30.
This is precisely what happened in the instant case, in which the
representative of the victims and their next of kin has submitted her own
understanding of the origin of the responsibility of the State, different from that of
the Inter-American Commission. Regarding this matter, we must take into account
general international law, alongside and together with the American Convention.
We must not forget that, of all the methods used in the international human rights
protection systems, the only one that is activated by the individuals themselves
(rather than activated ex officio by the bodies entrusted with their oversight) is the
right to individual petition. It is by exercising this right that individuals,
emancipated from their own State, are able to set in motion the process of
implementing the international responsibility of the State.
31.
To try to impede the jus standi of individuals before the international venue
in the current sphere of protection is an unconvincing artifice, hostage to past
dogma, incapable of understanding that assertion of the international juridical
capacity and right to legal recognition of the human person reflects a real necessity
of the international juridical order itself.29 As I noted in my Concurring Opinion in
the aforementioned case of the “Five Pensioners”, if “before national tribunals the
faculty of the individual complainants to substantiate their own allegations of
violations of their rights is secured, how to justify the denial or restriction of that
faculty to the individual petitioners before the international tribunals of human
rights?” (para 23). And I concluded:
“In fact, the assertion of those juridical personality and capacity constitutes
the truly revolutionary legacy of the evolution of the international legal doctrine in the
second half of the 20th century. (...) An important role is here being exercised by the
impact of the proclamation of human rights in the international legal order, in the sense
of humanizing the latter: those rights were proclaimed as inherent to every human
being, irrespectively of any circumstances.30 The individual is subject jure suo of
International Law, and to the recognition of the rights that are inherent to him
corresponds ineluctably the procedural capacity to vindicate them, at national as well
as international levels.” (para. 24).
32.
By exercising this procedural capacity, the individual today activates the
mechanism for implementation of the international responsibility of the State for
human rights violations. The individual petitioner today is able, as shown en the
instant case of the Gómez Paquiyauri brothers, of –correctly- stating his or her
understanding of the origin of State responsibility, for its subsequent international
implementation. The instant adjudicatory proceeding has clearly demonstrated that
full participation of the individuals –the victim or the victim’s next of kin and their
legal representatives- in said proceeding before the Court contributes effectively to
better conduct the proceeding,31 both regarding factual and legal aspects.32
29
.
A.A. Cançado Trindade, "A Personalidade e Capacidade Jurídicas do Indivíduo como Sujeito do
Direito Internacional", in Jornadas de Derecho Internacional (Mexico City, December 2001), Washington
D.C., OAS Subsecretariat of Legal Affairs, 2002, pp. 311-347.
30
.
I-A Ct of HR, Advisory Opinion OC-17/02, on the Juridical Condition and Human Rights of the Child,
of 28.08.2002, operative paragraph n. 1, and Concurring Opinion of Judge A.A. Cançado Trindade, paras. 171.
31
.
In addition to ensuring their right to freedom of expression in the course of the international
proceeding.
32
.
See, in this regard, A.A. Cançado Trindade, "Vers la consolidation de la capacité juridique
internationale des pétitionnaires dans le système interaméricain des droits de la personne", 14 Revue
québécoise de droit international (2001) pp. 207-239, esp. pp. 223-224; and see A.A. Cançado Trindade,
"Le système inter-américain de protection des droits de l'homme: état actuel et perspectives d'évolution à
l'aube du XXIème siècle", 46 Annuaire français de Droit international - Paris (2000) pp. 570-577.
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