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Published online by Cambridge University Press: 20 January 2017
On July 3, 2014, the Grand Chamber of the European Court of Human Rights (Court) rendered its judgment in Georgia v. Russia, concerning Russia’s collective expulsion of a large number of Georgian nationals between October 2006 and January 2007. The Court held that Russia had violated several provisions of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention or ECHR), in particular Article of Protocol No. 4 to the ECHR (prohibition of collective expulsions). Because the Russian government had failed to cooperate with the Court by providing relevant information, the Court also found a violation of Article 38 of the ECHR, which obliges states to furnish “all necessary facilities” for the effective conduct of the Court’s investigation of the case. The Court deferred its decision on the question of “just satisfaction” under Article 41 pending further submissions by the parties. This was the first of three interstate proceedings that Georgia has brought against Russia under the special procedure of Article 33, and it is the first decision on the merits of these cases.
1 Georgia v. Russia (I), App. No. 13255/07 (Eur. Ct. H.R. July 3, 2014), 53 ILM 813 (2014) [hereinafter Judgment]. Judgments, decisions, and other documents of the Court cited herein are available at its website, http://hudoc.echr.coe.int.
2 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222.
3 According to Georgia’s submissions, some 4634 expulsion orders were issued against Georgian nationals during the relevant time period. See Judgment, para. 27.
4 Georgia v. Russia (I), App. No. 13255/07, Decision on Admissibility, para. 50 (Eur. Ct. H.R. June 30, 2009) [hereinafter Admissibility Decision].
5 Judgment, para. 160 (quoting Admissibility Decision, para. 47).
6 Judgment, Partly Dissenting Opinion of Judge López Guerra Joined by Judges Bratza and Kalaydjieva, 3dpara.
7 To date, the Court has decided only on admissibility. Georgia v. Russia (II), App. No. 38263/08, Decision [on admissibility] (Eur. Ct. H.R. Dec. 13, 2011).
8 Georgia v. Russia, App. No. 61186/09, Decision [on withdrawal] (Eur. Ct. H.R. Mar. 16, 2010).
9 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, S. Exec. Doc. 95-C (1978), 660 UNTS 195 (entered into force Jan. 4, 1969).
10 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Provisional Measures, 2008 ICJ Rep. 353 (Oct. 15) (reported by Cindy Galway Buys at 103 AJIL 294 (2009)); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor. v. Russ.), Preliminary Objections, 2011 ICJ Rep. 70, 120–40 (Apr. 1) (reported by Bart M. J. Szewczyk at 105 AJIL 747 (2011)).
11 See Eur. Ct. H.R. Press Release No. 006, 1,549 Cases Against Georgia Concerning the Georgia-Russia Conflict of August 2008 Struck out by the European Court of Human Rights (Jan. 10, 2011).
12 See, e.g., Sudre, Frédéric, Droit International Et Européen Des Droits De L’homme 405 (5th ed. 2001)Google Scholar (affirming that “[l]a faillite du recours interétatique est manifeste”). This observation appears to be particularly disenfranchising, since the enforcement of the Convention is based on the idea of a collective mechanism. See, for example, the fifth paragraph of the ECHR preamble, which establishes that the European system provides for collective enforcement.
13 The European Court adopted interim measures against Russia in this case on March 13, 2014, the day it was lodged as Application No. 20958/14, Ukraine v. Russia. See Eur. Ct. H.R. Press Release No. ECHR 073 (2014) (Mar. 13); see also Eur. Ct. H.R. Press Release No. ECHR 345 (2014) (Nov. 26) (reporting the Court’s invitation to Russia to submit observations on admissibility of the case).
14 According to the Ukrainian minister of justice, Pavlo Petrenko, so far Ukraine has applied to the UN Human Rights Committee and the European Committee for the Prevention of Torture, besides the European Court of Human Rights. See Ukraine Crisis Media Center, Ukraine Files USD 85 Billion Lawsuit Against Russia (June 5, 2014), at http://uacrisis.org/ukraine-files-usd-85-billion-lawsuit-russia/.
15 Draft Articles [on the Expulsion of Aliens] and Commentaries Thereto, Report of the International Law Commission [ILC], Sixty-Sixth Session, para. 44, UN GAOR 69th Sess., Supp. No. 10, at 17, UNDoc.A/69/10(2014) [hereinafter Expulsion Draft Articles]. The 66th session met from May 5 to June 6, and July 7 to August 8, 2014.
16 ILC, Preliminary Report on the Expulsion of Aliens, para. 28, UNDoc. A/CN.4/554 (2005)(Maurice Kamto, special rapporteur).
17 Article 9(2) of the Expulsion Draft Articles, supra note 15, contains such a prohibition.
18 See ILC, Third Report on the Expulsion of Aliens, para. 115, UNDoc. A/CN.4/581(Apr.19, 2007)(Maurice Kamto, special rapporteur).
19 For an international instrument, see, for example, Declaration of Principles of International Law on Mass Expulsion, 62 International Law Association, Conference Report 13 (1986). For regional human rights treaties, see ECHR Protocol No. 4, Art. 4, opened for signature Sept. 16, 1963, ETS No. 46, as amended by Protocol No. 11, ETS No. 155; African Charter on Human and People’s Rights, Art. 12(5), June 27, 1981, 1520 UNTS 217, 21 ILM 58 (1982); American Convention on Human Rights, Art. 22(9), Nov. 22, 1969, OASTS No. B-32, 1144 UNTS 123; Arab Charter on Human Rights, Art. 26(2), May 22, 2004, 12 Int’l HUM. RTS. Rep. 893 (2005), 24 B.U. Int’l L. J. 147 (2006). Specifically for migrant workers, see International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Art. 22 (1), Dec. 18, 1990, 2220 UNTS 3, 30 ILM 1517.
20 See further the comments by Judge Tsotsoria in Judgment, Partly Dissenting Opinion of Judge Tsotsoria, pt. I.
21 Text of the Draft Articles [on Responsibility of States for Internationally Wrongful Acts] with Commentaries Thereto, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 30, UN Doc. A/56/10 (2001) (adopted by the ILC on Aug. 9, 2001). Article 49(2) provides that “[c]ountermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State.”
22 Id., Art. 50, cmt. 2.
23 Note that of all the human rights applied in the present case of Georgia v. Russia, only Article 3 (prohibition of torture) falls into the category of nonderogable rights under the ECHR.
24 In 1992, the special rapporteur, Gaetano Arangio-Ruiz, adverted to problems that could arise from wording the human rights limitation for countermeasures too narrowly. ILC, Fourth Report on State Responsibility, para. 81, UN Doc. A/CN.4/444 & Adds.1–3, at 31 (May 12, 25, & June 1, 17, 1992).
25 The ILC has not yet fully analyzed this topic. See, in particular, the references on the relationship between self-contained regimes, such as the European human rights system, and general international law, in the report of the ILC study group Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, paras. 159–64, UN Doc. A/CN.4/L.682 (Apr. 13, 2006).
26 The commentary to the Expulsion Draft Articles confirms that they are “both a work of codification of international law and an exercise in its progressive development.” Expulsion Draft Articles, supra note 15, Art. 3, cmt. 2, at 23.
27 Id.
28 On the need to provide clearer rules on suspension in cases of emergency, see further Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 166 (2013)CrossRefGoogle Scholar.