7
out by the State in reference to the crimes committed during the period known in Mexico as
‘Dirty War’.18”
III
PRELIMINARY OBJECTIONS
14.
As stated, in its response brief to the application the State presented four
preliminary objections regarding the temporary and material jurisdiction of this Tribunal to
hear the present case. In this sense, the Court considers it necessary to reiterate that, as
any body with jurisdictional duties, it has the power inherent to its attributions to determine
the scope of its own jurisdiction (compétence de la compétence). In that sense, this Court
has considered that it cannot leave the determination of which facts are excluded from its
jurisdiction up to the States.19 Taking into account the aforementioned, the Court will
analyze the validity of the preliminary objections filed in the order in which they were
presented.
A.
Lack of jurisdiction ratione temporis to hear the merits of the case due to
the date of deposit of Mexico’s adherence instrument to the American Convention
15.
The State indicated that the Court “[l]acks jurisdiction ratione temporis to hear the
merits of the case […], since [… it] signed its adherence instrument to the American
Convention […] on March 2, 1981 and it deposited it at the General Secretariat of the OAS
on March 24, 1981.” In this sense, it argued that at the time when the facts occurred in this
case “there was no international obligation whatsoever over which [the] Court has
jurisdiction.” The State added that according to the American Convention, juridical
obligations could not be applied retroactively. The State did not object the permanent or
continuous nature of the forced disappearance of Mr. Rosendo Radilla-Pacheco, but
indicated that “[t]here was no instrument based on which international responsibility could
be attributed to it for those actions” on the date on which they occurred, that is, August 25,
1974. In this line, it argued that “[i]f the start of a State act does not have juridical
relevance, due to non-existence of an obligation at the time it is carried out, the
continuance of the same cannot have any either. Thus, even when facing a disappearance,
the Inter-American Court does not have jurisdiction to hear actions that are legally
irrelevant, regardless of the fact that they continue once the American Convention is
ratified.”
16.
The Commission indicated it was not requesting a retroactive application of the
Convention and agreed with the State in what refers to the fact that its obligations under
the Convention start as of the date of its ratification. On their part, the representatives
indicated that the State accepts it has full obligations enforceable as of March 24, 1981,
date of its adherence to the Convention.
18
Luis Arriaga Valenzuela, Director, and Jorge Santiago Aguirre Espinosa, and Stephanie Erin Brewer,
attorneys, signed the document. Said brief indicated that the Diego Lucero Foundation, the Guzmán Cruz Family,
the Born in the Storm, and the Committee of the Mothers of Disappeared Victims of Chihuahua adhered to the
same. However, these organizations did not confirm their participation before the Court.
19
Cf. Case of the Serrano Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of November 23,
2004. Series C No. 118, para. 74; Case of Almonacid Arellano et al. v. Chile. Preliminary Objections, Merits,
Reparations, and Costs. Judgment of September 26, 2006. Series C No. 154, para. 45, and Case of García Prieto et
al. v. El Salvador. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 20, 2007. Series
C No. 168, para. 41.