The Procedural Status of the Individual before International and Supranational Tribunals

219 Pages·1966·6.055 MB·English

by  W. Paul Gormley (auth.)

THE PROCEDURAL STATUS OF THE
INDIVIDUAL BEFORE INTERNATIONAL
AND SUPRANATIONAL TRIBUNALS
THEPROCEDURALSTATUSOFTHE
INDIVIDUAL BEFORE INTERNATIONAL
AND SUPRANATIONAL TRIBUNALS
by
W. PAUL GORMLEY
The University oj Tulsa
•
THE HAGUE
MARTINUS NI]HOFF
1966
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 978-94-011-8703-9 ISBN 978-94-011-95.10-0 (eBook)
DOl 10.1007/978-94-011-9530-0
PREFACE
The most important sipgle factor in guaranteeing the effective pro
tection 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 internatio
nallaw. 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As this book is being written, it is no longer valid to hold that only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 par
ticular, 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
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. Accord
ingly, 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 juris
dictions. 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 struc
tures, 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-
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. Pro
fessor 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 Advo
cate-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 Adminis
trative 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 nter
national 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
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 w. PAUL GORMLEY
College of Law
Tulsa, Oklahoma
October 1965
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
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 76
Inter-State Applications 82
Subsequent Protocols 85
European Social Charter 87
Protection of States 9I
Regional Tribunals and the Individual
Commission of Human Rights 92
Developing Jurisprudence of the Commission 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 I27
Economic Integration of Europe
Rise of the European Economic Community I29
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 177 164
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 185
Political and Economic Organizations Compared 186
The Future Global Efforts 189
International Court of Justice 191
Private Undertakings 192
Trend of World Law 194
Table 01 Cases 195
Subject Matter Index 198
Index 01 Authorities 203