Successful complaint at the ECHR, obv 6 ECHR?
34 ECHR: Is there a right to complain? This complainer must be a person, NGO or group of
individuals claiming to be a victim
35 CHR: Is the ECHR admissible?
- All domestic remedies have been exhausted: 35.1 ECHR
Salah Sheekh §121: Limited to making use of those remedies which are likely to be
effective and available in their existence is sufficiently certain and they are capable of
redressing directly the violation of the Convention
- Within a period of six months from final decision: 35.1 ECHR
- The complaint may not be manifestly ill-founded: 35.3.a ECHR
A part of these cases are fourth instance cases (they address what ECtHR is not,
namely a court of appeal which can be petitioned to retry a case, re-establish facts or
redress errors made in the application of domestic law)
A particular category in which this fourth-instance doctrine is considered confusing concerns
claims made under 6 ECHR, the right to a fair trial. The term fair concerns the procedural
fairness Karpenko v. Russia §80
Conclusion: Is the complainer admissible?
, Does the ICJ enjoys jurisdiction in this dispute?
36 ICJ All parties must have accepted the jurisdiction of the ICJ regarding the specific
dispute. Parties can give their consent in four ways:
a. 36.1 ICJ: Through a special agreement or compromis, either bilateral or multilateral
under which parties to the dispute agree to submit the dispute in question to the ICJ
b. 36.1 ICJ: Clause in a treaty (compromissory clause) under which parties agree to
submit all or some disputes regarding the interpretation or application of the treaty to
the ICJ
o Oil Platforms: Even though the Court has no jurisdiction, it can however take note
of circumstances relevant to its decision to take action against a State which is
considered necessary to protect its essential security interests
c. 36.2 ICJ: When states make or have made a general declaration in which they declare
to accept the jurisdiction of the ICJ (optional clause)
o Nicaragua case: A general declaration does not merely have to be based on a
treaty. However, it can be derived from the rights and obligations of the parties
under customary law
d. When states have not accepted the jurisdiction of the Court, they are still free to appear
in court for proceedings when disputing with a party that wants to submit the case to the
ICJ. By doing so parties accept, explicitly or implicitly, the Court’s jurisdiction after
proceedings have been instituted
o Armed Activities: Court found that the international instruments could not be relied
on, either because State was not a party to them or had made reservations to
them
59 ICJ: decision of the Court has no binding force except between the parties and in respect
of that particular case
Conclusion: does ICJ enjoys jurisdiction in this dispute?
34 ECHR: Is there a right to complain? This complainer must be a person, NGO or group of
individuals claiming to be a victim
35 CHR: Is the ECHR admissible?
- All domestic remedies have been exhausted: 35.1 ECHR
Salah Sheekh §121: Limited to making use of those remedies which are likely to be
effective and available in their existence is sufficiently certain and they are capable of
redressing directly the violation of the Convention
- Within a period of six months from final decision: 35.1 ECHR
- The complaint may not be manifestly ill-founded: 35.3.a ECHR
A part of these cases are fourth instance cases (they address what ECtHR is not,
namely a court of appeal which can be petitioned to retry a case, re-establish facts or
redress errors made in the application of domestic law)
A particular category in which this fourth-instance doctrine is considered confusing concerns
claims made under 6 ECHR, the right to a fair trial. The term fair concerns the procedural
fairness Karpenko v. Russia §80
Conclusion: Is the complainer admissible?
, Does the ICJ enjoys jurisdiction in this dispute?
36 ICJ All parties must have accepted the jurisdiction of the ICJ regarding the specific
dispute. Parties can give their consent in four ways:
a. 36.1 ICJ: Through a special agreement or compromis, either bilateral or multilateral
under which parties to the dispute agree to submit the dispute in question to the ICJ
b. 36.1 ICJ: Clause in a treaty (compromissory clause) under which parties agree to
submit all or some disputes regarding the interpretation or application of the treaty to
the ICJ
o Oil Platforms: Even though the Court has no jurisdiction, it can however take note
of circumstances relevant to its decision to take action against a State which is
considered necessary to protect its essential security interests
c. 36.2 ICJ: When states make or have made a general declaration in which they declare
to accept the jurisdiction of the ICJ (optional clause)
o Nicaragua case: A general declaration does not merely have to be based on a
treaty. However, it can be derived from the rights and obligations of the parties
under customary law
d. When states have not accepted the jurisdiction of the Court, they are still free to appear
in court for proceedings when disputing with a party that wants to submit the case to the
ICJ. By doing so parties accept, explicitly or implicitly, the Court’s jurisdiction after
proceedings have been instituted
o Armed Activities: Court found that the international instruments could not be relied
on, either because State was not a party to them or had made reservations to
them
59 ICJ: decision of the Court has no binding force except between the parties and in respect
of that particular case
Conclusion: does ICJ enjoys jurisdiction in this dispute?
