14
"(...) Without the locus standi in judicio of both parties any system of protection finds
itself irremediably mitigated, as it is not reasonable to conceive rights without the
procedural capacity to vindicate them directly.
In the universe of the international law of human rights, it is the individual who alleges
violations of his human rights, who alleges having suffered damages, who has to comply
with the requirement of prior exhaustion of domestic remedies, who actively participates
in an eventual friendly settlement, and who is the beneficiary (he or his relatives) of
eventual reparations and indemnities. (…)
In our regional system of protection, the spectre of the persistent denial of the
procedural capacity of the individual petitioner before the Inter-American Court, a true
capitis diminutio, arose from dogmatic considerations, belonging to another historical
era, which tended to avoid his direct access to the international judicial organ. Such
considerations, in my view, in our time lack support or meaning, even more so when
referring to an international tribunal of human rights.
In the inter-American system of protection, de lege ferenda one gradually ought to
overcome the paternalistic and anachronistic conception of the total intermediation of
the Commission between the individual (the true complaining party) and the Court,
according to clear and precise criteria and rules, previously and carefully defined. In the
present domain of protection, every international jurist, faithful to the historical origins
of his discipline, will know to contribute to the rescue of the position of the human being
as a subject of international law (droit des gens), endowed with international legal
personality and full capacity” (paras. 14-17).
39.
In that same year 1996 such locus standi was granted at the stage dealing
with reparations, under the third amendment to the Rules of the Court of which I
was the Rapporteur, and four years later, under the fourth amendment of the Rules
of the Court (2000), adopted during my term as President of the Court, such locus
standi was extended to the petitioners at all stages of the proceedings before the
Court. In effect, the international legal entity of human persons necessarily entails
the legal capacity to act, to claim their rights, at the international level. This is
materialized through their direct access —understood lato sensu— to international
justice, which implies a true right to Law (droit au Droit). Consolidation of their legal
capacity marks the emancipation of individuals from their own State, which is
illustrated by their jus standi before the international human rights courts
(something which is a reality before the European Court). The right to access (lato
sensu) international justice has finally crystalized as the right to have justice really
done at the international level.
40.
At the time when the (1996) third Rules of the Court were already in force in
the Judgment of the Court (on preliminary objections) in the Case of Castillo Petruzzi
et al. v. Perú, of September 4, 1998, in an extensive Concurring Opinion I allowed
myself to highlight the fundamental nature of the right of individual petition (Article
44 of the American Convention) as "the cornerstone of the access of the individuals
to the whole mechanism of protection of the American Convention" (paras. 3 and 36
– 38). By means of such right of individual petition, “a definitive conquest of the
International Law of Human Rights” the “historical rescue of the position of the
human being as subject of the International Law of Human Rights, endowed with full
international procedural capacity” (paras. 5 and 12).
41.
After reviewing the historia juris of such right of petition (paras. 9-15), I
dwelt on the expansion of the notion of “victim” in international case law under the
human rights treaties (paras. 16-19), as well as on the autonomy of the right of
individual petition vis-à-vis the domestic law of the States (paras. 21 and 29), and
added:
“The denationalization of the protection and of the requisites of the international action
of safeguard of human rights, besides sensibly enlarging the circle of protected