3
10.
Fourth, if the individual petitioner in question, faced by the double negative of
the Commission, resorts to the Court and the latter abstains from taking any
measures, owing to the alleged lack of basis in the Convention (because the case is
pending before the Commission and not before the Court) and in the Rules of
Procedure – even to fill this apparent legal vacuum and change the actual situation
(based on considerations of equity praeter legem) – there could be a denial of justice
at the international level. In two recent cases, I cautioned the Court in this regard.8
11.
At the present time, I do not detect any receptiveness on the part of either
the Commission or the Court to make this qualitative leap that I am proposing.
Furthermore, I consider that, if the current lack of receptiveness (on this specific
point) that I detect in the two organs of supervision of the American Convention had
prevailed in 2000, we might not have achieved some of the regulatory changes that
strengthened the direct access of individuals to the international instances of the
American Convention; in other words, their access to international justice.
II.
Brief reflections de lege ferenda.
12.
Therefore – and, like Ionesco’s rhinoceros, je ne capitule pas – in this
separate opinion, I wish to insist on my line of reasoning – as I have recently within
the Court – in favor of the individual’s full access to international justice within the
framework of the American Convention. Allow me to refer here to the draft protocol
to the American Convention on Human Rights to strengthen its protection
mechanism, which I drafted (as the Court’s rapporteur) and submitted (as President
of the Court) to the Organization of American States (OAS) in May 2001,9 and which
has invariably appeared on the agenda of the OAS General Assembly (for example,
the Assemblies of San José, Costa Rica, in 2001, Bridgetown, Barbados, in 2002,
Santiago, Chile, in 2003, and Quito, Ecuador, in 2004), and remains present in OAS
documents for the biennium 2005-2006.10 I hope that, in the near future, it will have
concrete results.
13.
In this document, I proposed, inter alia, that Article 77 of the Convention
should, in my opinion, be amended so that not only any State Party and the
Commission, but also the Court, can present draft additional protocols to the
American Convention – as naturally corresponds to the highest-ranking organ of
supervision of the Convention – in order to expand the list of rights protected by the
Convention and strengthen the protection mechanism established in the
Convention.11
.
Cf. ICourtHR, the Brothers Dante, Jorge and José Peirano Basso v. Uruguay, letter of July 7,
2006, from Judges A.A. Cançado Trindade and M.E. Ventura Robles to the President of the Court, doc.
CDH-S/1181, pp. 1-2; Loretta Ortiz Ahlf et al. Mexican citizens v. Mexico, letter of September 19, 2006,
from Judge A.A. Cançado Trindade to the acting President of the Court, doc. Corte IDH/1641, p. 1.
8
9
.
Cf. A.A. Cançado Trindade, Bases for a Draft Protocol to the American Convention on Human
Rights to Strengthen Its Mechanism for Protection - Volume II, 2a. ed., San José, Costa Rica, InterAmerican Court of Human Rights, 2003.
10
.
OAS, document AG/RES.2129 (XXXV-0/050), of June 7, 2005, pp. 1-3; OAS, document CP/CAJP2311/05/Rev.2, of February 27, 2006, pp. 1-3.
.
In addition, I stated that the Statute of the Inter-American Court (1979) also requires a series of
amendments (which I indicated in the said document). I added that Articles 24(3) and 28 of the Statute
needed to be amended: in Article 24(3), the words “shall be delivered in public session” should be
11
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