9
(...)Above all, this qualitative advance would fulfill, in my understanding, an
imperative of justice. The jus standi - no longer only locus standi in judicio, - without
restrictions, of individuals, before the Inter-American Court itself, represents - as I have
indicated in my Opinions in other cases before the Court28 - the logical consequence of
the conception and formulation of rights to be protected under the American Convention
at the international level, to which the full juridical capacity of the individual petitioners
to vindicate them ought to correspond necessarily.” (paras. 42-43)
29.
More recently, in my Concurring Opinion in the aforementioned case of the
“Five Pensioners” (2003), I argued that “Not always the complaint originally
presented by the petitioners before the Commission (Article 44 of the Convention) is
necessarily the same as the complaint subsequently interposed by the Commission
before the Court (Article 61(1) of the Convention). If the States are required, in
conformity with the Convention (Article 25), to respect the right of access to justice,
preserving the faculty of the individual complainants to substantiate their legal
actions before national tribunals, how can they be denied this same faculty in their
arguments before an international tribunal like the Inter-American Court? (...) one
cannot curtail the right of the petitioners of access to justice at the international
level, expressed in their faculty to indicate the rights which they deem violated.”
(paras. 20-21) The same applies to the arguments of the applicants on birth or
emergence of international responsibility of the respondent State.
IV.
Implementation of the International Responsibility of the State through
the Initiative of the Individual as a Subject of International Law.
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
28
.
See, in this regard, my Separate Opinions in the Castillo Páez versus Peru case (Preliminary
Objections, Judgment of 30.01.1996), paras. 14-17, and Loayza Tamayo versus Peru case (Preliminary
Objections, Judgment of 31.01.1996), paras. 14-17, respectively.
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.
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