21
compulsory jurisdiction to the detriment of this Tribunal’s compulsory functions. In
addition, it would give the State the discretional power to decide which matters the
Court could hear, thus depriving the exercise of the Court’s compulsory jurisdiction
of all efficacy.
84)
Moreover, accepting the said declaration in the manner proposed by the State
would lead to a situation in which the Court would have the State’s Constitution as
its first point of reference, and the American Convention only as a subsidiary
parameter, a situation which would cause a fragmentation of the international legal
order for the protection of human rights, and which would render illusory the object
and purpose of the Convention.
85)
The American Convention and the other human rights treaties are inspired by
a set of higher common values (centered around the protection of the human being),
are endowed with specific supervisory mechanisms, are applied as a collective
guarantee, embody essentially objective obligations, and have a special character
that sets them apart from other treaties. The latter govern mutual interests between
and among the States parties and are applied by them, with all the juridical
consequences that follow there from for the international and domestic systems10.
86)
In this respect, in its Advisory Opinion on The Effect of Reservations on the
Entry into Force of the American Convention on Human Rights (OC-2/82), the Court
found that
[m]odern human rights treaties in general, and the American Convention in particular,
are not multilateral treaties of the traditional type concluded to accomplish the reciprocal
exchange of rights for the mutual benefit of the contracting States. Their object and
purpose is the protection of the basic rights of individual human beings irrespective of
their nationality, both against the State of their nationality and all other contracting
States. In concluding these human rights treaties, the States can be deemed to submit
themselves to a legal order within which they, for the common good, assume various
obligations, not in relation to other States, but towards all individuals within their
jurisdiction11.
87)
That finding is consistent with the case law of other international jurisdictional
bodies12.
88)
As this Court has stated in the cases of Constitutional Court and Ivcher
Bronstein
[n]o 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,
10
Cf. Constitutional Court Case. Competence. Supra note 7, para. 41 and Ivcher Bronstein Case.
Competence. Supra note 7, para. 42.
11
The Effect of Reservations on the Entry into Force of the American Convention on Human Rights,
Advisory Opinion OC-2/82. Supra note 6, para. 29.
12
Cf. See International Court of Justice, Advisory Opinion, Reservations to the Convention on the
Prevention and Punishment for the Crime of Genocide (1951); European Commission of Human Rights,
Decision as to the Admissibility of Application No. 788/60, Austria vs. Italy case, Yearbook of the European
Convention on Human Rights, The Hague, M. Nijhoff, 1961; Eur. Court HR, Ireland vs. United Kingdom
case, Judgment of 18 January 1978, Series A No. 25; Eur. Court H.R., Soering Case, decision of 26
January 1989, Series A No. 161; Eur. Court of H.R., Case of Loizidou vs. Turkey (Preliminary Objections),
judgment of 23 March 1995, Series A No. 310.