13
46.
No analogy can be drawn between the State practice detailed under Article
36.2 of the Statute of the International Court of Justice and acceptance of the
optional clause concerning recognition of the binding jurisdiction of this Court, given
the particular nature and the object and purpose of the American Convention. The
European Court of Human Rights ruled similarly in its judgment on preliminary
objections in the Loizidou vs. Turkey case (1995), in connection with optional
recognition of the European Court’s binding jurisdiction (Article 46 of the European
Convention, before Protocol XI to the European Convention entered into force on
January 1, 1998).5 The European Court held that the European Convention was a
law-making treaty.6
47.
In effect, international settlement of human rights cases (entrusted to
tribunals like the Inter-American and European Courts of Human Rights) cannot be
compared to the peaceful settlement of international disputes involving purely
interstate litigation (entrusted to a tribunal like the International Court of Justice);
since, as is widely accepted, the contexts are fundamentally different, States cannot
expect to have the same amount of discretion in the former as they have
traditionally had in the latter.
48.
A unilateral juridical act carried out in the context of purely interstate
relations (e.g. recognition, promise, protest, renunciation) and independently selfconsummated, can hardly be compared with a unilateral juridical act carried out
within the framework of treaty law, such as acceptance of an optional clause
recognizing the binding jurisdiction of an international court. That acceptance is
determined and shaped by the treaty itself and, in particular, through fulfillment of
its object and purpose.
49.
A State that recognized the binding jurisdiction of the Inter-American Court
under Article 62(1) of the Convention, is thenceforth bound by the Convention as a
whole (cf. supra 39 and 45). The goal of preserving the integrity of the treaty
obligations is from Article 44(1) of the Vienna Convention, which is based on the
principle that the denunciation (or “withdrawal” of recognition of a treaty’s
mechanism) can only be vis-à-vis the treaty as a whole, unless the treaty provides
or the Parties thereto agree otherwise.
50.
The American Convention is very clear that denunciation is of “this
Convention” (Article 78) as a whole, and not denunciation of or “release” from parts
or clauses thereof, since that would undermine the integrity of the whole. Applying
the criteria of the Vienna Convention (Article 56(1)), it does not appear to have been
the Parties’ intention to allow this type of denunciation or release; nor can
denunciation or release be inferred from the character of the American Convention
as a human rights treaty.
51.
Even supposing, for the sake of argument, that “release” was possible –a
hypothetical that this Court rejects-, it could not take effect immediately. Article
56(2) of the Vienna Convention stipulates that a State Party must give “not less than
12 months’ notice” of its intention to denounce or withdraw from a treaty. This is to
protect the interests of the other Parties to the treaty. The international obligation in
5.
European Court of Human Rights, Case of Loizidou vs. Turkey (Preliminary Objections), judgment
of 23 March 1995, Series A no. 310 p. 25, paragraphs 82 and 68.
6.
Ibid., p. 25, paragraph 84.