CYIL vol. 11 (2020)

CYIL 11 (2020) CONVENTION IN THE TIMES OF COVID-19: WHO IS THE MASTER… embodied in Article 4 of Protocol No. 15 to the Convention 10 - the time limit shall be reduced to four months. This amending protocol dating from 2013 is nowadays still not in force. It is so because according to its Article 7, it shall only enter into force “ on the first day of the month following the expiration of a period of three months after the date on which all High Contracting Parties to the Convention have expressed their consent to be bound by the Protocol.” Moreover, Article 4 of the cited Protocol, which governs the time limit at issue, will only come into force six month later. The contrast between the situation in which we are waiting for past seven years for the Protocol No.15, amending the time limit for lodging an application, to come into force and the situation in which a decision to prolong the very same time limit has been announced out of the blue without any publication of an official decision, without any reasoning and even without a specification of the body behind it, is striking. The “six-month rule” has so far been considered absolute. A large mass of case-law regarding the time limit has been developed. A number of otherwise well-founded applications have been declared inadmissible because those were lodged late, sometimes even only a few minutes late. That is exactly why the current decision of “the Court” (whoever that may be) is so far-reaching. It is true that international courts and tribunals sometimes do interpret jurisdictional and admisibility rules creatively, even for strategical purposes in order to avoid ruling on a complex case. 11 International law theories describe different bases for such approach – general authorisation to exercise discretion (pointing to specific considerations such as “interests of justice” or prevention of “abuse of process”) or theory of inherent powers. 12 Yet again, as the Court has not given any explanation for its approach, we may not assess the legal basis invoked for the decision. Also, the exact formulation of the “six-month rule” in the Convention does not give much room for interpretation unlike the open ended “significant disadvantage” criteria in Article 35 (3) (b) of the Convention. Emergency situation as a fundamental change of circumstances in international law The possibility to temporarily defer from the requirement to comply with certain obligations, including those of human rights nature, is not unknown in international law. Vienna Convention on the Law of Treaties (VCLT), which codifies international customary treaty law 13 , endorses clausula rebus sic stantibus doctrine in Article 62. However, the terms of the doctrine are very limited – the fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from the treaty provided it was not foreseen by the parties to the treaty, the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically 10 Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No. 213, 24 June 2013. 11 SHANY, Y.: Questions of Jurisdiction and Admissibility before International Courts , Cambridge University Press, Cambridge, 2015, p. 155. 12 SHANY, Y.: Jurisdiction and Admissibility, in ROMANO, C., ALTER, K., SHANY, Y. (ed.): The Oxford Handbook of international Adjudication , Oxford University Press, New York, 2014, p. 797. 13 The Court has referenced VCLT in a number of its judgments, e.g. Magyar Helsinki Bizottság v. Hungary , Grand Chamber judgment of 8 November 2016, Application no. 18030/11. The majority of the Court has also been criticised on numerous occassions for not having been faithful to VCLT (e.g. famously in Separate opinion of Sir Gerald Fitzmaurice in Golder v. the United Kingdom, Plenary Judgment of 21 February 1975).


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