2
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
nowadays 3. 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 protection 4. 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,
the right of petition contributed also to secure respect for the obligations of
objective character which are incumbent upon the States Parties 5. In several cases
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).
5.
For example, under Article 25 of the European Convention on Human Rights;
cf. H. Rolin, "Le rôle du requérant dans la procédure prévue par la Commission européenne
des droits de l'homme", 9 Revue hellénique de droit international (1956) pp. 3-14, esp. p. 9;