PARTIALLY DISSENTING OPINION
OF JUDGE JACKMAN
I am unable to join the majority of the Court in its decision to admit the
second preliminary objection raised by the State in this case.
By the motion in question, the State has called upon the Court to hold that
the Inter-American Commission on Human Rights “lacks competence to apply
(aplicar) international humanitarian law and other international treaties…”. The
Court has so held.
It is my respectful submission that the motion ought to have been dismissed
as being impertinent and irrelevant, and as not possessing the juridical character of
a preliminary objection.
Although Article 36 of the Court’s Rules of Procedure does not define the term
“preliminary objections”, the scope and purpose of such pleas or motions are
abundantly clear from international law and practice.
The Dictionnaire de la
terminologie du droit international proposes the following definition:
“Method employed in the preliminary phase of a proceeding with the aim of obtaining a
decision from the tribunal on a preliminary question before entering into an analysis of
the merits of the case, the purpose of the motion most often being to prevent the
question from being dealt with in the context of the merits themselves.” 1
The learned writer Shabtai Rosenne (The Law and Practice of the
International Court, 1985 at p. 457) argues that
“…it is not sufficient for a party to entitle a document ‘preliminary objection’… In addition
to matters of form, the plea has to show the essential juridical characteristics which
gave it its preliminary character in the concrete case, which demonstrate that, in the
concrete case, it is a challenge to the jurisdiction of the Court. As the anticipated
effect of a judgment on a preliminary objection is to determine whether the proceedings
on the merits will or will not be resumed, if the plea does not have that anticipated
effect, it will not be a genuine preliminary objection…[T]he plea has to relate to
the jurisdiction of the Court on the merits of the case as presented in the
application…” (Emphases added)
The present objection purports to challenge, not the jurisdiction of the Court,
which is the tribunal seised of the case, but, rather, the jurisdiction of the
Commission, which, from the moment it presents a case before the Court, is
automatically disseised, having no juridical role in the matter other than that
assigned to it in Article 57 of the American Convention on Human Rights,: “The
Commission shall appear in all cases before the Court.”
Thus, the question whether or not the Commission is competent to apply
international humanitarian law is, at best, moot, and at worst impertinent and
irrelevant, since an answer in the affirmative would in no way affect the jurisdiction
of the Court to hear the case. While I entirely support the view that neither the
Court nor the Commission is authorised by the Convention to apply international
humanitarian law in matters brought before them, I find it impossible to hold that
1
Translated by the Secretariat of the Court.