13
40.
Its institutional improvement by means of the imminent entry into force of
Protocol n. 11 to the European Convention reflects, ultimately, the unequivocal
recognition that human rights ought to be proteccted at international level by a
permanent judicial organ, with compulsory jurisdiction in contentious matters, to
which individuals have the right of direct access independently of the acceptance of
an optional clause by their respective States 34. In proceeding in this line of
reasoning, those responsible for the operation of the European system of protection
have at last succeeded in overcoming the hesitations projected in the original
mechanism of the European Convention 35, emanated from dogmas and fears proper
to a historical stage already surpassed 36.
41.
This evolution singles out precisely what I have allowed myself in this
Concurring Opinion to call fundamental clauses (cláusulas pétreas) of the
international protection of human rights in the framework of our regional system,
namely, the right of individual petition and the compulsory jurisdiction of the
judicial organ of protection (accepted without limitations other than those expressly
contained in the human rights treaty at issue) 37. Under the American Convention,
distinctly from the European, the right of individual petition was conceived from the
start as mandatory; our regional Convention has extended it, in a more liberal way,
automatically to any person under the jurisdiction of the States Parties. Almost
thirty years after its adoption, we face today the challenge and necessity of a new
qualitative advance.
42.
This means to seek to secure, not only the direct representation of the
victims or their relatives (locus standi) in the procedure before the Inter-American
Court in cases already forwarded to it by the Commission (in all stages of the
proceedings and not only in that of reparations 38), but rather the right of direct
access of individuals before the Court itself (jus standi), so as to bring a case
directly before it, as the sole future jurisdictional organ for the settlement of
concrete cases under the American Convention. To that end, individuals would do
without the Inter-American Commission, which would, nevertheless, retain
34.
To these elements one can add the greater agility and improvement of the
procedure, and the stimulus to the development of a homogeneous and clearly consistent
case-law. Cf. Council of Europe, Protocol n. 11 to the Convention for the Protection of Human
Rights and Fundamental Freedoms and Explanatory Report, Strasbourg, C.E., 1994, pp. 352, esp pp. 25-28, 30, 35 and 43; and, for a particularly detailed study of Protocol n. 11, cf.
A. Drzemczewski, "A Major Overhaul of the European Human Rights Convention Control
Mechanism: Protocol n. 11", 6 Collected Courses of the Academy of European Law (1997)-II,
pp. 121-244.
35.
Which served as model to that of the American Convention.
36.
Cf., in this sense, Rolv Ryssdall, "The Coming of Age of the European
Convention on Human Rights", 1 European Human Rights Law Review (1996) pp. 18-29.
37.
Articles 44 and 62, respectively, of the American Convention on Human Rights.
38.
As occurs under the current Regulations of the Court, Article 23.