Challenges of the Knowledge Society (May 2021)
THE LEGAL CAPACITY OF THE INDIVIDUAL TO INFLUENCE HUMAN RIGHTS INTERNATIONAL LAW
Abstract
The legal capacity of the individual in international law is of a complex nature. As a subject in the legal field, the natural person has allowed to reframe the prevailing orthodoxy of the international legal order through jurisprudence. Case by case, the individual is contributing to the structural transformation the world is embedded in by standing for their fundamental rights and freedoms before international courts. Drawing on this bottom-up understanding, this article sets out to discuss whether and to what extent are individual’s complaints capable of having an impact on human rights legislation through case law. For this question to be answered, this article begins by providing an overview of the evolution that the international capacity of the human person has undergone in the last decades. This is followed by a comprehensive analysis of the individual complaint procedures foreseen by international legal orders, as well as a comparative research aimed at gathering insights on the access to justice granted to natural persons by European, African and American regional human rights protection systems. Next, the paper assesses the dichotomy between monism and dualism in the particular case of Spain, a debate that is gaining ground in the ambit of the direct application of international law in the domestic legislation. Finally, this article casts doubts on the legitimacy and binding power of human rights international treaties: it is hard to perceive these legal texts as mandatory if they are subjected to national authorities’ willingness to incorporate international legal dispositions and resolution into internal legislation.
