- 14exempt the State from its responsibility for violations of the rights embodied in the
Convention from the time it becomes a party to it. Even though the Court is unable to
rule on a case before its contentious jurisdiction has been accepted (a question of
jurisdiction), the treaty-based obligations of the State Party, assumed from the
moment it accedes to the Convention or ratifies it, subsist (a question of international
responsibility).
47.
Hence, the moment from which El Salvador undertook to protect all the rights
embodied in the American Convention, starting with the fundamental rights to a decent
life and to humane treatment (Articles 4 and 5), was the moment of its ratification of
the Convention on June 23, 1978 – that is, prior to all the events that occurred during
the Salvadoran armed conflict (1980-1991). The time following its acceptance of the
Court’s contentious jurisdiction, on June 6, 1995, would only determine the possibility
of having recourse to the Court to decide a specific case under the Convention, in the
terms of Article 62 thereof.
48.
But, it would never determine this based on a State-imposed restriction that is
not established in Article 62 of the Convention, and even less if the intention was to
encompass – as it did – facts and acts that “began to be executed” prior to the date of
the State’s acceptance of the Court’s contentious jurisdiction and that continue
following this date and until the present. This possibility simply does not exist under the
American Convention, or under treaty law, applied from the perspective of an
international human rights tribunal such as the Inter-American Court.
49.
The issue of invoking the State party's responsibility for complying with its
treaty-based obligations should not be confused with the issue of the State's
submission (moreover, in terms that I consider unacceptable) to the Court's
jurisdiction. The two become possible at different moments: the former, which is of a
substantive or material nature, as of the ratification of the Convention by the State (or
as of its accession thereto), and the latter, which is of a jurisdictional nature, as of its
acceptance of the Court’s contentious jurisdiction. Each and every State Party to the
Convention, even if it has not accepted the compulsory jurisdiction of the Court - or has
accepted it with limitations ratione temporis - remains bound by the provisions of the
Convention from the time of its ratification or of accession thereto.
50.
Even though most members of the Court have not wished to rule on all the
rights violated in this case of the Serrano Cruz Sisters, owing to the “hybrid limitation”
ratione temporis and ratione materiae of the Court’s jurisdiction, nothing prevented
them from stating that the respondent State in the instant case, as well as all the
States Parties to the American Convention on Human Rights, are bound by all the
protected rights from the date on which they ratify or accede to the Convention.
51.
Despite the Court’s silence on the rights to life, to a name, and to the protection
of the family, and the rights of the child, the observations made by the Inter-American
Commission on Human Rights on all these rights in its report No. 37/03 of March 4,
2003, in this case are still valid.40 Since, together with the Court, the Commission has
competence “with respect to matters relating to the fulfillment of the commitments
made by the States Parties” (Article 33 of the American Convention), the latter
undertake to heed the measures adopted in its reports. Consequently, El Salvador, as a
40
ICHR, Report 37/03 - Case 12,132 (El Salvador), doc. OEA/Ser.L/V/II.117-Doc.43, of March 4, 2003,
p. 33, and cf. pp. 19-34.
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