3
14)
I was one of the judges who delivered this judgment and I agree with the
contents of the above paragraph, but the Blake case is very different from the
instant case, because, as mentioned, continuity does not mean that the pertinent
facts did not have a commencement. This had no significance in the Blake case,
because Guatemala’s declaration of recognition did not exclude facts that
commenced before the declaration (as did that of El Salvador), but only preceding
facts.
15)
In accordance with Guatemala’s declaration, the Court decided to rule that
the preliminary objection owing to lack of jurisdiction with regard to the detention
and death of Mr. Blake was admissible, and to continue hearing the case in relation
to effects and acts subsequent to the declaration. Conversely, as El Salvador’s
declaration excludes facts that commenced prior to the declaration, the objection of
lack of jurisdiction is applicable to all the facts invoked by the petitioners and, as I
mentioned above, the case should be dismissed and declared closed.
16)
In the judgment on merits in the Blake case, delivered on January 24, 1998,
in which I also took part, partially dissenting, the Court declared that Guatemala had
violated the judicial guarantees set forth in Article 8(1) of the Convention and also
the right to humane treatment of the relatives of the victim.
17)
The fundamental difference between the Blake case and the instant case is
evident. In the former, the violations of the rights of the next of kin were examined
because it was considered that those violations occurred subsequent to the date of
the declaration while, in the instant case, since the commencement of the facts was
prior to the declaration – as they were an undoubted consequence of the
disappearance – they are not subject to the Court’s jurisdiction. Furthermore, in the
Blake case, the violations of the rights of the victim were rejected and, in this case,
the Commission invokes them, even though it is even clearer that they are the
immediate result of the disappearance.
18)
It has also been alleged that the limitation contained in El Salvador’s
declaration is contrary to the object and purpose of the American Convention on
Human Rights. This is not true, because not every alleged violation of that object and
purpose falls within the Court’s jurisdiction. Nevertheless, according to Article 62 of
the Convention, it must be included in the defendant State’s declaration of
recognition or in a special declaration, thereby following a similar procedure to the
International Court of Justice. Paragraph 2 of this article establishes that the
declaration may be made unconditionally, for a specified period, or for specific cases.
In the instant case, El Salvador’s declaration refers to both a specified period and
specific cases.
It is true that the expression ‘specific cases’ is not the most fortunate one, because it
could be interpreted as referring to individually identified cases; however, the
practice of all the countries who have accepted the Court’s jurisdiction and the
relevant case law of the Court has been that this refers to cases included within
previously indicated categories and this is what El Salvador’s declaration does. To
adopt another interpretation would invalidate all the limitations contained in the
declarations that are in force, since none of them refer to individually identified
cases.
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