10
irrrespective of nationality or domicile - is (even though temporarily) under the
jurisdiction of one of the States Parties to the human rights treaty at issue.
30.
In relation to the question raised in the fifth and sixth preliminary objections
in the present case Castillo Petruzzi versus Peru (pertaining to the legal personality
and the legitimatio ad causam of the petitioning entity, FASIC), it would be
inconsistent with this new conception of protection that one were to attempt to
condition the legitimatio ad causam of a non-governmental entity to the legal
requisites of a given internal legal order; it is not suprising at all, thus, that it
suffices (under the American Convention) that such entity be legally recognized in
any of the member States of the Organization. The American Convention does not
require a given legal status of such entity, nor does it impose any formal requisites;
the only requirement is that the entity at issue be "legally recognized in one or more
member States" of the OAS.
31.
To circumscribe such requisite to the domestic law of a given State would go
against the letter and spirit of the American Convention. Thus, one ought not to
attempt to give to this requisite a dimension which it does not have, as, ultimately,
the right of individual petition under the American Convention - as pointed out by
the Court in the present Judgment - is widely open to any person or group of
persons. The faculty of the respondent State to seek to determine the legal
recognition of a petitioning non-governmental entity, under Article 44 of the
Convention, is not questioned, providing that one does not thereby pretend to
subordinate it to pertinent provisions of its own internal legal order or of the
domestic law of a given State.
32.
Just like the right itself of individual petition per se under the American
Convention (and other human rights treaties) in general, this requisite of legality of a
non-governmental entity in particular is also denationalized31. The protection of
human rights set in operation by the exercise of the right of individual petition takes
place in the light of the notion of collective guarantee, underlying the American
Convention (as well as the other human rights treaties). It is in this context that one
is to assess the wide extent of the legitimatio ad causam under Article 44 of the
American Convention.
30.
Under the European Convention of Human Rights, for example, the requisite of legal
recognition of a petitioning non-governmental entity (under Article 25) does not even exist. The practice of
the European Commission of Human Rights endorses the interpretation that the reference of Article 25 of
the Convention to "non-governmental organization" tout court, without conditionings or qualifications, had
the purpose of impeding the exclusion of any persons, other than physical persons, enabled to resort to
the European Commission; cf. Les droits de l'homme et les personnes morales (1969 Louvain Colloquy),
Brussels, Bruylant, 1970, p. 20 (intervention of H. Golsong); and cf. Actes du Cinquième Colloque
International sur la Convention Européenne des Droits de l'Homme (1980 Frankfurt Colloquy), Paris,
Pédone, 1982, pp. 35-78 (report by H. Delvaux). In its turn, the European Court of Human Rights, in its
judgment of 09.12.1994 in the case of the Holy Monasteries versus Greece, decided to dismiss an attempt
to impose restrictions (other than that of the condition of "victim") to the non-governmental organization
at issue. In the cas d'espèce, the respondent State argued that, given the links which it maintained with
the Greek Orthodox Church and the "considerable influence" of this latter in the State activities and in
public administration, the complainant Monasteries were not non-governmental organizations in the sense
of Article 25 of the European Convention (par. 48). The Court dismissed this argument, in finding that the
Monasteries referred to did not exercise governmental powers. Their classification as entities of public law
was intended only to extend to them legal protetion vis-à-vis third parties. As the Holy Monasteries were
under the "spiritual supervision" of the local archbishop and not under the supervision of the State, they
were distinct from this latter, from which they were "completely independent". Accordingly, - the European
Court concluded, - the complainant Monasteries were non-governmental organizations in the sense of
Article 25 of the European Convention (par. 49).
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