12
the last hope of those who did not find justice at national level. I would not refrain
myself nor hesitate to add, - allowing myself the metaphor, - that the right of
individual petition is undoubtedly the most luminous star in the universe of human
rights.
36.
The right of individual petition is a fundamental clause (cláusula pétrea) of
the human rights treaties that provide for it, - as exemplified by Article 44 of the
American Convention, - upon which is erected the juridical mechanism of the
emancipation of the human being vis-à-vis his own State for the protection of his
rights in the ambit of the International Law of Human Rights. Another fundamental
clause is that of the acceptance of the contentious jurisdiction of the Inter-American
Court of Human Rights, which does not admit limitations other than those expressly
contained in Article 62 of the American Convention.
37.
It is not the function of the Court to secure the due application by the State
Party of its own domestic law, but rather to secure the correct application of the
American Convention in the ambit of its domestic law, so as to protect all the rights
set forth in the Convention. Any understanding to the contrary would withdraw
from the Court the faculties of protection inherent to its jurisdiction, unduly
depriving the American Convention of effects in the domestic law of the States
Parties. This being so, beyond what the human rights treaties expressly provide for
in this respect, such fundamental clauses (cláusulas pétreas) do not admit
restrictions of domestic law.
38.
The above-mentioned fundamental clauses (cláusulas pétreas) -the right of
individual petition and the compulsory jurisdiction of the Inter-American Court in
contentious matters - constitute a matter of international ordre public, which could
not be at the mercy of limitations not provided for in the treaties of protection,
invoked by the States Parties for reasons or vicissitudes of domestic order. If the
right of individual petition had not been originally conceived and consistently
understood in this way, the international protection of human rights would have
advanced very little in this half-century of evolution. The right of individual petition,
so widely and liberally recognized under the American Convention on Human
Rights, constitutes, as already pointed out, a
definitive conquest of the
International Law of Human Rights, to be always decidedly safeguarded by the
Inter-American Court of Human Rights, as it has just done in the present Judgment
on preliminary objections in the case Castillo Petruzzi.
III.
The Right of Individual Petition De Lege Ferenda: From Locus Standi
to Jus Standi before the Inter-American Court of Human Rights.
39.
To these thoughts in support of the wide scope of the right of individual
petition under the American Convention, may I add a final consideration de lege
ferenda: in the inter-American system of protection, the right of indidividual
petition will reach its plenitude the day it can be exercised by the petitioners no
longer before the Inter-American Commission, but rather directly before the InterAmerican Court of Human Rights 32. The jurisdictional solution constitutes the most
perfected and evolved means of international protection of human rights. The
European system of protection waited almost half a century 33 to give concrete
expression to this reality.
32.
As it will very soon occur, in the European system of protection, with the entry
into force of Protocol XI (of 1994) to the European Convention of Human Rights, next 01
November 1998.
33.
Since the adoption in 1950 and entry into force in 1953 of the European
Convention of Human Rights until the iminent entry into force of its above-mentioned
Protocol XI, on 01.11.1998.