On 22 October 2024 the European Court of Human Rights (ECtHR or ‘the Court’) issued a landmark judgment in the case of Kobaliya and Others v. Russia. It found that the Russian legislation on ‘foreign agents’ – imposing huge restrictions on the rights of Russian non-governmental organisations, media organisations and individuals designated as ‘foreign agents’ – breached Articles 8, 10 and 11 of the European Convention on Human Rights (ECHR of ‘the Convention’). The Court considered that the legislation was incompatible with the ECHR, both in and of itself and in the light of the way in which it had been applied in the applicants’ cases, and even observed that ‘the legislation examined […] bears the hallmarks of a totalitarian regime’ (para. 86).
However, in dealing with the applicants’ request to indicate to the respondent Government to repeal the impugned legislation, since in their view ‘the violations […] in the present case followed specifically and only from the text of the law on its face incompatible with the Convention’, the Court briefly replied, without providing further explanations, that ‘[t]he Court’s judgments are essentially declaratory in nature and it does not have authority to mandate legislative changes’ (para. 122). This statement was taken from a previous judgment issued against Russia in respect of a similar issue, in which it had not been supported by reference to any previous case-law authority or other arguments (Andrey Rylkov Foundation and Others v. Russia, 18 June 2024, para. 118).
The aim of this post is to demonstrate that, while it is true that the ECtHR’s judgments are essentially declaratory, the Court does have the authority to mandate legislative changes. This is because the duty to repeal a domestic legislation breaching an international obligation is part of the natural legal consequences of the international responsibility of the State for an internationally wrongful act. This is also confirmed by the Court’s interpretation of the obligation to comply with its judgments, as enshrined in Article 46 of the Convention. Moreover, from a more general point of view, it appears that the obligation to repeal domestic legislations breaching the ECHR is part of the general primary obligations deriving from the mere ratification of the treaty in question.
General Principles on States’ Responsibility for Breaches of International Obligations on Account of Incompatible Domestic Legislative Provisions
The International Law Commission’s (ILC) Draft Articles on the Responsibility of States for Internationally Wrongful Acts provide, in Article 12, that ‘[t]here is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation […]’. Paragraph 12 of the ILC’s Commentary to Article 12 deals with the specific question ‘whether an obligation is breached by the enactment of legislation by a State’, and distinguishes two different scenarios: in some cases, it is possible that an international obligation is breached ‘by the mere passage of incompatible legislation’, meaning that ‘the passage of the legislation without more entails the international responsibility of the enacting State, the legislature itself being an organ of the State for the purpose of the attribution of responsibility’; in other circumstances, ‘the enactment of legislation may not in and of itself amount to a breach, especially if it is open to the State concerned to give effect to the legislation in a way which would not violate the international obligation in question’, being understood that in a similar case ‘whether there is a breach will depend on whether and how the legislation is given effect’.
In the case at issue, the Court concluded that ‘both the “foreign agent” legislative framework and its application to the applicants was arbitrary and was not “necessary in a democratic society”’ (para. 98 of the judgment), therefore making it clear that the legislation in question breached the States’ international obligations both on account of its mere passage and due to the way in which it had been applied.
Under Article 28 of the Draft Articles, the breach of an international obligation entails the legal consequences set out in Part Two of the Draft Articles, which deals with the content of the international responsibility of a State. While Article 29 clarifies from the outset that those legal consequences ‘do not affect the continued duty of the responsible State to perform the obligation breached’, Article 30 provides that, as part of those legal consequences, ‘the State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require’. As clarified in paragraph 11 of the ILC’s Commentary to Article 30, the ‘repeal of the legislation which allowed the breach to occur’ might be seen, at the same time, as an aspect of the continuation of the binding force of the primary rule which had been breached, as an assurance or guarantee of non-repetition of the breach, or as a way of satisfaction, aimed at repairing the legal obligation affected by the breach.
Be it as it may, it is clear that, in cases in which the breach of an international obligation has been caused by a domestic legislative provision, an obligation to repeal such legislation arises for the State concerned.
The Obligations Enshrined in Article 46, para. 1 ECHR
A similar obligation has been identified by the ECtHR in Article 46, para. 1, of the ECHR, pursuant to which ‘[t]he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties’.
According to the Court’s consistent case-law, under this provision ‘a judgment in which it finds a breach imposes on the respondent State a legal obligation […] to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach’ (Scozzari and Giunta v. Italy [GC], 23 July 2000, para. 249). In the context of the execution of its judgments, the Court further observed that ‘it follows from the Convention, and from Article 1 in particular, that in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it’ and considered that ‘[c]onsequently, it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicant’s situation from being adequately redressed’ (see, among many, Maestri v. Italy [GC], 17 February 2004, para. 47; Scordino v. Italy (no. 2) [GC], 29 March 2006, para. 234; Scordino v. Italy (no. 3), 3 March 2007, para. 12). The Court further clarified that ‘Contracting States’ duty in international law to comply with the requirements of the Convention may require action to be taken by any State authority, including the legislature’ (Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) v. Bulgaria, 18 September 2010, para. 48; M. and Others v. Bulgaria, 26 July 2011, para. 136; Yordanova and Others v Bulgaria, 24 April 2012, para. 164).
Therefore, while it is true that the Court’s judgments are ‘essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose […] the means to be used in its domestic legal order to discharge its obligations under Article 46’, it is also well-established that ‘in certain circumstances the Court has found it to be useful to indicate to a respondent State the type of measure – individual and/or general – that might be taken to put an end to the situation which has given rise to the finding of a violation’ (Verein Klimaseniorinnen Schweiz and Others v. Switzerland [GC], 9 April 2024, para. 656).
In the light of the above principles, it is quite common for the Court to indicate to the respondent Governments, as part of their obligations under Article 46, to adopt new legislations (see, for example, J.B. and Others v. Malta, 22 October 2024, para. 167; A.D. v. Malta, 17 October 2023, para. 210; Stoyanova v. Bulgaria, 16 June 2022, para. 78; Mushfig Mammadov and Others v. Azerbaijan, 17 October 2019, para. 103), as well as to complement (see, for example, S.E. v. Serbia, 11 July 2023, para. 98) or to amend (see, for example, Vāleanu and Others v. Romania, 8 November 2022, para. 272; Korporativna Targovska Banka AD v. Bulgaria, 30 August 2022, para. 209; N. v. Romania (no. 2), 16 November 2021, para. 84; Informatsionnoye Agentsvo Tambov-Inform v. Russia, 18 May 2021, para. 128; Kuzmina and Others v. Russia, 20 April 2021, para. 120) existing legislations.
In some cases, the Court even described in extreme detail the content and features of the domestic legislation to be adopted (Walęsa v. Poland, 23 November 2023, paras. 328-331) or requested extensive and comprehensive legislative reforms (Tunikova and Others v. Russia, 14 December 2021, paras. 146-159, in which the Court considered that ‘the Government’s obligations under the Convention compel it to introduce legislative and other changes without further delay’). In some other cases, it even assigned a deadline for the respondent State to adopt the requested legislative amendments (Baralija v. Bosnia and Herzegovina, 19 October 2019, para. 62).
A Self-Standing (Primary) Obligation to Repeal Domestic Legislation Incompatible with the ECHR?
In the light of the above, there is no doubt that, in case of a finding of a breach of the ECHR on account of the existence of an incompatible domestic legislation, a secondary obligation to repeal the said legislation arises, both in the light of the general principles on the responsibility of States for internationally wrongful acts and Article 46 of the Convention. A different question is whether the ECHR enshrines a self-standing primary obligation to conform to it the domestic legislations of the Contracting States, irrespective of (and therefore even before) the finding of a violation by the Court. A similar obligation would derive from Article 1 ECHR, which states that ‘[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined’ in the Convention and its Protocols.
In this respect, it must be noted that both the European Commission of Human Rights (Ireland v. the United Kingdom, report of 25 January 1976, p. 484) and the Court (Ireland v. the United Kingdom, 18 January 1978, para. 238) have in the past dismissed the thesis of the autonomous binding force of Article 1 which, in their view, cannot be autonomously breached (but see the Opinion of Sperduti and Opshal attached to the Commission’s report, arguing that Article 1 establishes a self-standing obligation, which can be autonomously breached, ‘to ensure and to guarantee through adequate measures in [the State’s] domestic legal system, the effective respect of the said rights and liberties’ (p. 499). Moreover, the Court has also consistently held that the Contracting States’ have no obligation to institute a remedy aimed at obtaining the invalidation of domestic legislations breaching the Convention (I.G. and Others v. Slovakia, 13 November 2012, para. 156; Ostrovar v. Moldova, 13 September 2005, para. 113, with further references).
However, both arguments seem insufficient to exclude the existence of a general primary obligation to conform the Contracting States’ domestic legislations to the Convention. And indeed, in the advisory opinion issued on 30 January 1923 in respect of the Exchange of Greek and Turkish Populations, the Permanent Court of International Justice (PCIJ) observed that, irrespective of the existence of a specific treaty provision in this regard, there is in international law ‘a principle which is self-evident, according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken’ (p. 20). Relying on such principle, Judge Pinto de Albuquerque argued, in particular, that the States Parties to the ECHR ‘are legally obliged […] to make such modifications to their legal systems as may be necessary to ensure the full implementation of the obligations incumbent on them’, further observing that this would be a mere consequence of the principle of good faith in fulfilling treaty obligations, provided for in Article 26 and 31 of the Vienna Convention on the Law of Treaties (Vallianatos and Others v. Greece [GC], 7 November 2013, Partly concurring, partly dissenting opinion of Judge Pinto de Albuquerque).
It therefore comes with no surprise that a similar general primary obligation has been identified by several other regional and universal human rights bodies. For example, the Inter-American Court of Human Rights expressly relied on the PCIJ’s advisory opinion to hold that ‘every State Party is to adapt its domestic laws to the provisions of [the Inter-American Convention on Human Rights]’, both by annulling laws which are incompatible with it and by passing the laws and practice necessary to achieve its observance (Almonacid-Arellano et al v. Chile, 26 September 2006, paras. 117-118; “The Last Temptation of Christ” (Olmedo-Bustos et al) v. Chile, 5 February 2001, para. 85). Similarly, both the African Commission on Human and Peoples’ Rights (Lawyers for Human Rights v. Swaziland, 11 April 2005, para. 61) and the African Court of Human and Peoples’ Rights (Ally Rajaby and Others v. United Republic of Tanzania, 28 November 2019, para. 124, with further references) considered that the ratification of the African Charter on Human and Peoples’ rights entails, under its Article 1, an obligation to bring States Parties’ laws in line with the same. As regards the UN treaty bodies, in General Comment No 31 of 26 May 2004, the Human Rights Committee considered that Article 2 of the International Covenant on Civil and Political Rights enshrines an obligation which ‘has immediate effect’ (para. 5) and ‘requires that States Parties adopt legislative […] measures in order to fulfill their legal obligations’ (para. 7), meaning that ‘unless Covenant rights are already protected by their domestic laws or practices, States Parties are required on ratification to make such changes to domestic laws and practices as are necessary to ensure conformity with the Covenant’ and that ‘[w]here there are inconsistencies between domestic law and the Covenant, Article 2 requires that the domestic law or practice be changed’ (para. 13; on the ‘immediate and stringent (i.e. unconditional)’ nature of this obligation, see Seibert-Fohr, pp. 405 ff.). The same has been hold by the other UN treaty bodies (see, for example, General Comment No. 5 of 27 November 2003 of the Committee on the Rights of the Child).
Conclusion
In conclusion, it seems that, differently from what has been argued in Kobaliya and Others, the ECtHR does have the authority to order legislative changes, for the simple reason that an international (secondary) obligation to repeal domestic legislations which are incompatible with the ECHR is a natural legal consequence of the international responsibility of the State for breaching the primary obligation in question. This is further confirmed by the Court well-established practice of indicating, when the circumstances so require, legislative changes as part of the secondary obligations arising from Article 46 of the Convention.
However, and although the ECtHR has never taken this view, it appears that there is sufficient basis in international law to state that the States Parties to the ECHR have also a self-standing (primary) obligation to repeal domestic legislation incompatible with the Convention, irrespective and even before the finding of a violation by the Court (on the need to recognise a general obligation to conform the domestic legal system to the ECHR, see Saccucci, pp. 200 ff.). It is time for the Court to explicitly recognise this obligation. Otherwise, as already observed by the Court, people affected by the violation of a fundamental Convention rights would be forced to suffer the effects of an incompatible domestic legislation, having no other choice but to seek relief through time-consuming international litigation, a situation which is at odds with the principle of subsidiarity, which is prominent in the Convention system (Tunikova and Others v. Russia, 14 December 2021, para. 151; Ananyev and Others v. Russia, 10 January 2012, para. 211).
