7
17.
In the domain of the international protection of human rights, there are no
"implicit" limitations to the exercise of the protected rights; and the limitations set forth
in the treaties of protection ought to be restrictively interpreted. The optional clause of
the compulsory jurisdiction of the international tribunals of human rights makes no
exception to that: it does not admit limitations other than those expressly contained in
the human rights treaties at issue, and, given its capital importance, it could not be at
the mercy of limitations not foreseen therein and invoked by the States Parties for
reasons or vicissitudes of domestic order 25.
18.
In their classic studies on the basis of the international jurisdiction, two
distinguished scholars, C.W. Jenks and C.H.M. Waldock, warned, already in the decades
of the fifties and the sixties, as to the grave problem presented by the insertion, by the
States, of all kinds of limitations and restrictions in their instruments of acceptance of
the optional clause of compulsory jurisdiction (of the ICJ) 26. Although those limitations
had never been foreseen in the formulation of the optional clause, the States, in the
face of such legal vacuum, have felt, nevertheless, "free" to insert them. Such excesses
have undermined, in a contradictory way, the basis itself of the system of international
compulsory jurisdiction. As well pointed out in a classic study on the matter, the
instruments of acceptance of the contentious jurisdiction of an international tribunal
should be undertaken "on terms which ensure a reasonable measure of stability in the
acceptance of the jurisdiction of the Court" 27, - that is, in the terms expressly provided
for in the international treaty itself (cf. infra).
19.
The clause pertaining to the compulsory jurisdiction of the international tribunals
of human rights constitutes, in my view, a fundamental clause (cláusula pétrea) of the
international protection of the human being, which does not admit any restrictions
other than those foreseen in the human rights treaties. This has been so established by
the Inter-American Court in its Judgments on Competence in the cases of the
Constitutional Tribunal and Ivcher Bronstein:
the way to an eventual desertion from it (cf. ibid., pp. 496-515, 516-552, 553-569, 570-581 and 582-738,
respectively). - On more than one occasion the undue emphasis on the consent of States led the ICJ to
incongruous decisions, as its Judgment of 1995 in the case of East Timor; cf. criticisms in, e.g., J. Dugard,
"1966 and All That: the South West African Judgment Revisited in the East Timor Case", 8 African Journal of
International and Comparative Law (1996) pp. 549-563; A.A. Cançado Trindade, "O Caso do Timor-Leste
(1999): O Direito de Autodeterminação do Povo Timorense", 1 Revista de Derecho de la Universidad Católica
del Uruguay (2000) pp. 68-75. As well pointed out by Shabtai Rosenne, the international judicial procedure of
the Hague Court unfortunately continues to follow nowadays the model of bilateralism in international
litigation, proper of the XIXth century; S. Rosenne, "Decolonisation in the International Court of Justice", 8
African Journal of International and Comparative Law (1996) p. 576.
25
.
Cf. Inter-American Court of Human Rights, case of Castillo Petruzzi and Others versus Peru
(Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A. Cançado
Trindade, pars. 36 and 38.
26
.
Examples of such excesses have been the objetions of domestic jurisdiction (domestic
jurisdiction/compétence nationale exclusive) to the States (criticized in my essay "The Domestic Jurisdiction of
States in the Practice of the United Nations and Regional Organisations", 25 International and Comparative
Law Quarterly (1976) pp. 744-751), the foreseeing of withdrawal at any moment of the acceptance of the
optional clause, the foreseeing of subsequent modification of the terms of acceptance of the clause, and the
foreseeing of insertion of new reservations in the future; cf. C.W. Jenks, The Prospects of International
Adjudication, London, Stevens, 1964, p. 108, and cf. pp. 113, 118 and 760-761; C.H.M. Waldock, "Decline of
the Optional Clause", op. cit. supra n. (19), p. 270.
27
.
C.W. Jenks, op. cit. supra n. (26), pp. 760-761.