CYIL 2014

DIANA CUCOS CYIL 5 ȍ2014Ȏ The determination of the status of the individual through the framework of the debate over the attribution of a status of object or subject to the individual is of limited utility. The process of determination, within this framework, has no enduring capacity to provide a representative and unanimously accepted conclusion. Thus, some consider a more effective manner is to commence by characterizing individuals as participants in the international legal order. 21 Indeed, the present status of the individual has significantly improved, due to the provision of rights by States under customary or convention law and the availability of some human rights remedies. Whether these improvements can be considered to be a degree of advancement constituting the individual as a subject of international law remains an open question. In certain circumstances, the individual may become a subject of international law. However, this has to be qualified by the acknowledgement that the effectiveness of remedies available under existing mechanisms of human rights protection is still very limited. As Dugard states, on the universal level “the sad truth is that only a handful of individuals, in the limited number of States that accept the right of individual petition to the monitoring bodies of these conventions, have obtained or will obtain satisfactory remedies from these conventions” . 22 Only the European Convention on Human Rights offers real remedies to Europeans and those in European States. The European system was also strengthened by the adoption of the 11 th Protocol, and the subsequent changes to the European Convention on Human Rights, as the Convention now obliges all current and future State parties to the Convention to accept individual complaints. At the same time, from a regional perspective, despite this positive tendency, the success and effectiveness that the European system has demonstrated remains as yet undeveloped in the newer American or African systems. It is difficult to argue that the American Convention on Human Rights or the African Charter on Human and Peoples’ Rights have achieved the same degree of success. Moreover, the majority of the world’s population, situated in Asia, is not covered by a regional human rights convention. 23 Universal and regional human rights conventions do extend protection to all individuals -national and non-national alike – within the territory of States parties. 24 However, there is no multilateral convention that seeks to provide the non-national with remedies for the protection of his rights. In other words, individuals can have rights under international law as human beings, but they have no remedies under international law. Not all the human rights instruments (that list individual substantive rights) have implementation mechanisms, an important “detail” frequently omitted by those who deny the continued pertinence of diplomatic protection. The “position” or the “space” 25 that individuals are accorded is the product of States conferring upon 21 R. Higgins, supra note 13, at pp. 48-55. See also John Dugard, First Report , para. 24. 22 John Dugard, First Report, para. 25. 23 Ibid. 24 Ibid., para. 26. 25 Robert Volterra, “International Law Commission Articles on State Responsibility and Investor-State Arbitration: Do Investors Have Rights?”, ICSID Review, Foreign Investment Law Journal , 2010, Vol. 25, No. 1, at p. 223.

186