APPENDICES
JUDGEMENT DELIVERED BY A CHAMBER (23.3.95)
(1) This summary by the Registry does not bind the Court 

contents 

SUMMARY 

PROCEDURE 

AS TO THE FACTS 

AS TO THE LAW 

APPENDICES 

 

A P P E N D I C E S

Declaration by France (3 May 1974) 
"Article 15, paragraph 1
The government of the Republic further declares that the Convention shall apply to the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63." 

Declaration by the United Kingdom (14 January 1966) 

The British declaration under Article 25 of 14 January 1966, periodically renewed since then, is reproduced in paragraph 33 of the judgment. 

The declaration under Article 63 of 23 October 1953 listed 43 relevant territories (including Cyprus, the Isle of man and Gibraltar). The declaration of 10 June 1994 listed the States which had become independent. The declaration of 14 August 1964 listed the territories omitted. 

Declaration by the Netherlands (24 December 1985) 

"The island of Aruba, which is at present still part of the Netherlands Antilles, will obtain internal autonomy as a country within the Kingdom of the Netherlands as of 1 January 1986. Consequently the Kingdom will from then on no longer consist of two countries, namely the Netherlands (the Kingdom in Europe) and the Netherlands Antilles (situated in the Caribbean region), but will consist of three countries, namely the said two countries and the country Aruba. 

As the changes being made on 1 January 1986 concern a shift only in the internal constitutional relations within the Kingdom of the Netherlands, and as the Kingdom as such will remain the subject under international law with which treaties are concluded, the said changes will have no consequences in international law regarding treaties concluded by the Kingdom which already apply to the Netherlands Antilles, including Aruba. These treaties will remain in force for Aruba in its new capacity of country within the Kingdom. Therefore these treaties will as of 1 January 1986, as concerns the Kingdom of the Netherlands, apply to the Netherlands Antilles (without Aruba) and Aruba. 

Consequently the treaties referred to in the annex, to which the Kingdom of the Netherlands is a Party and which apply to the Netherlands Antilles, will as of 1 January 1986 as concerns the Kingdom of the Netherlands apply to the Netherlands Antilles and Aruba."

 
Chart of signatures and ratifications of the Convention (at 31 December 1994)
(extracts)
Member States
Date of
Signature
Date of
Ratification
or Accession
Date of
Entry
into Force
R: reservations
D: declarations
T: territorial
declarations
AUSTRIA
13/12/57
03/09/58
03/09/58
R
CZECH REP.
21/02/91
18/03/92
01/01/93
R
FINLAND
05/05/89
10/05/90
10/05/90
R
FRANCE
04/11/50
03/05/74
03/05/74
R/T
GERMANY
04/11/50
05/12/52
03/09/53
R
HUNGARY
06/11/90
05/11/92
05/11/92
R
IRELAND
04/11/50
25/02/53
03/09/53
R
LIECHTENSTEIN
23/11/78
08/09/82
08/09/82
R
MALTA
12/12/66
23/01/67
23/01/67
D
NETHERLANDS
04/11/50
31/08/54
31/08/54
T
PORTUGAL
22/09/76
09/11/78
09/11/78
R
ROMANIA
07/10/93
20/06/94
20/06/94
R
SAN MARINO
16/11/88
22/03/89
22/03/89
R/D
SLOVAKIA
21/02/91
18/03/92
01/01/93
R
SPAIN
24/11/77
04/10/79
04/10/79
R/D
SWITZERLAND
21/12/72
28/11/74
28/11/74
R/D
UNITED KINGDOM
04/11/50
08/03/51
03/09/53
T
INDIVIDUAL DISSENTING OPINION OF MR GOLCUKLU
(provisional translation)

In addition to the matters I raised in my joint dissenting opinion with Mr Pettiti concerning the preliminary objections on the questions of "jurisdiction" (Article 1 of the Convention; paragraphs 62 and 64 of the present judgment) and the "inseparability" of the Turkish declarations under Articles 25 and 46 of the Convention (paragraphs 94 et seg.), I cannot agree, to my great regret, with the Court's conclusions on two other aspects of this case. 

1. I consider that it is not possible in this case to reach a conclusion on the role of the "Turkish Government", or in other words on its status as "respondent", without first looking into the merits of the case. On 21 April 1994 the plenary Court did not decide whether Turkey had the status of respondent, but only considered the question submitted to it by the President, under Rule 34 of Rules A and decided, without prejudice to the preliminary objections raised by the Government of Turkey or the merits of the case, that the applicant Government had standing under Article 48 (b) of the Convention to refer the case to the Court and that the Chamber should resume consideration of the case (paragraph 7). And in its final submissions Turkey had asked the Court to hold that the applicant's allegations lay outside the jurisdiction of Turkey within the meaning of Article 1 of the Convention. It goes without saying that this question of "respondent status" is closely bound up with the question of "jurisdiction" within the meaning of Article 1 of the Convention. The Court took the view that it was not within the discretion of a Contracting Party to characterize its standing in the proceedings before the Court as it saw fit (paragraph 51). By the same token, the applicant is not entitled to name any State she sees fit as respondent in a case before the Court, nor is it for the Court to build a whole procedure on top of this unverified allegation. Therefore, instead of delivering a separate judgment on this specific question, as it has done, the Court should have joined the preliminary objection in question lodged by Turkey to the merits of the case. 

2. With regard to point 3 of the judgment's operative provisions, I entirely agree with the dissenting opinion expressed in this case by five eminent members of the Commission (Mr Norgaard, the President, and Mr Jorundsson, Mr Guzubuyuk, Mr Soyer and Mr Danelius) in which they declared: 

    Morevover, under Article 63 of the Convention, certain territorial limitations are also expressly provided for. However, Article 63 concerns territories for whose international relations a Contracting State is responsible, and the northern part of Cyprus cannot be regarded as such a territory. Nevertheless, Article 63 shows that, when making a declaration under Article 25, a Contracting State may, in some circumstances, make a distinction between different territories. 

    If a State may exclude the application of Article 25 to a territory referred to in Article 63, there would seem to be no specific reason why it should not be allowed to exclude the application of the right of individual petition to a territory having even looser constitutional ties with the State's main territory. If this was not permitted, the result might in some circumstances be that the State would refrain altogether from recognizing the right of individual petition, which would not serve the cause of human rights. 

    We consider that the territorial limitation in the Turkish declaration, insofar as it excludes the northern part of Cyprus, cannot be considered incompatible with the object and purpose of the Convention and that it should therefore be regarded as having legal effect. 

    In these circumstances, it is not necessary to examine what the legal consequences would have been if the territorial limitation had been held not to be legally valid. 

    If follows that the Commission is not competent to deal with the applicant's complaints of violations of the Convention in Cyprus. For these reasons, we have voted against any finding of a violation of the Convention in the present case."

I interpret Article 6 of Protocol No. 7 in the same way. I would also like to cite, in this connection, another opinion to the above effect, that of Professor Christian Tomuschat. 

"Turkey's refusal to accept the supervisory authority of the Commission with regard to all other areas than the Turkish national territory itself may be justifiable under Article 63 S 4. This provision admits of a differentiation between metropolitan territories and other territories "for whose international relations" a State is "responsible". Although the text avoids speaking of colonial territories, the intention of the drafters was precisely to leave States Parties some latitude with regard to their extra-European dependencies. If interpreted in this restricted sense, Article 63 S 4 could not be relied upon by Turkey. However, doubts may be raised as to the precise scope of Article 63 S 4. The United Kingdom also invoked it in respect of its European dependencies, namely the Bailiwicks of Guernsey and Jersey and the Isle of Man. Originally, Guernsey and the Isle of Man were mentioned in the first declaration under Article 25 of 12 September 1967 which defined the competence of the Commission in territorial terms. When the declaration was renewed for the first time in 1969, Guernsey and Isle of Man were excluded. Afterwards, the two territories were again added to the geographical lists accompanying the relevant declarations. As mentioned above, the Isle of Man was dropped from those lists in 1976. Strangely enough, Jersey is mentioned for the first time explicitly in the declaration of 4 December 1981, though in a positive sense, as being placed again ("renew") under the control mechanism of Article 25. To date, no objections have been lodged against this practice. It might be argued, therefore, that Article 63 S 4 has evolved into a clause conferring unfettered discretion on States concerning the territorial scope of their declarations under Article 25, whenever territories beyond the national boundaries are concerned. 

Additionally, it might be contended that valid substantive reasons could be identified to support such a conclusion. The extraterritorial legal effect of human rights standards is particularly difficult to assess. While there can be no doubt that States have to refrain from interfering with human rights irrespective of the place of their actions, to ensure human rights beyond their boundaries is mostly beyond their capabilities. It is noteworthy, in this connection, that the International Covenant on Civil and Political Rights limits the commitments of States to individuals within their territory and subject to their jurisdiction" ("Turkey's declaration under Article 25 of the European Convention on Human Rights", Festschrift fur Felix Ermacora, Kehl, Engel, 1988, pp. 128-9). 

For other examples supporting this argument, it is sufficient to cast a glance at the long list of reservations and declarations deposited by the Contracting States. 

I therefore consider valid the territorial restrictions contained in the Turkish declarations under Articles 25 and 46, applying, at least by analogy, Article 63 of the Convention. 


 
 
INDIVIDUAL DISSENTING OPINION OF MR PETTITI
(provisional translation)

The solution advocated, i.e. joining all the preliminary objections to the merits, had the advantage of permitting an overall view of the situation of Cyprus and Turkey regarding the disputes concerning northern Cyprus. It is not appropriate to sever the objection ratione loci from interpretation of Article 1; to my mind these issues are inseparable. Consideration of the merits as a whole would have made it easier to elucidate the question of the TRNC's international or other status, and that of the agreement concluded as a result of the relations and negotiations conducted at the United Nations, under which people do not enjoy liberty of movement in both directions. 

I consider that this overall examination of the merits, before consideration of the first objection and the declaration, was necessary in order to decide the very scope of the declaration. The European Convention is not an international treaty of the traditional type nor a synallagmatic convention, as legal writers, and particularly Professor Cohen-Jonathan, have pointed out, since it is not based on reciprocity. 

It is based on the principle that all individual subjects of law are its beneficiaries, so that fundamental rights can be protected more securely. The Court is the guarantor of the Convention and must endeavor to extend its protection as far as possible; it is therefore empowered to draw the consequences of instruments deposited by the States. Consequently, the Court can better fulfill its protective role by having at its disposal all the information necessary to assess the legal and factual situation. 

In the search for a peaceful compromise, the northern Cyprus question has been discussed in all international negotiations concerning Greece, Cyprus and Turkey, including those relating to European Union customs agreements or GATT agreements. 

At the examination of preliminary objections stage, after the discussion at the public hearing, which was limited to analysis of these objections by the Parties, the European Court was not able to take cognisance of all the problems, and this circumstance militated even more forcefully in favour of joining all these objections to the merits. To date legal writers have not considered analysis of the Turkish declaration a simple matter (see Claudio Zanghi, Christian Tomuschat, Walter Kalin, Pierre-Henri Imbert, Christopher Lush, etc.). 

An overall assessment of the situation, beginning with the concepts of sovereignty and jurisdiction, would make it possible to review the criteria ("occupation", annexation", territorial application of the Geneva Conventions in northern Cyprus, "conduct of international relations") on the basis of which the UN has analyzed both the problem whether or not to recognize northern Cyprus as a State and the problem of the application of the UN Charter (see Security Council Resolution 930). The responsibilities of the European Convention institutions, when faced with such difficulties, reflect the mutual commitment of the member States to ensuring the best and widest protection of individuals and fundamental rights in the countries concerned by applying the Convention provisions in a manner consistent with their object and purpose.


email:
human-rights@cyprus.com.cy