Abstract
The awakening of inter-state communications with the first ever three cases before the Committee on the Elimination of Racial Discrimination in 2018 has inspired new avenues of research about their potential and shortfalls. This article opens a new line of exploration, considering the mechanism’s potential as an avenue for collective action at a time when many States are responding to violations of international law, even when not directly affected by those violations. Those responses have included massive third-party interventions (Ukraine v Russia), and the initiation of proceedings before the icj by States not directly injured (The Gambia v Myanmar, Canada and the Netherlands v Syrian Arab Republic, South Africa v Israel). This article argues that enabling collective inter-state communications before UN treaty bodies could strengthen the mechanism as an avenue for treaty compliance and the protection of human rights, and for amplifying sovereign voices as part of peaceful dispute settlement processes.
1 Introduction
Most UN human rights treaties or protocols establish inter-state procedures,1 allowing States to bring to the attention of the respective treaty bodies a breach of an obligation by another party without having to prove a direct interest in the case.2 After attempts at negotiation,3 this may lead to conciliation or good offices by those treaty bodies or an ad hoc conciliation commission. This avenue, which had laid dormant for decades, was activated with the first three cases in the history of the UN in 2018, all before the Committee on the Elimination of Racial Discrimination (cerd Committee).4
The awakening of this mechanism has inspired new lines of research about its potential and shortfalls.5 Building on that research, this article opens a new line of exploration, considering the mechanism’s potential as an avenue for collective action in a moment when many States are reacting to violations of international law, even if they may not be directly affected by those violations. The world has witnessed the initiation of proceedings before the International Court of Justice (icj) in the case of The Gambia v Myanmar, the joint application by Canada and the Netherlands against Syria,6 and most recently the application by South Africa against Israel.7 In each of these cases, the applicant States have not been directly injured. Equally important, in an unprecedented use of third-party intervention, 33 States have submitted to the icj their declarations of intervention as third parties in ongoing proceedings in the case of Ukraine v Russia, and in June 2023, 32 of them were accepted at the preliminary objections stage.8
In the context of this possible paradigm shift in the international community, this article argues that enabling collective inter-state communications before UN treaty bodies could strengthen the mechanism as an avenue for treaty compliance and the protection of human rights, and for amplifying sovereign voices as part of peaceful dispute settlement processes. The methodology is based on: a) an analysis of the treaties and their travaux préparatoires and existing individual cases; b) a comparative analysis of collective action in different fora, including joinder of proceedings and third-party intervention before the icj, the International Tribunal on the Law of the Sea (itlos), regional human rights courts, arbitral tribunals (such as the International Centre for Settlement of Investment Disputes (icsid)), and other fora; and c) consultation with experts and stakeholders (legal advisers to States, (current or former) members of UN treaty bodies, civil society organisations, and academics from a variety of disciplines).9
The article proceeds in three parts. First, it explores a possible paradigm shift in how the international community reacts to human rights violations. Second, it looks at the potential of collective inter-state communications for treaty compliance, and for amplifying sovereign voices as part of peaceful dispute settlement processes. Third, it proposes specific ways in which the contours of collective action in inter-state communications should be defined to mitigate associated risks. The article considers the two main forms of collective action: joint inter-state communications, where all States involved are parties to the procedure, and third-party intervention, where two States are parties to the procedure and other States may join but not as parties. More informal forms of collective action are also considered briefly.
2 A Paradigm Shift in the International Community or an Optical Illusion?
Prior to the awakening of inter-state communications in 2018 before the cerd Committee, the literature was practically unanimous about the reasons for the absolute lack of inter-state case law before UN committees,10 reflecting some States’ perceptions of inter-state communications as an unfriendly act,11 a threat to national sovereignty12 and the principle of non-interference,13 and as a tool that could be used with mere political motivations.14 Despite committees’ emphasis on inter-state communications being conciliatory, not adversarial,15 States have traditionally preferred not to escalate a human rights-related dispute if it could be resolved through diplomatic means or if other alternatives seemed more suitable and less cumbersome.16 They have prioritized avoiding the risk of politicisation of inter-state procedures, leaving ‘Pandora’s box’ closed17 and opting for diplomatic action or sanctions18 whenever another State party to a UN human rights treaty was deemed to be failing to comply with treaty obligations, particularly if the applicant’s own direct interest was not affected.19 This aligns with the ‘individualist’ approach that States have taken in international affairs for decades, avoiding overexposing themselves unless a violation directly affects them. As Leckie noted in the late eighties, ‘[S]tates prefer to pursue mutually acceptable policies’ and ‘quiet forms of diplomacy’ ‘when addressing human rights in other [S]tates if they have interests other than human rights in the country in question’.20
However, an analysis of recent developments in international litigation, coupled with the increase in inter-state human rights cases before the European Court of Human Rights (ECtHR),21 suggest that a paradigm shift could be consolidating in international litigation, with potential implications for inter-state communications before UN human rights treaty bodies.
2.1 From Reacting to Direct Injuries to Engaging with International Mechanisms when other States have been Affected
Two litigation strategies have resulted in a strong sense of collective response. First, the strategy followed by the Gambia against Myanmar before the icj, initiating a case for Myanmar’s violations of the human rights of the Muslim Rohingya population without being directly affected. This initiative, following from Belgium v Senegal, is based on the violation of erga omnes partes obligations22 and could open a path to other litigation for similar situations, as recently observed in the joint application by Canada and the Netherlands against Syria under the Convention Against Torture,23 and the application by South Africa against Israel under the Genocide Convention.24 It could also open such a path in cases involving violations of erga omnes obligations.25 In The Gambia v Myanmar, the erga omnes partes nature of the allegedly violated obligations has allowed a State with no direct interest in the case to initiate proceedings against Myanmar. The recent joint application of Canada and the Netherlands instituting proceedings before the icj against Syria concerning a dispute under the Convention Against Torture26 also materializes the avenue for State responsibility based on erga omnes partes obligations,27 following many attempts to hold Syrian officials accountable under domestic legal frameworks.28 South Africa’s application also cites The Gambia v Myanmar for its points on erga omnes partes.29 At the time of writing, the Court had issued five provisional measures against Israel and established its own prima facie jurisdiction.30 Quoting the The Gambia v Myanmar case, the Court noted that ‘any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end’.31 Nonetheless, as Hachem and Hathaway explain, ‘[i]f the icj does allow the case to proceed to the merits, it will further entrench erga omnes partes standing as an important new tool in enforcing international human rights law, making clear that its decisions in [the] The Gambia and the Syria cases were no outliers’.32 Importantly, in its order on provisional measures, the Court noted that ‘the Respondent [Israel] did not challenge the standing of the Applicant [South Africa] in the present proceedings’.33 In a similar way, inter-state communication procedures do not require a direct interest or a connection to a particular victim for standing before UN treaty bodies,34 which positions any State party to the treaty as, following this new trend, able, simply in their capacity as State party, to initiate an inter-State procedure against the violating State.
Second, massive third-party intervention under art. 63 of the Statute of the International Court of Justice (icj Statute) is ongoing in the case concerning Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) before the icj35 and in a separate case before the ECtHR,36 in support of Ukraine’s claims.37 This, coupled with the expression of interest of the Netherlands, Canada, Germany, Denmark, the UK and the Maldives to intervene to support The Gambia against Myanmar before the icj, has led scholars to analyse the pros and cons of third-party intervention and its potential as a tool for actio popularis.38 Germany has also announced that it intends to intervene in the South Africa v Israel case.39 Beyond international litigation, the myriad of initiatives established in response to violations of international law by Russia in Ukraine40 gives a sense of the momentum and of one particularly relevant feature for this paper: the collective nature of action against Russia. The international community has taken a collective approach to this situation, joining forces to protect human rights and contribute to securing justice with an unprecedented collective legal response.41
These collective responses could consolidate a new paradigm, where the potential of existing mechanisms would be revisited to serve coordinated responses by the international community. Whether there is an actual paradigm shift, or this is only an optical illusion, will very much depend on the outcome of the proceedings initiated by South Africa, Canada and the Netherlands, Ukraine and the Gambia. In any event, having observed the collective reaction to human rights violations in Ukraine and the new spirit that the The Gambia v Myanmar case could bring to the fore, reactivating the erga omnes partes claims seen before in Belgium v Senegal, with some States starting to be ready to take a risk to protect human rights in others, this more ‘collective’ perspective could influence the perception and use of inter-state communications.
As mentioned above, aligned with the literature before the awakening of inter-state communications, at the top of the list of the reasons for the underuse of the mechanism continues to be its perceived adversarial nature and the potential adverse implications that an inter-state process could have for the diplomatic relations between two countries. This has maintained the perception of inter-state communications as a last resort mechanism. This new paradigm could influence States’ choices, making inter-state communications more attractive as an option if stepping up in situations of serious human rights cases becomes a more common practice. Whilst inter-state communications do not require victimhood for standing, articulating the procedure as collective could result in more actio popularis cases,42 especially when the resolution of a case may affect the interpretation of a provision in a treaty.43 They could reduce the confrontational barrier associated with State-to-State communication procedures,44 and offer a safe way to amplify the voices of the international community through a dispute settlement method which provides certain safeguards.
2.2 The Potential Influence of these Two Litigation Trends on Inter-state Communications
While not explicitly recognising this collective possibility,45 UN treaties or rules of procedure do prohibit collective action. No amendment to the treaties would be necessary, although it would be helpful to explicitly include the collective avenue in rules of procedure. Collective inter-state procedures could take two forms: multi-party cases and third-party intervention. More informal forms of collective action, mirroring those in other fora,46 could be amicus or requests of information from the treaty body.
Multi-party cases would be the strongest form of collective action before UN treaty bodies, with multiple parties on either side of the procedure.47 Two or more States could decide to join forces and initiate proceedings jointly against one or more ‘injuring’ States. There could also be the possibility for UN treaty bodies to combine cases, imposing collectiveness on the parties. Multi-party cases are a possibility before the icj48 and other international courts and tribunals.49 Although not widely used,50 this collective form of dispute settlement articulates a formal channel for various claims to be presented jointly in court in an effective and coordinated manner. Enabling this for inter-state communications could facilitate an avenue for a coordinated collective response to human rights violations within the limits and rules of inter-state communication procedures, although the multiplicity of parties could, amongst other issues, entail challenges concerning the potential success of the conciliation process that inter-state communications envisage.
Third-party intervention is the other main way in which collective action could be envisaged before UN treaty bodies, mirroring the functioning of third-party intervention in international litigation. Before the icj, third-party intervention under arts. 62 and 63 of the icj Statute,51 which has traditionally been used to safeguard the legal interests of third parties or for harmonization of conventional rules, is increasingly being explored as a way for States to publicly and formally show public support for another State or to condemn the conduct of another State in a universal forum. This practice has also been observed in the ECtHR, in the context of proceedings between Ukraine and the Netherlands and Russia, with 26 States intervening. The Court has since asked States to coordinate their work52 and has published an amended version of the ECtHR Rules of Court in tandem with a Practice Direction on third-party intervention.53 The Practice Direction notably states that information should be put ‘as impartially and objectively as possible’, should not ‘express support directly for one or the other party’,54 and ‘should relate solely to the aspects of the case that are relevant to [the State’s] interest(s)’.55 Batura observes that this idea of objectivity and not expressing support may not be so simple in practice.56 Nevertheless, it does give some insight into how the ECtHR will seek to approach its collective instance.
The benefits to the parties and to intervening States have been analysed in light of existing practice,57 flagging the support that intervention may bring to the parties,58 and the practical benefits for the intervening States.59 This form of participation would also enable a collective response, where third parties would signal themselves but being less involved in the case than in joint proceedings. A priori, this could be less disruptive to the conciliation process that inter-state communications envisage, and more feasible for States with limited budgets.
3 The Power of Group Action for the Aims of Inter-state Communications
Treaty compliance and the protection of human rights have traditionally been seen as the main aims of inter-state communications before treaty bodies. This perception expressed by many delegations during treaty negotiations60 has consolidated with the work of treaty bodies, which has continuously acknowledged the potential of inter-state communications to ‘ensure that the provisions of the [c]onvention are adequately observed and complied with by all States parties’.61 It is argued here that the possibility of having inter-state communications with various applicant or respondent States, or allowing third-party intervention, could strengthen the mechanism’s potential for ensuring treaty compliance and human rights protection. The study of inter-state communications has also led to the acknowledgment of other possible aims of inter-state communications, such as the settlement of a dispute, or the use of the mechanism to signal violating States and complying States. This section presents the benefits of that collective approach for these aims.
3.1 Benefits for Treaty Compliance and the Protection of Human Rights: Procedural Efficiency and Harmonization
One of the arguments traditionally used to support the existence of collective procedures in international law is procedural efficiency (or economy), seen as a core procedural value as it facilitates court decisions with ‘the least amount of administrative obfuscation’,62 or ‘at the earliest possible date and at the lowest possible cost to the parties’.63 Joint proceedings and third-party intervention in inter-state communications could contribute to making the procedure more efficient for treaty compliance and human rights protection, by reducing the administrative burden and at the same time facilitating the consideration of a wider set of arguments by the treaty body or conciliation commission.64 It would also lead to multiple applicant or respondent States building coordinated strategies, enhancing the efficiency of the process.65
Similar arguments have been developed for collective action in other fora, such as the icj or itlos.66 Third-party intervention has confronted the icj with a wider range of legal arguments, allowing it to fully explore the implications of cases. This has the potential of avoiding ‘repetitive litigation on the same subject matter’ and can ‘provide adequate information for the Court to render a comprehensive judgment’.67 In his separate opinion in the Indonesia/Malaysia case, Judge Weeramantry established that ‘[i]ntervention procedure both in domestic and international law is based, inter alia, on the need for the avoidance of repetitive litigation’,68 although recently the oral interventions of the large number of intervening States in the Ukraine v Russia case in the preliminary objections phase were quite repetitive. The same has been established for itlos, where factors relevant to the exercise of the Tribunal’s powers in respect of intervention are the good administration of justice, including the need for efficiency and the need to deal with the case as a whole.69
Collective communications would also enhance the mechanism’s potential for compliance whenever the question at stake is one of interpretation of the treaty, where harmonization may be sought. In his separate opinion in the Indonesia/Malaysia case, Judge Weeramantry established that another basis for third-party intervention is ‘the need for harmony of principle, for a multiplicity of cases involving the same subject-matter could result in contradictory determinations which obscure rather than clarify the applicable law’.70 As McIntyre flags, icj third-party intervention case law is not so explicitly supportive of the harmonization narrative.71 Indeed, the use of third-party intervention in Ukraine v Russian Federation before the icj could point in this direction, although the preliminary objections phase did not seem to support this proposition.
In their declaration of intervention as third parties in the case, various States referred explicitly to the interpretation of the Genocide Convention as an issue of common interest,72 and several States referred to erga omnes or erga omnes partes obligations.73 This is consistent with the legal basis which all these States have used to substantiate their request to intervene: art. 63 of the icj Statute. Unlike art. 62,74 which opens an avenue for intervention when the third State can prove an ‘interest of a legal nature which may be affected by the decision in the case’,75 art. 63 does not require the intervening State to prove such interest.76 Art. 63, also applied only very occasionally, is an avenue for intervention when the third State has a weaker connection to the case, not necessarily a legal interest in the case but where the interpretation of the convention at stake may be of relevance to it. This leaves more leeway for States to intervene in cases where erga omnes partes or erga omnes obligations are to be interpreted, and points toward the role of the icj not only as the universal judicial organ of the UN settling disputes between parties but also shaping the content of multilateral treaties and clarifying and contributing to the progressive development of international law.77 Notwithstanding the implications of the distinction between arts. 62 and 63 and the potential blurring of the line dividing them, analysed in other sections of this article, developments in this massive third-party intervention case present an opportunity for the icj to consolidate its recognition of collective action’s contribution to harmonized treaty interpretation, legitimized by the participation in proceedings of other parties to the treaty. This gives other States the opportunity to contribute with their submissions ‘their view on the treaty’, in cases where the obligations of the treaty have been breached or in cases where the interpretation of treaty provisions is at stake.
Collective inter-state communications would give UN treaty bodies an excellent opportunity to hear the views of the parties to the treaty on an issue of interpretation, helping them reach a more legitimate and harmonized view of the treaty provisions, in line with the principles and techniques of interpretation applying to international human rights treaties. The harmonization argument is valid also for when the procedure is initiated against multiple respondent States, as (instead of isolated non-compliance) the case may be uncovering an issue of interpretation.
The values of efficiency and harmonization of the law, traditionally identified as benefits of collective action before the icj, are not the only relevant values to assess the convenience of a collective approach to inter-state communications. Other values should be observed when considering the implications of collective action before UN treaty bodies, including transparency, party autonomy, confidentiality, democratic legitimacy and representation.78 Now-President of the icj Judge Donoghue suggested in her dissenting opinion in Nicaragua v Colombia that the Court should consider reforming its treatment of non-party intervention (in relation to art. 62) to be more transparent and efficient.79
The protection of erga omnes obligations and the space that actio popularis may have before the icj are also worth scrutinizing, as they are for inter-state communications. This article touches below upon those aspects, to the extent that they are relevant to inter-state communications.
3.2 Amplifying Sovereign Voices through Peaceful Dispute Settlement
Beyond procedural efficiency and harmonization, collective inter-state communications could be a channel to amplify sovereign voices, which may already be expressing their views on human rights violations in other fora, through a procedure for the peaceful settlement of disputes. Sovereign actors with no direct connection to a case may decide to get involved in some way, to express their position on particularly grave violations or for other strategic purposes. This can unleash a cascade of political or diplomatic tensions which may escalate and create more problems in the international sphere than those it may be trying to solve, unless it is done through peaceful channels. It is therefore important to find ways to allow those voices to be heard and even amplified, but within a context of peaceful and constructive exchanges.
Conscious of those risks, States react to human rights violations by other States either through other collective processes, such as the Universal Periodic Review (upr)80 or through treaty-specific monitoring mechanisms. But it is not unusual to see States react also through coordinated sanctions, import bans or diplomatic measures.81 Whilst those are valuable and legitimate courses of action, they are not considered dispute settlement methods and they therefore do not offer some of the safeguards which dispute settlement provides, necessary to ensure party autonomy and representation, or to reduce the political dimension present in other collective processes, such as the upr.82 Collective inter-state communications offer a path to amplify those voices with a quasi-judicialised83 but flexible procedure with safeguards to join forces against human rights violations, while reducing the fear of confrontation traditionally associated with inter-state communications. Let us explore the two dimensions of what collective inter-state communications offer in this regard.
The first element, the quasi-judicial but flexible procedure with safeguards, is one that has also been explored in other conciliation experiences.84 As Wood has identified, conciliation today displays quasi-judicial characteristics,85 which presents an advantage when it comes to establishing safeguards to reduce the risk of politicisation despite the participation of multiple States in the procedure. A group of States may decide to collectively signal a behaviour as unacceptable or signal themselves as the ‘good guys’, sending a message to the world about collective condemnation or about them as good citizens.86 This would be done with the flexibility that conciliation offers, but through a quasi-judicial procedure where an independent conciliation commission, whose decisions are to be respectful of international law, will put in place the necessary safeguards to mitigate the risk of politicisation.87 As Tomuschat reminds us for the osce context, conciliation commissions have flexibility on the applicable law, but their decisions must ‘remain within the framework of lawfulness and legitimacy defined by the ground norms of the present day international legal order’.88 Those safeguards include party autonomy, equality between parties, a procedure in accordance with international law, and a balance between transparency and confidentiality.89
The second element, the fact that collective inter-state communications could make the procedure less confrontational, touches upon an issue that has traditionally been a ground for reluctance and critique of inter-state communications. The collective dimension of this new form of inter-state communications would reduce the fear of confrontation, as States would be joined or supported by others in their claims and therefore initiating an inter-state communication would be considered a less directly confrontational process. Applicant States may be more likely to initiate a procedure jointly, as collective action has the potential of reducing the fear of being identified as the State initiating proceedings against another one. The work of committees in this regard would also encourage a culture where inter-state communications are no longer perceived as confrontational, but rather as a peaceful dispute settlement method. Tomuschat refers, in his analysis of the osce conciliation procedure, to a climate of ‘serenity’ that would make conciliation a better avenue but has not yet been reached.90
Another avenue that States tend to take to react to sovereign human rights violations is litigation before the icj. In cases where both avenues are available, the interpretation of compromissory clauses such as art. 22 of icerd becomes key to understanding how States may decide to proceed in terms of choices. As the Court has clarified in Georgia v Russian Federation91 and Ukraine v Russian Federation,92 having initiated an inter-state communication is no pre-requisite for proceedings before the icj, as the pre-conditions in that provision are to be interpreted as alternative, not cumulative. This leads to a scenario where States may prefer turning to the icj than to treaty bodies.93
Yet, in addition to possible arguments on the specialization of treaty bodies,94 from the perspective of the amplification of sovereign voices, inter-state communications could offer a more attractive pathway. So far, the icj has been quite reluctant to accept the use of third-party intervention as a path for actio popularis.95 How the icj is to deal with massive third-party intervention is to be seen, as Ukraine v Russian Federation is the first case with such scale of intervention.
Interestingly, some declarations of intervention in Ukraine v Russian Federation refer to the erga omnes character of the obligation, instead of referring to those States’ interest in the case. This strategy may be partly explained by the icj’s historical reluctance towards intervention96 and to actio popularis,97 and may push forward a new notion of interest, leading to exploring the idea that it could be automatically subjective, even if that blurs the lines between arts. 62 and 63. It is also possible that the legal interest required under art. 62 may be more flexibly interpreted for cases related to erga omnes obligations.98 The icj could shift towards a more open approach to using third-party intervention for actio popularis.
But the Court may well decide to remain loyal to its previous position, limiting the potential of this avenue for collective action beyond the interest that intervening States may have in a case. In that scenario, collective inter-state communications would be the only judicialised but flexible avenue to turn to, in addition to regional human rights courts and advisory opinions (see below), which do not offer the advantages of a conciliation process.
The potential of collective inter-state communications as a channel to amplify sovereign voices with the safeguards that dispute settlement provides is consistent with the view that the aims of inter-state communications are multiple and evolving, with an increasing emphasis in their dispute settlement function and in their strategic use (i.e. providing an avenue for State responsibility and allowing States to signal themselves as a ‘good citizen’ or target another state as a ‘bad citizen’).
4 Shaping the Contours of Collective Inter-state Communications
Collective inter-state communications have potential for treaty compliance and for amplifying those sovereign voices (see section 3 above). But these benefits need to be considered cautiously99 and assessed in balance with other aspects of the procedure.100 Collective inter-state communications add a layer of complexity which comes with certain risks that would need to be mitigated for them to be a feasible and plausible option. The fact that in the two recently suspended inter-state cases on racial discrimination – Qatar v uae and Qatar v Saudi Arabia – the cerd Committee decided not to hear the two cases jointly101 is an indication that the collective dimension may not always work for inter-state communications. This section offers reflections on how some of those complexities or risks may be mitigated, by looking at the composition and impartiality of the conciliation commission, and the differences between third-party intervention and joint proceedings.
4.1 Conciliation Commissions: Composition, Impartiality, and Functioning
A study of icerd, the only UN human rights treaty under which inter-state communications have been initiated to date, emphasizes the importance of appointing an impartial conciliation commission, integrated by highly recognised experts, and with guidance on its functioning and rules, but retaining a high degree of flexibility.102 These features, which we also see mentioned in other frameworks envisaging conciliation,103 become even more relevant when considering the possibility of having collective inter-state communications, to mitigate some of the associated risks that the collective dimension may pose. Three main risks need to be considered from this collective perspective, which may make an agreement more difficult to reach in multi-party conciliation or third-party intervention in these proceedings.
First, it may be more challenging to find a common ground solution acceptable to all parties. Second, if some of the parties want to use collective inter-state communications to amplify their voices signalling themselves or signalling others, there is a risk of politicisation. Third, connected also to this strategic use of the mechanism, any commission will have to strike the right (and difficult) balance between publicity and confidentiality. These potential problems could find their best solution through the appointment of a competent and independent conciliation commission which has clear rules to follow. As Wood emphasised for conciliation,104 impartiality is the key to a conciliation commission’s success, and that can only be reemphasised for collective inter-state communications. The rationale for mitigating these risks is also going to inform the decision on whether to articulate joint proceedings or third-party intervention (see section 4.2 below).
The need to find a common ground solution agreeable for various parties makes the work of the conciliation commission more challenging and may cause delays or procedural complication. This, however, does not make this avenue impractical. The need to reconcile multiple interests is a challenge that experts in international dispute settlement are well accustomed to, and one for which advanced techniques are available.105 This type of challenge should inform the rules on who can be appointed as a member of the conciliation commission, particularly considering the skills and experience which may contribute better to resolving this complex challenge. Procedural complication may be solved with the flexibility that conciliation commissions have to set up procedural rules. As occurs with third-party intervention before the icj, a certain level of coordination between the interveners or parties holding similar positions may be necessary to make the commission’s work more efficient.
The main tool to mitigate the risk of politicisation is again the independence and impartiality of the conciliation commission. As Tomuschat has expressed, ‘the impact that a conciliation commission may have depends entirely on its independence and impartiality’.106 The procedure to ensure such independence and impartiality may take different forms but usually follows a pattern where, as in the osce case, each party appoints a conciliator and the remaining members are elected in consultation with the parties, who can raise objections if there is any suspicion of bias.107 Other considerations may also inform the appointment of members of a conciliation commission. In the ongoing inter-state communication between Palestine and Israel before the cerd Committee, the appointment of members of the ad hoc conciliation commission was also informed by geographic considerations, in an additional attempt to ensure fairness.108 As Tomuschat explains for the osce process, ensuring fairness through the process to appoint an independent and impartial conciliation commission has the benefit that ‘there is no ‘unpleasant surprise’’ or ‘suspicion of bias […] against the Court when it exercises conciliatory powers’.109
Finally, one of the biggest challenges that a conciliation commission will have to face when collective inter-state communications are initiated with, among others, the purpose of ‘signalling’ is striking the right balance between publicity and confidentiality. As Tomuschat considers in the osce context, confidentiality can be very important for conciliation, as it allows for commission members to be ‘frank’ and not have to worry about public and/or media perceptions.110 However, if the parties (or at least some of them) are using this mechanism to signal themselves or to signal others, publicity is something that they are likely to want to avail themselves of. This may make the commission’s decision on that balance more challenging, as the publicity associated with actio popularis would require higher levels of transparency than those ideal for dispute settlement.111 This has also been acknowledged for third-party intervention before the icj, where ‘sometimes publicity might disturb the proceedings’,112 and where for McIntyre ‘the Court has persistently deferred to the parties’ wishes.’113 Deferring to the parties’ wishes could be a way to ensure a good attempt at the right balance, mitigating politicisation and reputational risks, through the protection of party autonomy and equality of arms.114 However, it is important that each conciliation commission establishes its own rules and principles, instead of being subjected to rigid rules which may make their endeavours more difficult.
An interesting development on this front could come from the development of model rules which treaty bodies could use, looking at questions such as:
- –Who appoints conciliation commission members?
- –What skills, qualifications and experience are required from members?
- –How can independence be preserved once a commission has been established?115
- –How can publicity and confidentiality be balanced?
4.2 Third-Party vs Joint Proceedings
The analysis in this article has addressed, so far, all forms of collective inter-state communication together. There are, however, notable differences between joint proceedings, third-party intervention, and more informal ways of collective action. This section flags some of those differences and reflects on the convenience of envisaging each of them as part of the UN inter-state communications mechanism. Given the lack of a victimhood requirement in inter-state communications, there is a fine line between joint proceedings and third-party intervention. The decision of States with no direct interest in the case on whether to join proceedings or intervene as a third party would depend on how the two options are articulated.
Joint proceedings are the most engaging and demanding form of collective inter-state communication that could be envisaged. One or more applicant States would initiate proceedings before a UN treaty body against one or more respondent States. In cases with multiple applicant States, there could be various affected States, various non-affected States, or a mixture of affected and non-affected States.116 Whether a State decides to embark on this cumbersome, resource intensive and rather risky procedure without a direct interest in the case remains very much dependent, as in The Gambia v Myanmar, on its own analysis of all the available options and their cost and potential, and the State’s perception of their role in international human rights law and affairs. If a paradigm shift consolidates in the international community, we could see more of this, despite associated risks.117 However, as indicated in section 4.1 above, a conciliation procedure with more than two parties may be more challenging, as it would be more difficult to achieve a positive outcome agreeable for all parties.
This may shift the balance of preferences towards third-party intervention, where the intervening States would not become a party to the proceedings but the process would allow those States to participate in the procedure in a restricted way and would inform the treaty body on how the outcome may affect the rights of the interveners.118 Discussing inter-state arbitration, Wood and Sthoeger point out that there are no recent examples of third-party intervention in inter-state arbitration, and ‘it seems to have been a widely held view that intervention should not be possible (…) unless the parties have expressly agreed to allow it, whether by general or specific agreement’.119 Yet, they also acknowledge ‘there is no principle of arbitration that precludes third-party intervention’.120
The same could be argued for conciliation, where there are no cases yet of third-party intervention, but it could be a more suitable way to provide a collective avenue for conciliation than joint proceedings. Wood considers that ‘in modern practice conciliation does display some quasi-judicial characteristics’.121 Why not then embrace this form of collective action? The parties would remain in the driving seat, retaining control of the appointment of commission members, with third parties having no formal say on it (although in practice there could be certain influence of third parties in States parties’ position or decision). This would also make it easier to achieve a common ground solution for the parties, as such a proposed solution does not have to be convincing or acceptable for third parties. It seems it could be more likely for States to be willing to intervene as third parties than through joint proceedings, despite the potential reputational risk associated with a rejection of intervention.122 If the paradigm shift is not so radical, this could be an increasingly expected behaviour in States. As stated in section 3.1 above, if this trend consolidates, joint third-party interventions could become an attractive proposition, where the intervening States may coordinate with the State they support about their submissions, arguments and strategy. For this to consolidate, however, it would be important to set up clear rules on the grounds for intervention and bases for rejecting them.
In other fora, joinder of proceedings and third-party intervention still leave space for more informal types of collective action, mainly related to access to information, such as requesting access to information on a case before the icj despite not joining proceedings as a party or third-party intervenor.123 However, one of the distinctive features of inter-state communications has been the discretion of the treaty body or conciliation commission to decide how much information is made available to non-parties, a decision usually based on what works best for the parties.124 This principle, associated strongly with conciliation approaches to dispute settlement, reduces this option significantly in the case of inter-state communications, although not entirely. A treaty body or conciliation commission could make a decision in favour of this, although this would only make sense if it did not hamper the potential of the work of the conciliation commission.
Advisory opinions are another form of informal action that in this context can shed light on how collective action may also be shaped in other forms, beyond quasi-judicial processes. They bear mentioning, as they have ‘proven an important tool for answering pressing questions facing the international community’.125 Most recently, 57 States have filed written statements for the upcoming Palestine advisory opinion,126 and there will presumably be similar (or even greater) levels of participation at the oral hearings in February 2024.127 The request for an advisory opinion regarding the obligations of States in respect of climate change128 is also likely draw a mass response. At the time of writing, the icj has authorised the Commission of Small Island States,129 the EU,130 the African Union,131 the Organisation of African, Caribbean and Pacific States,132 and the Pacific Community133 to participate in proceedings. The advisory procedure thus demonstrates that there is a place for multilateral participation in the international legal order.
5 Concluding Remarks
As this article has highlighted, collective inter-state communications show potential as a means of strengthening the mechanism as an avenue for treaty compliance and human rights protection, and for amplifying sovereign voices in a peaceful way. We have proposed specific ways in which the contours of such collective action should be defined to mitigate the identified risks. The article has shown that this collective avenue, which is widely accepted (if not always utilised) in other fora, including the icj and regional human rights courts, could open a fresh avenue of engagement with this mechanism. Such engagement would embrace the potential of collective action as an effective path to treaty compliance and interpretation, and as a valuable channel through which States can raise their sovereign voices internationally in a peaceful and constructive way. This would require guaranteeing the independence of conciliation commissions through rules on appointment of their members that reduce associated risks, such as the risk of politicisation and of party inequality.
There would be a fine line between joint proceedings and third-party intervention in inter-state communications before UN treaty bodies, given the lack of a victimhood requirement. But if the paradigm shift in the international community consolidates, it is unlikely to do so in a radical way. The expectation is that we may see some sovereign behavioural change over time, but third-party intervention will emerge as more suitable than joint proceedings, and is probably more appealing to States without a direct interest in the alleged violations, at least for the medium term.
Acknowledgements
The authors would like to thank Ali Kamran Ahmed for excellent research assistance. Thanks to King’s College London and its Centre for International Governance and Dispute Resolution (cigad) and to the British Institute of International and Comparative Law (biicl) for their support for this research project.
International Covenant on Civil and Political Rights (iccpr) (art. 41–42); Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (icescr) (art. 10); Convention Against Torture (art. 21); International Convention on the Elimination of All Forms of Racial Discrimination (icerd) (arts. 11–13); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (cmw) (arts. 76–77); Optional Protocol 3 to the Convention on the Rights of the Child (uncrc) (art. 12); International Convention for the Protection of All Persons from Enforced Disappearance (icaed) (art. 32).
The inter-state communications procedure is reciprocal, and therefore requires that the two parties have accepted the competence of the treaty body to receive communications.
No explicit mention is made in treaties or case law to whether attempts for negotiation need to be genuine or exhaustive. The cerd Committee has referred only to the reference in art. 11(3) of icerd that the matter be adjusted to the satisfaction of both parties (Palestine v Israel (Decision on Admissibility) cerd/c/103/4 (30 April 2021). The International Court of Justice, in Georgia v Russia (2011) and Ukraine v Russia (2019), has clarified what “negotiation” means, albeit in the context of art. 22 of icerd (the compromissory clause) (Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Pending) (Preliminary Objections) [2019] icj Rep 558 [116]–[117]).
Palestine v Israel; Qatar v Saudi Arabia; Qatar v uae. The procedure is established under arts. 11–13 of icerd. On icerd, see Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (oup 2016).
Dai Tamada, ‘Inter-State Communication under icerd: From ad hoc Conciliation to Collective Enforcement?’ (2021) 12 Journal of International Dispute Settlement 405; Gay McDougall, ‘Introductory Note to Inter-State Communication submitted by the State of Palestine against State of Israel’ (2020) 59 International Legal Materials 922.
Application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v Syrian Arab Republic) (Pending) icj Press Release 2023/28 <https://www.icj-cij.org/sites/default/files/case-related/188/188-20230612-PRE-01-00-EN.pdf> accessed 6 October 2023.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Pending) icj Press Release 2023/77 <https://www.icj-cij.org/sites/default/files/case-related/192/192-20231229-pre-01-00-en.pdf> accessed 17 January 2024.
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Pending) icj Order (2 June 2023) <https://www.icj-cij.org/sites/default/files/case-related/182/182-20230605-ORD-01-00-EN.pdf> accessed 30 April 2024.
The consultation process was undertaken through written consultation and a workshop hosted by the King’s College London Centre for International Governance and Dispute Resolution and the British Institute of International and Comparative Law.
Egon Schwelb, ‘Civil and Political Rights: The International Measures of Implementation’ (1968) 62 The American Journal of International Law 827; Scott Leckie, ‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 Human Rights Quarterly 249.
Meron explains that one of the reasons inter-state communications have been ‘underutilised’ is the perceived unfriendliness (Theodor Meron Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1991) 152–153). This consideration reflects what is observed in the analysis of the travaux préparatoires. The Iraqi representative discussing the icerd claimed that the adoption of an inter-state communication procedure ‘might disturb international peace and impair friendly relations between States’, with the potential of extending ‘the cold war’ by interfering in the domestic affairs of other States unga Third Committee, ‘Draft International Convention on the Elimination of All Forms of Racial Discrimination: Articles on Measures of Implementation’ (19 November 1965) 20th Session, 1347th Meeting, [7].
During the negotiations for the iccpr, those who considered the procedure of the Human Rights Committee contrary to national sovereignty found that ‘no State party should set itself up as a judge of the domestic actions of another’ (unga, ‘Draft International Covenants on Human Rights’ (1955) 10th Session, UN Doc A/2929, [62]).
During the negotiations for the iccpr, the Ukrainian representative considered that any system other than the reporting system ‘would introduce complications into the measures of implementation and ultimately yield negative results’ (unga Third Committee, gaor, 21st Session, 1415th Meeting (1966) UN Doc A/C.3/SR.1415, 219–222, 220 [8]). See also unga Third Committee, ‘Draft International Convention on the Elimination of All Forms of Racial Discrimination: Articles on Measures of Implementation’ (19 November 1965) 20th Session, 1347th Meeting, [6]–[7].
This resulted in the inclusion of the mechanism as voluntary in most UN treaties, (except for the icerd, which adopted a compulsory model) and in a relatively low number of States accepting the competence of committees to hear those cases (the competence of the respective committees to hear inter-state cases has been accepted by 50 of the 173 States parties to the iccpr, 27 of the 171 States parties to the icescr, 63 of the 173 States parties to the cat, 15 of the 50 States parties to the uncrc, 4 of the 58 States parties to the cmw, and 28 of the 71 States parties to the icaed. The highest rate is found in the 150 of the 189 State parties to the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw) accepting the competence of the cedaw Committee to hear inter-state communications).
Human Rights Committee, ‘General Comment 31 on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) UN Doc ccpr/C/21/Rev.1/Add. 13; Committee on the Elimination of Racial Discrimination, ‘Inter-State Communication Submitted by the State of Palestine Against Israel: Decision on Jurisdiction’ (16 June 2021) UN Doc cerd/c/100/5, [59].
Peter H. Kooijmans, ‘Inter-State Dispute Settlement in the Field of Human Rights’ (1990) 3 Leiden Journal of International Law 87.
Tu Yunxin, ‘On the Normative Structure of International Human Rights Treaties Monitoring Mechanisms and Its Legal Challenges’ (2019) 18 Journal of Human Rights 511, 523.
‘Magnitsky’ sanction laws are a generalized type of domestic legislation that allow States to react to human rights violations by other countries. See: <https://www.humanrightsfirst.org/topics/global-magnitsky> accessed 30 April 2024.
Kooijmans, supra note 16, 89.
Scott Leckie, ‘The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?’ (1988) 10 Human Rights Quarterly 249, 252. See also Kooijmans, supra note 16, 87–88; Menno Kamminga, Inter-State Accountability for Violations of Human Rights (University of Pennsylvania Press 1992) 33.
Isabella Risini, Justine Batura and Lukas Kleinert, ‘A “Golden Age” of Inter-State Complaints?: An Interview with Isabella Risini’ (Völkerrechtsblog, 16 September 2020) <https://voelkerrechtsblog.org/a-golden-age-of-inter-state-complaints/> accessed 10 May 2024.
Erga omnes partes obligations are obligations ‘under a multilateral treaty that a State party to the treaty owes in any given case to all the other States parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables all these States to take action’ (Yoshifumi Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68 Netherlands International Law Review 1, 1–2, citing Institut de Droit International, ‘Resolution: Obligations Erga Omnes in International Law’ Krakow Session 2005 <https://www.idi-iil.org/app/uploads/2017/06/2005_kra_01_en.pdf> accessed 30 April 2024). Belgium v Senegal and The Gambia v Myanmar are two examples of erga omnes partes obligations giving standing to a State before the icj (ibid).
Application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v Syrian Arab Republic) (Pending) (Application Instituting Proceedings) <https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf> accessed 30 April 2024.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Pending) (Application Instituting Proceedings) <https://www.icj-cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf> accessed 30 April 2024.
International law has defined erga omnes obligations as those obligations owed to the whole international community, and therefore entitling any State to invoke the responsibility of other States for their breach (Yoshifumi Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68 Netherlands International Law Review 1; Pok Yin S Chow, ‘On Obligations Erga Omnes Partes’ (2021) 52 Georgetown Journal of International Law 469). Those are obligations of relevance, including, as recently clarified by the International Law Commission, the prohibition of genocide, the prohibition of racial discrimination, and the prohibition of slavery (See: <https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_14_2022.pdf>). South Africa’s application references both erga omnes partes obligations under the Genocide Convention and broader erga omnes obligations in relation to genocide (supra note 24, [133]).
Supra note 23.
The Court did accept the erga omnes partes argument for prima facie standing in its order for provisional measures: Application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v Syrian Arab Republic) (Pending) (Request for the Indication of Provisional Measures: Order) General List No 188 (16 November 2023) <https://www.icj-cij.org/sites/default/files/case-related/188/188-20231116-ord-01-00-en.pdf> accessed 11 May 2024, [50]–[51], [57].
See, for example, the Al-Khatib trial in Germany (https://voelkerrechtsblog.org/the-end-of-the-al-khatib-trial/); proceedings in Sweden (https://www.ecchr.eu/en/case/sweden-criminal-complaint-against-assads-intelligence-officials/); and two joined cases before the plenary assembly of the French Cour de Cassation (https://www.ejiltalk.org/france-is-back-on-the-universal-jurisdiction-track/). This willingness at the domestic level could seem to suggest that those States may be open to intervening as third parties in the case before the icj. But that would be jumping too fast to conclusions, as one would need to factor in the diplomatic price that States may need to pay if they decide to go down that road.
Supra note 24.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Pending) (Request for the Indication of Provisional Measures: Order) General List No 192 (26 January 2024) <https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf> accessed 11 May 2024.
Ibid, [33]. For a discussion on the case, including provisional measures and what a hypothetical merits stage might look like, see ejil: The Podcast!, ‘Episode 23: Unhappy New Year! Genocide in the Courtroom’ (15 January 2024) <https://www.ejiltalk.org/ejil-the-podcast-episode-23-unhappy-new-year-genocide-in-the-courtroom/> accessed 30 April 2024.
Alaa Hachem and Oona A Hathaway, ‘The Promise and Risk of South Africa’s Case Against Israel’ (Just Security, 4 January 2024) <https://www.justsecurity.org/91000/the-promise-and-risk-of-south-africas-case-against-israel/> accessed 17 January 2024.
Supra note 30, [33].
Malcolm Langford, Cheryl Lorens and Natasha Telson, ‘Inter-State Procedure’, in Malcolm Langford and others (eds), The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: A Commentary (Pretoria University Law Press 2016) 147, 164, citing Menno Kamminga, Inter-State Accountability for Violations of Human Rights (University of Pennsylvania Press 1992).
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Pending) icj Press release 2022/35 <https://www.icj-cij.org/public/files/case-related/182/182-20220913-PRE-01-00-EN.pdf> accessed 30 April 2024.
There are 31 third-party interveners in the case Ukraine and the Netherlands v Russia before the ECtHR (nos. 8019/16, 43800/14, 28525/20 and 11055/22). See European Court of Human Rights, ‘Update on the Third-Party Intervention Requests Granted in Inter-State Case Ukraine and the Netherlands v Russia’ (Press Release No 082, 17 March 2023) <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7598878-10452070> accessed 11 May 2024.
The The Gambia v Myanmar case has also been described as a form of collective action, ‘reflecting the will of the 57 states comprising the [Organisation of Islamic Cooperation (oic)]’, as ‘it was the oic that ‘tasked’ The Gambia with bringing the case (and the oic membership funded it)’. See Michael Ramsden, ‘Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights’ (2022) 33 European Journal of International Law 441, 458.
Brian McGarry, ‘Obligations Erga Omnes (Partes) and the Participation of Third States in Inter-State Litigation’ (2023) 22 The Law and Practice of International Courts and Tribunals 273; Brian McGarry, ‘A Rush to Judgment? The Wobbly Bridge from Judicial Standing to Intervention in icj Proceedings’ (2023) 100 Questions of International Law 5; Kyra Wigard, Ori Pomson and Juliette McIntyre, ‘Keeping Score: An Empirical Analysis of the Interventions in Ukraine v Russia’ (2023) 14(3) Journal of International Dispute Settlement 305.
For coverage and commentary on this, see Stefan Talmon, ‘Germany Rushes to Declare Intention to Intervene in the Genocide Case brought by South Africa Against Israel Before the International Court of Justice’ (German Practice in International Law, 15 January 2024) <https://gpil.jura.uni-bonn.de/2024/01/germany-rushes-to-declare-intention-to-intervene-in-the-genocide-case-brought-by-south-africa-against-israel-before-the-international-court-of-justice/> accessed 17 January 2024. See also ejil: The Podcast!, supra note 31, 36:25–37:23.
In March 2022, a group of 39 States submitted a joint referral to the International Criminal Court, which had already expressed its intention to seek authorisation for opening an investigation. The collective referral, then joined by more States, allowed the prosecutor to proceed with the investigation, which led to arrest warrants being issued for Vladimir Putin and Maria Lvova-Belova in March 2023, with Eurojust’s Joint Investigation Team playing a very important role in evidence gathering (See <https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and>, accessed 30 April 2024). Other collective initiatives include the establishment of an independent international commission of inquiry by the UN Human Rights Council (See <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G22/277/44/PDF/G2227744.pdf?OpenElement> accessed 30 April 2024); a UN General Assembly (unga) resolution supported by 141 member States demanding that Russia ‘immediately, completely and unconditionally withdraw all its military forces from the territory of Ukraine within its internationally recognized borders’ (See <https://daccess-ods.un.org/access.nsf/Get?OpenAgent&DS=A/RES/ES-11/2&Lang=E> accessed 11 May 2024); the suspension of Russia from the Human Rights Council, with the support of 94 member States (See <https://news.un.org/en/story/2022/04/1115782>, accessed 30 April 2024); a unga resolution on Russian reparations for Ukraine (See <https://news.un.org/en/story/2022/11/1130587> accessed 30 April 2024); initiatives at the EU level, such as the establishment of a joint investigation team with Ukraine into civilian killings (See <https://atalayar.com/en/content/eu-sets-joint-investigation-team-ukraine-civilian-killings> accessed 30 April 2024) or the EU Freeze and Seize Task Force (See <https://complyadvantage.com/insights/eus-freeze-and-seize-task-force-coordinates-international-action-against-russian-oligarchs/> accessed 30 April 2024); massive third-party intervention before the icj; initiatives by the Organization for Security and Co-operation in Europe (osce) (See <https://www.osce.org/files/f/documents/f/a/515868.pdf> accessed 30 April 2024); the creation of the International Centre for the Prosecution of Russia’s crime of aggression against Ukraine, which started its operations in May 2023, hosted by the EU Agency for Criminal Justice Cooperation (Eurojust) (See <https://www.eurojust.europa.eu/international-centre-for-the-prosecution-of-the-crime-of-aggression-against-ukraine> accessed 11 May 2024); and the support of the Council of Europe for the establishment of a special tribunal on the crime of aggression against Ukraine (See <https://www.coe.int/en/web/portal/-/secretary-general-joins-the-summit-of-leaders-for-creation-of-special-tribunal-on-the-crime-of-aggression-against-ukraine>, accessed 30 April 2024).
As McGarry notes, ‘mass participation is unprecedented in the Court’s contentious cases.’ (See Brian McGarry, ‘Mass Intervention? The Joint Statement of 41 States on Ukraine v Russia’ (ejil:Talk!, 30 May 2022) <https://www.ejiltalk.org/mass-intervention-the-joint-statement-of-41-states-on-ukraine-v-russia/> accessed 30 April 2024).
Farid Ahmadov, The Right of Actio Popularis before International Courts and Tribunals (Brill 2018); François Voeffray, L’actio Popularis ou la Défense de L’intérêt Collectif devant les Juridictions Internationals (Graduate Institute Publications 2014).
Similar to what third-party States may be able to contribute in litigation before the icj under art. 63 of the icj Statute, one of the routes for third-party intervention. On third-party intervention before the icj, see Christine Chinkin, Third Parties in International Law (oup 1993) 186–216; Juliette McIntyre, ‘Procedural Values in the Intervention Procedure at the International Court of Justice’ (2022) 1 Ukrainian Law Review 1.
As Leckie puts it for the ECtHR case of Denmark, France, the Netherlands, Norway and Sweden v Turkey, ‘it appears that if there had not been a collective effort by the five states acting together the complaint may never have been filed’ (Leckie, supra note 20, 295).
The wording of the relevant treaties uses expressions such as ‘both’ or ‘either’, reflecting the presumed bilateral nature of inter-state communications.
Wood and Sthoeger explain that ‘in addition to formal intervention’, third-party States can get involved in inter-state litigation by ‘transmitting a submission’ to the court or tribunal, getting permission to attend otherwise closed hearings as observers, requesting early access to copies of the written pleadings, and even ‘in more indirect ways, such as by publishing a comment or commissioning an article’ (See Michael Wood and Eran Sthoeger, ‘Third-Party Intervention and Involvement in Inter-State Arbitration’ in Helene Ruiz Fabri and others (eds), A Bridge over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea (Brill Nijhoff 2020) 64–65).
Although inter-state communications are not a purely adversarial procedure, for simplicity we will refer in the article to those States as ‘applicant States’ and ‘respondent States’.
See arts. 36 and 47 of the Rules of Court of the International Court of Justice (icj Rules of Court).
European Court of Human Rights, ‘Institution of Proceedings’ (Practice Direction, issued 1 November 2003, as at 1 February 2022) [14]–[16]; Rules of Court of the European Court of Human Rights (ECtHR Rules of Court) (as at 28 March 2024) r 30; Rules of the International Tribunal for the Law of the Sea (adopted 28 November 1997, as at 25 March 2021) art. 47; Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted 10 June 1998, entered into force 25 January 2004) art. 5(2).
In the history of the icj, only one case has been initiated by more than one State (Appeal Relating to the Jurisdiction of the icao Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Arab Emirates v Qatar)) and against more than one State (Monetary Gold Removed from Rome in 1943 (Italy v France, United Kingdom of Great Britain and Northern Ireland and United States of America)). Factors which may lead States to opt for individual cases instead of multi-party cases include different approaches to legal argumentation (Wigard, Pomson and McIntyre, supra note 38), various ‘political, strategic, evidential and factual’ reasons (James Crawford, in State Responsibility: The General Part (cup 2013) 650), or the perception of multi-party litigation as an obstacle to community interests (Markus Benzing, ‘Community Interests in the Procedure of International Courts and Tribunals’ (2006) 5 The Law and Practice of International Courts and Tribunals 369, 374–376; Paula Wojcikiewicz Almeida, ‘Enhancing icj Procedures in Order to Promote Fundamental Values: Overcoming the Prevailing Tension between Bilateralism and Community Interests’ in Massimo Iovane and others (eds), The Protection of General Interests in Contemporary International Law: A Theoretical and Empirical Inquiry (oup 2021) 242–243).
Through third-party intervention, the intervening State does not become a party to the proceedings, but the process allows those States to participate in the procedure in a restricted way and informs the Court that the legal rights of the intervener may be affected (George N Barrie, ‘Third-Party State Intervention in Disputes before the International Court of Justice: A Reassessment of Articles 62 and 63 of the icj Statute’ (2020) 53 Comparative and International Law Journal of Southern Africa 1, 6). In 1989, Nicaragua’s application in the case between El Salvador and Honduras requested permission to intervene in the case under the art. 62 procedure. In that request, it clarified that it did not want to intervene in the dispute concerning the land boundary, but all it wanted was to protect its rights in the Gulf of Fonseca, and to ‘inform the Court of the nature of the legal rights of Nicaragua which are in issue in the dispute’ (Land, Island and Maritime Frontier Case (El Salvador/Honduras, Nicaragua intervening) (Application for Permission to Intervene) [1990] icj Rep 92 [38]). The Court also permitted Equatorial Guinea to intervene as a non-party intervenor and later elaborated in its 2002 judgment that ‘in fixing the maritime boundary between Cameroon and Nigeria, the Court must ensure that it does not adopt any position which might affect’ the neighbouring States’ rights. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria, Equatorial Guinea intervening) (Counter-claims) [2002] icj Rep 303 [238].
European Court of Human Rights, ‘Update on the Third-Party Intervention Requests Granted in Inter-State Case Ukraine and the Netherlands v Russia’ (Press Release No 082, 17 March 2023) <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7598878-10452070> accessed 11 May 2024.
European Court of Human Rights, ‘European Court Clarifies Third-party Intervention: Amendments to Rules of Court and New Guidelines’ (Press Release No 84, 20 March 2023) <https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7600935-10455264&filename=European%20Court%20clarifies%20third-party%20intervention%20.pdf> accessed 11 May 2024.
European Court of Human Rights, ‘Third-party Intervention under Article 36 § 2 of the Convention or under Article 3, Second Sentence, of Protocol No 16’ (Practice Direction, issued 13 March 2023) [2].
Ibid, [34(a)].
Justine Batura, ‘The Objective Friends of the Court—New Insights into the Role of Third Parties before the European Court of Human Rights’ (ejil:Talk!, 19 April 2023) <https://www.ejiltalk.org/the-objective-friends-of-the-court-new-insights-into-the-role-of-third-parties-before-the-european-court-of-human-rights/> accessed 30 April 2024.
Brian McGarry, Intervening in International Justice: Third States before Courts and Tribunals (cup 2024).
The benefits for the party supported by third States come mainly from the possibility for intervenors to address arguments that that party has decided not to address, because of domestic policy arguments against it, or because strategically it has decided to prioritize another argument. They may also address arguments that that party does not have the capacity or expertise to address (consultation with experts).
In proceedings before the icj, the intervening States benefit at the practical level from the possibility of receiving copies of the pleadings and annexes ahead of the hearing (icj Rules of Court, art. 85(1)). They are also able to submit a written statement, to which the parties in the main proceedings can submit observations, and they can also submit observations during the course of oral proceedings (ibid, art. 85(3)).
As an example, during the drafting of the iccpr, some States considered inter-state complaints as a system that would safeguard the provisions of the Covenant (See unga, ‘Draft International Covenants on Human Rights’ (1955) 10th Session, UN Doc A/2929, [63]), representing an ‘additional possibility of securing compliance’ (See unga Third Committee, gaor, 21st Session, 1415th Meeting (1966) UN Doc A/C.3/SR.1415, 219–222, 219 [3]).
UN Committee on the Elimination of Racial Discrimination, ‘Inter-State Communication Submitted by the State of Palestine against Israel: Decision on Jurisdiction’ (16 June 2021) UN Doc cerd/c/100/5, 10–11 [55].
Brooke Coleman, The Efficiency Norm (2015) 56 Boston College Law Review 1777, 1813–1814.
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Joint Dissenting Opinion of Judges Aguilar Mawdsley and Ranjeva) [1991] icj Rep 53, 124; CM Chinkin, ‘Third-Party Intervention Before the International Court of Justice’ (1986) 80 American Journal of International Law 495.
See supra note 58.
An interesting development to scrutinize in upcoming months will be whether third-party interventions in Ukraine v Russian Federation before the icj are dealt with jointly. Some States have even coordinated by making joint oral observations; Austria, Czechia, Lichtenstein, and Slovakia (beginning at 42) and Belgium, Croatia, Denmark, Estonia, Finland, Ireland, Luxembourg, Romania, and Sweden (beginning at 45) are two such examples (See Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Pending) (Preliminary Objections) Verbatim Record 2023/15 <https://www.icj-cij.org/sites/default/files/case-related/182/182-20230920-ora-01-00-bi.pdf> accessed 23 October 2023).
Nienke Grossman, ‘The Normative Legitimacy of International Courts’ (2013) 86(1) Temple Law Review 61, 76; Wood and Sthoeger, supra note 46.
Tania Licari, ‘Intervention under Article 62 of the Statute of the ICJ’ (1982) 8 Brooklyn Journal of International Law 267, 271.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Separate opinion of Judge ad hoc Weeramantry) [2001] icj Rep 575, 635–643 [17]. Juan José Quintana, ‘Litigation at the International Court of Justice: Intervention under Article 62 of the Statute’ in Loretta Malintoppi and Eduardo Valencia-Ospina (eds), International Litigation in Practice (vol 10, Brill Nijhoff 2015) 838, 841.
Wood and Sthoeger, supra note 46, 75.
Supra note 68.
McIntyre, supra note 43, 14–16, 27–30.
Lithuania, for example, mentioned that it ‘shares with all the other contracting parties to the Genocide Convention a common interest in ensuring that the construction of its provisions – which contain obligations erga omnes partes – are properly interpreted, so as to avoid abusive interpretations and misuses of the Convention’, and that ‘the integrity of the Convention requires its proper interpretation’ (See Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Pending) Declaration of Intervention of the Republic of Lithuania (22 July 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220719-WRI-02-00-EN.pdf> accessed 30 April 2024, [17].). New Zealand considered that ‘issues raised in the case turn on a proper interpretation of’ provisions of the Genocide Convention and reminded the Court that ‘all States Parties to the Convention have an interest in the proper interpretation, application and fulfilment of those obligations’ (See Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation) (Pending) Declaration of Intervention by the Government of New Zealand (28 July 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220728-WRI-01-00-EN.pdf> accessed 30 April 2024, [12], [17]).
See, for example the references made in the following interventions in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation): Declaration of Intervention of the Federal Republic of Germany (1 September 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220901-WRI-01-00-EN.pdf> accessed 30 April 2024, [12], [13]; Declaration of Intervention of the United States of America (7 September 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220907-WRI-01-00-EN.pdf> accessed 30 April 2024, [9]; Declaration of Intervention of the Government of Italy (12 September 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220912-WRI-02-00-EN.pdf> accessed 30 April 2024, [14]; Declaration of Intervention of the Government of Australia (30 September 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220930-WRI-01-00-EN.pdf> accessed 30 April 2024, [26]; Joint Declaration of Intervention of the Governments of Canada and the Kingdom of the Netherlands (7 December 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20221207-WRI-02-00-EN.pdf> accessed 30 April 2024, [11]–[12].
The differences between the procedures laid out in art. 62 and art. 63 have been commented on widely, given the practical and conceptual implications of the distinction. This has been the case also in ongoing proceedings in The Gambia v Myanmar and Ukraine v Russian Federation.
icj Statute, art. 62.
Leiden University and University of Geneva, ‘Intervening in International Justice: Third States and Ukraine v Russia’ (Webinar, 17 August 2022) <https://youtu.be/OWBQ2ojK3Jw> accessed 23 October 2023. It allows States to declare their intention to intervene and, although it can be rejected by the Court and also challenged by a party to the case, it is more automatic (icj Rules of Court, art. 85) than the art. 62 avenue, where the State requests permission from the Court to intervene, usually after a hearing.
Armin von Bogdandy and Ingo Venzke, ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’ (2013) 26 Leiden Journal of International Law 49, 56; Grossman, supra note 66, 76.
McIntyre, supra note 43; Wojcikiewicz Almeida, supra note 50; Gracious Avayiwoe, ‘Towards Clarity: The ‘May be Affected’ Requirement and Non-party Intervention at the International Court of Justice’ (2023) 14(1) Journal of International Dispute Settlement 110; Alina Miron and Christine Chinkin, ‘Article 62’ in Andreas Zimmerman and others (eds), The Statute of the International Court of Justice: A Commentary (3rd edn, oup 2019) 1686.
Territorial and Maritime Dispute (Nicaragua v Colombia) (Application for Intervention) (Dissenting opinion of Judge Donoghue) [2011] icj Rep 348, 471 [57]-[59].
For an analysis of the upr and its use, see Edward McMahon and Marta Ascherio, ‘A Step Ahead in Promoting Human Rights? The Universal Periodic Review of the UN Human Rights Council’ (2012) 18 Global Governance 231; Karolina M Milewicz and Robert E Goodin, ‘Deliberative Capacity Building through International Organizations: The Case of the Universal Periodic Review of Human Rights’ (2016) 48 British Journal of Political Science 513; Rochelle Terman and Erik Voeten, ‘The Relational Politics of Shame: Evidence from the Universal Periodic Review’ (2018) 13 Review of International Organizations 1; Valentina Carraro, ‘Promoting Compliance with Human Rights: The Performance of the United Nations’ Universal Periodic Review and Treaty Bodies’ (2019) 63 International Studies Quarterly 1079.
Arne Vandenbogaerd, Towards Shared Accountability in International Human Rights Law: Law, Procedures and Principles (Intersentia 2016) 119, n 425.
McMahon and Ascherio emphasize the ‘political nature of the process’ which they describe as ‘largely evolutionary, rather than revolutionary’ and ‘consensus driven’ (supra note 80, 239–240). Terman and Voeten argue that ‘the upr is political by design’ (supra note 80, 3).
Bernhard Zangl and others, ‘Between Law and Politics: Explaining International Dispute Settlement Behavior’ (2011) 18 European Journal of International Relations 369, 389–390.
Elizabeth Exposto, ‘The Timor Sea Conciliation and Treaty: Timor-Leste’s Perspective’ (2019) 36 Australian Yearbook of International Law 43.
Michael Wood, Conciliation, in Oppenheim’s International Law, oup.
McIntyre, supra note 43, 26–29. For an analysis of the potential of collective action for climate change, see Benjamin Norman Forbes, ‘aosis v The World: A Blueprint for the First International Multi-Party Climate Change Case’ (2021) 8 Groningen Journal of International Law 200.
On the advantages of replacing diplomatic proceedings by judicialized mechanisms in which independent third parties settle on the basis of international law, see Zangl and others, supra note 83, 370.
Christian Tomuschat, ‘Conciliation within the Framework of the osce Court of Conciliation and Arbitration: An Assessment from the Viewpoint of Legal Policy’ in Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds), Conciliation in International Law: The OSCE Court of Conciliation and Arbitration (Brill Nijhoff 2017) 97.
Ibid, 90–92, 97, 101–102.
Ibid, 86.
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) [2011] icj Rep 70.
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Preliminary Objections) [2019] icj Rep 558, [113].
See contribution by Merryl Lawry-White to this special issue.
In the Ahmadou Sadio Diallo judgment on the merits, the icj referred to the Human Rights Committee as the ‘independent body … established specifically to supervise the application of that treaty’ and recognized that it should ‘ascribe great weight’ to the Committee’s interpretation (Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] icj Rep 639, 663–664 [66]. See further Sandy Ghandhi, ‘Human Rights and the International Court of Justice in the Ahmadou Sadio Diallo Case’ (2011) 11(3) Human Rights Law Review 527, 536.). See also Nigel Rodley, ‘The International Court of Justice and Human Rights Treaty Bodies’ in Mads Andenas and Eirik Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (cup 2015) 87.
McIntyre, supra note 43; Paula Wojcikiewicz Almeida, ‘International Procedural Regulation in the Common Interest: The Role of Third-Party Intervention and Amicus Curiae before the icj’ (2019) 18 The Law and Practice of International Courts and Tribunals 163.
Atul Alexander and Shouvik Kumar Guha, ‘Critical Analysis of Third-Party Intervention before the International Court of Justice’ (2021) 8 Indonesian Journal of International and Comparative Law 441, 444; Inna Uchkunova, ‘The Minotaur’s Labyrinth: Third State Intervention before the International Court of Justice’ (2014), 13 The Law and Practice of International Courts and Tribunals 179. The fact that most of the relevant third-party intervention cases are typically bilateral disputes, such as territorial or maritime disputes, ‘has probably influenced to a large extent the Court’s cautious approach to this procedural institution’ (Quintana, supra note 68, 849, n 11). This could definitely change after Ukraine v Russian Federation.
Andrea Gattini, ‘Actio Popularis’ in Hélène Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law (oup 2019); Ingo Venzke, ‘Public Interests in The International Court of Justice—A Comparison Between Nuclear Arms Race (2016) and South-West Africa (1966)’ (2017) 111 American Journal of International Law Unbound 68, 68.
Consultation with experts. See also Miron and Chinkin, supra note 78, 1709.
According to McIntyre, such potential advantage has not been so central to considerations by the icj, for example, on third-party intervention (McIntyre, supra note 43, 18).
On the need for a cautious approach to efficiency, see Fabien Gelinas and others (eds), Foundations of Civil Justice: Toward a Value-based Framework for Reform (Springer 2015) vii; Loukas Mistelis, ‘Efficiency—What Else?: Efficiency as the Emerging Defining Value of International Arbitration: Between Systems Theories and Party Autonomy’ in Thomas Schultz and Federico Ortino (eds), The Oxford Handbook of International Arbitration (oup 2020) 349, 358.
The Committee made no mention of the reasons for this decision.
Eiken and Keane, supra note 5, in particular 323–326, 337–338.
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 unts 3, annex v, arts. 284, 297, 298; Convention on Conciliation and Arbitration within the Commission on Security and Cooperation in Europe (adopted 15 December 1992, entered into force 5 December 1994) 1842 unts 151 (Stockholm Convention), arts. 2–3, 18–25.
Wood, supra note 85.
John Merrills and Eric De Brabandere, Merills’ International Dispute Settlement (7th edn, Cambridge University Press 2022) 110–111; Exposto, supra note 84, 53–55.
Tomuschat, supra note 88, 98.
Ibid, 90–92.
Eiken and Keane, supra note 5, 327–329.
Tomuschat, supra note 88, 90–92.
Ibid, 101.
Consultation with experts.
McIntyre, supra note 43, 37.
Ibid.
In its order on third-party intervention in Ukraine v Russian Federation, the Court emphasized the need to ‘organize the proceedings in a manner which ensures the equality of the parties’, giving them both ‘a fair opportunity and the necessary time to respond to the observations of the intervening States’ (See Juliette McIntyre, Kyra Wigard and Ori Pomson, ‘A Hot Potato: The icj’s Order on the Admissibility of 32 Declarations of Intervention in Ukraine v Russia’ (ejil: Talk!, 13 June 2023) <https://www.ejiltalk.org/a-hot-potato-the-icjs-order-on-the-admissibility-of-32-declarations-of-intervention-in-ukraine-v-russia/> accessed 30 April 2024).
In the osce context, independence is maintained by having the parties to a dispute select from a pre-established list of qualified conciliators (art. 21(1) of the Stockholm Convention). These conciliators (which must be individuals with senior qualifications and experience in international law) are appointed by State parties for renewable six-year terms—and crucially, cannot be removed by the appointing State for the duration of their term (art. 3(2)-(3) of the Stockholm Convention).
This is possible because inter-state communications do not require victimhood for standing, only having accepted the competence of treaty bodies would be sufficient.
In addition to risks mentioned in section 4.1 above, there is a difficulty in maintaining consistency in legal position, which may have implications in terms of remedies and countermeasures. This is particularly the case in a scenario where directly affected and not directly affected applicant States join forces in proceedings.
See Chinkin, supra note 43.
Wood and Sthoeger, supra note 46, 68.
Affaire du Guano (Chili v France), Award (5 July 1901) xv unriaa 315–316, referred to in Wood and Sthoeger, supra note 46, 68.
Wood, supra note 85.
A request for intervention may be denied or found inadmissible, which may have negative consequences at the domestic policy level, or from the international reputational perspective (consultation with experts). See also on confidentiality and reputational risk Eiken and Keane supra note 5, 307.
See Wood and Sthoeger, supra note 46; Wojcikiewicz Almeida, supra note 95, 163–188.
As observed by Eiken and Keane, supra note 5, 307 ‘A “strict rule of confidentiality” is generally observed in conciliation proceedings to ensure the process does not in any way prejudice the legal positions of the parties in a future proceeding.’
The International Court of Justice: 75 Years in the Service of Peace and Justice (United Nations 2022) 80.
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Request for Advisory Opinion) icj Press release 2023/43 <https://www.icj-cij.org/sites/default/files/case-related/186/186-20230807-pre-01-00-en.pdf> accessed 30 April 2024.
ejil: The Podcast!, supra note 31, 30:50-31:13.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/20 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230419-PRE-01-00-EN.pdf> accessed 30 April 2024.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/32 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230622-pre-01-00-en.pdf> accessed 30 April 2024.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/33 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230623-pre-01-00-en.pdf> accessed 30 April 2024.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/42 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230718-pre-01-00-en.pdf> accessed 30 April 2024.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/48 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230920-pre-01-00-en.pdf> accessed 30 April 2024.
Obligations of States in respect of Climate Change (Pending) icj Press release 2023/70 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20231124-pre-01-00-en.pdf> accessed 30 April 2024.
