11
context that one is to assess the wide extent of the legitimatio ad causam under
Article 44 of the American Convention.
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) 31.
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,
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 freestanding 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).