Gibraltar implications. A duty to comply with Convention

Douwe Korff is a Dutch human rights lawyer. He acted as counsel for the plaintiffs on the Gibraltar judgment.

The need to amend domestic law or practice following an adverse judgment flows from the general international obligation on states to abide by their treaty obligations.

Michael Heseltine's denunciation of the European Court's judgment on the case of the IRA members shot dead in Gibraltar appears to show the opposite intention.

It is to be hoped that, once emotions quieten down, the Government will act in accordance with its obligations, and in good faith.

Under Article 54 of the Convention, the Council of Europe's Committee of Ministers has the duty to supervise the execution of the European Court's judgments. It is important to note, however, that the Committee's duties under the Convention are limited to this; it cannot amend the judgment or interpret it. If it needs further interpretation, the case must be referred back to the court.

In practice, following a judgment against a state which is party to the convention, the Committee of Ministers asks the state in question what measures it has taken to comply with the judgment. The State has a duty respond to this question. Until the committee is satisfied that the respondent state has absolved itself of its obligations arising out of a judgment, the case is left on the committee's agenda.

If it is not satisfied with a state's response, the committee, and the Council of Europe as a whole, would need to consider whether to take further action, such as expelling the State from the council.

In the current case, it will be interesting to see what response the UK Government will give to the Committee of Ministers. As counsel for the applicants, it would seem to me that it is manifest that the UK will have to do more than simply pay the applicants' legal costs.

It seems that the training and general instructions given to the SAS soldiers was directly and causally linked to the unlawful killings.

The UK Government is therefore under a obligation under the Convention and under general international law to review this training and instructions. Failure to do so would mean that it refuses to take the action required “to abide by the decision of the Court”.

In those circumstances, the Committee of Ministers would be obliged to refuse to accept the Government's response as inadequate, the case would have to be kept on the agenda and continued defiance of the court could lead to serious political consequences.

In the meantime, the Government should be pressed to state its position formally – to make public its response to the Committee of Ministers.

It can only be hoped that the Government will be more aware of its international obligations than has been shown in the furore over what is in truth a careful and balanced judgment.