13
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. 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.”
31.
In view of the current and unnecessary paralysis in which the Inter-American
system of human rights is in this regard (to the detriment of potential victims), I
allowed myself to extend, in the above-mentioned Separate Opinions, my
considerations lex lata to the lege ferenda level.40
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 2001,41 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 2005-2006.42 I hope that, in the
near future, it will have concrete results.
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.43
Furthermore, always recalling the status of the individual as a subject of
international human rights law (and, in my opinion, of public international law also), I
maintain that Article 61(1) of the Convention should, significantly, be amended as follows:
- “The State Parties, the Commission and the alleged victims shall have the right
to submit a case to the Court”.44
40
.
Paragraphs 12-15 of my Separate Opinion in the matter of Mery Naranjo et al., and paragraphs 1417 of my Separate Opinion in the matter of Gloria Giralt de García Prieto et al.
41
.
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, 2nd. ed., San José de Costa Rica, Inter-American
Court of Human Rights, 2003, pp. 1-1015.
42
.
OAS, document AG/RES.2129 (XXXV-0/050) of June 6, 2005, pp. 1–3; OAS, document CP/CAJP2311/05/Rev.2 of February 27, 2006, pp. 1-3.
43
.
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 eliminated
so that the first sentence of the article reads “The decisions, judgments and opinions of he Court shall be
notified to the parties in writing”; and in Article 28, the words “as a party” should also be eliminated.
44
.
In its actual and original wording, Article 61(1) of the American Convention establishes that only the
States Parties and the Commission shall have the right to “submit a case” to the Court. But the Convention,
when referring to reparations, also refers to “the injured party” (Article 63(1)), i.e., the victims and not the
Commission. Today, at the beginning of the twenty-first century, the historical reasons that led to denying
this locus standi to the victims have been overcome; in the European and inter-American human rights
systems, practice revealed the inadequacies, shortcomings and biases of the paternalist mechanism of the
Commission’s intermediation between the individual and the Court. Cf. A. A. Cançado Trindade, El Acceso
Directo del Individuo a los Tribunales Internacionales de Derechos Humanos (Individuals’ Direct Access to
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