13
recognition that human rights ought to be proteccted at international level by a
permanent judicial organ, with compulsory jurisdiction in contentious matters, to
which individuals have the right of direct access independently of the acceptance of
an optional clause by their respective States35. In proceeding in this line of
reasoning, those responsible for the operation of the European system of protection
have at last succeeded in overcoming the hesitations projected in the original
mechanism of the European Convention36, emanated from dogmas and fears proper
to a historical stage already surpassed37.
41.
This evolution singles out precisely what I have allowed myself in this
Concurring Opinion to call fundamental clauses (cláusulas pétreas) of the
international protection of human rights in the framework of our regional system,
namely, the right of individual petition and the compulsory jurisdiction of the judicial
organ of protection (accepted without limitations other than those expressly
contained in the human rights treaty at issue)38. Under the American Convention,
distinctly from the European, the right of individual petition was conceived from the
start as mandatory; our regional Convention has extended it, in a more liberal way,
automatically to any person under the jurisdiction of the States Parties. Almost thirty
years after its adoption, we face today the challenge and necessity of a new
qualitative advance.
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 reparations39), 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, which would, nevertheless, retain functions other than the contentious
one40, prerrogative of the future permanent Inter-American Court41.
34.
To these elements one can add the greater agility and improvement of the procedure, and
the stimulus to the development of a homogeneous and clearly consistent case-law. Cf. Council of Europe,
Protocol n. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms and
Explanatory Report, Strasbourg, C.E., 1994, pp. 3-52, esp pp. 25-28, 30, 35 and 43; and, for a
particularly detailed study of Protocol n. 11, cf. A. Drzemczewski, "A Major Overhaul of the European
Human Rights Convention Control Mechanism: Protocol n. 11", 6 Collected Courses of the Academy of
European Law (1997)-II, pp. 121-244.
35.
Which served as model to that of the American Convention.
36.
Cf., in this sense, Rolv Ryssdall, "The Coming of Age of the European Convention on
Human Rights", 1 European Human Rights Law Review (1996) pp. 18-29.
37.
Articles 44 and 62, respectively, of the American Convention on Human Rights.
38.
As occurs under the current Regulations of the Court, Article 23.
39.
reports.
Like those of the undertaking of missions of in loco observation and the elaboration of
40.
resources.
Enlarged, functioning in chambers, and with considerably larger human and material
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents