The ECtHR as a state dispute Court: what is the future for Article 33 ECHR?

By Dr. Ioanna Pervou

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To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.

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1. Introduction

Throughout the history of the European Court of Human Rights (the ECtHR, the Court), the paucity of interstate applications, combined with the fact that they were context-specific, raised questions regarding the effectiveness of the interstate mechanism introduced under Article 33. In addition, theory suggested that inter-state dispute settlement within the Council of Europe (CoE) was not well entrenched. This observation is supported by the fact that individual applications make up the overwhelming majority of the applications and decisions before the Court, thus playing a primary role in shaping the culture of European litigation. However, this anaemic recourse by member-states to the inter-state mechanism is now overturned, and it is rightly pointed out that we are going through the “golden era” of Article 33 European Convention on Human Rights (ECHR). During the last five years, there has been a tremendous rise in interstate applications before the European Court of Human Rights (ECtHR). This shift is gradual and its starting point dates back to the entry into force of Protocol 11, which significantly changed the prerequisites for adjudication before the Court. Protocol 11 restructured and facilitated inter-state applications by replacing the European Commission. Thus, the requirement of applications’ prior evaluation and subsequent referral by the Commission to the Court was removed.

The current trend indicates that inter-state applications before the Strasbourg Court now encompass a broader range of disputes, from human rights violations during armed conflicts to claims of financial interest and collective reparations for the families of missing persons. In light of this, there is a growing concern that invoking Article 33 with such a frequency does not serve its purpose, i.e. the collective enforcement of human rights, but instead risks turning the ECtHR into an international dispute settlement body. Although the Court’s judgments on inter-state applications have so far been well-received by member-states, and are in general considered to be a positive development, the recent significant increase in the number of inter-state appeals has prompted scepticism for two main reasons: First, inter-state applications are often related to ongoing armed conflicts between CoE’s member-states, like the ones related to the Nagorno-Karabakh, the Abkhazia and South Ossetia, or the Crimea disputes. Thus, the Court cannot but delve into the legal aspects of ongoing hostilities and must address questions relating to the legality of armed conflict as part of its preliminary analysis. Such applications contribute to the Court assuming the character of an interstate judicial body. Second, applicant states are increasingly not only seeking judgments on large-scale human rights violations committed during armed conflicts, but also going further and requesting interim measures, relying on the Court’s jurisprudence concerning the Convention’s preventative function. In this way, the ECtHR may be drawn into playing a more decisive role in ongoing military conflicts, a possibility that would significantly expand its juridical competence.  

2. The proliferation of inter-state applications: a driving force for the reinterpretation of Article 33

The significant increase in inter-state appeals before the Court underscores the need to develop strong interpretative tools for Article 33 ECHR, especially given that neither the provision’s ordinary meaning nor its negotiating history is enlightening in this regard. To date, it has been held that Article 33 ECHR offers a broad entitlement to CoE’s member-states to fill in an inter-state application. This interpretation stems from the fact that Article 35 of the ECHR, which sets the admissibility criteria for complaints, refers to individual complaints and is inapplicable to inter-state ones.

Therefore, when a state invokes Article 33, the Court does not apply its standard admissibility threshold. Instead, it applies a lower admissibility threshold, meaning that, in effect, the Court will examine the merits of a case even in the absence of prima facie evidence substantiating the claims. Since Article 33 does not require the existence of a dispute, a genuine allegation by the applicant state is sufficient to trigger the Court’s jurisdiction, thereby making the ECtHR more easily accessible in inter-state cases. This broad entitlement is justified by the general proposition that if a State decides to file an inter-state petition, its claim carries credibility in itself, given that states are not willing to disrupt their international relations with another state, unless there is a compelling reason for them to do so. After all, CoE was established to bring a ‘greater unity between its members to safeguard and realise the ideals and principles which are their common heritage.’

This view is also reflected in the Court’s priority policy. Although under its 2009 policy, the ECtHR decided to categorise inter-state applications as Category II cases, in the newest version of its priority policy, the Court has placed inter-state applications outside Category II applications. This change is significant given that Category II cases are those implying a peril for the effectiveness of the Convention’s system. Currently, inter-state applications do not fall under any of the Categories provided in the Court’s priority policy.  This is not described as a decision driven by their lower importance; rather, the Court explains that such applications inevitably raise the interest of the international community and the CoE in particular. The view that inter-state applications imply the existence of important disputes to be resolved is also upheld by the Steering Committee for Human Rights CDDH). In its report on the effective processing and resolution of cases relating to inter-state disputes, the CDDH addressed the question of whether this lower admissibility threshold for inter-state applications leads to unequal treatment between individuals who file individual applications and those whose rights are invoked by a kin-state. The CDDH found that there was no such danger and concluded that the difference in admissibility criteria for inter-state and individual applications does not create a higher level of human rights protection for individuals when their rights are invoked by a third state. This is due to the specific purpose of inter-state applications, where states appear before the Court to seek human rights protection in another member state. Applicants serve as human rights gatekeepers by bringing the potential violation of public order in Europe to the Court’s attention. As a result, CDDH’s views coincide with the Court’s jurisprudence up to now, both rejecting the need to introduce more restrictive admissibility criteria for inter-state applications.

Those arguing in favour of restrictive admissibility criteria for inter-state applications underline the need to secure the non-abusive invocation of the Convention, or to avoid actio popularis claims. However, in the context of inter-state applications, these concerns are largely unfounded given states’ cautiousness in initiating proceedings against one another. This is why the view that Article 33 shall be interpreted as a provision imposing a very low admissibility threshold has prevailed.  Although this perspective seems to render Article 33 a provision that poses almost no criteria for the lodging of such applications, this is not to the detriment of the Conventional regime. If strict admissibility requirements were put in force, this would undoubtedly delay the Court’s decision-making. The Court’s time rate in issuing decisions on interstate applications is already deemed relatively slow. Due to the voluminous submissions by the parties, the examination of these cases is time-consuming for the Court. This usually means that it takes quite a few years until it reaches a judgment. This is mostly because such applications require the investigation of multiple incidents and have a complex factual background. Thus, any additional delay due to procedural impediments would further decelerate justice. The ECtHR aims at a reasonable timeframe to handle its inter-state judgments and thus adopts the view that Article 33 cannot be interpreted in such a way that would pose a heavy admissibility burden on the applicant state.  

3. Mapping the features of inter-state applications before the ECtHR

If one attempts to categorise the filed inter-state applications before the Court, then two major categories occur.

The first category concerns cases alleging widespread or systematic human rights violations within a state due to the deterioration of the rule of law. Such applications imply that the applicant state has run out of alternative diplomatic or legal tools and is forced to act, as the erosion of the rule of law is of crucial importance for the ECHR regime. The Greek case, or that of Ireland v. United Kingdom, are emblematic examples of such cases. The common denominator of both is the implication that the respondent states’ practice was in sheer violation of the Convention. Violations were not sporadic, but they formed part of a pre-designed state conduct. On such occasions, the inter-state procedure is not only a means of putting pressure on the offending state to abandon its practice and bring an end to systemic human rights violations, but also a protector of the contractual framework, so that the Convention does not become a piece of paper. This is characterised as “altruistic human rights litigation” because applicant states point at systemic deficiencies in the domestic legal order of the respondent State. This act is primarily “altruistic” irrespective of the existence of a link between applicants and the groups of people whose rights are allegedly violated.  

The second category includes interstate applications alleging human rights violations that stem from serious breaches of general public international law (PIL). In these cases, the primary concern is not the protection of rights per se, but rather the Court’s determination that PIL has been infringed. More applications have been added to this category in the recent past. Apart from the landmark Cyprus v. Turkey case, the Court is now handling numerous complex cases including: Georgia v. Russia cases (I, II, III and IV), the Ukraine v. Russia series of cases (Ukraine v. Russia III, Ukraine v. Russia (re Crimea), Russia v. Ukraine, Ukraine and the Netherlands v. Russia, Ukraine v. Russia VIII, Ukraine v. Russia IX) and the Armenia v. Azerbaijan applications. These cases evolve into sagas for the Court, as multiple applications are filed by disputing parties.

Although it is not new for the ECtHR to deal with issues of jurisdiction, the Convention’s extraterritorial application, the protection of human rights during armed conflict, or the relationship of human rights with humanitarian law, recent inter-state applications have expanded these themes significantly. The pending inter-state applications before the ECtHR have ‘opened the bag of Aeolus’, given that the aggressive behaviour of certain state-parties to the ECHR is under review in Strasbourg. Such applications attempt to shift the Court’s interest into resolving existing disputes, while framing them as simple human rights issues. While this use of Article 33 is neither contrary to the Convention’s meaning nor problematic for the Court’s jurisdiction, it reflects a growing tendency of states to turn to regional judicial bodies to address active conflicts. This is a great vote of confidence for the Strasburg Court by states that do not hesitate to put on the table ongoing conflicts, entrusting the Court’s juridical reasoning. European states’ preference for the ECtHR over other international judicial bodies is evident. At the same time, though, it shows how states found in a weak diplomatic and political position opt for a legal settlement of their dispute.  From this angle, it is true that CoE is the guardian of European public order and that the ECtHR is increasingly evolving into a European dispute settlement body.   

4. Strasbourg as a dispute settlement body: pros and cons

Recent developments signal an expansion of the ECHR regime, but also raise important legal questions.

First, there is the question of whether the Court’s increased role affects the CoE’s structure. The Court’s primary character as a human rights judiciary does not deprive it of the ability to become a Court to adjudicate all sorts of inter-state disputes for the European region, even if they are remotely connected to human rights violations. This is not problematic, given that this ability is not the result of long-term interpretation or practice; rather, it stems directly from the Convention. The question is mostly a doctrinal one, pertaining to the international administration of justice and the fluidity of existing dynamics between the various international judicial bodies. The relationship between international and regional judicial bodies is not institutionalised but informal, and so it is not uncommon for states to engage in forum shopping, bringing the same claim before many courts simultaneously. This state practice has gained ground during the last years, given that there is no such international law rule to prohibit it.

In recent years, all armed conflicts in the European area have turned into legal disputes both before the ECtHR and the International Court of Justice in the Hague. In these proceedings, applicants primarily seek international condemnation of the respondent states’ aggressive conduct. In this attempt, applicant states bring to the fore human rights claims to establish the Court’s jurisdiction. This makes sense as far as Strasbourg is concerned, taking into account its jurisdictional basis ratione materiae. At the same time though, it tends to become a permanent recourse for states before the ICJ as well. The most prominent example being that of applications before the International Court of Justice in the framework of the Convention on the Elimination of Racial Discrimination (CERD), both in the conflict between Ukraine and Russia, and also in that between Georgia and Russia. The same applies, mutatis mutandis, and with regards to the Convention on the Prevention and Punishment of the Crime of Genocide, in the famous Genocide cases against the then Federal Republic of Yugoslavia.

This is not problematic in doctrinal terms, as the interrelation between international law domains is undisputed. Yet, the fact that inter-state litigation based on human rights conventions is on the rise raises questions regarding the possible issuance of different decisions on the merits, as the institution of pending litigation between international judicial bodies does not exist. Although the concern of concurrent pending litigation exists, it is not openly mentioned either by the tribunals or the disputing states. However, the cautiousness of the ECtHR to remain within a solid human rights framework is evident. States’ ultimate intention to emphasise any excerpt of the judicial decision which could highlight the rightness of their use of force case does not go unnoticed. At this point, the ECtHR seems to have set clear limits in the Georgia v. Russia (II) case, where it concluded that it was not able to establish jurisdiction during active hostilities. This judgment received various interpretations; among them, it was suggested that the ECtHR attempted to set clear jurisdictional limits as far as inter-state applications are concerned.

The second issue is whether reference of armed conflicts to human rights judicial bodies serves “judicial economy”. If both the ICJ and the ECtHR examine armed conflict claims through the lens of human rights, then this proliferation of proceedings is needless, a view first adopted by the ICJ. In this regard, abuse of process is not strictly a procedural term. On the contrary, it applies to the systemic relation between international and regional courts and tribunals. This peril is well documented and predates the increase of interstate applications before the ECtHR. However, it is only up to inter-judicial dialogue to avert the negative consequences of parallel proceedings.

5. Are there content qualificators for the invocation of Article 33?

Both categories of applications mentioned above have a common feature. Applicant states file them as part of their naming and shaming policy, considering that the extent to which these cases will occupy public discourse is far more influential in international relations than their outcome itself. Thus, the high political stakes involved in inter-state applications is almost a condition sine qua non for their existence. This inherent political character has effectively become a qualifier for invoking Article 33. However, the absence of procedural prerequisites for its activation has allowed the occurrence of applications like those of Slovakia v. Belgium, or Slovenia v. Croatia, which bear no high political end.

The increase in interstate petitions is not only quantitative; the qualitative features of such applications are amplified, too. Is this a matter of an interpretative gap and the inability to apply Article 33 of the Vienna Convention on the Law of Treaties traditional interpretative methods, or the result of a general decline in the solidarity between CoE’s member-states? The first question has been answered both by the Court and the CDDH. The conventional regime welcomes states’ turn towards inter-state applications as it proves that the ECHR is a “living instrument”. Despite the absence of procedural prerequisites, this variation of the traditional teleological interpretation imposes informal conditions so that Article 33 is not misused by state parties. After all, filing an interstate petition is not something that would escape the attention of high-level CoE’s organs. Thus, such applications are anticipated, and there is prior diplomatic discussion. This inherent deficiency in the interpretation of Article 33 is not the main concern if states are willing to safeguard respect for conventional rights. Misuse due to political ends is not a matter of applications’ increase alone. Rather, it is the increase of the second category and the sheer decrease in “altruistic litigation”. That is, interstate applications have been filed based on political criteria alone. As a result, there are plenty of occasions where patterns of systemic violations of the ECHR emerged, and the rest of the member states remained inactive. If a teleological interpretation was intended to prevent absurd invocations of Article 33, it cannot adequately explain the absence of inter-state appeals in cases involving systemic enforced disappearances or repeated violations of Articles 2 and 3, such as those resulting from pushback practices against asylum seekers.

This final remark complicates the debate surrounding interstate applications. On one hand, the opinion that the golden era of inter-state applications signifies the absence of solidarity between CoE member-states gradually gains ground. The existence of wars in Europe is a sad reality. On the other hand, it is equally true that without such inter-state applications, the meaning of the contractual bond between ECHR’s state parties cannot be achieved. In other words, contentious cases before the ECtHR demonstrate the maturity of the Convention regime and the trust states place in it to bear this significant responsibility. Ultimately, the truth lies somewhere between these opposing perspectives. The signs of disintegration in the European plane are manifest. Armed conflicts alongside the decline of the rule of law test the ECtHR’s human rights regime. At the same time, the institutional guarantees offered by the CoE are the last stronghold of European standards and thus serve as a critical reference point as far as solidarity is concerned.

6. Conclusions: Inter-state applications as a ticking bomb in the foundations of CoE?

The above demonstrates how inter-state applications do not necessarily serve the Convention’s purpose to turn its member states into human rights’ gatekeepers. For the ECtHR to continue being a human rights tribunal, when inter-state litigation is at stake, the principle of impartiality shall be the major interpretative tool applied. More specifically, impartiality is a precondition for the preservation of the conventional regime. If the Court is to adjudicate issues of sovereignty between its member-states, then this would contravene the very essence of their sovereign equality within the conventional framework. In addition, this would question the Court’s competence and whether it acts ultra vires. If this rationale is accepted, it poses a risk to the Convention regime; in effect, it leads to the conclusion that human rights inter-state litigation shall be narrowly interpreted under Article 33 ECHR. In effect, general inter-state litigation remains under the exclusive jurisdiction of the ICJ. Although international judicial bodies have long been engaging in doctrinal dialogue, this does not affect their jurisdictional boundaries. In other words, states shall remain cautious in filing interstate applications before the ECtHR, while the latter shall remain firm in inter-judicial dialogue.

Overall, issues pertaining to sovereignty disputes or the use of force do not fall within the primary interests of the ECHR system. Thus, the examination of territorial issues considering the Convention’s extraterritorial application cannot be equated with questions of sovereignty. This perspective could possibly offer a more solid interpretation of Article 33 and highlight its value for systemic human rights violations emerging from state patterns. Inter-state applications are not valuable due to their inter-state character per se, but because of the importance of the claims raised therein.