PRELIMINARY OBSERVATION

Although member-state interventions are far less frequent than amicus curiae interventions, assessment of their role is nevertheless important. First, there is a disagreement between the Council of Europe, on the one hand, and members of civil society and scholars, on the other hand, as to whether member-state interventions should be encouraged. While the Council of Europe favours state interventions, members of civil society and scholars fear that states try to weaken established case law. It has been argued that in the case of Lautsi and Others v Italy, for instance, member states were successful in convincing the Court that display of crucifixes on public school walls was compatible with the Convention. It is therefore important to determine whether the Court is influenced by member-state intervention and how this is reflected in the Court's reasoning. Second, like amicus curiae, member states can contribute to the interpretation of the Convention as well as provide valuable information on domestic practices and regulations. This can enrich the Court's deliberation. Third, member-state intervention can foster implementation. Although judgments directed against another state are not formally binding, the Court's interpretation is nevertheless relevant to all its members. Member states might be more willing to implement judgments directed against another state if they know the Court came to its decision by also considering their arguments. In turn, through intervention by member states, the Court is in a better position to foresee the ramifications of its judgments on other member states.

Despite their importance, member-state interventions before the Court have never been analysed and their role has barely been addressed. Studies of member-state interventions mostly apply a descriptive approach to selected cases without shedding light on their role. Hence the aim of this chapter is to empirically and comprehensively analyse the role of member-state interventions before the Court. To this end, this chapter will proceed to examine the notion and origin of member-state intervention as this is closely connected to its role.

NOTION AND ORIGIN

The concept of member-state intervention has its origin in international arbitration. It first appeared in draft rules on international arbitral procedures developed by the Institute of International Law from the University of Ghent.