THE PROCEDURAL STATUS OF THE INDIVIDUAL BEFORE INTERNATIONAL AND SUPRANATIONAL TRIBUNALS

Transcription

1 THE PROCEDURAL STATUS OF THE INDIVIDUAL BEFORE INTERNATIONAL AND SUPRANATIONAL TRIBUNALS

2 THEPROCEDURALSTATUSOFTHE INDIVIDUAL BEFORE INTERNATIONAL AND SUPRANATIONAL TRIBUNALS by W. PAUL GORMLEY The University oj Tulsa THE HAGUE MARTINUS NI]HOFF 1966

3 Copyright I966 by Martinus Nijhoff, The Hague, Netherlands A II rights reserved, including the right to translate or to reproduce this book or parts thereof in any form ISBN ISBN (ebook) DOl /

4 PREFACE The most important sipgle factor in guaranteeing the effective protection of human rights - including economic and property interests - is that private individuals and groups be capable of maintaining a judicial action against any sovereign State causing them injury. Thus, individuals must possess the necessary locus standi at both the regional and international levels. A private individual must be able to prosecute an action before an international tribunal - in his own name - against an offending Government, particularly his own. Unfortunately, this necessary right of action was not recognized under traditional internationallaw. It is only very recently, since the adoption of the European Convention of Human Rights and the Establishing Treaty of the Common Market, that nongovernmental entities have achieved locus standi before international courts. As this book is being written, it is no longer valid to hold that only States are procedural subjects of international law. Nevertheless, it must - tragically - be conceded that individuals do not enjoy the same standing as Member States. This same generalization applies to the United Nations. Starting with the proposition that the individual is a subject of the Law, this book not only analyses examples supporting this viewpoint, but it concentrates on the more important shortcomings, primarily those existing within the Council of Europe, the European Economic Community, and the United Nations. Therefore, recommendations are offered as to the specific improvements that must be made. In particular, the International Court of Justice must be brought into harmony with the spreading regional movement; consequently, Article 34 of the Statute of the IC] must be changed so that individuals (and even the United Nations itself) can participate in contentious proceedings. That is to say, the highest international tribunal cannot

5 VI PREFACE remain apart from the newly developing international and regional law. The rise of major multinational institutions is having a profound impact on the traditional corpus of international law, and these changes are of benefit to individuals at the expense of States. Despite the fact that the individual is not only gaining recognition of his inherent and inalienable Natural Law rights, but also a means of enforcing specifically enumerated guarantees contained in treaty texts, a new development is presently causing serious regression. Within the past year it has become painfully apparent that the legal norm of absolute state sovereignty is hampering this entire movement. Accordingly, the writer is of the opinion that he has selected a rather undesirable time for the undertaking of such a study. In short, Member Governments of the Council of Europe and the European Economic Community desire to eliminate any further interference in their domestic jurisdictions. The rise of national sovereignty is not only weakening the entire integrative movement, but it seems to parallel the shortcomings currently found in the United Nations. Nonetheless, the reason for conducting this examination of the emerging procedural personality of private persons is that the rise ot supranational institutions has made possible the establishment of courts of justice - plus administrative and political organs - capable of effectively dealing with complaints filed by individuals. The European Convention of Human Rights and the Treaty Establishing the European Economic Community have been in force for over ten years; and, pursuant to the authority contained in these documents, it has been possible to create the needed tribunals. Such progress depends upon supporting supranational structures, rather than traditional-type international organizations. Against this background of rising national sovereignty, the writer proposes to examine the practical results that have been achieved in affording individuals and nongovernmental entities a right ot petition and a right ot action. Consequently, emphasis will be placed on the procedural problems. While final answers cannot be given because of the rapidly changing character of the Law, it seems feasable to deal with the contemporary and future development of human rights machinery available to private individuals. The writer first became interested in this 'Problem of the individual as a procedural subject of international law while he was a student of Professor James O. Murdock, George Washington University School of Law. Although the writer wishes to acknowledge the help received from Professor Murdock, he assumes full responsibility for all state-

6 PREFACE VII ments herein. Additional help has been given by Professor Albert H. Garretson, New York University School of Law. It is impossible to adequately express appreciation to the many persons who have so graciously given the writer material for this study. In addition, these persons have sacrificed their valuable time in order to engage in numerous personal conferences. Nonetheless, the following have been exceptionally helpful. Professor Dr. Charles Leon Hammes, President, Court of Justice, European Economic Community; M. L. Sizaret, Attache to Advocate-General Gand (and formerly to Lagrange); R. M. Chevallier, Attache to Advocate-General Lagrange; and H. Sperl, Librarian, EEC Court of Justice. At the Council of Europe the following persons provided valuable aid. Dr. A. H. Robertson, Head of the Directorate of Human Rights; Dr. Kersten Rogge, Member of the Commission of Human Rights; Dr. Karel Vasak, expert on External Legal Relations; A. B. McNulty, Secretary to the European Commission of Human Rights; Mlle. Rentier, Head of the Social Division; N. Bishop of the Division of Crime Problems; W. Vis, Secretary to the Legal Committee of the Consultative Assembly; and M. Green, Legal Section. At the International Labour Organization Dr. Valticos, Head of the Legal Division, and F. Morgenstein gave valuable aid. In addition, E. Schlatter, Legal Division of the Office of High Commissioner For Refugees; Dr. V. Kabes, Executive and Administrative Secretary, plus J. Toth, International Commission of Jurists; Geneva, provided considerable help. At the Judicial Services of the Executive Branch of the European Economic Community, Brussels, Mr. Ehlermann was consulted. However, a special note of appreciation has been reserved for Dr. H. Golsong, Registrar, European Court of Human Rights, Council of Europe. In addition to enabling the writer to make many of the necessary contacts, his lectures entitled The Implementation of I nternational Protection of Human Rights, delivered at the Hague Academy of International Law in 1963, have proved to be a valuable source of inspiration. The writer wishes to thank the University of Detroit Law Journal, and its several boards of editors, who have previously published a series of articles dealing with the topics under examination. Their aid can never be fully acknowledged. As a final point, the writer wishes to express great appreciation to the Staff and Lecturers at the Hague Academy of International Law

7 VIII PREFACE for their stimulating and scholarly series of courses. Frequent reference is made to these sources. Furthermore, the help received from the staff of the Peace Palace Library, during the summers of 1960, 1961, 1963, 1964, and 1965 is incalculable. The University of Tulsa College of Law Tulsa, Oklahoma October 1965 w. PAUL GORMLEY

8 TABLE OF CONTENTS Preface v I. IMPLEMENTING MAN'S NATURAL RIGHTS: THE DEVELOPING INTERNATIONAL LAW Failure at the International Level I The Regional Approach 3 The Spreading Regionalism 3 Individual Procedural Rights at the Regional Level 6 Purpose of the Study 8 The Natural Rights of Man 10 II. THE DEVELOPMENT OF PROCEDURAL REMEDIES From Antiquity to the Modern State 17 The Status of the Individual under Roman Law 18 Quiritary Law 18 Jus Civile 19 J us Gentium 19 Present Theories of Individual Procedural Status 23 The Individual as an Object 23 The Individual as a Beneficiary 26 The Individual as a Full Subject 29 Other SUbjects of the Law 31 Early International Courts 32 III. THE INTER-WAR PERIOD The U.S.-Mexican Mixed Claims Commission 36 Mixed Claims Commissions 37 Arbitral Tribunals 38 Jurisdiction of the Court of Danzig 40 Upper Silesian Convention 41 Protection of Minorities 42 Permanent Court of International Justice 43

9 X TABLE OF CONTENTS IV. THE EFFORTS OF THE UNITED NATIONS Failure at the International Level 45 Universal Declaration of Human Rights 46 Right of Petition 49 International Labour Organization 52 Conventions 53 Organizational Structure 55 Right of Petition 55 "Individual Petition" 57 Advisory Opinions 60 International Court of Justice 62 Contentious Cases 62 Advisory Opinions 65 Inter-State Complaints 68 Recommendations 68 V. THE COUNCIL OF EUROPE: POLITICAL UNIFICATION The Realization of an Ideal 70 The Council of Europe and Unification 7I The Individual and the Commission Convention of Human Rights Inter-State Applications Subsequent Protocols 85 European Social Charter 87 Protection of States 9I Regional Tribunals and the Individual Commission of Human Rights Developing Jurisprudence of the Commission 92 loo The Third Protocol I03 The Court of Human Rights I07 Article 44 and Individual Petition lio Compulsory Jurisdiction lis Second Protocol li6 Committee of Ministers li9 The Individual as a Beneficiary I2I Conclusions: Political Organizations I22 VI. EUROPEAN ECONOMIC ORGANIZATIONS The Common Market Economic Integration of Europe Rise of the European Economic Community I27 I29

10 TABLE OF CONTENTS XI Growing Obstacles to Integration 130 Supranational Structure 133 The European Communities and the Individual 136 Establishing Treaties 137 Court of the Coal and Steel Community 140 Combined Community Court 147 The Individual and the EEC 148 Direct Right of Appeal 148 Indirect Right of Appeal 156 The Role of the Court in an Expanding Legal System 159 Treaty Texts and the Individual 160 Article 177 and the Individual 161 New Exceptions to Article Legal Development in the EEC 166 Statute of Limitations 167 Court Decisions and Individual Rights 168 Social Security Cases 176 Advisory Jurisdiction 177 The Individual as a Beneficiary 179 Organization for Economic Cooperation and Development 180 Conclusions: Economic Organizations 182 VII. CONCLUSIONS Individual Right of Action Political and Economic Organizations Compared The Future Global Efforts International Court of Justice Private Undertakings Trend of World Law Table 01 Cases Subject Matter Index Index 01 Authorities

11 LIST OF ABREVIA TIONS ABA ABA, Ann. H.ep. ABA, Int'! & Compo L. Sec. Bull. A.B.A.]. All E. R Am. ]. Compo L. Am. ]. Int'! L. Am. Pol. Sci. H.ev. Am. U. L. Rev. Annals Ann. Survey Am. L. Arb. ]. Brit. Yb. Int'l L. Buffalo L. H.ev. Calif. L. l~ev. Camb. L.J. Can. B. Rev. CCH Common Market Rep. Colum. L. H.ev. COMECON Common Market L. Rev. Congo l~ec. Conn. B.]. Czeck. Yb. of Int'[ L. ECSC EcoSoc EEC EDC EFTA EURATOM European Yb. FAO American Bar Association American Bar Association Annual Report Section of International and Comparative Law, Bulletin, American Bar Association American Bar Association] ournal All England Law Reports American] ournal of Comparative Law American Journal of International Law American Political Science Review American University Law Review Annals of the American Academy of Political And Social Science Annual Survey of American Law, New York University Arbitration] ournal British Yearbook of International Law Buffalo Law Review California Law Review Cambridge Law Journal Canadian Bar Review Commerce Clearing House, Common Market Reporter Columbia Law Review Council for Mutual Economic Assistance Common Market Law Review Congressional Record Connecticut Bar Journal Czechoslovak Yearbook of International Law European Coal and Steel Community Economic and Social Council European Economic Community European Defense Community European Free Trade Area European Atomic Energy Community European Yearbook Food and Agriculture Organization

12 XIV LIST OF ABREVIA TIONS Fed. B.J. Foreign ReI. U.S. GATT Geo. L.J. Geo. Wash. L. Rev. How. L.J. ICFTU ICJ I.C.J. Rep. ILO ILO. Off. Bul. IMCO India L.Q. Inter-American L. Rev. Int'l & Comp. L. Sec., ABA Int'l & Compo L. Sec., Proceedings Int'l & Comp. L.Q. Int'l Conc. Int'! Legal Materials Int'IOrg. Int'l L. Rep. Jewish Yb. of Int'l L. J. Common Market Studies J. Int'! Comm'n of Jurists J. Public L. La. Ann. Law & Contemp. Prob. L. Q. Rev. Minn. L. Rev. Modern L. Rev. NATO Nw. U.L. Rev. N.Y.L.]. N.Y.U.L. Rev. OEEC OECD Ohio St. L.J. Pet. P.C.I.J. Federal Bar Journal Papers Relating to the Foreign Relations of the United States General Agreement on Tariffs and Trade Georgetown Law Journal George Washington Law Review Howard Law Journal International Conference of Free Trade Unions International Court of Justice International Court of Justice Reports International Labour Organization International Labour Office, Official Bulletin International Maritime Consultative Organization India Law Quarterly Inter-American Law Review International and Comparative Law Section of the American Bar Association International and Comparative Law Section of the American Bar Association, Proceedings International and Comparative Law Quarterly International Conciliation International Legal Materials, American Society of International Law International Organization International Law Reports Jewish Yearbook of International Law Journal of Common Market Studies Journal of the International Commission of Jurists Journal of Public Law Louisiana Annual Reports Law and Contemporary Problems Law Quarterly Review Minnesota Law Review Modern Law Review North Atlantic Treaty Organization Northwestern University Law Review New York Law Journal New York University Law Review Organization for European Economic Cooperation Organization for Economic Cooperation and Development Ohio State Law Journal Peters' United States Supreme Court Reports Permanent Court of International Justice

13 LIST OF ABREVIA TIONS xv P.c.!.J. Rep. Proceedings, A.S.!.L. Record of N.Y.C.B.A. Recueil des Cours Receuil Restatement, Foreign Relations of the United States Sol. S.D.L. Rev. Stan. L. Rev. Statute Int'! Court of Justice Transact. Grot. Soc. TulL. Rev. U. Cinco L. Rev. U. Det. L.J. UN UNESCO U.N. EcoSoc Council Off. Rec. U.N. Gen. Ass. Off. Rec. U.N. Rep. Int'l Arb. Awards U. Pitt. L. Rev. UPU U.S. Dep't of State Pub. Va. L. Rev. Va. L. Weekly Dicta Compo Vill. L. Rev. Wall. Wayne L. Rev. WEU WFTU Wheat. WHO World Affairs n.s. Yale L.J. Yb. Human Rights Yb. of World Affairs Permanent Court of International Justice Reports Proceedings of the American Society of International Law The Record of the Association of the Bar of the City of New York The Hague Academy of International Law, Recueil des Cours Recueil Jurisprudence de la Cour de Justice des Communautes Europeenne American Law Institute, Foreign Relations Law of the United States (Proposed Official Draft) The Solicitor Quarterly South Dakota Law Review Stanford Law Review Statute of the International Court of Justice Transactions of the Grotius Society Tulane Law Review University of Cincinnati Law Review University of Detroit Law Journal United Nations United Nations Educational, Scientific, and Cultural Organization United Nations Economic and Social Council Official Record United Nations General Assembly Official Record United Nations Reports of International Arbitral Awards University of Pittsburg Law Review Universal Postal Union United States Department of State Publication Virginia Law Review Virginia Law Weekly Dicta Compilation Villanova Law Review Wallace's United States Supreme Court Reports Wayne Law Review Western European Union World Federation of Trade Unions Wheaton's United States Supreme Court Reports \Vorld Health Organization World Affairs, new series Yale Law Journal Yearbook of the European Convention of Human Rights Yearbook of World Affairs