11
33.
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 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.
34.
Of all the mechanisms of international protection of human rights, the right of
individual petition is the most dynamic one, in even granting the initiative of action
to the individual himself (the ostensibly weaker party vis-à-vis the public power),
distinctly from the exercise ex officio of other methods (such as those of fact-finding
and reports) on the part of the international supervisory organs. It is the one which
best reflects the specificity of the International Law of Human Rights, in comparison
with other solutions proper to Public International Law (as it can be inferred from the
judgment of 1995 of the European Court of Human Rights in the important case
Loizidou versus Turkey, which is bound surely to become locus classicus on the
matter)32.
35.
In the public hearings before the Inter-American Court, in distinct cases, above all in the hearings pertaining to reparations, - a point which has particularly
drawn my attention has been the observation, increasingly more frequent, on the
part of the victims or their relatives, to the effect that, had it not been for the access
to the international instance, justice would never have been done in their concrete
cases. Let us be realistic: 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. I would not refrain myself
nor hesitate to add, - allowing myself the metaphor, - that the right of individual
petition is undoubtedly the most luminous star in the universe of human rights.
31.
It may be recalled that, in the case Loizidou versus Turkey (judgment on preliminary
objections of 23.03.1995), the European Court of Human Rights discarded the possibility of restrictions -by
the Turkish declarations - in relation to the key provisions of Article 25 (right of individual petition), and of
Article 46 (acceptance of its jurisdiction in contentious matters) of the European Convention. To sustain
another position, it added, "would not only seriously weaken the role of the Commission and Court in the
discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional
instrument of the European public order (ordre public)" (par. 75). The Court discarded the argument of the
respondent State that one could infer the possibility of restrictions to the optional clauses of Articles 25
and 46 of the Convention by analogy with the State practice under Article 36 of the Statute of the
International Court of Justice. The European Court not only recalled the practice to the contrary (accepting
such clauses without restrictions) of the States Parties to the European Convention, but also stressed the
fundamentally distinct context in which the two tribunals operate, the International Court of Justice being
"a free-standing international tribunal which has no links to a standard-setting treaty such as the
Convention" (pars. 82 and 68). The Hague Court, - reiterated the European Court, - settles legal questions
in the inter-State contentieux, distinctly from the functions of the supeRvisory organs of a "normative
treaty" (law-making treaty) like the European Convention. Accordingly, the "unconditional acceptance" of
the optional clauses of Articles 25 and 46 of the Convention does not leave margin for analogy with the
practice of States under Article 36 of the Statute of the International Court of Justice (pars. 84-85).
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