10
irrrespective of nationality or domicile - is (even though temporarily) under the
jurisdiction of one of the States Parties to the human rights treaty at issue.
30.
In relation to the question raised in the fifth and sixth preliminary objections
in the present case Castillo Petruzzi versus Peru (pertaining to the legal personality
and the legitimatio ad causam of the petitioning entity, FASIC), it would be
inconsistent with this new conception of protection that one were to attempt to
condition the legitimatio ad causam of a non-governmental entity to the legal
requisites of a given internal legal order; it is not suprising at all, thus, that it
suffices (under the American Convention) that such entity be legally recognized in
any of the member States of the Organization. The American Convention does not
require a given legal status of such entity, nor does it impose any formal requisites;
the only requirement is that the entity at issue be "legally recognized in one or
more member States" of the OAS.
31.
To circumscribe such requisite to the domestic law of a given State would go
against the letter and spirit of the American Convention. Thus, one ought not to
attempt to give to this requisite a dimension which it does not have, as, ultimately,
the right of individual petition under the American Convention - as pointed out by
the Court in the present Judgment - is widely open to any person or group of
persons. The faculty of the respondent State to seek to determine the legal
recognition of a petitioning non-governmental entity, under Article 44 of the
Convention, is not questioned, providing that one does not thereby pretend to
subordinate it to pertinent provisions of its own internal legal order or of the
domestic law of a given State.
32.
Just like the right itself of individual petition per se under the American
Convention (and other human rights treaties) in general, this requisite of legality of
a non-governmental entity in particular is also denationalized 30. The protection of
human rights set in operation by the exercise of the right of individual petition
takes place in the light of the notion of collective guarantee, underlying the
American Convention (as well as the other human rights treaties). It is in this
30.
Under the European Convention of Human Rights, for example, the requisite of
legal recognition of a petitioning non-governmental entity (under Article 25) does not even
exist. The practice of the European Commission of Human Rights endorses the interpretation
that the reference of Article 25 of the Convention to "non-governmental organization" tout
court, without conditionings or qualifications, had the purpose of impeding the exclusion of
any persons, other than physical persons, enabled to resort to the European Commission; cf.
Les droits de l'homme et les personnes morales (1969 Louvain Colloquy), Brussels, Bruylant,
1970, p. 20 (intervention of H. Golsong); and cf. Actes du Cinquième Colloque International
sur la Convention Européenne des Droits de l'Homme (1980 Frankfurt Colloquy), Paris,
Pédone, 1982, pp. 35-78 (report by H. Delvaux). In its turn, the European Court of Human
Rights, in its judgment of 09.12.1994 in the case of the Holy Monasteries versus Greece,
decided to dismiss an attempt to impose restrictions (other than that of the condition of
"victim") to the non-governmental organization at issue. In the cas d'espèce, the respondent
State argued that, given the links which it maintained with the Greek Orthodox Church and
the "considerable influence" of this latter in the State activities and in public administration,
the complainant Monasteries were not non-governmental organizations in the sense of Article
25 of the European Convention (par. 48). The Court dismissed this argument, in finding that
the Monasteries referred to did not exercise governmental powers. Their classification as
entities of public law was intended only to extend to them legal protetion vis-à-vis third
parties. As the Holy Monasteries were under the "spiritual supervision" of the local
archbishop and not under the supervision of the State, they were distinct from this latter,
from which they were "completely independent". Accordingly, - the European Court
concluded, - the complainant Monasteries were non-governmental organizations in the sense
of Article 25 of the European Convention (par. 49).