{"id":13386,"date":"2021-04-28T13:00:21","date_gmt":"2021-04-28T11:00:21","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=13386"},"modified":"2021-04-28T18:17:54","modified_gmt":"2021-04-28T16:17:54","slug":"friendly-settlements-as-the-sleeping-beauty-in-inter-state-cases","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/friendly-settlements-as-the-sleeping-beauty-in-inter-state-cases\/","title":{"rendered":"Friendly Settlements as the Sleeping Beauty in Inter-State Cases"},"content":{"rendered":"

With their flexible legal framework, friendly settlements (\u2018FS\u2019) before the European Court of Human Rights (\u2018ECtHR\u2019) have proved helpful in managing the Court\u2019s ever-growing caseload of individual applications (Keller et al<\/em><\/a>., pp. 49 ff). In inter-State cases, given the more evenly distributed power balance between the parties \u2013 and the political dimension of these types of disputes \u2013 one might expect FS to be equally prevalent. In principle, this classic instrument of international law seems even better suited to inter-State proceedings than a judgment would be. However, only two FS have been reached in the context of inter-State cases before the ECtHR to date, namely in\u00a0France, Norway, Denmark, Sweden, Netherlands v. Turkey<\/em><\/a>\u00a0and\u00a0Denmark v. Turkey<\/em><\/a>.The reason why FS have not played a major role in inter-State cases before the Strasbourg Court so far is that the willingness of the parties to negotiate, let alone to agree on the terms of a FS, poses a particular challenge. However, FS\u00a0offer many advantages in this context.\u00a0This post argues that there is room for FS in inter-State proceedings and suggests how\u00a0this mechanism can play a more prominent role in the future.<\/p>\n

Multiple Possibilities for a\u00a0Friendly Settlement<\/strong><\/p>\n

The legal basis for FS is contained in\u00a0Article 39\u00a0of the European Convention\u00a0on Human Rights (\u2018ECHR<\/a>\u2019), which imposes few legal requirements\u00a0in terms of content and procedure. Accordingly,\u00a0proceedings before the Court can be terminated by a\u00a0FS at several\u00a0stages during the course of an inter-State proceeding\u00a0(see for a chart with regard to friendly settlements in individual applications\u00a0Keller et al<\/em><\/a>., p. 300).\u00a0Although the first opportunity to settle a case arises after an application has been registered, it is unlikely that the parties will have an interest in entering negotiations at this early stage. This is due to the fact that the further course of the case is still unclear\u00a0at this point, given that the Court has not yet declared the application\u00a0admissible (whether in full or in part).\u00a0Such initial reluctance towards negotiations may change once the application has passed the admissibility stage. At this point, the scope of the case has been determined and the parties might have astronger incentive to negotiate.\u00a0If the parties remain\u00a0unable to reach an agreement, and\u00a0the Court issues\u00a0a judgment on the merits, but adjourns the question of just satisfaction under\u00a0Article 41 ECHR<\/a>, a third possibility for a FS opens up. One might expect a so-called \u2018follow-up FS\u2019\u00a0to be likely under these circumstances, given that\u00a0only financial issues remain to be decided and alleged Convention violations are no longer the subject of the dispute. Although it would also be possible to settle a case between its\u00a0referral to the Grand Chamber and the resulting judgment, at this point the parties are presumably more interested in having their dispute adjudicated than in negotiating.\u00a0Finally, another possibility should be considered, whereby a FS would technically not resolve an inter-State case but instead address the individual applications arising from an inter-State conflict (see below for the\u00a0\u2018Model FS\u2019).<\/p>\n

Indispensable Task Sharing<\/strong><\/p>\n

There are various advantages to resolving a case through a\u00a0FS.\u00a0First, the terms are\u00a0likely to be better implemented than a judgment would be, because a settlement agreement reflects the common will of the parties and allows for tailored measures.\u00a0Considering that it may take the Court years to rule on the admissibility alone, FS\u00a0are likely to be reached faster than a judgment would be rendered.\u00a0Moreover, the parties may\u00a0appreciate the confidentiality of the proceedings which is foreseen by\u00a0Article 39 (2) ECHR<\/a>, the fact that the amicable resolution of a dispute attracts\u00a0less attention and,\u00a0last but not least, that a resolution by\u00a0FS\u00a0is not listed in the Court\u2019s statistics as a violation of the Convention (Keller et al<\/em><\/a>., p. 58).<\/p>\n

However, reaching a FS in inter-State cases is particularly challenging, as a settlement depends\u00a0entirely on the will of the conflicted States Parties. What is more,\u00a0managing such negotiations presents a difficult diplomatic\u00a0mission\u00a0for the Court. Not only\u00a0does the Court lack the necessary resources and experience to function as a negotiator in\u00a0politically complex situations, but it is already burdened by the massive backlog ofindividual applications. It therefore makes little sense to further increase\u00a0the Court\u2019s\u00a0workload\u00a0by burdening\u00a0it\u00a0with yet another expectation for which it is not equipped.\u00a0Thus, if the aim is to encourage the conclusion of future inter-State FS\u00a0with reasonable effort, it is crucial to be clear about what the Court can in fact manage and what parts of the proceedings need to be accomplished by the States Parties.\u00a0While the Court is not able to assume a leading role\u00a0in the FS negotiations, it can assist by providing the initial impetus and creating a suitable framework for the negotiations. However, the States Parties should largely conduct the actual negotiations by themselves.<\/p>\n

Such task sharing could be implemented through\u00a0a\u00a0multi-stage procedure that\u00a0could take place at any of the various moments at which a FS is possible, as mentioned in the previous section.\u00a0Hence, it should be\u00a0the responsibility of the Court to pro-actively reach out to the parties when there are indications that a settlement may be an option. Since\u00a0encouraging States Parties to engage in a dialogue is a delicate undertaking, the Court should prepare its Registry on how it can appropriately perform this function. In particular, such effortsshould not simply be\u00a0initiated\u00a0at any given time. Rather, the Court needs to focus on key moments and be aware of the fact that the chances for successful negotiations can improve considerably over time.\u00a0For example,\u00a0the prospect of a FS in an inter-State case that has long been pending before the Court might gain new momentum with changes in domestic government. However, the most essential feature\u00a0of the Court\u2019s assistance\u00a0must be\u00a0to provide the parties with procedural stability and a balanced framework as a starting point for their negotiations. This requires a roadmap that sets out the necessary cornerstones and a clear timetable for negotiations. Such a roadmap needs to be standardized so that it can be adapted\u00a0to different situations\u00a0and ease the Court\u2019s workload as much as possible. The conduct of the negotiations themselves\u00a0would in turn\u00a0fall to the States.\u00a0The involvement of external experts might be useful at this stage but would have to be approached cautiously due to the mutually confidential and political nature of the negotiations.<\/p>\n

Once the States Parties have been able to agree on a proposal for a FS,\u00a0they may\u00a0bring this before the Court. According to\u00a0Article 39(1)\u00a0ECHR<\/a>, the Court will then review the content of the settlement\u00a0for its compatibility with the Convention and its Protocols.\u00a0At this point, the Court faces considerable pressure, as the FS\u00a0is the result of cumbersome negotiations between the States Parties.\u00a0Hence, the Court must be particularly cautious not to rubber-stamp serious human rights violations in favor of political expediency.\u00a0Indeed, the first inter-State FS \u2013 reached under the Commission in 1985 and concerning an application brought by France, Norway, Denmark, Sweden and the Netherlands against Turkey \u2013 demonstrated that this concern is not merely theoretical (Keller et al<\/em><\/a>. p. 74,\u00a0Orakhelashvili<\/em><\/a>, p. 258).\u00a0With this FS, the human rights at issue were not effectively served, neither by Turkey\u2019s assurance of non-repetition\u00a0and its promise to keep the Commission informed on human rights issues, nor by the declaration that it hoped to soon lift martial law (France, Norway, Denmark, Sweden, Netherlands v. Turkey<\/em><\/a>, paras. 37\u00a0et seq<\/em>).<\/p>\n

\u201cModel\u00a0Friendly Settlement\u201d<\/strong><\/p>\n

Another area where the use of FS may be of particular benefit does not relate directly to inter-State applications, but to individual follow-up\u00a0cases. Such\u00a0follow-up cases are connected to an inter-State application and are\u00a0normally\u00a0postponed until the Court has ruled on the main issues of the inter-State case.\u00a0They impose\u00a0a difficult management task\u00a0on the Court, not least because they can vary widely in terms of their allegations. This means that there is neither a \u201cone size fits all\u201d nor an automatic solution to individual applications. However, the roadmap\u00a0that we suggest and that would be provided by the Court could define several \u201cmodel FS\u201d for follow-up cases, which applicants\u00a0could be incentivized to accept by being offered a slightly higher sum of money than what a violation judgment would provide. These model FS would technically no longer constitute an inter-State FS. However, in order to make this mechanism as effective as possible, a clause should be included in the inter-State FS, according to which the States Parties\u00a0should strongly encourage the affected individuals to accept the model FS.\u00a0It goes without saying that both the States Parties and the Court must be careful not to put undue pressure on individuals, as this would violate\u00a0their right to bring an application before the Court under\u00a0Article 34 ECHR<\/a>.<\/p>\n

Outlook<\/strong><\/p>\n

There is undoubtedly room for a better and wider use of FS in inter-State cases.\u00a0While the willingness of the States Parties to negotiate should not be overestimated, this challenge can be\u00a0addressed by creating an adequate framework that provides sufficient guidance to the parties without depriving the instrument of its flexibility.<\/p>\n

The question of how pro-active the Court should be in FS proceedings is pivotal.\u00a0The Court is not generally equipped to act as a diplomatic mediator, but it can\u00a0provide effective support in particular by setting\u00a0guardrails.\u00a0Apart from that, the Court can mainly\u00a0serve as a kind of safety net, which ensures that not just any agreement puts an end to the proceedings.<\/p>\n

If FS\u00a0do play a more important role in future inter-State cases, further questions will have to be addressed. A key consideration is whether the purpose of FS in this area should be limited to\u00a0monetary compensation or include more \u201ccreative\u201d measures, such as those sometimes proposed in pilot judgments. The broader use of FS depends ultimately on the Court\u2019s vision for this instrument, namely whether it considers it first and foremost as a\u00a0mere tool to\u00a0reduce the backlog of applications and improve its statistics or as an instrument to preserve the\u00a0European public order<\/a>. The latter would undoubtedly be a much more ambitious aim.<\/p>\n

Finally, whether a FS can or should be the solution of a particular inter-State case depends greatly on the nature of the application. Similar to individual applications, the use of this instrument might prove particularly successful,\u00a0on the one hand,\u00a0when FS relate to pecuniary issues, such as in the recent application of\u00a0Liechtenstein against the Czech Republic<\/a>. In such circumstances, it is conceivable that the Court can provide effective assistance that will significantly promote the success of a FS.\u00a0This is likely to be different, on the other hand, in situations essentially relating to unresolved political problems between States, such as in\u00a0Ukraine v.Russia\u00a0(re Crimea)<\/em><\/a>. All in all, one should be careful not to overwhelm the Court with tasks that are essentially not judicial.<\/p>\n","protected":false},"excerpt":{"rendered":"

With their flexible legal framework, friendly settlements (\u2018FS\u2019) before the European Court of Human Rights (\u2018ECtHR\u2019) have proved helpful in managing the Court\u2019s ever-growing caseload of individual applications (Keller et al., pp. 49 ff). In inter-State cases, given the more evenly distributed power balance between the parties \u2013 and the political dimension of these types […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6764,6765],"article-categories":[3572],"doi":[],"class_list":["post-13386","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-helen-keller","authors-reka-piskoty","article-categories-symposium"],"acf":{"subline":"Opportunities and Risks for the European Court of Human Rights"},"meta_box":{"doi":"10.17176\/20210428-181222-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13386","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=13386"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13386\/revisions"}],"predecessor-version":[{"id":13635,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/13386\/revisions\/13635"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=13386"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=13386"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=13386"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=13386"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=13386"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=13386"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}