22
70.
Furthermore, when determining its jurisdiction in a case when the defendant
State has established some limitation with regard to it, the Court must preserve a
fair balance between the protection of human rights, which is the ultimate purpose of
the system, and the legal certainty and procedural equity that will ensure the
stability and reliability of international protection.11
71.
Taking into account the above principles and parameters, the Court must
determine whether it can consider the facts on which the alleged violations of the
Convention are based; consequently, it will now examine its jurisdiction ratione
temporis in light of the provisions of Article 62 of the Convention and of the
limitation to the recognition of the Court’s jurisdiction invoked by El Salvador.
72.
Since the defendant State established a temporal limitation when it
recognized this jurisdiction, which was intended to exclude from the Court’s
jurisdiction facts or acts that occurred prior to the date on which the declaration
recognizing the Court’s jurisdiction was deposited and also facts and effects relating
to a continuing or permanent violation commencing before this recognition; and
since it alleged this as a preliminary objection, the Court will now consider whether
this limitation is compatible with the American Convention and take a decision on its
jurisdiction.
73.
In the instant case, the temporal limitation to recognition of the Court’s
jurisdiction established by El Salvador is based on the authority granted by Article 62
of the Convention to States Parties deciding to recognize the contentious jurisdiction
of the Court, to establish a temporal limitation to this jurisdiction. Therefore, this
limitation is valid, because it is compatible with the said provision.
74.
In every case, the Court must determine whether the facts submitted to its
consideration are excluded by the said limitation, because, pursuant to the principle
of compétence de la compétence (supra para. 63), the Court cannot leave it to the
States to determine what facts are excluded from its jurisdiction. This determination
is one of the Court’s obligation in the exercise of its jurisdictional functions.
75.
In other cases,12 the Court has declared that a specific limitation introduced
by the State when recognizing its contentious jurisdiction ran counter to the object
and purpose of the Convention. The Court observes that, contrary to this case, the
aforesaid limitation had “a general scope that had the effect of totally subordinating
the application of the Convention to domestic law […] and as decided by the
domestic courts.” In this case, the application of the limitation established by El
Salvador is not subordinated to the State’s interpretation of each case, but it is for
the Court to determine whether the facts submitted to its consideration are excluded
by the limitation.
Permanent Court of Arbitration, Dutch-Portuguese Boundaries on the Island of Timor, Arbitral Award of
June 25, 1914.
11
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections, supra note 3, para. 84; Baena
Ricardo et al. case. Preliminary objections. Judgment of November 18, 1999. Series C No. 61, para. 42;
and Caballero Delgado and Santana case. Preliminary objections. Judgment of January 21, 1994. Series C
No. 17, para. 44.
12
Cf. Constantine et al. case. Preliminary objections, supra note 9, para. 79; Benjamin et al. case.
Preliminary objections, supra note 9, para. 79; and Hilaire case. Preliminary objections, supra note 9,
para. 88.
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