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The drama of the problem lies in the fact that the recognition of international procedural rights of an individual in an action against his tormentor, which is his own State, would not serve the purpose of protecting the individual. On the contrary, it would, in the end, bring harm to the individual, since his State could always find proper means and methods through which to "punish" him for his offense against the State's sovereignty and honor. However, individuals may be protected against foreign States by their own States, and may more readily be granted active international personality against foreign States, on the basis of an international treaty. [Korowicz, Introduction to International Law (1959), pp. 338-339.]
With regard to individual grievances concerning human rights, opportunities for a hearing before international fora are not entirely lacking. Individuals with such grievances in certain states of Western Europe have recourse to the European Commission of Human Rights and ultimately indirectly to either the Committee of Ministers or the European Court of Human Rights. (See this study, supra., pp. 10–15.) Formerly, a significant limitation on an individual's right of recourse to these fora under this system derived from the provision in the Convention barring suit against a state party to the Convention unless that party has accepted the compulsory jurisdiction of the Court or given prior consent to suit. However, since, as of 1973, Austria, Belgium, Denmark, Federal Republic of Germany, Iceland, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden, and the United Kingdom have recognized the compulsory jurisdiction of the Court, this barrier has been substantially removed.
All individuals wherever located may communicate a human rights grievance to the United Nations Human Rights Commission's Subcommission on Prevention of Discrimination and Protection of Minorities, pursuant to ECOSOC Resolution 728F (XXVIII) of July 30, 1959. However, only a consistent pattern of gross and reliably attested violations of human rights would likely be referred to the Human Rights Commission for further investigation and action. (See this study, supra., pp. 20-21.) How objective and effective such investigation and action of the Human Rights Commission will be remains to be demonstrated; the record and prospects of the United Nations in this regard are not reassuring.
In the area of claims, it has been accurately observed, the individual remains seriously disadvantaged without ultimate recourse to an international court. Eminent authorities on this subject advocate surmounting the threshold difficulty of state consent in this one area and according access of individuals to the World Court, provided that there are certain safeguards. Under present practice, the individual, after having his claim adjudicated in the national courts, must rely on the government to espouse his claim and then pursue it through diplomatic channels. This basically politicizes an essentially legal matter, and the character of the diplomatic pursuit itself depends upon the play of international politics. The safeguard is the exhaustion of local remedies. In the case of aliens, this is a condition precedent to establishing state responsibility. (See Borchard, The Access of Individuals to International Courts, editorial comment, 24 Am. J. Int'l. Law (1930), pp. 359, 362, 364.)
Professor Sohn advocates a mechanism that would operate with such automaticity as to preclude the interposition of political considerations in this essentially legal matter. Sohn suggests that the United States Congress pass legislation requiring the State Department to examine an individual's claim against a foreign government, and, in all instances where the claim has merit, submit it automatically to the World Court for adjudication. (Private interview with Professor Louis Sohn at Harvard Law School, June 1975.)
The threshold difficulty would have to be overcome by states consenting to be sued before the World Court in the sphere of claims. This would be a limited area for such automatic adjudication, and, Sohn maintains, criteria would have to be established through bilateral or multilateral agreements for determining when state responsiblity has been incurred. In the operation of the mechanism suggested by Professor Sohn, the
individual would have only indirect access to the Court, because the state would be pressing suit.
However, there is little reason to conclude that states would in fact consent to be sued in the sphere of claims. The history of accession to the compulsory jurisdiction of the Court suggests that such consent would be won with difficulty from, at best, a minority of states, largely democratic.
Arguably, the threshold difficulty of state consent could be mitigated by recourse to an advisory rather than a contentious procedure. A screening committee could be established by a General Assembly resolution which would pass upon applications from individuals which would have the Assembly seek advisory opinions of the Court on issues posed by these individuals. Individuals then would not have direct access to the Court's contentious jurisdiction, but an indirect access to its advisory processes. Alternatively, this threshold problem possibly might more easily be surmounted for the benefit of the individual if states agreed to the "preliminary opinion procedure." Pursuant to an appropriate amendment of the Court's Statute, states would erable their appellate national courts to refer to the World Court a question of internationa law for its advisory opinion, prior to the national court's final disposition of the case. Under this procedure, the individual would have only indirect and limited access Whether the counsel for the individual could participate in the proceedings of the World Court would depend on an amendment to its Statute and revision of its Rules Whatever route may be chosen to opening access to the World Court to individuals will require at the outset the consent of states. A General Assembly resolution is of course more easily adopted than is amendment to the Court's Statute, which requires a two-thirds vote of the General Assembly and ratification by two-thirds of the members of the United Nations, including the Permanent Members of the Security Council At the same time, it should not be assumed that the General Assembly would be inclined to adopt the required resolution. As the history of the consideration of the law of state responsibility by the U.N. International Law Commission demonstrates, there is widespread challenge by developing and Communist States to established. substantive international law concerning claims. Since many such states seem inclined to deny the legal merits of state responsibility for treatment or mistreatment of the persons and property of aliens, it is to be doubted whether they will agree to widen the procedural avenues open for the vindication of the pertinent rights of aliens-property rights as well as other human rights. When combined with doubt as to whether the General Assembly properly could undertake such a procedure, incentive for pursuing it is diminished.
It is difficult to envision corporations any more than individuals having direct access to the International Court of Justice in contentious proceedings. The threshold barrier would be the same as in the case of individuals—the need for the consent of states. States would resist agreeing to be sued by corporations, among other reasons because of the implication that corporations could not receive justice in their national courts. Some states, moreover, are indicating apprehension over the alleged encroachments on their sovereignty by the expanding activities of multinational corporations; while the prospect of compelling these corporations to appear before the International Court of Justice to litigate state's grievances against them thus might well seem attractive. the prospect of states being required to appear to meet the claims of corporations would cut the other way. States will prefer to litigate against corporations—if they entertain adjudication at all-in their own, national courts.
Short of direct access to the World Court in contentious proceedings, it would appear equally as, if not more, feasible to envisage indirect access being accorded multinational corporations in advisory opinion proceedings as would be the case with individuals. This prospect suggests, as in the case of individuals, either a screening
committee set up by the General Assembly or state acceptance through amendment of the Statute of the "preliminary opinion procedure." The attendant problems in both routes of obtaining states' consent would presumably be less difficult to overcome in the case of multinational corporations, but only somewhat. For the reasons noted above, disaffection from the substantive law of state responsiblity is likely to bar procedural advance in this case as well.
An argument against according corporations access to the International Court of Justice, besides the difficulty of obtaining state consent, is that corporations are already well endowed with judicial remedies. Wherever they operate, they have recourse to the national courts, not always, of course for suing a state; Treaties of Friendship, Commerce and Navigation usually provide for access to local courts on a nondiscriminatory basis; comity and treaty obligations among nations enhance the means of enforcing judgments properly rendered; business disputes can be resolved in national courts which are competent to interpret treaties, contracts and other legal instruments; and submission to arbitration, especially in the field of private international commercial arbitration is widespread, particularly since adoption of the 1958 United Nations Convention on the Enforcement of Arbitral Awards. (See Hauser, Strengthening The International Court of Justice, Hearings before the Senate Committee on Foreign Relations, op. cit., pp. 108-109.)
The argument for granting access to multinational corporations is essentially that these corporations have a major impact on international, economic and political relations; that they are not always sufficiently subject to national controls, and that they may not at times receive impartial justice in national courts. Furthermore, settlement of disputes concerning their vast transnational activities by various national courts does not promote uniformity of even the conventional international law governing these activities, which is not only a desirable goal but may be an increasingly urgent one. An additional argument is made that when governments are unwilling to espouse a national corporation's cause, which is not infrequently the case, the corporation is thereby deprived of any legal redress (Fitzmaurice, “Enlargement of the Contentious Jurisdiction of the Court," in The Future of the International Court of Justice, 1976, Vol. II, pp. 461, 482 edited by Leo Gross for the American Society of International Law, 1976.)
3. Public international organizations or intergovernmental organizations
Considerable learned support exists, at least in the liberal democracies, favoring extension of the advisory opinion jurisdiction of the World Court to all public international organizations. Some authorities advocate amending the Statute of the International Court of Justice to admit public international organizations engaged in disputes with states or with other public international organizations. Other authorities suggest the simpler procedure of having the General Assembly authorize specified public international organizations to request advisory opinions from the Court, citing the precedent of such authorization accorded the International Atomic Energy Agency-which, as noted above, not being a specialized agency, did not fall within the strict competence of the General Assembly as specified in article 96(2) of the United Nations Charter. (However, the IAEA is equivalent to a specialized agency in virtually all but name; many public international organizations are not, and accordingly whether the General Assembly lawfully could authorize such organizations to request advisory opinions is open to question., Under both procedures, state consent would be required-although in markedly different degree. Under the first procedure, amendment to the Statute would ultimately require the consent of all the permanent members of the Security Council. Under the second procedure, just a majorityprobably two-thirds majority-vote would be necessary for the adoption of a General Assembly resolution. [See favorable opinion reflected in the response of governments
to the 1971 questionnaire circulated by the Secretary-General pursuant to General Assembly Resolutions 2723 (XXV), Dec. 15, 1970, Report of the Secretary-General. A/8382, Sept. 15, 1971, pp. 70-77, ibid., Add. 1, p. 6. See Comments in 1971 Sixth Committee, A/C.6/SR./1279, pp. 6-7: ibid., SR/1283, p. 20.]
Some authorities propose amending article 34 of the Statute to accord public international organizations the right to appear before the Court as parties in contentious proceedings. Some of these advocates go so far as to recommend a revision in article 36 of the Statute making it possible for these intergovernmental organizations to accept the compulsory jurisdiction of the Court. [See Gross. "The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order," 65 Am. J. Int'l. L. (1971), pp. 253, 306–307: and Fitzmaurice, "Enlargement of the Contentious Jurisdiction of the Court,” op. cit., pp. 479-480.1
Reluctance so far on the part of the twelve specialized agencies to request advisory opinions of the World Court may possibly, though not necessarily, indicate that a sufficient number of states would withhold their consent from such amendments. A conference of legal advisors of international organizations sponsored by the American Society of International Law found that the reasons for the relative disuse of this available recourse (used by only two specialized agencies out of the twelve so authorized), was concern on the part of these agencies that the Court, being outside the mainstream of the organization's activities, might reach decisions not fully sensitive to their internal requirements for effective operation. Another reason cited was a reluctance to force an authoritative, definite, and presumably enduring interpretation when compromise and flexibility would be more useful. Dr. Gross suggests that the use of assessors and of experts could go a long way toward providing the Court or one of its Chambers with the expertise that would enable the court to appreciate the particular sensitivities of any functional agency. He notes that the Court has authority to use assessors and experts pursuant to article 68 of its Statute and corresponding article 82 of the Rules of Court. [Gross, "The International Court of Justice: Consideration of Requirements for Enhancing Its Role in the International Legal Order," 65 Am.J.Intl. L. (1971), pp. 253, 278.]
Authorities favoring this extension of the World Court's jurisdiction have uniformly advised that any requests for advisory opinions from public international organizations be restricted to matters directly involving their own operations, and some suggest that they be restricted to matters involving the interpretation of their constitutions or terms of reference.
The Department of State sees advantage in two steps: affording the United Nations the right to be party in contentious cases before the Court; and enlarging the list of public international organizations authorized to request advisory opinions of the Court. In respect of the latter measure, insofar as additional organizations are not organs of the United Nations or specialized agencies, it believes (despite the IAEA precedent) that the legally sound approach is to amend the Statute to provide in article 96(2), that: “Other organs of the United Nations, the specialized agencies and other public international organizations, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities." It would thus be left to the General Assembly to decide which other public international organizations would be authorized to request advisory opinions. Alternatively, the International Court of Justice itself could be entrusted with the authority to empower public international organizations additional to the specialized agencies to seek advisory opinions.
Entitling the United Nations itself to be a party in contentious cases indisputably would require amendment of the Statute and the Charter. The precise terms of such an amendment would require careful consideration. One issue of such terms would be.
which organ or organs of the United Nations, by what majority, would be entitled to commit the organization to bringing a contentious case? While either the General Assembly or the Security Council may independently seek an advisory opinion, a contentious case could have such dispositive effect on the rights of the organization and its members that, in the view of the Department of State, a decision of the organization to involve itself in contentious proceedings should be taken only by concordant decisions of both the General Assembly and the Security Council. The Assembly's decision should be designated an important question, by amendment of article 18(2). The Security Council's decision should be agreed to be one that is substantive, i.e., one requiring the concurring votes of the permanent members of the Council. In seeking the advice and consent of the United States Senate to such amendments of the Statute and Charter, the Department would wish to request the Senate to include an understanding to this effect.
In addition, it is contemplated that the Court would have jurisdiction over the United Nations in contentious proceedings, as defendant as well as plaintiff, where the organization has submitted to it in advance of a particular dispute, or where it concludes a special agreement to go to the Court after a dispute has arisen. Such submissions or special agreements would, by the terms of the amendments supported by the Department of State, similarly require the concordant decisions of the General Assembly and Security Council by the special majorities specified above.
4. Nongovernmental Organizations
There does not at present exist a strong body of opinion favoring the granting of access to the World Court to nongovernmental organizations, although some eminent authorities favor select groups having significant international responsibilities, or a public or quasi-public character whose activities have a definite connection with affairs in the international sphere, being allowed recourse to the World Court for its advisory opinion. Such nongovernmental organizations include the International Air Transport Association, and the International Committee of the Red Cross, environmental organizations, international trust fund organizations, and nongovernmental international foundations and endowments. [See Jenks, The Prospects of International Adjudication, (1964), p. 163. See also Fitzmaurice, "Enlargement of the Contentious Jurisdiction of the Court," op. cit., p. 481, who lists such NGO's as International League for the Rights of Man, International Federation of Trade Unions, International Organization of Industrial Employers, Inter-Parliamentary Union, and who would exclude from such a list NGO's having an academic, professional, technical or scientific basis.] Dr. Sohn favors, as does the American Branch of the International Law Association, authorizing those twenty nongovernmental organizations now possessing consultative status in Category I with ECOSOC to request advisory opinions of the Court [supra., this Study]. Unless such an objective criterion as this is used, there will be the difficulty of establishing nondiscriminatory criteria; and yet the according of consultative status itself is not a satisfactory criterion. Even the rationale of carrying significant international responsibilities may be too vague—unless they are responsibilities conferred by multilateral treaty.
5. Regional Organizations
While there is not widespread advocacy for specifically granting regional organizations access to the World Court, the United States Government recommended this step in 1970 [See Secretary Rogers' speech before the American Society of International Law, Proceedings of Am. Soc. Int'l L. (1970), Vol. 64 of Am.J.Int'l L., pp. 285, 287.]
It may be noted in support of such a step that, since the United Nations, its specialized agencies, and at present one intergovernmental organization (IAEA) that does not, strictly speaking, qualify as a specialized agency, have been accorded such access, there is no legal reason to prevent regional organizations from like access,