4
Convention’s international bodies —i.e., their access to international justice— would
not have been achieved.
II.
Brief Thoughts De Lege Ferenda
15.
Therefore, —and, in the words of Ionesco's Rhinoceros, je ne capitule pas— I
allow myself in this Separate Opinion to insist on my arguments —as I have done
recently from within this Court—,18 with a view to advancing the individual’s full access
to international justice under the American Convention. I would like to make reference
to the bases for a Draft Protocol to the American Convention on Human Rights for
Strengthening its Protection Mechanism, which I myself drafted (as a rapporteur for
the Court) and submitted (as President of the Court) to the Organization of American
States [OAS] in May 2001,19 and has consistently been included in the OAS General
Assembly’s agenda (as reflected in the 2001 Assembly in San José de Costa Rica, the
2002 Assembly in Bridgetown/Barbados, the 2003 Assembly in Santiago de Chile and
the 2004 Assembly in Quito), and is still mentioned in OAS' documents for the 2005–
2006 two-year period.20 My hope is that the future will bring concrete results.
16.
In that document, I proposed inter alia that Article 77 of the Convention should
be amended, so that not only any State Party and the Commission, but also the Court
may present Draft Additional Protocols to the American Convention, which the Court
should be empowered to do as the highest-ranking enforcing body under the
Convention, with a view to increasing the number of rights protected under the
Convention and strengthening the protection mechanism set out therein.21
17.
In addition, in line with the position of the human person as subject of the
International Law of Human Rights (and, in my view, of the Public International Law), I
contended that the language of Article 61(1) of the Convention should be changed to:
“The States Parties, the Commission and the alleged victims shall have the right
to submit a case to the Court.”22
18
.
In my recent Separate Opinions in the Court’s Orders regarding Provisional Protection Measures
both in the Matter of Gloria Giralt de García-Prieto et al. regarding El Salvador (of September 26, 2006) and
in the previous Matter of Mery Naranjo et al. regarding Colombia (of September 22, 2006).
19
.
Cf. A. A. Cançado Trindade, Bases para un Proyecto de Protocolo a la Convención Americana sobre
Derechos Humanos, para Fortalecer su Mecanismo de Protección, vol. II, 2nd. ed., San José de Costa Rica,
Inter-American Court of Human Rights, 2003, pp. 1-1015.
20
.
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.
21
.
In addition, I pointed out that the Statute of the Inter-American Court (1979) requires a number of
amendments (which I discussed in that document). Moreover, I added that Articles 24(3) and 28 of the
Statue require amending: In Article 24(3), the words “shall be delivered in public session and” should be
deleted; and in Article 28, the words “shall appear as a party” should likewise be suppressed.
22
.
Under the original and current language of Article 61(1) of the American Convention, only the
States Parties and the Commission shall have the right to “submit a case” to the Court. However, in dealing
with reparations, the Convention mentions “the injured party" (Article 63(1)), i.e., the victims rather than
the ICHR. At the outset of 21st century, the historical reasons that led to the denial of the victims’ locus
standi have been overcome; under the European and Inter-American human rights systems, practice itself
took care of revealing the failures, deficiencies and distortions of the paternalistic mechanism involved in the
Inter-American Commission's liaising between individuals and the Court.
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