9
42.
The grounds for the first preliminary objection raised by the State lies in the
“declaration” it made upon recognizing the jurisdiction of the Court on August 21,
1990, which states that:
[…]
The State of Chile declares that it recognizes as binding de jure the jurisdiction of the
Inter-American Court of Human Rights on all matters relating to the interpretation and
application of this Convention pursuant to the provisions of Article 62 thereof.
[...] the State of Chile expresses that its recognition of the jurisdiction of the Court
refers only to events which were subsequent to the date on which this Instrument of
Ratification was deposited or, in any case, to events which started after March 11, 1990.
Likewise, the State of Chile, in recognizing the jurisdiction of the Commission and of the
Inter-American Court of Human Rights, declares that pursuant to the provisions of the
second paragraph of Article 21 of the Convention these bodies may not rule on the
reasons of public utility or social interest that have been taken into consideration when
depriving a person of his property.
43.
In line with prior decisions taken by the Court, it is to be understood that the
“declaration” made by the Chilean State rather than a “reservation” is a time
limitation to the recognition of the jurisdiction of the Court. As a matter of fact, the
Court has stated that
[the] “acceptance of the jurisdiction” of the Court [...] is a unilateral act of each State[,]
governed by the terms of the Inter-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 to the acceptance of the jurisdiction and not technically to reservations to a
1
multilateral treaty.
44.
Furthermore, pursuant to prior decisions taken by the Court, this type of time
limitations to the recognition of the jurisdiction of the Court are based on the
provisions of Article 62 of the Convention, which grants the States Parties which
recognize the jurisdiction of the Court the power to limit such jurisdiction to a
specified period.2 Therefore, such limitation is contemplated in the Convention itself.
45.
In view of the foregoing principles and standards, it is, therefore, incumbent
upon the Court to decide whether it is competent to hear the facts regarding the
events which are the grounds for the alleged violations of the Convention in the
instant case. The Court further notes that, pursuant to the compétence de la
compétence principle, it is not to be left to the will of the States to decide which facts
are excluded from its jurisdiction. This decision is a duty which is to be fulfilled by
the Court in the exercise of its jurisdictional functions.3
46.
The Commission and the representative have pointed out that the Court is
competent to hear the facts regarding the events which, in its discretion, started
after the recognition of the jurisdiction of the Court (supra paras. 40(a) and 41(b)).
These facts are basically related to three issues, to wit: i) the transfer of the
proceedings to the military courts in detriment of the civil courts, ii) the enforcement
1
Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004.
Series C No. 118, para. 61; Case of Alfonso Martín del Campo-Dodd. Preliminary Objections. Judgment of
September 3, 2004. Series C No. 113, para. 68; and Case of Cantos. Preliminary Objections. Judgment of
September 7, 2001. Series C No. 85, para. 34.
2
Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections, supra note 1, para. 73.
3
Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections, supra note 1, para. 74.