11
analyzed as part of a whole whose meaning and scope shall be determined in function of the
legal system to which they belong.28
31.
Thus, the correct interpretation of the terms “execute or commit” of Mexico’s
declaration to the CIDFP, cannot be any other that one consistent with the characterization
the treaty itself makes of forced disappearance29 and with the useful effect of its provisions,
in a manner such that its application includes the acts of forced disappearance of persons
that continue or remain beyond the date in which in went into force for Mexico,30 that is,
April 9, 2002, as long as the fate or whereabouts of the victim are not determined.31
41.
In the case currently before us, it is argued that the forced disappearance of Mr.
Radilla-Pacheco is still being committed. Therefore, the eventual application of the CIDFP to
the present case is within the temporary jurisdiction of this Court.
*
* *
33.
On the other hand, Mexico argued the lack of jurisdiction of the Tribunal to hear of
the alleged nullity of the reservation made to Article IX of the CIDFP. In this sense, the
Court observes that the State’s argument corresponds to a preliminary objection, whose
object is to prevent the Court from hearing of the alleged “nullity” of the mentioned
reservation regarding “military criminal jurisdiction in cases of Forced Disappearance of
Persons,” and therefore of the application of said Article in the present case.
34.
It has been a criterion held by this Tribunal that the American Convention grants it
full jurisdiction over all matters regarding a case submitted to its knowledge, even over the
28
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law. Advisory Opinion OC-16/99 of October 1, 1999. Series A No. 16, para. 113; Case of Bueno Alves v.
Argentina. Merits, Reparations, and Costs. Judgment of May 11, 2007. Series C No. 164, para. 78, and Article 55 of
the American Convention on Human Rights. Advisory Opinion OC-20/09, supra note 27, para. 26. In the same
sense, the International Court of Justice has stated that “[i]t cannot base its arguments on a strictly grammatical
interpretation of the text. [The Court] shall seek an interpretation that is in harmony with the natural and
reasonable way in which the text is read.” (translation of the Secretariat) Cf. I.C.J., Case of the Anglo-Iranian Oil
Company Case. (United Kingdom v. Iran), Preliminary Objection. Judgment of 22 July 1952, page 104.
29
In this sense, the Court reiterates, pursuant with the relevant part of Article III of the CIDFP, that the
crime of forced disappearance of persons “shall be deemed continuous or permanent as long as the fate or
whereabouts of the victim have not been determined.”
30
Cf. Case of Velásquez Rodríguez v. Honduras, supra note 24, para. 155; Case of Heliodoro Portugal v.
Panama, supra note 24, para. 106, and Case of Tiu Tojín v. Guatemala, supra note 24, para. 52.
31
Cf. Article III of the CIDFP. In this sense, the criterion adopted by the Supreme Court of Justice of Mexico
upon analyzing the going into force of the Inter-American Convention becomes relevant. The Supreme Court of
Mexico established that “[the stipulations included in the CIDFP] could not be applied to those behaviors that
constitute a disappearance whose commission ceased before the new rule became compelling, but it shall not be
interpreted in the sense that it not be applied to the typical behaviors of that crime that having been started prior
to its validity, continue to be committed during it, since given that the crime of forced disappearance of persons
has the nature of permanent or continuous the behaviors of the crime can continue to occur during the validity of
the Convention.” Cf. Supreme Court of Justice of the Nation of Mexico, Thesis: P./J 49/2004. “Forced
Disappearance of Persons referred to in the Inter-American Convention of Belém, Brazil, of June ninth nineteen
ninety four. The interpretative statement made by the Mexican government does not violate the principle of nonretroactivity of the law enshrined in Article 14 of the Constitution.” Ninth Period, Instance: Full Source: Judicial
Weekly Publication of the Federation and its Gazette. XX, July 2004 Page: 967. Jurisprudence Subject(s):
Constitutional.