6
right to that the author of the complaint or communication is - or claims to be victim of human rights violation (e.g., European Convention on Human Rights,
Article 25; [first] Optional Protocol to the Covenant on Civil and Political Rights,
Article 2; Convention on the Elimination of All Forms of Racial Discrimination, Article
XIV (1) and (2); United Nations Convention against Torture, Article 22).
16.
The notion of victim has, significantly, experienced considerable expansion
through the jurisprudential construction of the international supervisory organs, in
coming to comprise direct and indirect victims, as well as "potential" victims, that
is, those who sustain an admittedly valid potential personal interest in the
vindication of their rights 18. The American Convention on Human Rights (Article 44)
and the African Charter on Human and Peoples' Rights (Articles 55-56) adopt,
however, in this particular point, a more liberal solution, as they do not impose
upon the petitioners the requisite of the condition of victim.
17.
In any case, the solutions given by human rights treaties and instruments to
the jus standi of the complainant (with variations, namely, alleged victim and
"author of communication", "reasonably presumed" victim, special qualifications of
the complainants, right of petition widely conferred), appear to be linked to the
nature of the procedures at issue (right of petition or communication or [individual]
representation) 19. Differences in the legal nature of those procedures, however,
significantly have not hindered the development, by the distinct international
supervisory organs, of a converging case-law as to a more effective protection of
the alleged victims.
18.
It has been under the European Convention on Human Rights that a vast
case-law on the right of individual petition has evolved. It is certain that Article 25
of the European Convention was originally conceived as an optional clause;
nowadays, however, this latter is accepted by all the States Parties to the
Convention, and, very soon, as from November 1st of this year, with the entry into
force of Protocol XI to the Convention, the right of petition before the new
European Court (as the sole jurisdictional organ under the modified Convention) will
be mandatory (as it has been under the American Convention on Human Rights
since its adoption in 1969). Two brief observations appear to me here necessary.
19.
In the first place, almost half a century ago, in conceiving Article 25
originally as an optional clause, the draftsmen of the European Convention were,
however, careful enough to determine, in the first paragraph in fine of the clause,
the obligation on the States Parties which accepted it of not interposing any
impediment or obstacle to the exercise of the right of individual petition. In the
case Cruz Varas and Others versus Sweden (1990-1991), the European Court and,
to a larger extent the European Commission, recognized the right of procedural
nature which Article 25(1) confers upon the individual complainants, by virtue of
Convention on the Elimination of All Forms of Racial Discrimination (Article XIV), in the
United Nations Convention against Torture (Article 22). At regional level, the right of
individual petition is set forth both in the European Convention on Human Rights (Article 25)
as well as in the American Convention on Human Rights (Article 44) and in the African
Charter on Human and Peoples' Rights (Articles 55-58).
18.
The evolution of the notion of "victim" (including the potential victim) in the
International Law of Human Rights is examined in my course "Co-existence and Coordination of Mechanisms of International Protection of Human Rights (At Global and
Regional Levels)", 202 Recueil des Cours de l'Académie de Droit International de La Haye
(1987) pp. 243-299, esp. pp. 262-283.
19.
Ibid., pp. 248-261.