9
way, rendered the right of individual petition (Article 44
mandatory, of automatic acceptance by the ratifying States,
person or group of persons, or any non-governmental entity
one or more member States of the Organization" of American
discloses the capital importance attributed to it 27.
of the Convention)
extending it to "any
legally recognized in
States (OAS), - what
26.
This was, recognizedly, one of the great advances achieved by the American
Convention, at conceptual and normative, as well as operational, levels. It would
thus not be justified that, after twenty years of operation of our regional
Convention 28, one would admit to surround with restrictions the wide extent of the
legitimatio ad causam, on the part of any person, under Article 44 of the American
Convention. One is to extract the consequences of the wide extent of Article 44 of
the Convention, in so far as the condition of individual petitioners is concerned 29.
Furthermore, in the same line of reasoning, Article 1(1) of the American Convention
provides for the general obligation of the States Parties to respect the rights set
forth therein and to secure their free and full exercise to any person subject to its
jurisdiction (whether national, foreigner, refugee or stateless person, indistinctly,
irrespective of his or her legal status in the domestic law).
27.
One is to bear in mind always the autonomy of the right of individual petition
vis-à-vis the domestic law of the States. Its relevance cannot be minimized, as it
may occur that, in a given internal legal order, an individual becomes unable, by
the circumstances of a legal situation, to take judicial measures by himself. This
does not mean that he would be deprived to do so in the exercise of the right of
individual petition under the American Convention, or another human rights treaty.
28. But the American Convention goes further than that: the legitimatio ad causam,
which it extends to every and any petitioner, can even do without a manifestation
on the part of the victim himself or herself. The right of individual petition, thus
widely conceived, has as an immediate effect the enlargement of the extent of
protection, above all in cases in which the victims (e.g., those detained
incommunicado, disappeared persons, among other situations) find themselves
unable to act motu propio, and stand in need of the iniciative of a third party as
petitioner in their behalf.
29.
One of the distinctive features of the emancipation of the human being, visà-vis his own State, as subject of the International Law of Human Rights, lies
precisely in the denationalization of the protection in the present context.
Nationality disappears as a vinculum juris for the exercise of protection (differently
from the discretionary diplomatic protection in the inter-State contentieux, based
upon fundamentally distinct premises), sufficing that the individual complainant -
27.
The other type of petition, the inter-State one, was only provided for on an
optional basis (Article 45 of the American Convention, contrary to the scheme of the
European Convention -Article 24 - in this particular), what stresses the relevance attributed
to the right of individual petition. This point did not pass unnoticed from the Inter-American
Court of Human Rights, which, in its second Advisory Opinion, on the Effect of Reservations
on the Entry into Force of the American Convention on Human Rights (of 24.09.1982),
invoked this particularity as illustrative of the "overriding importance" attributed by the
American Convention to the obligations of the States Parties vis-à-vis the individuals,
vindicated by these latter without the intermediation of another State (paragraph 32).
28.
As from its entry into force, on 18 July 1978.
29.
Cf., in this sense, my Dissenting Opinion in the case of El Amparo (Resolution
on Interpretation of Judgment, of 16.04.1997), par. 29, n. 12, reproduced in: OAS, Informe
Anual de la Corte Interamericana de Derechos Humanos - 1997, p. 142.