14
43.
It would, therefore, be an institutional structure distinct from that of the
European system of protection, attentive to the reality of the needs of protection of
our continent. But it would have in common with that system, the purpose of
overcoming duplications, delays and procedural imbalances, inherent to the current
mechanism of protection under the American Convention42, which require its
improvement. Above all, this qualitative advance would fulfill, in my understanding,
an imperative of justice. The jus standi - no longer only locus standi in judicio, without restrictions, of individuals, before the Inter-American Court itself,
represents, - as I have indicated in my Opinions in other cases before the Court43, the logical consequence of the conception and formulation of rights to be protected
under the American Convention at international level, to which it ought to
correspond necessarily the full juridical capacity of the individual petitioners to
vindicate them.
44.
The jurisdiccionalization of the mechanism of protection becomes an
imperative as from the recognition of the essentially distinct roles of the individual
petitioners - the true complainant party - and of the Commission (organ of
supervision of the Convention which assists the Court). Under the American
Convention, the individuals mark presence at the beginning of the process, in
exercising the right of petition in view of the alleged damages, as well as at the end
of it, as beneficiaries of the reparations, in cases of proven violations of their rights;
there is no sense in denying them presence during the process. The right of access
to justice at international level ought in fact to be accompanied by the guarantee of
procedural equality (equality of arms/égalité des armes) in the proceedings before
the judicial organ, an element essential to any jurisdictional mechanism of protection
of human rights, without which such mechanism will be irremediably mitigated.
45.
In order to reach this degree of procedural improvement, we ought to count
on the necessary and indispensable full belief on the part of the States that integrate
the inter-American system of protection that the jus standi of individuals before the
Court is a measure to the benefit not only of the petitioners but also of themselves
(those which become respondent States), as well as of the mechanism of protection
as a whole. And this by virtue of the jurisdictionalization, an additional guarantee of
the prevalence of the rule of law in the whole contentieux of human rights under the
American Convention.
46.
If we really wish to act at the height of the challenges of our times, it is to the
consolidation of such jus standi that we ought to promptly devote ourselves, with the
same clear vision and lucid boldness with which the draftsmen of the American
Convention originally conceived the right of individual petition. With the conventional
basis which was conveyed to us by Article 44 of the American Convention, we do not
need to wait half a century to give concrete expression to the jus standi above
referred to. With the consolidation of this latter, it is the international protection
41.
As well as to that of the European Convention, which served as model to it.
42.
Cf., in this sense, my Separate Opinions in cases Castillo Páez (Preliminary Objections,
Judgment of 30.01.1996), pars. 14-17, and Loayza Tamayo (Preliminary Objections, Judgment of
31.01.1996), pars. 14-17, respectively, reproduced in: OAS, Informe Anual de la Corte Interamericana de
Derechos Humanos - 1996, pp. 56-57 and 72-73, respectively.
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