81001978

open access

Version of Record

オウシュウ ジンケン ジョウヤク ニ オケル ダイ14bis ギテイショ ノ サイタク ヘイリツ スル ザンテイテキ テキヨウ ホウホウ ノ コウカ ト モンダイテン

Adoption of Protocol No.14 bis to the European Convention on Human Rights : Effect and Challenge of the Two Modalities for Provisional Application in Parallel

Japanese (日本語)

国際協力論集

17(3)

67-84

神戸大学大学院国際協力研究科

2010-02

2010-03-24

Due to the continuing non-entry into force of Protocol No.14 because of Russian refusal to ratification, the European Court of Human Rights had faced deteriorate situation with a constantly growing backlog of individual application cases. It has been hoped that the main two procedures envisaged in the Protocol, i.e., the new single-judge formation and the new competence of the Committees of three judges, are to be applied provisionally as a priority. The Committee of Ministers of the Council of Europe adopted the Protocol No.14 bis, which come into force on 1 October 2009, for this purpose. This new Protocol enables the new procedures applicable to the parties of it. At the same time, the Conference of High Contracting Parties agreed by consensus that the concerned provisions are to be applied on a provisional basis with respect to those states that express their consent, according to the modalities set out among the parties. This was a compromise outcome for States that have difficulties in parliamentary approval to ratification of the new treaty. These two modalities for provisional application have been designed in accordance with general rule of international law and Article 25.1(b) of the Vienna Law of Treaties. Both instruments have similar clause, saying that "[t]his Protocol shall not apply in respect of any individual application brought against two or more High Contracting Parties unless, in respect of all of them, either the Protocol is in force or applied on a provisional basis, or the relevant corresponding provisons of Protocol No.14 are applied on a provisional basis". There still remains an answered question that which clause is to be applied to or the both are applied to one individual case, though the effects of two modalities would be the same. It could be said that the European Convention System has moved to a new phase of procedural "segmentation" between Protocol No.11 and Protocol No.14 systems. The future development of the new procedures will revive the debate "whether the European Court is as a place for individual remedies or as the Constitutional Court".

紀要論文