35
3.
Secretary General of the Organization, who shall transmit copies thereof to the
other member states of the Organization and to the Secretary of the Court.
The jurisdiction of the Court shall comprise all cases concerning the
interpretation and application of the provisions of this Convention that are
submitted to it, provided that the States Parties to the case recognize or have
recognized such jurisdiction, whether by special declaration pursuant to the
preceding paragraphs, or by an special agreement.
67.
Based on such declaration, the State maintains that the only acts or events in
the instant case that the Court has jurisdiction to hear are those that occurred after
December 16, 1998, and only in the event that it were alleged that said acts could
be per se constituted as violations of the Convention.
68.
It is advisable, prior analysing the preliminary objection, that the Court
reiterate some international law rules on this subject, such as it did in delivering a
judgment on preliminary objections in the Case of Cantos in 2001. In said judgment
the Court pointed out that:
34.
In this respect, it is evident from the text of the Convention that a State may
be a party to it and accept or reject the obligatory jurisdiction of the Court. Article 62 of
the Convention uses the verb “may” to signify that acceptance of the jurisdiction is
optional. It should also be emphasized that the Convention establishes obligations for
States. These obligations are the same for all the States parties, in other words, they
bind in the same way and with the same strength both the State party that has accepted
the obligatory jurisdiction of the Court and the State party that has not done so. Also, it
is necessary to distinguish between “reservations to the Convention” and “acceptance of
the jurisdiction of the Court”. The latter is a unilateral act of each State, governed by the
terms of the American Convention as a whole and, therefore, not subject to
reservations. Although some doctrine refers to “reservations” to the acceptance of the
jurisdiction of an international court, in reality, this refers to limitations in the
acceptance of the jurisdiction and not, technically, to reservations to a multilateral
treaty.
35.
When codifying general law on this issue, Article 28 of the Vienna Convention
on the Law of Treaties establishes that:
Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act or fact which took place
or any situation which ceased to exist before the date of the entry into force of
the treaty with respect to that party. 9 .
69.
Furthermore, as a jurisdictional body, the Court has the power to determine
the scope of its own jurisdiction as something inherent to its attributions
and
that
the
(compétence
de
la
compétence/Kompetenz-Kompetenz) 10
acknowledgement instruments of the optional clause of the mandatory jurisdiction
assumes the admisibility, by the States that represent it, of the Court’s authority to
solve any controversy relative to its jurisdiction. 11
70.
In the case of Mexico it must be pointed out that it recognised the Court’s
contentious jurisdiction in the understanding that, as established in Article 62 of the
American Convention, it would “be applicable only to events or legal actions having
9
Cfr. Case of Cantos. Preliminary Objections. Judgment of September 07, 2001. Series C No. 85,
para. 34 and 35.
10
Cfr. Case of Baena Ricardo et al. Judgment of November 28, 2003. Series C No. 104 para. 68;
Case of the Constitucional Court - Competence. Judgment of September 24, 1999. Series C No. 55 para
31; and Case of Ivcher Bronstein. Competence. Judgment September 24, 1999. Series C No. 54, para. 32.
11
Cfr. Case of Baena Ricardo et al., supra note 10, para. 33; and Case of Ivcher Bronstein.
Competence, supra note 10, para. 34.