12
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 Inter-American Court
of Human Rights33. 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 century34 to give concrete expression to this reality.
40.
Its institutional improvement by means of the imminent entry into force of
Protocol n. 11 to the European Convention reflects, ultimately, the unequivocal
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.
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