The Rise of Inter-State Litigation: Open Questions and Future Perspectives

Starting from the recent practice of the International Court of Justice, of the European Court of Human Rights, and of monitoring bodies, which reflects a rise in inter-State complaints in the field of human rights, the article first explores the reasons that prompted states to increasingly resort to this procedure. In the light of that, it addresses the question why states, in relation to other situations where grave violations of human rights equally occurred, abstained from taking any action before a judicial or a quasi-judicial body. In this regard the article focuses on the legal challenges that are still to overcome and that are related: on the one hand to the legal standing of indirectly injured states in relation to the breach of erga omnes and erga omnes partes obligations; on the other to the question whether the erga omes character of the rule also extends to procedural obligations, and namely to those included in compromissory clauses; and - if so - how this could impact on increasing the use of inter-State complaints as a means of protecting fundamental human rights.