordered the Government of Montenegro to pay the second and third applicants €4,500 (plus chargeable tax) in non-pecuniary damage and €700 (plus tax) for costs and expenses. In December 2009 the Grand Chamber rejected a request for referral and confirmed the Second Section's judgment as final.Footnote 13
1. Admissibility and responsibility for breaches of the applicants' Convention rights
In response to the President's April 2008 request, all three applicants affirmed that they wished to hold both Serbia and Montenegro responsible for the non-enforcement of the 1994 judgment. The applicants sought damages from the former as the sole successor state to the State Union,Footnote 14 which was accused of failing to meet its obligation to constitute certain state authorities that would have allowed for the protection of human rights to function ‘as prescribed by laws existing at that time’ (a deficiency for which Serbia should bear ‘joint responsibility’ along with Montenegro)Footnote 15 and the ‘lack of legal actions’ taken to enforce the Court of First Instance decision on the part of competent State Union authorities.Footnote 16 The applicants also sought damages from the latter for its failure to enforce the relevant judgment and its ‘[direct liability] for [the] execution of court decisions on its territory.’Footnote 17
The Serbian Government argued that it could not be held responsible for any violation of the human rights of the applicants on the grounds that (1) each Member State of the State Union had a high degree of autonomy with respect to the protection human rights;Footnote 18 (2) the enforcement proceedings were at all times within the jurisdiction of Montenegrin authorities, and the exercise of jurisdiction over applicants is a precondition for responsibility under the Convention;Footnote 19 (3) the State Union ceased to be in operation de facto even before June 2006;Footnote 20 (4) Montenegro is as much a successor state to the State Union as the Republic of Serbia;Footnote 21 (5) the applicants had failed to exhaust domestic remedies,Footnote 22 and; (6) it ‘cannot be imagined in what way the Republic of Serbia would be obliged to implement individual and general measures … in the territory of another state […].’Footnote 23 The Montenegrin government supported ‘the remarks presented to the Court … relating to the issue of legitimacy of legal successor in the enforcement of the judgment and the issue if domestic legal remedies have been exhausted’.Footnote 24
The Court began by considering the compatibility of the complaints with the ratione personae requirements of the Convention. First, the Court considered the applicability of the Convention to Montenegro. It noted that its practice has been to regard the operative date of the Convention in cases of continuing violations following a state succession event as being the date the Convention entered into force with respect to a given territory, as well as ‘the practical requirements of Article 46 of the Convention [concerning the Binding Force and Execution of Judgments]’.Footnote 25 Thus persuaded, the Court declared that the Convention and Protocol No. 1 thereto had remained continuously in force with respect to Montenegro since 3 March 2004.Footnote 26
Finally, expressing the opinion that ‘the impugned proceedings have been solely within the competence of the Montenegrin authorities’, the Court determined that only the complaints against Montenegro were compatible ratione personae with the Convention and Protocol 1, and thus dismissed the claims of all three applicants against Serbia.Footnote 27
2. Alleged violation of article 1 of Protocol No 1 (Protection of Property)
The Court of its own motion examined the compatibility of the first, second and third applicants' complaints ratione personae. The Chamber determined that the first applicant's complaint was incompatible with the ratione personae prerequisites of article 1 of Protocol No 1 since she had transferred ownership of the flat in question to the second and third applicants in 1995.Footnote 28 The Court further noted that although the second and third applicants could not be said to have exhausted all domestic remedies, a requirement imposed on applicants by article 35 (1) of the Convention, in light of the length of time enforcement proceedings had been pending it would be ‘disproportionate’ to require the second and third applicants to lodge an appeal with the Constitutional Court of Montenegro.Footnote 29
Turning to the merits of the compliant, the Court reaffirmed the positive obligations of Contracting Parties to ‘make use of all available legal means at its disposal in order to enforce a final court decision … as well as to make sure that all relevant domestic procedures are duly complied with.’Footnote 30 Applying this standard to the facts of Bijelic the Court declared that the Montenegrin authorities had failed to fulfil their positive obligations to enforce the judgment of 31 May 1994.Footnote 31 In addition to noting that ‘the police themselves [had] conceded that they were unable to fulfil their duties under the law’ the Court observed that Protocol 1 had entered into force for Montenegro in March 2004 and that the impugned non-enforcement had been within the Court's competence ratione temporis for a period of almost five years, ‘another ten years have already elapsed before that date.’Footnote 32
3. Alleged violations of article 6(1) (Right to a fair trial) and article 8 (Right to respect for public and family life)
The Court dismissed the remaining complaints of all three applicants. With respect to article 6 (1) the ECtHR dismissed the complaints of the first applicant as incompatible ratione personae with the Convention and determined that, although the complaints of the second and third applicants were admissible, in light of the foregoing findings in relation to article 1 Protocol No 1 it was not necessary to examine their assertion that there had been an additional violation of article 6 (1).Footnote 33 The article 8 complaints of all three applicants were dismissed as incompatible with the Convention's ratione materiae requirements, since all three applicants had moved to Belgrade and evinced an intent no longer to live in the flat in question.Footnote 34
D. The Bijelic decision and ECtHR practice
Based on the brevity of the Court's opinion one might be misled into thinking that Bijelic was a rather unimportant case. However, in its decision Court actually pronounced on two very complicated and controversial areas of international law; succession to a human rights treaty (the Convention) and succession to the consequences of responsibility for the commission of an act that violated that treaty.Footnote 35 In light of the dearth of State and institutional practice that exists with respect to these issues, it is probable that Bijelic will, in future, come to be regarded as an important decision as succession events continue to occur and the global network of human rights treaties continues to grow in coverage and complexity.
In this Comment I will not attempt to provide a general analysis of the state of the law with respect to either of these aspects of State succession. I will however, provide a general overview of the state of the law with respect to each aspect of succession before identifying the qualities of the Bijelic decision that distinguish it from its predecessors at the ECtHR. With respect to the issue of succession to responsibility, this process will necessitate a thorough and unprecedented examination of ECtHR case-law covering this issue, the first examination of its kind to be undertaken, since ECtHR practice in this area has thus far been neglected by the scholarly community. I will also identify the strengths and weaknesses of the Court's approach to the issue of succession to responsibility, and conclude by situating the case in the context of precedents derived from general international law and reflecting on the complementary relationship between human rights law and general international law.Footnote 36
1. Succession to the Convention
One of the questions the Court faced in Bijelic was the effect of Montenegro's separation from the State Union on its status as a signatory to the Convention. Under traditional international law a successor State may decline to become a party to treaties that were binding on the predecessor State, with the exception of those treaties related to territorial regimes. The 1978 Vienna Convention on Succession of States in Respect of Treaties challenged this ‘clean slate’ rule and confined its application to ‘newly independent states’, defined as ‘a successor State the territory of which immediately before the succession of States was a dependent territory for the international relations of which the predecessor was responsible.’Footnote 37 Most States, however, continue to favour the traditional ‘clean slate’ approachFootnote 38 and many scholars reject the 1978 Convention as an embodiment of a customary norm, viewing it instead as a progressive document that may or may not be of contemporary relevance.Footnote 39 In unsurprising contrast, international human rights supervisory mechanisms, including the Human Rights Committee and the European Court of Human Rights, have adopted the view that human rights treaties are exempt from the prevailing rule providing for the non-continuity of obligations, and that the protections afforded by human rights treaties devolve with territory and are unaffected by changes in a State's identity or territory.Footnote 40 According to this view, which is also supported in doctrine,Footnote 41 once a predecessor State has ratified a human rights treaty it applies to any successor States encompassing the territory of the predecessor automatically and without interruption from the date of independence.
Bijelic is the first decision of the ECtHR to confirm that Montenegro was bound as a signatory to the Convention and Protocol No 1 by virtue of its status as a former constituent the State Union, which was itself bound by those instruments from 2004 onwards.Footnote 42 In and of itself this determination is unremarkable. Though the Court has only rarely been called upon to rule on the continued applicability of the Convention after a succession event has taken place, when making the determination it has consistently held that Convention obligations apply to a successor State from the time a predecessor State encompassing the territory of a successor State ratified the Convention.Footnote 43 For example, in a series of cases following the 1993 break-up of Czechoslovakia, the Court would deploy a ‘standard formula’—‘[t]he period to be taken into consideration began on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, to which Slovakia [or the Czech Republic] is one of the successor States, of the right of individual petition took effect’Footnote 44—whenever it needed to apply the Convention to actions that would otherwise have been attributable to the predecessor State of Czechoslovakia. In the same vein but more recently the Court has repeatedly stated that the Republic of Serbia has ‘remained a party to a number of Council of Europe conventions signed and ratified by the former State Union of Serbia and Montenegro, including the Convention for the Protection of Human Rights and Fundamental Freedoms’Footnote 45 whenever it needs to consider actions attributable to the State Union.
What distinguishes Bijelic from these previous decisions was the Court's willingness to incorporate an international standard of automatic succession to human rights instruments into its decision. In Paragraph 58 of its decision the Court explained that the Human Rights Committee, in the context of obligations arising from the ICCPR, considered that the fundamental rights protected by international treaties ‘belong to the people living in the territory of the State Party’, and noted in particular the HRC's statement that ‘once the people are accorded the protection of the rights … such protection devolves with territory.’Footnote 46 While there is some evidence that Council of Europe has adopted this approach,Footnote 47 in no other case has the Court expressly confirmed the automatic ipso jure nature of succession to the Convention on the basis of its status as a human rights treaty and ‘special status’ under international law.
It is important to point out that this determination was far from inevitable. The Court could have relied on the May 2007 Committee of Ministers decision (which explicitly noted Montenegro's intention to be bound retroactively to the Convention from the date of its independence) to invite the Republic of Montenegro to become a member of the Council of Europe,Footnote 48 as it has done in the past when considering applications lodged against Serbia and the successor States to Czechoslovakia, to justify holding Montenegro accountable for Convention violations subsequent to June 2006, an approach that would have left its decision on the merits completely unaffected. But by taking the leap and incorporating the HRC declaration into its decision the Court has effectively ended the debate over the ipso jure nature of succession to the Convention,Footnote 49 affirmed its forward-looking approach to closing potential gaps in the enforcement of Convention rights whenever possible by closing one of the doors through which a future European successor States might have sought to avoid liability for Convention violations,Footnote 50 and pre-emptively disavowed the ‘confirmative’ and non-automatic approach to succession that the May 2007 Council of Europe decision to invite Montenegro to become a member might otherwise have implied.Footnote 51 The Court has also boldly advanced the principle of automatic succession to human rights treaties within the framework of international law more generally, since the issue is one that has been deliberately sidestepped by the International Court of Justice,Footnote 52 ignored by the International Law Commission, and advanced haphazardly and spiritlessly, if at all, by States. In light of this state of affairs, Bijelic will no doubt come to be viewed as one of many high water marks for the development of human rights law, much as Human Rights Committee Comment No 26 has itself come to be regarded.Footnote 53
2. Succession to responsibility
By establishing that the Convention applied to Montenegro retroactively from the date of its declaration of independence, the Court merely confirmed that Montenegro could be held accountable for violations of the Convention arising after June 2006. Because Convention obligations had been breached before that time though, the Court also faced the question of which State, Serbia or Montenegro, bore the burden of making reparations to the Applicants for violations of the Convention preceding Montenegro's secession from the Union. This is a profound question that touches upon a controversial area of law with even fewer settled rules than those associated with succession to treaties.Footnote 54
Traditionally, the consequences and obligations that arise as the result of the commission of a wrongful act of a State have been regarded as ‘too personal’ to transfer to a successor State.Footnote 55 An examination of contemporary practice however reveals that a variety of legal principles and policy justificationsFootnote 56 have been relied on in international, regional, bilateral and municipal fora to justify a more nuanced approach that results in a transfer of the obligation to repair that arises from a breach of responsibility between predecessor and successor States.Footnote 57 The most recent scholarship to take up this question concludes that the type of succession event at issue matters a great deal in an individual Court's decision whether or not to transfer the consequences of a breach of an obligation.Footnote 58 To grossly oversimplify a very complex area of international law, as a general practice judicial authorities are less likely to transfer responsibility to a new successor State in instances where ‘the predecessor state continues to exist as a result of the events affecting its territorial integrity’,Footnote 59 including in instances of cession and secession, whereas when one State is incorporated, dissolved or unified the emerging trend is to transfer an obligation to repair to the (or one of the) successor State(s).Footnote 60
Montenegro's separation from the State Union constituted a secession—the creation of a new State arising from the breakup of a predecessor State—with Serbia regarded as the ‘continuator’ State that retained the legal identity of the State Union and Montenegro.Footnote 61 While space constraints prohibit further reflection on the interplay between notions of successor and continuator States, State identity and State responsibility, and the values of legal certainty and equity, it will be helpful for the reader to consider these issues as we move on to consider the practice of the ECtHR generally and the Bijelic decision specifically.
a) Did the Court transfer responsibility to the Republic of Montenegro?
There is no question that Montenegro was held accountable for its wrongful conduct committed after the 3 June 2006 dissolution of the State Union. However, it is somewhat ambiguous as to whether the Court held Montenegro accountable for acts committed before that date. There is some evidence to support the proposition that the Second Section transferred responsibility from the predecessor State Union to the independent Republic. First, the plain language of the decision implies that Montenegro was held responsible for the impugned acts of the State Union occurring between 2004 and June 2006:
[T]he Court considers that both the Convention and Protocol No. 1 should be deemed as having continuously been in force in respect of the territory of Montenegro as of 3 March 2004, between 3 March 2004 and 5 June 2006 as well as thereafter […].
Lastly, given the fact that the impugned proceedings have been solely within the competence of the Montenegrin authorities, the Court, without prejudging the merits of the case, finds the applicants' complaints in respect of Montenegro compatible ratione personae with the provisions of the Convention and Protocol No. 1 thereto.Footnote 62
Additionally, the fact that the Court was willing to hold the Republic of Montenegro liable for nearly the full amount of pecuniary damages requested by the applicants (unless the State enforced the eviction order within three months) suggests that the Court was not apportioning responsibility between predecessor and successor States. That the amicus briefs filed by the Venice Commission and Human Rights Action both urge the Court to transfer responsibility for acts that occurred between 2004 and 2006 in Montenegro to the independent Republic of Montenegro also supports this interpretation.Footnote 63
On the other hand, when the Court held the Republic of Montenegro responsible for a violation of article 1 of Protocol 1 it did not explicitly acknowledge its responsibility for acts preceding its independence. The Court did take note of the extreme length of time over which the applicants had attempted to enforce the Court order, but it is typical for a court to examine actions outside its jurisdiction ratione temporis when the alleged Convention violations are of a ‘continuous’ nature so of itself this should not be construed to imply that a transfer of responsibility took place.Footnote 64 Additionally, the Court noted that the primary cause of the delay of the enforcement order (and the most important factor justifying the finding that a violation of article 1 of Protocol No. 1 had occurred) was the fact that the police ‘themselves had conceded that they were unable to fulfil [sic] their duties under the law.’Footnote 65 The police only conceded this in 2007, well after Montenegro had seceded from the Union, but had in fact been unable to enforce the order for the preceding five years.Footnote 66 A literal, though admittedly implausible, reading of the decision would suggest that the Court imposed the financial requirements that it did on Montenegro on the basis of an admission made after the date of succession, as opposed to the events and circumstances that themselves led up to the admission and the registering of the Application and occurring before 2006.
Between these two interpretations, it is the former that is favoured by the Secretary General to the Council of Europe, who in September 2009 reported to the Parliamentary Assembly that Montenegro had ‘partially fulfilled its obligation to ensure that its Constitution would include ‘transitional provisions for the retroactive applicability of human rights protection to past events’ through the Court's decision in Bijelic.Footnote 67 Assuming that it is this narrative account of Bijelic that will ultimately prevail, it is important to understand the broader implications of the case on the practice of the ECHR specifically and public international law generally.
b) The continuity of accountability at the ECHR
To date no scholar has undertaken a comprehensive survey of Court practice concerning the continuity of accountability. Patrick Dumberry's otherwise thorough examination of international practice concerning this issue, State Succession to International Responsibility, primarily focuses on internationally wrongful acts committed by one State against another State (or national and corporation of another State), and when it does consider the issue of human rights abuses committed by a State against its own nationals it is solely in the context of municipal court decisions.Footnote 68 Thus the examination undertaken in this section represents the most comprehensive examination of ECtHR case-law covering this issue to date. While there is insufficient space in this comment to examine all of the questions raised by these cases, a brief opinion regarding the general principles enshrined through the Court's practice (to the extent that there are any) will be offered at the end of this section, and the question of the relationship of Bijelic to these general principles will be taken up in the following section.
The wave of succession events that began in Europe in the early 90s and continued through the new millennium have provided the judicial organs of the EU with over a dozen opportunities to decide when and under what circumstances one State may be held liable for the breaches of a predecessor.Footnote 69 The earliest decision in which a responsibility issue was framed in succession terms was Jasinskij v Lithuania.Footnote 70Jasinskij pitted applicants who had purchased USSR State bonds against the newly independent State of Lithuania. The case concerned the redemption of State bonds purchased before the collapse of the Soviet Union in 1991 in the territory of Lithuania, and the subsequent refusal of the governmental and financial institutions of either the Republic of Lithuania and Russian Federation to redeem the debt.Footnote 71 After attempting (and failing) to compel the government of Lithuania to purchase the bonds through domestic courts the applicants brought their complaints before the Commission. The Commission questioned ‘whether Lithuania has any responsibility for these debts of the former Soviet Union’ and concluded that Lithuania could not ‘be seen as a successor of the Soviet Union in respect of these debts.’Footnote 72 Although this case could accurately be viewed as a implicating a questions of succession to debt, not responsibility, it is notable as one of the first cases where a Convention instrument considered the issue of succession, phrased its answer in terms of ‘responsibility’ and declined to transfer the obligation at issue.
Jasinskij foreshadowed the succession issues the Court and Commission would face after the 1 January 1993 dissolution of Czechoslovakia into the Czech and Slovak Republics. An examination of the decisions that came about as a consequence of this event reveals the difficulties faced by both review mechanisms as each body struggled to balance accountability with fairness. Among the earliest cases against the successor States to come before the Commission were JA v Republique Tceque and Szmora and Hlavsova v Republique Tcheque. The Commission in JA accepted its competence ratione personae to review acts arising before January 1993 in the territory of the former Czechoslovakia,Footnote 73 but was much less forthcoming in Szmora and Hlavsova Footnote 74 (despite the latter being decided on the same day and by the same individuals as the former!). A similarly schizophrenic pattern emerged with respect to Slovak Republic; in Brezny and Brezny v Slovak Republic the Commission accepted its jurisdiction over events arising after 18 March 1992Footnote 75—the date the Convention entered into force with respect to Czechoslovakia—but in the earlier cases of Gasperetz v Slovak Republic and Sulko v Slovak Republic the Commission acknowledged 1 January 1993 as the limit to its temporal jurisdiction with respect to claims brought against that country.Footnote 76
In most cases to reach the Court the individual Slovak and Czech Republics were each held accountable for acts predating their independence without objection from either respondent government.Footnote 77 Rather quickly the Court developed a ‘standard formula’ for dealing with the succession issues implicated in the applications brought before it; ‘The period to be taken into consideration began on 18 March 1992, when the recognition by the former Czech and Slovak Federal Republic, to which Slovakia [or the Czech Republic] is one of the successor States, of the right of individual petition took effect.’Footnote 78 Only one case from this period is particularly noteworthy as having forced the Court to deviate from its standard line. In Jiri Kuchar & Petr Stis v. Republique Tcheque the Czech Republic argued that the impugned acts were incompatible ratione temporis, insofar ‘as the Convention only came into force in respect of the Czech Republic on 1 January 1993.’Footnote 79 The Court re-characterized the objection as one of ratione personae jurisdiction but declined to adopt the approach advanced by the respondent State on the ground that ‘the Government of the Czech Republic had tacitly confirmed its responsibility as one of the successor States to the facts relating to the period from March 18 to December 31, 1992.’Footnote 80
Just as the dissolution of Czechoslovakia resulted in a string of Court decisions that implicated succession issues, so too did Montenegro's separation from the State Union embroil the Court in a series of decisions with a succession component, particularly in relation to Serbia. Over the last three years the Court has issued a number of opinions in which the responsibility of Serbia for acts imputed to the State Union was affirmed without objection on the part of the respondent government. The first of these cases was Matijašević v Serbia, which originated in an application against the State Union of Serbia and Montenegro and concerned a string of Serbian Court decisions, all promulgated before the separation of Montenegro from the State Union.Footnote 81 In what has become the new ‘standard formula’ to be deployed in cases lodged against the now independent Serbia, the Court took note of the Committee of Ministers' declaration to the effect that Serbia ‘remained a party to a number of Council of Europe conventions signed and ratified by the former State Union of Serbia and Montenegro, including the Convention for the Protection of Human Rights and Fundamental Freedoms’Footnote 82 and, without any further discussion, concluded that Serbia was responsible for the acts of the State Union. In general, the Court has regarded Serbia's succession to responsibility for acts otherwise attributable to the State Union as uncontroversial.Footnote 83 However in a strongly worded dissent one judge has rejected the succession framework established in Matijasevic. In Lepojić v Serbia Judge Kreca argued that ‘the legal reasoning of the Court in the part of the Matijašević judgment … seem[s] legally dubious and self-contradicting in the light of the relevant rules of international law and common sense respectively.’Footnote 84 Judge Kreca maintained that Serbia was a continuator, not a successor State, and that it was due only to this important distinction that an issue of locus standi did not arise in the current proceedings.Footnote 85
In the joined cases of Wolf-Ulrich von Maltzan and Others, Margarete von Zitzewitz and Others, and Man Ferrostall and Alfred Topfer Stiftung v Germany Footnote 86 the Grand Chamber considered the issue of succession to responsibility in an instance where one State incorporated another. The case concerned claims of compensation for property that had been expropriated in the territory of East Germany between 1945 and 1949 in the Soviet Occupied Zone of Germany and after 1949 (after which the area officially broke away and become the German Democratic Republic (GDR)). In a 2005 admissibility decision the Court determined that the reunification of the GDR with the Federal Republic of Germany (FRG) on 3 October 1990 did not, in fact, provide the Court with jurisdiction to hear the applicants' claims, despite the Convention having been in effect with respect to the FRG since its entry into force in 1953.Footnote 87 The Court determined that it lacked jurisdiction ratione temporis and ratione personae to examine the circumstances under which the expropriations were carried out and held that the applications were inadmissibleFootnote 88 on the basis that ‘[t]he FRG does not have any responsibility for acts committed at the instigation of the Soviet occupying forces or for those perpetrated by another State against its own nationals, even though the GDR was subsequently succeeded by the FRG, for it is ‘political’ obligations that are at issue in the present case.'Footnote 89 It was also careful to note that the case raised ‘no question of a continuing violation of the Convention which could be imputable to the FRG and which could have effects as to the temporal limitations of the competence of the Court.’Footnote 90
Wolf-Ulrich provides an interesting counter-point to the Grand Chamber's February 2009 decision in Andrejeva v Latvia.Footnote 91Anrejeva, the most recent decision of the Court dealing with succession issues before the Second Section's pronouncement in Bijelic, centred on claims of discrimination made by a non-citizen of Latvia who had received a lower pension than Latvian citizens. In Andrejeva the Latvian government relied on article 1 of the Convention to raise an objection that the impugned acts fell outside Latvia's jurisdiction.Footnote 92 The Respondent government:
… argued that responsibility for the situation complained of lay not with one single State but with two different States, namely the Soviet Union and the Republic of Latvia. […A]lthough the applicant might have had some hope of receiving the portion of her pension corresponding to the part of her career spent working in the territory of the former Soviet Union, that hope had been valid only in the context of a single State, the USSR, and could not exist, or have existed, in relation to Latvia. On the contrary, ‘existing praxis’ showed that it was rather the Russian Federation that was the defunct State's successor, both domestically and at international level.
Secondly … [t]he Government … inferred that … Latvia was not required to assume a responsibility incumbent on another State and to pay pensions in respect of periods during which the beneficiaries had been employed in that State; if the applicant wished to claim her pension entitlements, she would be better advised to apply to the Russian or Ukrainian authorities.Footnote 93
The Court sidestepped the issues raised by the respondent by noting that the applicant had attributed the impugned acts solely to Latvian public authorities—the State Social Insurance Agency and three levels of Latvian courts—thereby bringing the claims within the jurisdiction of the Court. The Court did, however, make a few detailed pronouncements with respect to succession as an admissibility and substantive consideration. First, the Court provided its most detailed analysis of succession and jurisdiction to date. The Court noted;
[…] that the concept of ‘jurisdiction’ for the purposes of Article 1 of the Convention reflects the term's meaning in public international law and is closely linked to that of the international responsibility of the State concerned. Such responsibility may arise for the acts of all State organs, whether they belong to the legislature, the executive or the judiciary. Furthermore, the fact that the factual or legal situation complained of by the applicant is partly attributable to another State is not in itself decisive for the determination of the respondent State's ‘jurisdiction’. The argument advanced by the Government equates the determination of whether an individual falls ‘within the jurisdiction’ of a Contracting State with the question whether the individual can be considered to be the victim of a violation by that State of a right guaranteed by the Convention. These are, however, separate and distinct admissibility conditions.Footnote 94
The Court also examined succession to responsibility issues in the merits section of its judgment. Responding to Latvia's claim that it had not inherited the rights and obligations of a predecessor State and was not liable under article 14 of the Convention, the Court left the door open to precisely that claim and wrote that:
Even assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected: where a State decides of its own accord to pay pensions to individuals in respect of periods of employment outside its territory, thereby creating a sufficiently clear legal basis in its domestic law, the presumed entitlement to such benefits falls within the scope of Article 1 of Protocol No. 1 [and render Article 14 of the Convention applicable].Footnote 95
This language prompted a vigorous and lengthy dissent by Judge Ziemele, who regarded the central issue posed by the case as a controversy over ‘whether Latvia is responsible for additional pension seniority accrued outside the Latvian Soviet Socialist Republic (Latvian SSR) during the days of the Soviet Union.’Footnote 96 Pursuant to this, she argued that the issue should have been properly and clearly dealt with in the merits as opposed to the admissibility phase.Footnote 97 She also explained that:
[…] the phrase ‘even assuming that the Government were correct’ is incomprehensible. Are the majority suggesting that Latvia is a new successor State to the ex-USSR? The adoption of such a position by the Court would go against its own approach in several other cases (for example, Ždanoka v Latvia [GC] no. 58278/00, ECHR 2006-IV) and in a more relevant pronouncement of the Commission in the Jasinskij and Others case […]. It would also go against the position of the majority of international-law actors.Footnote 98
She also identified additional shortcomings in the majority analysis, including her observation that;
It is curious that the text of the judgment does not seem to draw a distinction between the different legal entities concerned over the relevant period of time. Surely there is a difference for the purposes of law between the Latvian SSR, the USSR and the Republic of Latvia. One is left puzzled by the exact meaning of the use of terms ‘Latvia’ in the context of the year 1954 or ‘Ukraine’ in the context of the 1970s and 1980s (see paragraphs 10–11 of the judgment). Suggesting that the Republic of Latvia, as a subject of international law and thus a Party to the Convention, is a successor to the USSR, in terms of international law, does not make sense and goes against well-established State practice […].Footnote 99
What characterizes the ECtHR's approach to the difficult issue of succession to responsibility? In general, the Court has evinced a willingness to transfer obligations between predecessor and successor States without reflection on the interplay between general international law and human rights law at issue in the cases or reference to a typology that distinguishes between types of successor States or succession events.Footnote 100 While in most instances where succession is an issue it is simply accepted without objection by the applicant or respondent parties that the Court can (and will) transfer responsibility, in the rare case when a State has objected to being held responsible for acts of a predecessor, the Court has tended to either reject those arguments in the vaguest terms possible (Andrejeva) or dismiss them for reasons that are patently ridiculous (Jiri Kuchar); whichever option it chooses, the Court has made it clear that it will do what is necessary to effectively preserve its ability to hold any future State accountable for acts of any predecessor arising on a territory and in a time from covered by the Convention.Footnote 101 The outlying circumstance is when the ‘underlying complaint’ involves an act of a non-continuing nature undertaken in a territory not covered by the Convention at the relevant time (eg Wolf-Ulrich von Maltzan and Others), in which case the Court will regard the questions of responsibility raised as ‘political’ in nature and beyond its remit. Finally, although the Court has vacillated between treating the issue of succession to responsibility as a jurisdictional issue—both ratione temporis and ratione personae—or a question to be dealt with in the merits phase, most recently the Court has favored treating questions raised by complicated succession events as issues to be dealt with at the admissibility phase under the aegis of a ratione personae inquiry.
c) Bijelic and ECtHR case-law
Several features of Bijelic distinguish it from its predecessors. It is the first case where the Court was called upon by applicants as opposed to respondents to apportion responsibility between a successor and continuator State, and by denying the request the Court confirms that its preference is to hold a single State responsible for continuing violations, even when the attempt to split liability cannot be perceived as an attempt by a respondent State to avoid responsibility entirely. The decision also confirms that the Court will continue to treat questions of succession to responsibility primarily as jurisdictional questions, and adds weight to the view that succession issues will be dealt with as ratione personae problems in particular.
Most importantly, Bijelic is the first time the Court has transferred responsibility on a basis other than the mere fact that an impugned act (or continuing act) occurred on a particular territory during a time when the Convention happened to apply (e.g. Konecny and Matijasevic). In Bijelic the Court explicitly held that the transfer from predecessor to successor was justified because (i) the predecessor State was comprised of at least one largely autonomous sub-unit (ii) to which the impugned acts could be attributed and (iii) the formerly largely autonomous region evolved to become new State to which responsibility could attach. In other words, Bijelic is the first decision of the ECHR to confirm the importance of attributing the impugned situations to a (previously) sub-national authority that shares an identity with a successor respondent State. In addition to adding a degree of legal sophistication to the Court's interpretation that was lacking in prior decisions, the Court also closed a potential gap in enforcement of the Convention. One can envision an extra-territorial action by a relatively autonomous unit within a predecessor State that violates the Convention obligations of the Contracting Party to the Convention, followed by the dissolution of that State. Under Konecny and its brethren an applicant would have difficulty demonstrating that jurisdiction ratione personae existed since the impugned acts did not take place on the territory of the predecessor entity, but under Bijelic the applicant has only to demonstrate that the impugned situation is attributable to a fairly autonomous government within the predecessor State.
Bijelic, perhaps inevitably but also unfortunately, suffers from the many of the same shortcomings as other ECtHR decisions in which the continuity of accountability has been contended. Similar to its predecessors, the decision is vague and creates an indeterminate standard that does little to advance legal certainty.Footnote 102 How much continuity must exist between autonomous organs in a predecessor State and a new State for responsibility to transfer? How many of the wrongful acts must be attributable to the organs of an autonomous government for a new State with a shared identity to be the sole, or even a partial, successor to responsibility? Moreover, the legal shortcomings of the case are undeniable, inasmuch as the Bijelic Court utterly failed to address the argument of the applicants that the State Union had violated its positive obligation to constitute the domestic human rights supervisory mechanisms that could have ‘functioned by laws existing at that time’ to address the impugned situation.Footnote 103 There is no question that, had the Court dealt squarely with this issue (and found the State Union liable for a breach of its positive obligations under Protocol 1 of article 1) it would have been forced to apportion responsibility between the two former members of the State Union, a step that would have complicated things for the Court. However, the legal fiction crafted by the Court in order to sidestep the issue—the affirmation that the impugned acts were at all relevant times solely ‘within the competence of the Montenegrin authorities’—is as transparent as it is unsatisfying; a reality that forces future applicants and respondent States, as well as scholars, to confront the very questions of fairness and equity the Court so obviously hoped to avoid in its decision.
Nevertheless, it may be said that the Court, having made the decision to sacrifice legal rigor, at least did so at the altar of common sense and pragmatism. Bijelic balances the obvious interest of the applicants in obtaining enforcement or restitution with the need to avoid creating tension between the successor and continuing States, accomplishing both while remaining firmly within the realm of judicial plausibility (the idea that responsibility can be transferred based on continuity between a predecessor autonomous government and successor independent State is not a new one, and has found support in international practice and scholarship).Footnote 104 Moreover, while it is an important milestone in the development of the Court's treatment of succession issues, Bijelic was not intended by the Court to be the final word on any of the matters within its purview. Bearing this in mind, while it is hoped that the Court will offer a more substantive legal analysis in its future decisions concerning the transfer of responsibility, on its own merits Bijelic—with its (slightly) more nuanced and rigorous legal justification than its predecessors—stands out as a step forward for the Court and individual rights the Convention is intended to safeguard.
E. Concluding Thoughts—Bijelic and General International Law
Because ECHR jurisprudence is increasingly incorporated into the decisions and analyses of other international supervisory mechanisms, including the Inter-American Court of Human Rights and the International Criminal Tribunal for the former Yugoslavia, particular attention must be paid to Bijelic as a potential influence on general international law.Footnote 105
Although there is no definitive account of the international rules applicable in succession situations involving issues of responsibility, there is strong support for the idea that the ‘clean slate’ approach should not prevail in most cases of succession where responsibility for an act of a predecessor is at issue.Footnote 106 Patrick Dumberry in particular has endorsed the notion that a successor ‘state should be held responsible for obligations arising from internationally wrongful acts committed before its independence insofar as the acts were committed by an autonomous government … with which the new State has an organic and structural continuity’ in cases of cession, secession and dissolution.Footnote 107 As an expression of general international law this principle has only been applied three times, once by a municipal court and twice by an international tribunal. In the Samos (Liability for Torts) case a Greek Court decided that Greece, as a successor State absorbing the territory of the Island of Samos, could be held responsible for acts of that autonomous province that had been undertaken while the island was still part of the Ottoman Empire.Footnote 108 In the subsequent Lighthouse Arbitration case, the French-Greek Arbitral Tribunal concluded that Greece was responsible as a successor for acts of the autonomous government of Crete.Footnote 109 Finally, in the Case Concerning the Gabcikovo-Nagymaros Project, the ICJ acknowledged that Slovakia, as a constituent of Czechoslovakia, had played a ‘prominent part’ in the predecessor's breach of an international law.Footnote 110 There is scholarly support for the proposition that the Court was particularly influenced in its conclusion that Slovakia was under an obligation to compensate Hungary by the degree of autonomy Slovakia had experienced as a federated republic within Czechoslovakia.Footnote 111
General international law is increasingly influenced by lex specialis legal regimes, specifically international human rights norms.Footnote 112 As this process accelerates and mechanisms of general international law (such as the ICJ) are increasingly called upon to interpret human rights instruments,Footnote 113 it is probable that the reasoning and interpretive analysis of the Court in Bijelic will take on increased importance as an authority supportive of a trend in general international law to take into account the relative autonomy of sub-State government units in existence before a succession event to which impugned conduct may be attributed.
