CYIL vol. 11 (2020)

MARTINA GROCHOVÁ – ĽUBOMÍR MAJERČÍK CYIL 11 (2020) to transform the extent of obligations still to be performed under the treaty. The respective case-law of ICJ underlined that the threshold for what amounts to a fundamental change of circumstances is very high 14 . Above all, provisions of VCLT are addressed exclusively to contracting parties of international treaties and not their objects. Article 15 of the Convention enshrines the possibility for States to derogate from certain obligations in times of crisis which means that the parties to the Convention obviously foresaw emergency situations as a justification for a derogation from certain substantive obligations. 15 Ten member states of the Council of Europe formally notified Secretary General of the Council of Europe during the Covid-19 pandemic about their exercise of their right of derogation. Naturally, this is not the first time States have resorted to this measure. The case-law of the Court is particularly strict when interpreting circumstances allowing for such derogations. Beyond narrow reading of procedural requirements the measures may be accepted only to the extent strictly required by the situation. Again, such a decision belongs to parties to the Convention and not the Court as an object of the Convention itself. When member states overstep these requirements, applicants may turn to the Court, putting forward their grievances. Who is to judge the Court on its compliance with the rules of general international law? This is the usual problem of the consequences of ultra vires acts of international organisations. 16 International practice is sparse and very few international organisations provide for a judicial review mechanism. Nevertheless, this time the ambiguous situation may eventually have a tangible outcome. We may expect objections raised by governments in their observations when the applicants lodge belated applications and the Court will seem to employ the extension in practice, notwithstanding the six-month rule. The judges will have to respond to the admissibility claims and give their opinion on the nature and validity of the decisions to extend the time-limit. Other possible measures that could have been adopted Neither the CJEU nor the ICJ had adopted a similar approach in the current situation. The ICJ has indeed prolonged certain time limits, though it had done so in specific cases only and in the form of reasoned decisions issued by a standard formation 17 . The CJEU has not resorted to any such measures in the view of the Covid-19 pandemic. On the other hand, the Inter- American Court of Human Rights adopted very similar measures as the Court. It suspended all public hearings and the ordinary session that were to be held in April, as well as all the time limits regarding all cases currently pending before the Inter-American Court of Human Rights (IACtHR). 18 Similarly to the Convention, the six-months’ time limit for lodging of an application with the IACtHR 19 is enshrined directly in the American Convention on Human 14 The Case concerning the Gabčíkovo-Nagymaros Project ( Hungary v. Slovakia ), Judgment of 25 September 1997, 1997 ICJ Reports. 15 Similar rules are containted in other human rights treaties, e.g. International Covenant on Civil and Political Rights or Inter-American Convention on Human Rights. 16 CANNIZZARO, E., PALCHETTI, P.: Ultra vires acts of International Organisations, in KLABBERS, J., WALLENDAHL, A (ed.): Research Handbook on the Law of International Organisations , Edward Elgar Pub, Cheltenham, 2011, p. 376. 17 See Ukraine v. Russian Federation. Order no. 166 of International Court of Justice, 13 July 2020. 18 Inter-American Court of Human Rights Agrees to Suspend Time Limits due to the Health Emergency Caused by Covid-19. Press Release. Inter-American Court of Human Rights I/ACourt H.R. PR 1 8 2020. 19 Agreement no. 1/20 of the Inter-American Court of Human Rights, 1 March 2020, I/ACourt H.R.PR 1 8 2020.


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