Abstract
As stated in the preceding chapters, the individual has achieved the status of a subject of the law before the two great European regional organizations, in a number of specific instances. In spite of the fact that considerable improvement is still required, it is fair to conclude that the dream of Lauterpacht has partially become a reality within the Council of Europe (and the Court of the EEC) for the reason that the individual can petition — directly and in his own name — to the Commission of Human Rights. Moreover, within the Judicial Branch of the Council the private person and nongovernmental entities have a direct right of action in that the Commission can investigate the complaint, file an opinion; and, if a friendly settlement is not reached, the case can be transfered to the Committee of Ministers or the Court. Although he has yet to acquire locus standi before the European Court of Human Rights, his case may be “presented” to the Tribunal by the Commission of Human Rights. Therefore, an injured individual or nongovernmental entity can be afforded relief by a multinational forum.
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References
King & Gormley, “Toward International Human Rights,” 9 Wayne L. Rev. 294, 304–306 (1963).
European Convention of Human Rights. Signed in Rome, Nov. 4, 1950; entered into orce on Sept. 3, 1954. 1 Yb. Human Rights 4-36.
Robertson, Human Rights in Europe (1963). The sub-title of the book is as follows: being an account of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950, of the Protocol thereto and of the machinery created thereby: the European Commission of Human Rights and the European Court of Human Rights. This book was written in order to commemorate the tenth anniversary of the Convention and the fifth anniversary of the founding of the European Court of Human Rights. May it be strongly suggested that this work be consulted by any serious researcher.
Golsong, “The Implementation of International Protection of Human Rights,” no (III) Recueil des Cours (1963). This is one of the most important works expounding upon the progress made at the political level.
Churchill, in his famous address to The Hague Congress, addressed over seven hundred participants from sixteen countries. His efforts produced the Message to Europeans. See Robertson, Council of Europe 3-4 (2d ed. 1961). For excellent material on the efforts to unify Europe at the political level consult Myers, “Human Rights in Europe,” 48 Am. J. Int’l L. 299 (1954); Myers, Ten Years of the Council of Europe (n.d.); Green, “The European Convention on Human Rights,” 5 World Aff. (n.s. 1951); Goormaghtigh, “European Integration,” Int’l Conc. No. 488 (1953); Schuman, “The European Scene: The Council of Europe,” 45 Am. Pol. Sci. Rev. 724 (1951); Loveday, “The European Movement,” 3 Int’l Org. 620 (1949); Mackay, “Strasbourg in Perspective,” 4 European Yb. 174 (1958); W. B. Smith, “Europe as a Bulwark of Peace,” 21 Dep’t State Bull. 872 (1949); Naines, European Integration (1957); Sørensen, “The Council of Europe,” [1952] Yb. of World Affairs; Florinsky, Integrated Europe? (1955); Landheer, “Sociological Aspects of European Integration,” 3 European Yb. 53 (1957); Loewenstein, “The Union of Western Europe: Illusion and Reality,” 52 Calif. L. Rev. 55 (1952); Robertson, European Institutions (1959). Note especially the address of Dean Acheson, as Secretary of State, before a joint session of Congress, May 31, 1950. 96 Cong. Rec. 7852 (1950). For an analysis of the European Political Community, which was intended to serve as the counterpart of the EDC, see Bebr, “The European Coal and Steel Community: A Political and Legal Innovation,” 63 Yale L.J. 1 (1953). Strange, “Strasbourg in Retrospect,” 4 World Aff. 3 (n.s. 1950). For a negative evaluation of the efforts of the Council and its failure to achieve political unity in Europe see Mayne, The Community of Europe (1962).
Bebr. “European Defense Community and Western European Union: An Agonizing Dilemma,” 7 Stan. L. Rev. 169 (1955). Robertson, “Different Approaches to European Unity,” 3 Am. J. Comp. L. 502 (1954), presents a picture of the thirteen specific attempts to unify Europe in the period prior to 1954. Note his analysis of the EDC and the Political Community. See Hallstein, infra, p. 73, note 9.
Unfortunately, the very interesting topic of the political unification of Europe is beyond the limited scope of this study; however, note Schuman, supra, p. 71, note 5, for an excellent analysis of the events leading to the founding of the Council. Haas, Consenses Formation in the Council of Europe (1960). See Coblentz & Warshaw, “European Convention for the Protection of Human Rights and Fundamental Freedoms,” 44 Calif. L. Rev. 94 (1956), for a narrative of the political pressure behind the creation of the European organs.
For a full discussion see Robertson, “The Origins of the Council,” The Council of Europe 1-9 (2d ed. 1962); Stein & Hay, Law and Institutions of the Atlantic Area 1-3 (1963).
Address by Hallstein, “The History of European Integration,” April 18, 1962, in CCH Common Market Rep. ¶ 9002 (1963). Accord, address by Hallstein, Fifth Annual Deans Day of Columbia University School of General Studies, March 2, 1963, in id., at ¶ 9046 and address by Hallstein, “Europe and the Free World,” Azad Memorial Lectures, New Delhi, India, in id., at ¶ 9054.
Marsh stresses the need for a clear definition of the term “supranational.” It is to be contrasted with the term “international.” An international authority may have some indirect effect on private legal relations; it may have taken over some part of the sovereignty of nation states. But its essential characteristic is that it can only operate between governments, at least as far as the direct legal effects of its decisions are concerned. … A supranational authority, on the other hand, acts within its sphere of jurisdiction directly on the private citizens of the states subject to the authority. Marsh, “Supranational Planning Authorities and Private Law,” 4 Am. J. Comp. L. 189 (1955). A very penetrating analysis of both the political implications of the ECSC, EURATOM, and EEC, along with a consideration of supranationality, is presented by two Australian authors. Sawer & Doeker, “The European Economic System,” 4 Inter-American L. Rev. 218, 230-35 (1962). In speaking of the U.N. Cohen states: The United Nations is not a supra-national organization, but an organization or instru-mentality through which sovereign states can voluntarily cooperate with a view to their common interests in international peace, security, and law. The Charter makes possible the life and growth of the United Nations, but how the United Nations develops and grows depends not so much on the words of the Charter as on the way Member States exercise their rights and privileges and meet their responsibilities under the Charter. Cohen, The United Nations: Constitutional Developments, Growth, and Possibilities 32 (1961).
Gormley, “The Significant Role of French Administrative Jurisprudence as Presently Applied by the Court of the European Communities,” 8 S.D.L. Rev. 32, 50-51 (1963). See “Supranational Judicial Machinery,” id., at 53-71. See the excellent analysis by Stein & Hay, op. cit., supra, p. 72, note 8, at 46-55.
See the definition by Mason, who quotes Professor Kunz as follows: Supranational organs have been defined as standing “midway between ‘international’ and federal organs.” International organizations — such as the United Nations or the Council of Europe — are based on the “sovereign equality” of their members and nonintervention in domestic affairs; they are really at the intergovernmental level. Supranational organs transcend interorganizations in both these respects without, however, constituting a federal state. They are based “not on a mere restriction, but on a transfer of (national) sovereignty, but a transfer of sovereignty in a particular area only.” Mason, The European Coal and Steel Community: Experiment in Supranationalism vii (1955), quoting Kunz, “Supra-National Organs,” 46 Am. J. Int’l L. 698 (1952).
The ECSC Treaty uses the term supranational but the two later treaties do not. Article 9 holds: The members of the High Authority shall exercise their functions in complete independence, in the general interest of the Community. In the fulfilment of their duties, they shall neither solicit nor accept instructions from any government or from any organization. They will abstain from all conduct incompatible with the supranational character of their functions. See Mason, op. cit., supra, note 12 at 121, 123-28. It is an organization of “an unprecedented degree.” Id., at 123. See 1 American Enterprise (1960).
Note the general philosophy, but the difference in language contained in EEC Treaty, Chap. I and Title I of the EURATOM Treaty.
See p. 76, note 20 infra.
Weil, The European Convention of Human Rights 208 (1962).
See the discussion of the OECD, p. 181, note 151, infra, Ch. VI.
Hahn, “Constitutional Limitations in the Law of European Organizations,” 108 (I) Recueil des Cours 198 (1963). He takes the position that “supranational” is a term both of description and analysis. The Communities are, therefore, supranational because they are not subject to governmental control. They are unique institutions.
See the discussion of the world-wide regional movement, infra.
Signed at Rome on Nov. 4, 1950, by the Member States of the Council of Europe, came into force on Sept. 3, 1953. The Protocol, signed in Paris on March 20, 1952, came into force on May 18, 1954. Out of the fifteen Member States of the Council of Europe, fourteen are today bound by this legal instrument which subjects the rights and freedoms listed therein to a collective guarantee exercised under a single international control. Apart from their obligations under the Convention in respect of applications by member States, nine of the States which have ratified the Convention have now accepted the competence of the European Commission of Human Rights to receive individual applications. Eight Parties, moreover, recognize as compulsory the jurisdiction of the European Court of Human Rights. Waldock, “The European Convention for the Protection of Human Rights and Fundamental Freedoms,” 34 Brit. Yb. Int’l L. 356 (1958). Of the present eighteen Members, France and Switzerland have yet to sign.
5 Forward in Europe 3-8 (1963); Council of Europe News, No. 28, at 3 (1963).
There is a line of authority opposed to the attempts to protect human rights at the international level. Conversely, it is felt that the private citizen must be protected by his own government. Mitrany, “Human Rights and International Organizations,” 3 India L.Q. 115 (1947).
One of the most important developments in international organization and law during the past half-century has been the increased attention given to the individual and more particularly to the protection of his enjoyment of certain basic rights. Before the first World War, international law was little concerned with the protection of the individual, except as he might be an alien, when it recognized the right at least of his state to insist on a certain minimal treatment. At the end of World War I an important step was taken, in the minority provisions of peace treaties and special minority treaties, to guarantee the enjoyment by the members of certain minority groups of specified rights. Goodrich, Preface to Weil, The European Convention of Human Rights 7 (1962).
Id., at 28. Further he states: “A new Court was deemed necessary in view of the fact that the ICJ could only receive cases brought by States.” Id., at 9.
Modinos, “La Convention Européenne des Droits de l’Homme,” I European Yb 141, 171-72 (1955). The aim of the authors of the Convention was to guarantee the maintenance and the working of democratic régimes by safeguarding individual freedoms. It was necessary: (a) to define the political basis of the association of European countries founded on the essential principles of democracy; (b) to give the Convention the force of a statutory rule and thereby to determine the conditions of accession to the Council of Europe for all countries applying for membership or invited to become members thereof; (c) to establish a procedure of collective enforcement which would be applicable to individuals, who would thereby become subjects of international law. Id., at 171. Marsh, “Civil Liberties in Europe,” 75 L.Q. Rev. 530 (1959).
Robertson, “The Rights Guaranteed by the Convention,” op. cit., supra, p. 71, note 3 at 15-42.
Infra, p. 86, note 45, and p. 103, note 96.
Applications by Franz Pataki (No. 596/59) and Johann Dunshirn (No. 789/60) Against Austria.
(Merits) Ser. A, [1962] Judgments & Decisions 6.
Golsong, “The European Convention on Human Rights Before Domestic Courts,” 38 Brit. Yb. Int’l L. 445 (1962), and the collected cases therein. Procedural Status 82-83. For the status of the European Convention within domestic law see “Decisions of Domestic Courts Referring to the European Convention on Human Rights,” 4 Yb. Human Rights 600-51 (1962) and other volumes of the Yearbooks; Golsong, “The European Convention for the Protection of Human Rights and Fundamental Freedoms in a German Court,” 36 Brit. Yb. Infi L. 317 (1958). See Comte, “The Application of the European Convention on Human Rights in Municipal Law,” 4 J. Int’l Comm’n of Jurists 94 (1962); Liebscher, “Austria and the European Convention for the Protection of Human Rights and Fundamental Freedoms,” id. at 282 and the numerous foreign publications cited therein. As Modinos points out: “Since July 5, 1955, the day on which the right of individual application began to be exercised, the Commission has dealt (up to March 31, 1962) with one thousand three hundred and eighty-five individual applications, of which seven have been declared admissible.” Modinos, “Effects and Repercussions of the European Convention on Human Rights,” 11 Int’l & Comp. L.Q. 1097, 1101-02 (1962).
Infra, pp. 100-103, notes 85-95.
Robertson concludes that: The European Convention on Human Rights is an imperfect document, but it represents a big step forward. It constitutes a great advance on the Universal Declaration of Human Rights … since the latter amounted … to nothing more than an expression of intentions, whereas the European Convention contains specific legal commitments which have been accepted by fifteen governments. Robertson, “The European Convention for the Pro-tection of Human Rights,” 27 Brit. Yb. Int’l L. 157 (1950).
Convention for the Protection of Human Rights and Fundamental Freedoms Art. 25, Para.1.
U.N. Charter, Art. 55.
Supra, p. 79, note 30.
Supra, p. 79, note 29.
Golsong, supra, p. 79, note 30, at 449 citing 13 Verwaltungsrechtsprechung in Deutschland 199-200 and Die öffentliche Verwaltung 381 (1956). See his discussion and additional cases id., at 449-450.
Ibid.
Golsong, “The Implementation of International Protection of Human Rights,” no (III) Recueil des Cours (1963). Likewise, at the international level, the old criterion of diplomatic protection has been drastically modified even by the ICJ. Nottebohm Case (Liechtenstein v. Guatemala), [1955] I.C.J. Rep. 4. In Article 1 of the Convention there is no mention of “nationality”; consequently, any High Contracting Party can file an application before the Commission or begin litigation before the European Court of Justice, as was done in Greece v. Cyprus (European Cooperation in 1959, Doc. No. 1118 (1960)), Italy v. Austria, and threatened by Iceland against Great Britain. In short, the Convention protects everyone physically within the territorial limits of the Signatory Power.
European Co-operation in 1959, Doc. No. 1118 (i960). Application No. 1 was accepted May 7, 1956, and No. 2 was accepted July 17, 1957, by the Commission. European Co-operation in 1959, Doc. No. 1118, at 137-38 (1960).
“Nothing in the Convention shall prejudice the powers conferred on the Committee of Ministers by the Statute of the Council of Europe.”
Cayuga Indians (Great Britain v. United States), 6 U.N. Rep. Int’l Arb. Awards 173 (1948). This arbitration is perhaps the best example of the object theory now clearly rejected by the European regional bodies. In this case the Tribunal held that Indian tribes located in the United States were not subjects of international law, even though they had been previously granted substantive rights under a Treaty between the parties. The Treaty did not make these Indians subjects of international law. They are not subjects of international law, since Indian tribes are not States; therefore, the Treaty between the Indians, the British, and the United States does not confer on them the status of subjects. Such a tribe is not a legal unit of international law. The American Indians have never been so regarded. 1 Hyde, International Law, para. 10. From the time of the discovery of America the Indian tribes have been treated as under the exclusive protection of the power which by discovery or conquest or cession held the land which they occupied. Wheaton, International Law, 838; 3 Kent, Commentaries, 386; Breaux v. Jones, 4 La. Ann. 141. They have been said to be “domestic, dependent nations” (Marshall, C. J., in Cherokee Nations v. Georgia, 5 Pet. 1, 17), or “States in a certain domestic sense and for certain municipal purposes” (Clifford, J., in Holden v. Joy, 17 Wall. 211, 142). The power which had sovereignty over the land has always been held the sole judge of its relations with the tribes within its domain. The rights in this respect acquired by discovery have been held exclusive. “No other power could interpose between them” (Marshall, C. J., in Johnson v. Mcintosh, 8 Wheat. 543, 578). So far as an Indian tribe exists as a legal unit, it is by virtue of the domestic law of the sovereign nations within whose territory the tribe occupies the land, and so far only as that law recognizes it. Id., at 176. (Emphasis added.) Further the Court held: “Such a legal unit cannot change its national character by its own act.” See North and South American Construction Company’s case, 3 Moore, International Arbitrations, 2318, 2319. Even less is such a thing possible in the case of an Indian tribe, whose dependent condition is as well settled as its legal position is anomalous. Such tribes are “in a state of pupilage” (Marshall, C. J., in Cherokee Nation v. Georgia, 5 Pet. 1, 17). They have always been “subject to such restraints and qualified control in their national capacity as was considered by the whites to be indispensable to their own safety and requisite to the due discharge of the duty of protection” (3 Kent, Commentaries, 386). In the case of the Indians on the public domain of the United States, they are “the wards of the Nation. They are communities dependent on the United States” (Miller, J., in United States v. Kagama, 118 U.S. 375, 383-4). With respect to Indians, the Government “is in loco parentis” (Nisbet, J., in Howell v. Fountain, 3 Ga. 176 at 177); “… dependent on and wards of New York.” Id., at 177. “… the Cayuga Nation has no international status. … it existed as a legal unit only by New York law.” Id., at 179.
Decision of the Commission as to the Admissibility of Application No. 788/60 (Italy v. Austria) 4 Yb Human Rights 116 (1961). See also 5 Yb. Human Rights 54 (1962).
Article 32 ECSC Treaty provides: “The function of the Court is to ensure the rule of law in the interpretation and application of the present Treaty and of the regulation for its execution.” Similar articles exist in the EURATOM and EEC treaties.
First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Arts. 1, 2, 3.
See Robertson, The Law of International Institutions in Europe 59-61 (1961). See 2 Yb. Human Rights 166 (1960). The six rights listed are not included in the Convention or the First Protocol, but they have been previously recognized by the United Nations Draft Convention on Civil and Political Rights.
Council of Europe, Fourteenth Report of the Committee of Ministers, Doc. No. 1564, Ch. VIII, 54-58 (1963).
Fourth Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Arts. 1, 2, 3, 4.
See Universal Declaration of Human Rights, Arts. 22-28 and U.N. Charter, Art. 55. See also Convention on Economic and Social Rights, Ch. I.
See the discussion by Robertson, op. cit., supra, p. 86, note 46, at 60-61. Five ratifications were necessary to bring it into force. Council of Europe News, No. 28 (n.s. 1963). The Federal Republic of Germany became the fifth State to ratify in February 1965. The others are Austria, Norway, United Kingdom, and Sweden. The Charter entered into force on February 26, 1965.
European Social Charter, Pt. I. Part II spells out these written rights in a series of detailed paragraphs and sub-paragraphs. See also the additions and modifications contained in the appendix to the Social Charter. Article 38 reads: “The Appendix to this Charter shall form an integral part of it.” Significantly, Tennfjord believes that in some respects the Social Charter is narrower than the corresponding provisions in the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the Inter-American Charter of Social Guarantees, and the International Labour Recommendations. Tennfjord, “The European Social Charter-An Instrument of Socil Collaboration in Europe,” 9 European Yb. 71, 81-83 (1962). However, the Social Charter will contain legally binding obligations on the Member Governments; therefore, it will guarantee basic economic rights. Accordingly, Tennfjord says: Looking towards the future, it should, indeed, be emphasized that the Charter is a dynamic instrument, capable of adaptation to future needs and developments. The entry into force of the Charter will not simply mean that just another convention has been added to those already existing between European countries. It will go further than that and inaugurate a new and close collaboration in the social field. The system of supervision of the implementation, based on regular reports from the Governments, will lead to a constant confrontation of the social conditions and policies of the Parties. This is not limited to national measures covering provisions of the Charter which the Parties have accepted. From time to time the Governments will also have to report on national conditions in this field corresponding to provisions of the Charter which they have not included in their ratification. Id., at 82.
Id., at 72. Tennfjord recognizes the major limitation of the Charter when he states: It should be noted, however, that the Charter cannot be invoked by individuals in national courts. This follows from a provision in the Appendix to the effect that the Charter “contains legal obligations of an international character, the application of which is submitted solely to the supervision provided for in Part IV thereof.” This is linked with the very nature of social rights. The corresponding obligations of a State are quite different from the clear and precise obligations that it undertakes, for example, in the field of civil and political rights. Id., at 79. Further, “the social rights are of a broader and more general nature, obliging the State only to carry out a certain social policy. Only rarely could these rights provide a basis for a precise individual claim against a Government.” Id., at 79-80.
The last paragraph of the Convention’s “Preamble” states: “Being resolved, as the Governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, [desire] to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration. …” The limitations imposed by the Social Charter are indicated in Articles 30-34. The ratification procedure is indicated in Articles 35-37. Article 31(1), “Restrictions,” sets forth the main limitations: The rights and principles set forth in Part I when effectively realised, and their effective exercise as provided for in Part II, shall not be subject to any restrictions or limitations not specified in those Parts, except such as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals. The main provision dealing with hierarchy of law is Article 32, “Relations Between the Charter and Domestic Law in International Agreements”: “The provisions of this Charter shall not prejudice the provisions of domestic law or of any bilateral or multilateral treaties, conventions or agreements which are already in force, or may come into force, under which more favourable treatment would be accorded to the persons protected.”
Robertson, op. cit., supra, p. 86, note 46, at 61.
See Article 63. Article 64 permits “a reservation in respect of any particular provision of the Convention.…” As to the right of petition, Article 25 requires that the State against which the petition has been filed “has declared that it recognises the competence of the Commission to receive such petitions.”
Application No. 250/57, 1 Yb. Human Rights 222 (1959).
Infra, p. 102, note 93.
Article 25, Convention of Human Rights. See supra, p. 80, note 33.
In particular, Robertson, “The Commission and the Court of Human Rights,” The Law of International Institutions in Europe (1961); Robertson, “Human Rights,” The Council of Europe (2d ed., 1961); and Robertson, “The European Commission of Human Rights,” Human Rights in Europe (1963). Mosler, “The Protection of Human Rights by International Legal Procedure,” 52 Geo. L. J. 800 (1964).
Articles 45-54. Infra p. 108, note 105ff.
Article 32.
Zoernsch v. Waldock and MacNulty, Supreme Court of Judicature, Court of Appeal (Eng.) 20 Nov. 1963, [1964] 2 All E. R. 256, It is necessary to interpret this decision very restrictively, for the decision merely holds that the Commission is an organ of the Council for the purpose of the British Immunity Act, namely the International Organizations (Immunities and Privileges) Act of 1950. Decision reprinted in 3 Int’l Legal Materials 425 (1964). Semmons, “The Duration of International Jurisdictional Immunities,” 13 Int’l & Comp. L.Q. 1433 (1964).
Rules of Procedure of the European Commission of Human Rights.
Procedural Status 79.
McNulty & Eissen, “The European Commission of Human Rights: Procedures and Jurisprudence,” 1 J. Inf’l Comm’n of Jurists 198, 202 (1958).
Convention for the Protection of Human Rights and Fundamental Freedoms, Arts. 26 & 27.
2 Yb. Human Rights 412 (1960).
Third Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 26.
See the published decisions in the Yb. Human Rights.
[1957] I.C.J. Rep. 6. See also Interhandel Case (Interim Measures of Protection), [1957] I.C.J. Rep. 105. See the criticism by Briggs, “Towards the Rule of Law,” 51 Am. J. Int’l L. 517 (1957) and Briggs, “United States and the International Court of Justice: A Re-Examination,” 53 Am. J. Int’l L. 301 (1959).
Nielsen v. Denmark, 2 Yb. Human Rights 412 (1960). In this 1957 action the petition was declared admissible. For the latest report of the Commission, see the Nielsen Case, Judgment of March 15, 1960, and for the decision of the Committee of Ministers see Resolution of Oct. 25, 1961. The case has been referred to the Committee of Ministers rather than the Court of Human Rights under the provisions of Article 32(1) as a matter of discretion. Valentine, “The Nielsen Case: the European Commission of Human Rights,” 11 Int’l & Comp. L.Q. 836 (1962). See the full discussion contained in 4 Yb. Human Rights 490 (1962): Case before the Committee of Ministers, ibid.; the Decision of the Committee of Ministers, id., at 490-549; and Resolution (61) 28, id., at 590.
2 U.N. Rep. Int’l Arb. Awards 1190 (1926).
[1959] I.C.J. Rep. 27.
3 U.N. Rep. Int’l Arb. Awards 1501-02 (1934).
Ambatielos Arbitration 27-28 (1956).
P.C.I.J., ser. A/B, No. 77 (1939).
“(b) is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.”
Applications No. 524/59 and No. 617/59, 4 Yb. Human Rights 80 (1962). For a full discussion of the case to date see Austria v. Italy, Application No. 788/60, “Exhaustion of Domestic Remedies,” id., at 130-32.
“The Commission shall reject any petition to it which it considers inadmissible under Article 26.” Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 27.
Procedural Status 80-85.
Applications deemed admissible, June 1956 and January 1958. 1 Yb. Human Rights 128-131; 2 id., 174-180.
German Communist Party v. Federal Republic of Germany, Application No. 250/57, 1 Yb. Human Rights 222 (1959).
See p. 79, note 30 supra. Specifically, the Convention is recognized as constituting internal law in Belgium, Netherlands, Luxembourg, Germany, Italy, Greece, and Turkey. Weil, The European Convention of Human Rights 209 (1963).
Supra, p. 94, note 63.
Procedural Status 84-87.
Supra, p. 95, note 67ff.
Supra, p. 96, note 71.
Iversen v. Norway, Council of Europe News, March 1963 at 2. See decision of the Commission, 3 Int’l Legal Materials 417 (1964).
Applications No. 1474/62 and No. 1769/63.
Council of Europe News, May 1964 at 2. See infra, p. 126, note 150.
These petitions were held admissible on July 25 and 26, 1963. Significantly, the Commission has yet to consider the all-important question as to whether all local remedies have been exhausted. Council of Europe News, September 1963 at 3.
Supra, p. 100, note 88.
About 2,100 individual applications have been filed with the Commission; 340 were filed in 1963, 442 in 1962, and 340 in 1961. Approximately fifty percent of the applications have been filed by persons detained in prison.
For an excellent analysis of some of the major decisions, interpreting the articles of the Convention see Robertson, Human Rights in Europe, especially Ch. II, “The Rights Guaranteed by the Convention,” id., at 15-42. Because of the availability of this excellent analysis of case law, such examination need not be repeated here.
Supra, p. 100, note 85. The number of admissions increased in 1965.
Procedural Status 84-87.
The present text of Article 29 requires that: (1) The Commission shall perform the functions set out in Article 28 by means of a Sub-Commission consisting of seven members of the Commission. (2) Each of the parties concerned may appoint as members of this Sub-Commission a person of its choice. (3) The remaining members shall be chosen by lot in accordance with arrangements prescribed in the Rules of Procedure of the Commission.
“Lawless” Case (Preliminary Objections and Questions of Procedure) 3 Yb. Human Rights 492 (1961); “Lawless” Case (Merits) 4 Yb. Human Rights 438 (1962); DeBecker Case (Merits) ser. A, [1962] Judgments & Decisions 26.
See Waldock, “The Individual in International Law — Principles of Public International Law,” 106 (II) Recueil des Cours 203 (1962), for a discussion of the workings of the sub-commission.
“(b) it shall place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention.”
Third Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending Articles 29, 30 & 34 of the Convention.
“If the Sub-Commission succeeds in effecting a friendly settlement in accordance with Article 28, it shall draw up a Report which shall be sent to the States concerned, to the Committee of Ministers and to the Secretary-General of the Council of Europe for publication. This report shall be confined to a brief statement of the facts and of the solution reached”. Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 30.
“The Commission shall meet in camera.”
Before taking up his duties, each member of the Commission shall, at the first meeting of the Commission at which he is present after his election, make the following oath or solemn declaration: “I swear,” or “I solemnly declare” — “that I will exercise all my powers and duties honourably and faithfully, impartially and conscientiously and that I will keep secret all deliberations.” (Emphasis added.) Rules of Procedure of the European Commission on Human Rights 2 (1960).
See the Address initiating the European Court of Human Rights, Strasbourg, April 20, 1959. Lord McNair said, in part: The constitutions of many countries guarantee to individuals, whether their own nationals or not, certain elementary rights and freedoms which our generation regards as being the minimum required to ensure the dignity and decency of human life. Unfortunately, experience has shown that these constitutional guarantees, when remaining purely national, are not always strong enough to secure these objects, and are liable to be overridden by Governments of their officials or agents either by neglect or mistake, or by ruthless determination to achieve their aims and policies regardless of the rights of individuals. Thus, a conflict can arise between an individual and a Government in which, if I may use the words of an English mediaeval chronicler, “There is too great might on the one side and un-might on the other.” But, just as peace is one and indivisible, so also is respect for human life and dignity. Jesus Christ declared this truth when he said, “Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.” It is this conception which has inspired such instruments as the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in December 1948. In the following year there was formed the Council of Europe whose tenth anniversary we are celebrating today. Almost immediately the Council of Europe made the international protection of Human Rights one of its major objectives, and in 1950 the European Convention on Human Rights was adopted, containing a detailed elaboration of those rights. The Convention was regarded by its authors as an expression of their common democratic tradition, and the Preamble of the Convention describes the maintenance and further realisation of human rights and fundamental freedoms as one of the methods of achieving greater unity amongst the Members of the Council of Europe. 2 Yb. Human Rights 154, 156 (1960). For authoritative data concerning the formation of the Court see Lauterpacht, “The Proposed European Court of Human Rights,” 35 Transact. Grot. Soc. 25 (1950). Note his comparison of the European Court and the United Nations Court of Human Rights envisaged by Australia in 1948. Robertson, “The European Court of Human Rights,” 8 Int’l & Comp. L.Q. 396 (1959); Robertson, “The European Court of Human Rights,” 9 Am. J. Comp. L. 1 (1960).
See Rules of Court of the European Court of Human Rights, 1(g) (1960). However, the Court can reach out and protect individuals — once it has acquired jurisdiction of the case-under Rule 34: 1. Before the constitution of a Chamber, the President of the plenary Court may, at the request of a Party, of the Commission, of any person concerned or proprio motu, bring to the attention of the Parties any interim measure the adoption of which seems desirable. The Chamber, when constituted, or, if the Chamber is not in session, its President, shall have the same right. 2. Notice of these measures shall be immediately given to the Committee of Ministers. Of equal importance is the power of the Court to permit individuals to appear in its forum, pursuant to Rule 38: “1. The Chamber may, at the request of a Party or of delegates of the Commission or proprio motu, decide to hear as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its task.” Note the application of these two rules in the “Lawless” Case and Harris, “European Court of Human Rights,” 10 Int’l & Comp. L.Q. 616 (1961).
Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 50.
DeBecker Case (Merits) ser. A, [1962] Judgments & Decisions 6. Accord, “Lawless” Case (Preliminary Objections) 3 Yb. Human Rights 492 (1961) (dissenting opinion of Judge Maridakis).
Beaufort, “Some Remarks about the European Convention for the Protection of Human Rights and Fundamental Freedoms,” 4 Nederlands Tijdschrift voor Int’l Recht 42 (1959). [T]he main and fundamental significance of the Convention consists in the fact that for the first time in world history a number of States have recognized, by means of an internationally legally-binding instrument, that the State is not omnipotent, that basic human rights do not originate from the State, that they are older than and independent from the State and therefore sacrosanct and inviolable. … It is also a ground for profound satisfaction to the European countries and it may prove to become an inspiring example to the rest of the world. Id., at 48.
Lauterpacht, “The Subjects of the Law of Nations,” 63 L.Q. Rev. 438 (1947).
Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 44.
See p. 112, note 116 infra. Rule 52 of the Court’s procedure holds: “The Registrar shall be responsible for the publication of judgments and of such other decisions and documents whose publication may have been authorized by the Court.” See also Article 23 of the Convention. The French text of Article 44 specifies the role of the Commission as follows: “Seules les Hautes Parties Contractantes et la Commission ont qualité pour se présenter devant la Cour.” Likewise, Article 48 indicates that the Commission may bring a case before the Court: “par la Commission.” See I Yb. Human Rights 27 (1959).
1 U.S. (1 Cranch) 368 (1803).
Garretson concludes his analysis of the “Lawless” Case with the following observation: The criticism of this forceful and demanding decision will very likely be limited to the court’s assessment of the factual situation as justifying the measures in question. For most clearly all those concerned for the growth of the law of personal liberty in the new and challenging international dimension are most grateful for a beautifully written decision that is presumably the work of that great judge and scholar President R. Cassin and to his colleagues in the European Court of Human Rights. Garretson, “International Law,” [1961] Ann. Survey Am. L. 18-23.
Procedural Status 81. Robertson states: “While respecting the provisions of the Convention to the effect that the applicant cannot be a party to its proceedings, the Court has nevertheless approved a procedure which permits his views to be made known to it, thus respecting the principle of audi alterem partem.” Robertson, Lawless v. The Government of Ireland (Second Phase), 37 Brit. Yb. Int’l L. 536, 546 (1961). See the “Conclusions” of Brownlie, “The Individual before International Tribunals Exercising International Jurisdiction,” n Int’l & Comp. L.Q. 701, 718-20 (1962).
“Lawless” Case (Preliminary Objections and Questions of Procedure) 3 Yb. Human Rights 492 (1961); “Lawless” Case (Merits) 4 Yb. Human Rights 438 (1962).
For a complete analysis of the preliminary objections see Robertson, “The First Case before the European Court of Human Rights: Lawless v. The Government of Ireland,” 36 Brit. Yb. Int’l L. 343 (1960). Note the section, “The role of the individual in the proceedings before the Court,” id. at 350-52, which deals with Rule 76 and the Commission’s publication. Robertson quotes the Court: “[T]he written and oral observations of the delegates and counsel of the Commission which, as the defender of the public interest, is entitled of its own accord to make known the applicant’s views to the Court, even if it does not share them, as a means of throwing light on the points at issue.” Id., at 354. He concludes that: “This will constitute a big step forward in establishing the status of the individual in international law.” Ibid. See also his subsequent analysis supra, note 115.
“Lawless” Case (Preliminary Objections and Questions of Procedure) 3 Yb. Human Rights 492, 514-16 (1961).
Accordingly, Rule 76, Rules of Procedure of the European Commission of Human Rights holds: When a case brought before the Commission in pursuance of Article 25 of the Convention is subsequently referred to the Court, the Secretary of the Commission shall immediately notify the applicant. Unless the Commission shall otherwise decide, the Secretary shall also in due course communicate to him the Commission’s Report, informing him that he may, within a time-limit fixed by the President, submit to the Commission his written observations on the said Report. The Commission shall decide what action, if any, shall be taken in respect of those observations.
The Court has reserved specifically “the right to re-open them [the proceedings] at a later date, if necessary.” DeBecker Case (Merits) ser. A, [1962] Judgments & Decisions 6. For the discussion of the original Belgian legislation and the subsequent changes see id., at 12-22.
Id., at 23-27.
Christol, “Remedies for Individuals under World Law,” 56 Nw. U.L. Rev. 65 (1961). Christol points out: “Proceedings can be initiated before the court by a signatory whose national is alleged to be a victim; further, by a signatory against which the complaint had been lodged; and, by a signatory which referred a matter to the Commission.” Id., at 70. In other words, if an individual fails before the Commission on the merits of his claim he may still be able to have the Commission refer his case to the Court. The “Lawless” case provides the necessary guidance for such procedure. Furthermore, the Court contacted his attorneys and invited Lawless to attend the open hearings if he so desired; alternatively, he was given the option to send a representative to aid the Commission. Harris remarks: Thus the Court, showing itself acutely aware of the interests of the individual in the case before it, has established a procedure which will, in future cases involving individual applications, reduce the inequality of the disputing parties before the Court to one of a largely formal character. That this has been done in the context of contentious proceedings is an achievement of some importance for International Law. Harris, “European Court of Human Rights,” 10 Int’l & Comp. L.Q. 616, 619 (1961). For an example of a major modification in procedural requirements affected by the Court see the new text of Article 52 of its Rules of Court, wherein it has assumed greater discretion as to the publication of documents, consistent with the “Lawless” verdict. I. The Registrar shall be responsible for the publications of: — judgments and other decisions of the Court; — documents relating to the proceedings including the report of the Commission but excluding any particulars relating to the attempt to reach a friendly settlement: — reports of public hearings;-any document the publication of which is considered useful by the President of the Court. Publication shall take place in the two official languages.… 2. Documents deposited with the Registrar and not published shall be accessible to the public unless otherwise decided by the President of the Court either on his own initiative, or at the request of a Party, of the Commission or of any other person concerned. 4 Yb. Human Rights 10-11 (1962).
To date, Great Britain, Italy, France, Greece, Cyprus, Turkey, and Switzerland have not accepted the compulsory jurisdiction of the Court. Sadly, the Federal Republic of Germany is the only major nation to have adhered to the Statute of the Court, and such lack of acceptance is weakening, not only the prestige of the Tribunal, but also its efforts to promote the “rule of law.”
See the articles in Common Market treaties giving standing to individuals. Ch. VI, infra.
The efforts of the Council of Europe, in cooperation with the EEC and The Hague Conferences on Private International Law are producing considerable progress in the area of commonization of law. While beyond the precise scope of the present study, the efforts of the Legal Committee, which has been studying the question of the uniform interpretation of European treaties, has recommended the formation of a Committee of Experts with instructions to draw up a multilateral agreement conferring on the European Court of Human Rights … the competence to interpret any Convention concluded under the auspices of the Council of Europe, or any other international treaty concluded between two or more Member States of the Council, in so far as the provisions of these Conventions or treaties are applicable by national courts. 2 Yb. Human Rights 166 (1960).
Second Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 2.
Second Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms Art. 1, para. 2.
Ch. II, supra, p. 17, note 2.
Second Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 2.
Second Protocol to the Convention for the Protection of Human Rights, Art. 4.
Ch. IV, supra, p. 65, note 77ff.
See the discussion of the advisory jurisdiction of the EEC Court, Ch. VI, infra.
See especially, the excellent analysis by Beddard, “The Second Protocol to the European Convention of Human Rights,” 13 Int’l & Comp. L.Q. 256 (1964).
O’Higgins, “‘Lawless’ Case” [1962] Camb. L. J. 234; Porter, “‘Lawless’ Case: A Beachhead for Civil Rights,” 49 A.B.A.J. 79 (1963); Valentine, “The European Court of Human Rights, The ‘Lawless’ Case,” 10 Int’l & Comp. L.Q. 899 (1961).
Golsong, op. cit., supra, p. 71, note 4. Robertson, “The Committee of Ministers,” The Council of Europe 24-40 (2d ed, 1961), and Robertson, “The Committee of Ministers,” Human Rights in Europe (1963), especially “Judicial or Quasi-Judicial Functions of the Committee,” id., at 80-84.
Id., at 77-80.
Articles 32 and 54, Convention of Human Rights in connection with Articles 13 and 14 of the Statute of the Council of Europe.
Article 34, Convention of Human Rights. See also Article 31(2), and Article 33.
Ibid.
Supra, p. 96, note 71.
Supra, p. 100, note 88.
Supra, p. 79, note 28.
Robertson, Human Rights in Europe, op, cit., supra, p. 119, note 135 at 81.
Other writers are likewise devoting considerable attention to the European Social Charter and its impact on the Member States. See especially, Golsong, op. cit., supra, p. 71, note 4, and Robertson, op. cit., supra, p. 120, note 143 at 140-150.
European Co-Operation in 1962 (1963).
Velu, “Le contrôle des organes prévus par la Convention Européenne des Droits de l’Homme sur le but, le motif et l’objet des mesures d’exception dérogeant à cette Convention,” Mélanges offerts à;Henri Rolin (1964).
The term “binding decision” is used here in the sense of Articles 32(4) and 53. The problem of the enforcement of awards cannot be treated in this limited study. See Gormley, “The Status of the Awards of International Tribunals: Possible Avoidance Versus Legal Enforcement,” 10 How. L.J. 33 (1964). Article 53 provides: “The High Contracting Parties undertake to abide by the decision of the Court in any case to which they are parties.”
Council of Europe, Fourteenth Report of the Committee of Ministers to the Consultative Assembly, Doc. No. 1564, Para. 255-58, at 57-58 (1963). The right of asylum and rights of national minorities are being examined with a view to their inclusion in an additional protocol. See p. 56, note 46 supra.
Terje Wold, “De Européiske Menneskerettskonvensjon,” Legal Essays: A Tribute to Castberg 353–374 (1963). “Everybody can claim the fulfillment of the treaty as a subjective right, regardless of the laws of the State.” Id., at 373. He advocates that Norway accept the jurisdiction of both the Commission of Human Rights and the Court. del Russo, “The European Bill of Rights: The First Decade of International Protection of Human Rights,” 4 Santa Clara Lawyer 8, 18-22 (1963); and Buergenthal, “The Domestic Status of the European Convention on Human Rights,” 13 Buffalo L. Rev. 354 (1964).
Since the completion of the above text, the Commission of Human Rights has referred those portions of the Belgian Linguistic Cases declared admissible to the Court of Human Rights for a trial on the merits. In examining the complaints of a minority group, the Court will have the opportunity to further develop its case law not only as to the substantive law contained in the Convention and Protocols but also the procedural status of individuals and private groups. It is to be regretted that such pronouncements are unavailable at this time. The writer is of the opinion that the Belgian Linguistic verdict will prove to be as significant as the Lawless and DeBecker decisions.
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Gormley, W.P. (1966). The Council of Europe: Political Unification. In: The Procedural Status of the Individual before International and Supranational Tribunals. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9530-0_5
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