THE INTERNATIONAL DIMENSION OF HUMAN RIGHTS DURING THE POLITICAL TRANSITION IN SPAIN

in Spanish Yearbook of International Law Online
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THE INTERNATIONAL DIMENSION OF HUMAN RIGHTS DURING THE POLITICAL TRANSITION IN SPAIN

in Spanish Yearbook of International Law Online

References

1. Discursos y Declaraciones del Ministro de Asuntos Exteriores, Ministerio de Asuntos Exteriores (Ministry of Foreign Affairs), Oficina de Informaci6n Diplomitica, (Ed.), Madrid, 1978, January, pp. 17 et seq., p. 18. 2. BOE n 103, 30.4.77.

3. Revista Cuadernos para el Di6logo, 6 November 1976. Reproduced in loc. cit. note 1 supra, 136-162, pp. 141-142. 4. Ibidem., p. 142.

5. This last did not take place until 2 April 1985, BOE n. 79, 2.4.85. On that date, Spain was already a member of the Council of Europe and party to the European Convention on Human Rights, therefore there was nothing strange about the fact that the instrument of accession included the following declaration: "The Spanish government declares its accession to the Optional Protocol of the International Covenant on Civil and Political Rights and interprets article 5, paragraph 2 of this Protocol to mean that the Committee of Human Rights will not consider any communication from an individual unless it has been proven that the matter has not been submitted or is not being submitted to any other international procedure for its study or resolution." The declaration is in line with the provisions of article 62 of the European Convention on Human Rights. 6. BOEn. 111, 10.5.77. 7 BOE n. 112, 11.5.77. 8. Loc. cit. in footnote 1 above, p. 134: interview given to Marcel Niedergang of Le Monde, published on October 31 and November 1, 1976.

9. Ibidem. Emphasis added. 10. Spain's instrument of accession to the Statute of the Council of Europe (London, May 5, 1949) is dated November 24, 1977, BOE n. 51, 1.3.78.

11. Loc. cit. in footnote 1 above, pp. 98-110, especially pp. 99-100. 12. At the time of Spain and Portugal's accession, a Member State of the Council of Europe was not obliged legally or politically to sign the European Convention on Human Rights. In subsequent cases, especially after the accession of Hungary, the Republic of Czechoslovakia, Poland and Bulgaria, in practice this became a requirement. 13. Discursos y Declaraciones del Ministro de Asuntos Exteriores, Ministerio de Asuntos Exteriores (Ministry of Foreign Affairs), Oficina de Informaci6n Diplomatica (Ed.), Madrid, November, 1978, pp. 49 et seq. and especially pp. 54-55.

14. lbidem, p. 55. Months later, in his speech to the General Assembly of the United Nations given October 2, 1978, Mr. Oreja Aguirre reiterated the Spanish government's conviction that the principle of non-intervention in domestic affairs cannot be invoked to prohibit the international community from examining serious violations of fundamental human rights, and he insisted that the Spanish government wanted to contribute to the articulation of more efficient procedures to protect human rights. Therefore he announced the government's intention to recognize the jurisdiction of the Committee on Human Rights within the framework of article 41 of the International Covenant on Civil and Political Rights, as well as its proposal to accept the optional protocol attached to this covenant. He stated Spain's support for "the creation of a High Commissioner for Human Rights and for the United Nation's right to constitute and send investigatory missions when circumstances so warranted." lbidem, p. 149. 15. BOE n. 243, 10.10.79. 16. BOE n. 111, 10.5.1982. 17. BOE n. 11, 12.1.1991. 18. Additional Protocol 4 took effect on May 2, 1968, and by January 1, 1992, had been ratified by sixteen Member States of the Council of Europe and signed by another four: Czechoslovakia, Spain, Hungary and the United Kingdom of Great Britain. 19. BOE n. 243, 10.10.79.

20. BOE n. 243, 10.10.79 and BOE n. 155, 30.6.1981. Thus Spain accepted the Commission's competence to hear individual cases soon after the ratification of the Convention. Here it is interesting to make a comparison with the French case: France, which became a party to the European Convention on Human Rights in 1950, did not ratify it until 1974 and did not accept the Commission's competence over individual cases until October, 1981. 21. BOE n. 153, 26.6.80. The Additional Protocol to the European Social Charter, dated May 5, 1988, still not in effect, was signed by Spain but has not yet been ratified.

22. BOE n. 155, 30.6.81.

23. BOE n. 247, 15.10.90. 24. BOE n. 292, 6.12.85. Therefore, the system of automatic renewal was accepted for the Commission earlier than it was for the Court. 25. Eight states accepted the Commission's competence based on article 25 of the Convention, for a period of three years (Austria, Cyprus, Greece, Italy, Liechtenstein, San Marino, Switzerland and Turkey); eight for a period of five years (Germany, Belgium, Denmark, France, Luxemburg, Malta, Norway, and the United Kingdom of Great Britain); five States accepted it for an indefinite period of time (Finland, Ireland, Iceland, the Netherlands and Sweden). Spain and Portugal accepted it with the conditions marked in the text (the period for the Portuguese declaration was two years, for Spain's it was five years). As for the jurisdiction of the European Court of Human Rights (art. 46 of the Convention), seven States accepted for a period of three years (Austria, Cyprus, Greece, Italy, Liechtenstein, San Marino and Turkey); ten for a period of five years (Germany, Belgium, Denmark, France, Iceland, Luxemburg, Malta, Norway, the United Kingdom of Great Britain, and Sweden); four for an indefinite period of time (Finland, Ireland, the Netherlands and Switzerland). Spain and Portugal accepted with the conditions marked in the text (the period for the Spanish declaration is five years, even though the declaration will be automatically renewed for new five-year periods if there is no notification to the contrary made before the end of the period in course; the Portuguese declaration is for two years.)

26. Vid., footnote 15 above.

27. BOE n. 234, 30.9.86. 28. BOE n. 11, 12.1.91. In accordance with article 5 of the Additional Protocol, Spain declared that it reiterates its declarations regarding articles 25 and 46 of the Convention, and thereby recognizes the Commission's competence and the jurisdiction of the Court over matters which arise after the date of deposit of the instrument of ratification, and especially over those expropriatory cases initiated in the domestic arena after said date. 29. Publications of the European Court of Human Rights, Series A, Vol. 132, Strasbourg, 1988.

30. Vid. footnote 21 above. 31. BOE n. 242, 8.10.80. 32. BOE n. 159, 5.7.89. 33. In this regard, it is surprising that Spain has not signed Additional Protocol 9, which was opened for signature in Rome on November 5, 1990, as this Protocol perfects the judicial mechanism for oversight and enforcement by recognizing the active legitimacy of an individual to bring suit before the European Court of Human Rights, a right which is currently only enjoyed by the Commission and the State or States concerned (art. 48 of the Convention).

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