Vorbehalte und Erklärungen für Vertrag Nr.005 - Konvention zum Schutze der Menschenrechte und Grundfreiheiten

Art der Erklärung : Mitteilungen
Datum 11/04/2021


Communication contained in a letter from the Permanent Representative of Turkey, dated 20 July 1990, registered at the Secretariat General on 24 July 1990 - Or. Engl.

I have the honour to acknowledge receipt of your letter of 11 June 1990 transmitting copy of a letter which has been addressed to you by the Permanent Representative of Greece to the Council of Europe following the notification of the acceptance, by Turkey, of the jurisdiction of the European Court of Human Rights in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On behalf of the Turkish Government I have the following observations to make with respect to the letter of the Permanent Representative of Greece.

i. Article 46 of the said Convention does not contain a stipulation to the effect that declarations made pursuant to this article may be subject “only” to the two qualifications mentioned in the said article, namely the condition of reciprocity and the limitation of the validity of the declaration for a specified period. The word “only” has been added by the Greek Government. Moreover, it is of relevance that Article 46(2) is almost identical with Article 36(3) of the Statute of the International Court of Justice (the only difference being the substitution of the words “certain States” by “certain other High Contracting Parties” and of “for a certain time” by “for a specified period”) which, as it is well known and documented in the “travaux préparatoires” of the Convention, served as the model for Article 46(2). It is therefore relevant to recall, that the right for States to attach different types of conditions to their respective declaration under Article 36 of the Statute had been questioned for many years following the establishment of the World Court, but at the time of drafting the present Statute of the ICJ, the UN Committee in charge of the draft (San Francisco, Sub-Committee IV/1/D) inserted the following comment in its explanatory report:

“The question of reservations (conditions) calls for an explanation. As is well known, the article has consistently been interpreted in the past as allowing States accepting the jurisdiction of the Court to subject their declarations to reservations (conditions). The Sub-Committee has considered such interpretation as henceforth established.
It has therefore been considered unnecessary to modify paragraph 3 in order to make express reference to the right of States to make such reservations (conditions)”.

In line with this authoritative statement, Lord McNair, who was the first President of the European Court of Human Rights, has, as a judge of the International Court of Justice, expressed the opinion that “… the machinery provided by that paragraph (Article 36 of the Statute of the ICJ) is that of “contracting-in”, not of “contracting-out”. A State, being free either to make a Declaration or not, is entitled, if it decides to make one, to limit the scope of its Declaration in any way it chooses.” (ICJ Reports (Judgment in the Anglo-Iranian Oil Co.) 1952, 116).

The Government of Turkey has always understood the scope of Article 46 of the Convention on Human Rights in exactly the same terms and has acted accordingly.

ii. Since the Permanent Representative of Greece has again erroneously qualified the conditions attached to the Turkish Declaration as “reservations” which would be controlled by Article 46 of the Convention, reference is hereby made in reply to the comments made by Turkey in the letter of her Permanent Representative to the Secretary General of the Council of Europe of 26 June 1987, dealing with similar statements made in relation to the Turkish Declaration under Article 25 of the Convention.
In Kraft: 24/07/1990 - 31/10/1998
Artikel betroffen : Ex-46

Communication contained in a letter from the Permanent Representative of Turkey, dated 26 June 1987, registered at the Secretariat General on 29 June 1987 - Or. Engl.

I have the honour to acknowledge receipt of the letters of 21 April 1987 by Sweden and the Grand-Duchy of Luxembourg, of 6 April 1987 by Greece, of 30 April 1987 by Denmark, and of 4 May 1987 by Norway, transmitted by you with cover letters of 24 April 1987, 27 April 1987, 5 May 1987 and 12 May 1987 respectively, concerning the Turkish declaration pursuant to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I have the following comments to make with regard to the contents of the letters of the High Contracting Parties referred to above.

First of all, I should like to emphasize that the points contained in the Turkish declaration cannot be considered as “reservations” in the sense of international treaty law. According to the Vienna Convention on the law of treaties of 1969, which for most of its provisions purports to codify existing principles of international treaty law “a reservaton modifies for the reserving state the provisions of the treaty to which the reservations relates to the extent of the reservation”. In this sense, a reservation distincly alters for the reserving State the scope of its commitments under the treaty.

Turkey ratified the Convention and its First Protocol in 1954, by making a reservation with regard to Article 2 of the Protocol. The “conditions” attached to the Turkish declaration of 28 January 1987, however, are not “reservations” to commitments arising out of the Convention. They do not modify Turkey’s general obligations under the Convention. The Convention, as ratified and subject to the “reservation” made in 1954, continues to bind Turkey to the full extent, and it is the Convention in this form which has become part of the Turkish domestic legal order, and it is again the Convention, subject to the reservation of 1954 only, which is open to allegations under Article 24.

In other words, the conditions attached to the declaration of 28 January 1987, do not purport to modify or to exclude any of the legal provisions of the Convention. The “conditions” have the only purpose to define and limit the granting of additional power and authority which Turkey as contracting State has on its own volition bestowed upon the Commission.

Furthermore, any acceptance of an optional clause of an international treaty is tantamount to an expression of consent by the State concerned to be bound by that provision. It is thus based on the subjective attitude and understanding of the State concerned. This means that the state is free, within the limits of the rules of the international treaty or convention concerned, to qualify its consent to be bound by the optional clause.

When recognizing the right of individual petition pursuant to Article 25 of the European Convention on Human Rights, the States are granting an additional competence to the European Commission of Human Rights. Such granting of competence can be made subject to certain conditions.

Article 25 of the Convention does not contain any indications neither of possible conditions nor of prohibition of such conditions. In particular, it does not envisage a qualified declaration nor does it prohibit such a declaration. Thus a declaration under Article 25 accompanied with certain conditions cannot be seen as being contrary to an explicit rule of the Convention.

Finally, I would like to point out in this connection that the only competent organ to make a legally binding assessment in this respect is the European Commission of Human Rights, when being seized by an individual application, and eventually the Committee of Ministers when acting pursuant to Article 32 of the Convention.
In Kraft: 29/06/1987 - 31/10/1998
Artikel betroffen : Ex-25

Quelle : Vertragsbüro auf http://conventions.coe.int - * Disclaimer.