Inter-American Court of Human Rights



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I. Subjectivity [titularité] of rights in extremely adverse situations
2. The Case of the “Street Children”, which this Court concluded three years ago, pointed up how important it is that individuals be allowed direct access to international courts. This enables them to assert their rights against abuses of power and endows domestic public law and international law with an ethical content, a fact made clear to this Court in the course of the contentious proceedings in the Case of the “Street Children”, where the mothers of the murdered children, who were as poor and forsaken as their children had been in life, were able to turn to an international court, appear at the proceedings3 and, thanks to this Court’s judgments on the merits and reparations4 which supported their claims, were at least able to recoup their faith in human justice.
3. Now, three years later, this Case of the “Juvenile Reeducation Institute” once again demonstrates that even in the most adverse circumstances, the human being emerges as the subject of the International Law of Human Rights, endowed with full procedural standing in an international court. The individual’s right of recourse to international justice is realized in the jurisprudence of the Inter-American Court. An important step in that regard was taken last year in the Court’s Judgment in the Five Pensioners vs. Peru (February 28, 2003), which made clear the broad scope of the right of recourse to the courts (at both the domestic and international levels5): that right is not reduced to formal access, stricto sensu, to the judicial instance; the right of effective recourse to a competent court or tribunal means, lato sensu, the right to obtain justice, i.e., an autonomous right to the very realization of justice.

4. That was the first contentious case processed entirely under the Court’s new Rules of Procedure (adopted on November 24, 2000, and in force since June 1, 2001), which granted the petitioners locus standi in judicio during all stages of the proceedings before the Court. Now, a year and a half later, the Court’s Judgment in the Case of the “Juvenile Reeducation Institute” underscores the significance of the historic amendments that the Court introduced and that are now part of its current Rules of Procedure (paragraphs 106, 119-120, and 125) to protect the individual’s subjectivity [titularité] of protected rights by giving him locus standi in judicio in all phases of contentious proceedings before the Court. The “Street Children” and “Juvenile Reeducation Institute” cases are eloquent testimony of titularité, even in the most adverse circumstances.


5. As I underscored in my Concurring Opinion in the Case of the “Five Pensioners”, the Court correctly held that "the consideration which ought to prevail is that of the individuals being subjects of all the rights protected by the Convention, as the true substantive complaining party, and as subjects of the International Law of Human Rights." (paragraph 16). This was a "significant step forward taken by the Court, since the adoption of its present Regulations" (para. 17) inasmuch as the "assertion of the international juridical personality and capacity of the human being fulfills a true need of the contemporary international legal order" (para. 23). I added the following:
In fact, the assertion of that juridical personality and capacity constitutes the truly revolutionary legacy of the evolution of the international legal doctrine in the second half of the XXth century. The time has come to overcome the classic limitations of the legitimatio ad causam in International Law, which have so much hindered its progressive development towards the construction of a new jus gentium. An important role is here being exercised by the impact of the proclamation of human rights in the international legal order, in the sense of humanizing [it]: those rights were proclaimed as inherent to every human being, irrespective of […] circumstances.6 The individual is a subject jure suo of International Law, and to the recognition of the rights which are inherent to him corresponds ineluctably the procedural capacity to vindicate them, at national as well as international levels. (paragraph 24).
6. More recently, in the case of the Gómez Paquiyauri Brothers vs. Peru (Judgment of July 8, 2004), I followed the same line of reasoning and stressed the point that the individuals’ titularité of all Convention-protected rights must trump all other considerations, as individuals are the subjects of the International Law of Human Rights” (para. 27). That development is a “direct consequence” of the step forward that the Court took upon adoption of its current Rules of Procedure, the fourth in its history. The amended Rules of Procedure grant individual petitioners locus standi in judicio for all phases of the proceedings before the Court (para. 27). Furthermore, as I have maintained in recent years, "we are in the midst of an historical process of consolidating the individual’s emancipation vis-à-vis his own State" (para. 28).
7. Six years ago, in my Concurring Opinion on the Court’s Judgment in Castillo Petruzzi et al. vs. Peru (Preliminary Objections, 1998), I described the “qualitative advance” that was needed under the American Convention:
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 (...), but [also] the right of direct access of individuals to 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 (...)
(...) Above all, this qualitative advance would fulfill, in my understanding, an imperative of justice. Individuals’ unrestricted jus standi -no longer merely locus standi in judicio- before the Inter-American Court itself, represents, -as I have indicated in my Opinions in other cases before the Court-7 the logical consequence of the conception and formulation of rights to be protected under the American Convention at [the] international level, to which it ought to correspond necessarily the full juridical capacity of the individual petitioners to vindicate them. (paragraphs 42-43).
8. The Court’s Judgment in the Case of the “Juvenile Reeducation Institute” underscores the fact that each individual is the subject (titulaire) of human rights (para. 106); in other words, in the cas d'espèce, each child victimized by the suffering at the “Juvenile Reeducation Institute” is the subject (titulaire) of human rights; not to admit that fact would “unduly restrict their status as subjects of the International Law of Human Rights" (para. 125). Again, I repeat, despite the adversities that the inmates at the "Panchito López" “Juvenile Reeducation Institute” were forced to endure -adversities as extreme as three fires (that killed, burned or otherwise injured inmates at the Center)8- and despite the fact that their existential condition as children (minors) limited their juridical capacity-, their subjectivity of rights emanating directly from international law has been preserved intact and their case has reached an international human rights court.
9. In its Advisory Opinion OC-17/2002 (August 28, 2002) on the Juridical Condition and Human Rights of the Child, the Court addressed the duties that family and State alike have vis-à-vis children in light of children’s rights under the American Convention on Human Rights and the United Nations Convention on the Rights of the Child. But the Court also made plain the fact that a child is the subject (titulaire) of rights, and not simply an object of protection. The Court further held that the Law accords juridical personality to every human being (child and adolescent included), irrespective of his existential condition or of his juridical capacity to exercise his rights for himself (capacity of exercise).
10. As I noted in my Concurring Opinion on Advisory Opinion No. 17:
It is true that juridical personality and capacity are closely related. At the conceptual level, however, they are distinct from each other. It may occur that an individual may have juridical personality without enjoying, as a result of his existential condition, full capacity to act. Thus, in the present context, one understands by personality the aptitude to be titulaire of rights and duties, and by capacity the aptitude to exercise them by oneself (capacity of exercise). Capacity is thus closely linked to personality; nevertheless, if by any situation or circumstance an individual does not enjoy full juridical capacity, this does not mean that he ceases to be a subject of right[s]. Such is the case with the children (para. 8).

11. In its recent jurisprudence, both in the form of advisory opinions and judgments on contentious cases, the Inter-American Court has held that a child’s substantive and procedural rights are to be preserved in any and all circumstances. Underlying this notable development is the Kantian concept of the human person –children included, of course- as an end unto himself; this means all human beings, regardless of their juridical capacity (to exercise). That development is informed by the fundamental principle of respect for the dignity of the human person, irrespective of his existential condition. By virtue of that principle, every human being, no matter what his situation or circumstance, has a right to dignity. This fundamental principle is echoed in a number of international treaties and human rights instruments.9 Indeed, in our time, the recognition and consolidation of the human being’s position as a full subject of the International Law of Human Rights is an unequivocal and eloquent expression of today’s humanization of International Law itself (the new jus gentium of our times)10.



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