I.  What is International Law?

The creation of modern sovereign States raised the need for a set of rules that could
regulate their relationships. This set of rules - composed of customs and treaties – is
what we call international law.

Custom has been originated by a general practice followed by the States and felt by
them as obligatory. It applies to all States and disciplines in a very general way a
limited number of issues, such as, for instance, the use of force, diplomatic immunities,
the use of the sea and the sky and the law of the treaties.

A treaty is the instrument that States use when they wish to work together and set
more precise and detailed rules between them. International agreements have been
signed on trade and environmental protection, on financial and agricultural matters, in
every field of governmental activity where there can be room for successful
cooperation.

In some occasions, treaties have created permanent instruments of intergovernmental
collaboration. This gave birth to international institutions, such as the United Nations
(UN), a universal organization having the task of maintaining international peace and
security, the Council of Europe, entrusted with the promotion of democracy, human
rights and the rule of law, the European Community (EC), which created a single
market and an ever closer union among a growing number of European countries, the
Organization for Co-operation and Security in Europe (OSCE), for the improvement
of the relations between the Western World and the new democracies of Central and
Eastern Europe, and many others with a more limited competence.

The scope of international law, though very wide, affects governments and international
organisations by setting out rights, obligations and rules upon which States will build
their relationships. It normally does not concern individuals. These, however, can have
rights and freedoms protected through international instruments when governments
undertake to list a number of rights and freedoms and guarantee them to everyone
within their jurisdiction.

International agreements have been used also to set up courts to solve controversies
among States in the light of international law. This favours the preservation of peace
and limits the use of force. The most important judicial institution in this respect is the
International Court of Justice.

II.  The International Court of Justice


The International Court of Justice is the principal judicial organ of the United Nations.
It is a body composed of elected independent judges and a permanent international
institution.  Its function is to decide in accordance with international law disputes of a
legal nature that are submitted to it by States. No case can be submitted to the Court
unless both applicant and respondent are States.  An individual or organization can
bring a case before the International Court of Justice only if their State - relying on
international law - takes it up and invokes against another State the wrongs, which its
national claims to have suffered at the latter’s hands.  In this way, the dispute becomes
one between states.

A case can only be submitted to the Court with the consent of the states concerned.
Accordingly, no sovereign states can be made party in proceedings before the Court
unless it has in some manner or the other consented thereto.  In the case, for example,
of the Monetary Gold Removed from Rome in 1943 and found to belong to Albania,
Italy made an application to the Court claiming the delivery of the gold in partial
satisfaction for the alleged damage it had suffered from an Albanian law.  Albania made
no application to the Court.  In its judgment of 15 June 1954 the Court found that it
could not deal with the dispute between Italy and Albania since Albania had not
consented to it.  Out of curiosity, this gold was delivered to the United Kingdom in
partial satisfaction of the Court’s Judgment of 1949 in the Corfu Channel and was
given back to Albania recently.

The judgments of the Courts are binding, final and without appeal for the parties.  A
decision of the Court has no binding effect with respect to any disputes other than the
one it decides, nor as between States other than the parties to the case.  Nevertheless,
the Court has the jurisdiction to interpret or revise the judgment when certain criteria
are met.

Today, the Court is open to practically every State in the world, including Albania.  In
fact, Albania was one of the parties of the first case this Court had to deal with; Corfu
Channel (United Kingdom v. Albania).  In this case, some British warships were
severely damaged and members of the crew were killed, out of an explosion of mines,
while passing through in a previously swept part of the Albanian waters.  The United
Kingdom accused Albania of having laid or allowed a third party to lay the mines after
mine clearing operations had been carried out.  Albania, for its part, had submitted a
counter-claim against the United Kingdom for having violated Albanian sovereignty by
sending warships into Albanian waters and of carrying out mine sweeping operations in
Albanian waters after the explosions.  This case gave rise to three judgments delivered
by the Court and all of them were binding for both countries.  The Court found that
Albania was responsible for the explosions but it did not accept the view that Albania
had itself laid the mines.  On the other hand, it held that the mines could not have been
laid without the knowledge of the Albanian Government.  The Court found that the
United Kingdom had exercised the right of the innocent passage through international
straits but on the other side it found that the mine-sweeping had violated the Albanian
sovereignty, because it had been carried out against the will of the Albanian
Government.  The Court ordered Albania to pay the amount of 844.000 pound.

III.  The International Protection of Human Rights


All this is, or could seem, very distant from the interests of the average citizen, busy in
his or her everyday occupation.  International law – one might say – may be useful to
settle disputes between sovereign States and impose the rule of law to big and small
countries.  It may well protect peace and security, foster co-operation and justice
between nations, but is it really relevant to an ordinary citizen?

International law can help the Albanian, or the French, the German or any other
European citizen, to have his or her human rights respected.  Many things that we take
for granted in everyday life are based on what we call “human rights”.  These rights
include the right to live freely, to express one’s opinions and ideas, and be treated fairly
and with dignity by others, without discrimination on any ground such as sex, race,
religion or political or other opinion.

Human rights are usually a fundamental part of every modern Constitution, but they are
also guaranteed by a number of international texts, including the Council of Europe’s
Convention for the Protection of Human Rights and Fundamental Freedoms, signed in
1950.  Albania is a party to the Convention since July 29th, 1996.  By this treaty,
Albania and 39 other European countries have undertaken to guarantee certain
fundamental human rights to all those within their jurisdiction.

These rights must be and are of course best secured on the national level.  The
Albanian temporary Constitutional Provisions, and with no doubt the future
constitution, contain and will contain basically the same rights as the Convention.
International control, as carried out by the institutions envisaged in the Convention, is
and should be only subsidiary.  Still, its role is very important.

 The Importance of the European Convention on Human Rights

Its importance lies not only in the breadth of the rights included but also in the
protection mechanisms set up in Strasbourg to investigate alleged violations and ensure
compliance with the obligations under the Convention.  This is kept under constant
review with the aim of enhancing the protection it affords, either by extending the list of
guaranteed rights or by improving the existing procedures.

The purpose of the Convention is to provide an international guarantee in addition to
the right of redress in individual States.  Moreover, the case-law of the European
Commission and Court of Human Rights has further developed the Convention norms
and exerted an ever deeper influence on the laws and the social realities of the States
parties.  National courts in the State parties to the Convention increasingly turn to the
Strasbourg case-law when deciding on a human rights issue, and apply the standards
and principles developed there.  Many instances can also be cited of States modifying
legislation and administrative practices prior to their ratification of the Convention,
particularly in the case of those States that have recently joined the Council of Europe.

In 1994, the Council of Europe required Albania, and 10 other countries where the
death penalty was still in force, to abolish it.  Therefore, Albania undertook to observe
a moratoria of three years on executions.

Both States and individuals can make complaints. Individuals’ complaints are by far the
largest majority, amounting to over 30,000 since the entry into force of the Convention
in 1953.  The European Court has delivered more than 600 judgments since its
creation in 1959.

Individual complaints concern a growing range of issues, including use of corporal
punishment, confinement of mental patients, detention of vagrants, terrorist suspects
and persistent offenders, prisoners’ rights, military and professional discipline, access
to courts, length of legal proceedings and fairness of trial, telephone tapping,
prohibition of divorce, laws on homosexual activities and abortion, status of
transsexuals, freedom of the press, radio and television, custody and care of children,
status of illegitimate children, trade union activities, immigration, deportation and
extradition, property rights, compensation for nationalisation.

 The Procedure

The growth in the number of States parties and the increasing awareness of European
citizens as to the possibilities offered by the Convention raised the need for changes in
the procedure and in the structure of the Strasbourg institutions.  This should ensure a
reduction in the backlog and a quicker and more effective functioning of the system.

As from November 1, 1998, there will be a single permanent Court, with a number of
judges equal to that of the States parties to the Convention.  The Court will have
jurisdiction in all matters concerning the interpretation and the application of the
Convention.  In addition, the Court will be able to give advisory opinions when so
requested by the Committee of Ministers of the Council of Europe.

The Court will receive applications from any person, non-governmental organisation or
group of individuals claiming to be the victim of a violation of the Convention, i.e. of a
human right of theirs, by one of the States parties.

The individual application will be examined by a committee of three judges, which will
have the power, exercisable by unanimous vote, to declare an application inadmissible.
The Court may only deal with a matter after all domestic remedies have been
exhausted and within a period of six months from the date on which the final decision
was taken.  The Court shall not deal with anonymous applications, applications which
are substantially the same as a matter already examined or which are manifestly
ill-founded.  Approximately 90% of registered cases have been so far rejected as
inadmissible.  It is important to stress, however, that the Court is open to anyone who
wishes to lodge a complaint.  There are no costs involved in introducing an application
to the Court and no legal representation is required, even though the assistance of a
lawyer is advisable.  Partial legal aid is available.

If an application is not declared inadmissible by the committee, the case will be
transferred to a Chamber composed of seven judges, which will examine both the
admissibility and the merits of the case.  The judge elected in respect of the State
against which the case is lodged will always sit in the Chambers.  Every application
registered will be allocated to a judge rapporteur who will communicate with the
parties and take steps with a view to a friendly settlement.  The procedure will normally
be written and oral.  If a friendly settlement does not take place, the Chamber will
render a judgment.


The judgment will become final after three months, if reference of the case to the Grand
Chamber of 17 judges has not been requested.  Reference to the Grand Chamber will
be allowed only in exceptional circumstances, when the case raises serious issues of
general importance.  The judgment shall be reasoned and binding to the State.  The
Committee of Ministers shall ensure that governments comply with the Court’s
judgments.

 More Instruments To Protect Human Rights

The Convention on human rights is supplemented by the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment and Punishment, to which
Albania is also a party.  In addition, many other agreements are reached and
recommendations made in the field of human rights, by the Foreign Ministers and the
Parliamentary Assembly, which can have a significant impact on the policies of member
States in this area.

The Council of Europe’s instruments embody a number of important principles
applying to States ruled by law: the principle of lawfulness, the right to the sound
administration of justice, access to courts, the guarantee of a fair and public hearing,
impartiality of judges and proportionality of penalties.  These principles must guide the
actions of government and other authorities, as well as the judiciary and legislature.

The Convention itself is not something fixed and final, but something that has
continuously evolved since its conclusion in 1950.  Rights themselves have evolved in
the course of human history.  They are still evolving and they are a precious but fragile
heritage for which many brave women and men have fought.  It is also up to us to take
care of them, so that there be fewer and fewer people to whom they are denied.

Submitted by:
Shkëlzen  Zeneli
accapp/qakapp
Rr. “Donika Kastrioti” Vila 6
Tirana, Albania
+355-42-40672 (v)
+355-42-40673 (f)
E-mail:[email protected]
 

Giovanni  Favilli
Venice Commission
Council of Europe
F-67075 Strasbourg Cedex
France
+33 3 8841 30 48 (v)
+33 3 8841 37 38 (f)
E-mail: [email protected]