- 2effectiveness of the operation of this mechanism, but also fatally impede its possibilities
for future development. Also, as I added in this dissenting opinion, from the Court’s
experience, it is clear that:
"The primacy of considerations of ordre public over the will of individual States; [both the
European and the Inter-American Court …] have set very high standards of State conduct
and a certain degree of control over the imposing of undue restrictions by States; and it is
encouraging to see that they have strengthened the position of the individual as a subject of
international human rights law, with full procedural capacity." (para. 47)
7.
Some years ago, before this case of the Serrano Cruz sisters, in Blake v.
Guatemala, a preliminary objection of lack of jurisdiction ratione temporis filed by the
respondent State and partially accepted by this Court led to an undue fragmentation of
the continued crime of forced disappearance of persons, and I adopted a position
against this in the separate opinions that I presented at all stages of the processing of
the case (1996 to 1999) before the Court. When it ruled on the case, the forced
disappearance of the victim had ended with the identification of his whereabouts (i.e.
his remains).
8.
The situation in The Serrano Cruz Sisters v. El Salvador is of even greater
concern. The first preliminary objection filed by the respondent State and wholly
admitted by the Court in its judgment of November 23, 2004 (first and second
operative paragraphs) results not in fragmentation, but in the Court’s total failure to
consider the continued crime of forced disappearance of persons, and all the results of
that disappearance, which persist up until the present. In addition, the limitation,
allegedly ratione temporis, filed by the respondent State (in the said preliminary
objection) as regards facts or acts that “began to be executed” before the date on
which the State accepted the Court’s jurisdiction and which continue after that date
until the present, does not fall within any of the conditions for accepting the Court’s
jurisdiction (under Article 62 of the American Convention), nor is it merely of a ratione
temporis nature.
9.
As I recalled in my dissenting opinion in the judgment on preliminary objections
in this case, the respondent State itself made it plain, by its arguments, that its
purpose was very clearly to exclude consideration of each and every human rights
violation that had originated in the internal armed conflict which plagued the country
and its people for more than a decade (1980-1991) from the jurisdiction of the InterAmerican Court. In my opinion, the terms of the acceptance of the Court’s jurisdiction
by the State of El Salvador exceeded the conditions stipulated in Article 62 of the
American Convention, by unduly excluding from its possible consideration facts and
acts subsequent to this acceptance, that “began to be executed” prior to it.
10.
The respondent State’s objection was thus of a ratione temporis and ratione
materiae nature, forming an imbroglio of indeterminate time and broad, general and
undefined scope; this objection was accepted by the Court for reasons that I fail to
understand, when the Court should have declared them inadmissible and invalid. As I
stated in my above-mentioned dissenting opinion:
"By proceeding in this way, accepting the terms of this preliminary objection, the majority
of the members of the Court accepted State voluntarism, leaving unprotected those who
consider themselves the victims of the continuing human rights violations of a particular
gravity that occurred during the Salvadoran armed conflict, as a result of the documented
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