2
clarify - also for future cases - the juridical nature and extent of the right of
individual petition under Article 44 of the American Convention.
I.
Consolidation, Juridical Nature and Scope of the Right of Individual
Petition.
5.
The right of individual petition is a definitive conquest of the International Law
of Human Rights. It is of the essence itself of the international protection of human
rights the contraposition between the individual complainants and the respondent
States in cases of alleged violations of the protected rights. It was precisely in this
context of protection that the historical rescue took place of the position of the
human being as subject of the International Law of Human Rights, endowed with full
international procedural capacity.
6.
Three centuries of an international legal order crystallized, as from the
treaties of peace of Westphalia (1648), on the basis of the co-ordination of
independent nation-States, of the juxtaposition of absolute sovereignties, led to the
exclusion from that legal order of the individuals as subjects of rights (titulaires de
droits). At international level, the States assumed the monopoly of the condition of
subjects of rights; the individuals, for their protection, were left entirely at the mercy
of the discretionary intermediation of their nation-States. The international legal
order thus erected, - which the excesses of legal positivism attempted in vain to
justify, - excluded therefrom precisely the ultimate addressee of the juridical norms:
the human being.
7.
Three centuries of an international legal order marked by the prevalence of
State sovereignties and by the exclusion of the individuals were incapable to avoid
the massive violations of human rights, perpetrated in all regions of the world, and
the successive atrocities of our century, including the ones that take place
nowadays4. Such atrocities awoke the universal juridical conscience to the necessity
to reconceptualize the foundations themselves of the international legal order,
restoring to the human being the central position from where he had been displaced.
This reconstruction, on human foundations, took as conceptual basis entirely distinct
canons, such as those of the realization of superior common values, of the human
being as subject of rights (titulaire de droits), of the collective guarantee of the
realization of these latter, and of the objective character of the obligations of
protection5. The international order of sovereignties yielded to that of solidarity.
8.
This profound transformation of the international legal order, precipitated as
from the Universal and American Declarations of Human Rights of 1948, completing
this year half a century of evolution, has not taken place without difficulties,
precisely for requiring a new mentality. It underwent, moreover, stages, some of
which no longer sufficiently studied nowadays, also with regard to the consolidation
of the right of individual petition. Already in the beginnings of the exercise of this
right it was stressed that, although motivated by the search for individual redress,
3.
Such as the holocaust, the gulag, followed by new acts of genocide, e.g., in South-East
Asia, in central Europe (ex-Iugoslavia), in Africa (Rwanda).
4.
With a direct incidence of those canons in the methods of interpretation of the
international norms of protection, without necessarily departing from the general rules of interpretation of
treaties set forth in Articles 31-33 of the two Vienna Conventions on the Law of Treaties (of 1969 and
1986).