CYIL vol. 12 (2021)
CYIL 12 (2021) PUBLIC CORPORATIONS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTSH Introduction Developments in the theory of public international law led to the growth of a list of subjects in this area of law. One of the new subjects of international law are individuals who may act in the form of natural and legal persons. There are many types of legal persons and one of them is public corporations. The dual role of these entities, which may be seen as state agents, but also as companies governed by private law, pose the question: “What is the legal standing of public corporations in public international law?” The ECHR gives the strongest position to an individual being a subject of international law as this international treaty designates an individual with the necessary rights and duties on the international level. Therefore, the question at issue may be condensed to an inquiry on what is the legal position of public corporations under the ECHR. To answer this question, it would be useful to look at the possible roles of the individuals in the proceedings before the ECtHR. The theory of the ECHR distinguishes four main roles of legal persons in the framework of this international treaty: 1) an applicant; 2) a third party; 3) a representative; and 4) a provider of information. 1 Regarding the first role, it is clear that this is one of the crucial activities that confirms the fact that a person possesses both rights and duties based on an international treaty and therefore should be seen as a subject of international law. Given this, one of the tasks of this manuscript will be to answer the question of whether public corporations are entitled to bring a case before the ECtHR. The author will deal with this question in a separate part of the paper. The second and the third roles (a third party and a representative) could also be of importance for the illumination of the subjectivity of entities in international law. However, analysis of the case-law of the ECtHR demonstrates that public corporations have rarely exercised these two roles. This may be explained by the fact that it goes beyond the area of their standard activities. The applicants are usually represented by law firms and the role of a third party (apart from the state-parties to the ECHR) is usually fulfilled by big international non-governmental, non-profit organisations such as Amnesty International and Human Rights Watch. The fourth and last role (a provider of information) is not of substantial relevance for our research as it does not reflect the topic of subjectivity 2 of public corporations. It is true that in some cases the ECtHR uses the documents produced by public corporations e.g., the Burgomaster’s instructions, 3 decisions of city councils, 4 or the decisions of water and sewerage 1 MAYER, Lloyd Hitoshi. NGO Standing and Influence in Regional Human Rights Courts and Commissions. 36 Brook. J. Int’l L. 911 (2010–2011), p. 913; WILKOWSKA-LANDOWSKA, Anna. Friends of the Court’: The Role of Human Rights Non-governmental Organisations in the Litigation Proceedings. Available at: https:// www.nottingham.ac.uk/hrlc/documents/publications/hrlcommentary2006/friendsofthecourt.pdf (accessed 13 May 2021); TYMOFEYEVA, Alla. Non-Governmental Organisations under the European Convention on Human Rights: Exceptional Legal Standing . Monografie. RWW Science And New Media Passau-Berlin-Prague, 2015, p. 69. Available at: https://rozkotova.cld.bz/rww/NGOs-under-ECHR/6 (accessed 13 May 2021). 2 In this context subjectivity means the the capacity of being the bearer of rights and duties under international law. See FOURLANOS, Gerasimos. Subjectivity in International Law and the Position of the Individual. Nordisk Tidsskrift for International Ret , vol. 53, no. Issues 3–4, 1984, pp. 9–25, p. 10. 3 See e.g., Olivieira v. the Netherlands , no. 33129/96, § 27, ECHR 2002-IV and Landvreugd v. the Netherlands , no. 37331/97, § 36, 4 June 2002. 4 Vyerentsov v. Ukraine , no. 20372/11, § 28, 11 April 2013, Cump ǎ n ǎ and Maz ǎ re v. Romania [GC], no. 33348/96, § 39, ECHR 2004-XI.
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