4
so, it must do so in the terms expressly stipulated in that clause. There are four
conditions for this recognition according to Article 62(2): a) unconditionally; b) on
the condition of reciprocity; c) for a specified period; and d) for specific cases. These
are the only terms and conditions of recognition of the contentious jurisdiction of the
Inter-American Court established and authorized by Article 62(2) of the Convention,
which does not authorize the States Parties to file any other conditions or restrictions
(numerus clausus).
13.
In the instant case of the Serrano Cruz Sisters v. El Salvador, the limitation
allegedly ratione temporis filed by the defendant State, and invoked in is first
preliminary objection with regard to facts or acts which commenced before the date
on which the State recognized the Court’s jurisdiction in contentious matters, and
which continued after that date and up until the present (the second operative
paragraph), does not, in my opinion, fall within the framework of any of the
abovementioned unvarying conditions for accepting the optional clause on
compulsory jurisdiction of the Inter-American Court included in Article 62 of the
American Convention.
14.
It is not a question of unconditional recognition; or recognition on the
condition of reciprocity. 6 Contrary to the opinion of the majority of the members of
the Court in this judgment, neither is it recognition for a specified time, 7 because the
object of the limitation filed by the State is a completely indeterminate period that
continues indefinitely in time. Nor is it an issue of specific cases, but rather of any
situation that falls within the framework of the broad and indefinite terms of the
State’s limitation.
15.
I am not trying to cast doubts on the clarity and good faith with which the
defendant State set out its arguments throughout this contentious proceeding. The
purpose of the limitation is extremely clear, as the State indicates with procedural
openness and fairness: to exclude consideration of any human rights violation that
occurred during the internal armed conflict that afflicted the country for more than a
decade from 1980 to 1991 from the Inter-American Court’s jurisdiction. I consider
that the recognition of the Court’s jurisdiction by the State of El Salvador clearly
exceeded the limitations established in Article 62 of the American Convention, by
unduly excluding from the Court’s possible consideration facts and acts subsequent
to this recognition, which had commenced before it.
16.
For reasons I fail to understand, most members of the Court admitted the
part of the first preliminary objected filed by the State in this regard (a nebulous and
hybrid type of objection that is both ratione temporis and ratione materiae), for an
indefinite time and with a broad, general and indefinite scope when, in my opinion,
they should have declared it inadmissible and invalid. 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
6
.
This is mentioned in another part of the instrument by which the State recognizes the Court’s
jurisdiction on contentious matters.
7
.
In another part of its instrument recognizing the Court’s jurisdiction on contentious matters, the
State even refers to “indefinite period.” However, the limitation it imposes is described as for an unspecified
time, which seems to me to be a contradictio in terminis.