15
persons, rendered it possible to individuals to exercise rights emanated directly from
international law (derecho de gentes), implemented in the light of the above-mentioned
notion of collective guarantee, and no longer simply "granted" by the State. With the
access of individuals to justice at international level, by means of the exercise of the
right of individual petition, concrete expression was at last given to the recognition that
the human rights to be protected are inherent to the human person and do not derive
from the State. Accordingly, the action in their protection does not exhaust -cannot
exhaust - itself in the action of the State.
(…) Had it not been for the access to the international instance, justice would never
have been done in their concrete cases. (…)without the right of individual petition, and
the consequent access to justice at international level, the rights enshrined into the
American Convention would be reduced to a little more than dead letter. It is by the
free and full exercise of the right of individual petition that the rights set forth in the
Convention become effective. The right of individual petition shelters, in fact, the last
hope of those who did not find justice at national level. (…) The right of individual
petition is undoubtedly the most luminous star in the universe of human rights”. "
(paras. 33 and 35).
Since the jurisdictional solution constitutes the “most perfected and evolved”
way to protect human rights, I held is the aforementioned Concurring Opinion that
individuals have the right of direct access [to the Court] independently of the
acceptance of an optional clause” such as that in Article 62 of the Inter-American
Convention Human Rights, by their respective States (para. 40). That is to say, in
my opinion both the right of individual petition and the jurisdiction of the InterAmerican Court should be automatically mandatory for all States Parties to the InterAmerican Convention (para. 41). And, I next considered that
42.
"This means to seek to secure, not only the direct representation of the victims or their
relatives (locus standi) in the procedure before the Inter-American Court in cases
already forwarded to it by the Commission (in all stages of the proceedings and not
only in that of reparations), but rather the right of direct access of individuals before
the Court itself (jus standi), so as to bring a case directly before it, as the sole future
jurisdictional organ for the settlement of concrete cases under the American
Convention. To that end, individuals would do without the Inter-American Commission,
54
which would, nevertheless, retain functions other than the contentious one ,
55
prerogative of the future permanent Inter-American Court.
(...)Above all, this qualitative advance would fulfill, in my understanding, an imperative
of justice. The jus standi - no longer only locus standi in judicio, - without restrictions,
of individuals, before the Inter-American Court itself, represents, - as I have indicated
56
in my Opinions
in other cases before the Court, - the logical consequence of the
conception and formulation of rights to be protected under the American Convention at
international level, to which it ought to correspond necessarily the full juridical capacity
of the individual petitioners to vindicate them.
The jurisdictionalization of the mechanism of protection becomes an imperative as from
the recognition of the essentially distinct roles of the individual petitioners - the true
complainant party - and of the Commission (organ of supervision of the Convention
which assists the Court). Under the American Convention, the individuals mark
presence at the beginning of the process, in exercising the right of petition in view of
the alleged damages, as well as at the end of it, as beneficiaries of the reparations, in
cases of proven violations of their rights; there is no sense in denying them presence
during the process. The right of access to justice at international level ought in fact to
be accompanied by the guarantee of procedural equality (equality of arms/égalité des
armes) in the proceedings before the judicial organ, an element essential to any
54
Such as undertaking missions for in loco observation and the reporting.
55
Enlarged, functioning in chambers, and with considerably larger human and material resources.
56
.
Cf., en that sense, my Separate Opinions in the cases of Castillo-Páez (Preliminary Objections,
Judgment of January 1, 1996), paras. 14-17, and Loayza-Tamayo (Preliminary Objections, Judgment of
31.01.1996), paras. 14-17, respectively.
Cf.