9
or permanent acts that persist after that date, may generate international obligations for
the State Party, without this implying a violation to the principle of non-retroactivity of
treaties.
23.
The forced disappearance of persons, whose continuous or permanent nature has
been acknowledged repeatedly by International Human Rights Law, falls within this category
of acts,24 in which the act of disappearance and its execution start with the deprivation of
freedom of the person and the subsequent lack of information on their fate, and it continues
until the whereabouts of the disappeared person are known and the facts are elucidated.
24.
Based on the aforementioned, the Court considers that the American Convention
produces binding effects regarding a State once it is bound to the same. In the case of
Mexico, at the time of its adherence to the same, that is, March 24, 1981 and not before
that. Thus, pursuant with the principles of pacta sunt servanda, it is only as of that date,
that the obligations of the treaty are in force for Mexico, and by virtue of that, it is
applicable to those facts that constitute violations of a continuous or permanent nature, that
is, those that occurred prior to the entry into force of the treaty and persist even after that
date, since they are still being committed. Stating the contrary would be the same as
depriving the treaty itself and the guarantee of protection established therein of its useful
effect,25 with negative consequences for the alleged victims in the exercise of their right to a
fair trial.
25.
For all the aforementioned, this Court dismisses the present preliminary objection.
B.
Lack of jurisdiction ratione temporis to apply the Inter-American Convention
on Forced Disappearance of Persons based on the date of deposit of Mexico’s
instrument of adherence to the mentioned Convention
26.
Pursuant with the interpretative statement made upon ratifying the CIDFP, the State
held that the Court lacked jurisdiction ratione temporis to apply the that instrument to facts
that were not ordered, executed, or committed after the going into force of the mentioned
Commentaries, Cambridge, University Press, 2002. In the same sense, Case of Blake v. Guatemala. Preliminary
Objections. Judgment of July 2, 1996. Series C No. 27, paras. 39 and 40; Case of Nogueira de Carvalho et al. v.
Brazil. Preliminary Objections and Merits. Judgment of November 28, 2006. Series C No. 161 para. 45; Case of
Ticona Estrada et al. v. Bolivia. Merits, Reparations, and Costs. Judgment of November 27, 2008. Series C No. 191,
para. 29; I.C.J., United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
Judgment of 24 May 1980, para. 78; Eur. Ct. H.R., Case Papamichalopoulos and Others v. Greece, Judgment of 24
June 1993, paras. 40 and 46; Eur. Ct. H.R., Case Agrotexim and Others v. Greece, Judgment of 24 October 1995,
para. 58, and H.R.C., Case Lovelace v. Canada, Communication CCPR/C/57/D/566/1993, July 23, 1996, para. 6(3),
and Case of E. and A.K. v. Hungary, Communication CCPR/C/50/D/520/1992, May 5, 1994, para. 6(4).
24
Case of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 155;
Case of Heliodoro Portugal v. Panama. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August
12, 2008. Series C No. 186, para. 106, and Case of Tiu Tojín v. Guatemala. Merits, Reparations, and Costs.
Judgment of November 26, 2008. Series C No. 190, para. 84. The European Human Rights Court has also
considered the continuous or permanent nature of the forced disappearance of persons. Cf. Case of Cyprus v.
Turkey, Application No. 25781/94, Judgment of 10 May 2001, paras. 136, 150, and 158, and Case of Loizidou v.
Turkey, supra note 22, para. 41.
25
Cf. Case of Bulacio v. Argentina. Merits, Reparations, and Costs. Judgment of September 18, 2003. Series
C No. 100, para. 118; Case of the Gómez Paquiyauri Brothers v. Peru. Merits, Reparations, and Costs. Judgment of
July 8, 2004. Series C No. 110, para. 152, and Case of the Moiwana Community v. Suriname. Preliminary
Objections, Merits, Reparations, and Costs. Judgment of June 15, 2005. Series C No. 124, para. 165. In the same
line, Cf. Eur. Ct. H.R. Klass and others v. Germany, Preliminary Objection, Judgment of 6 September 1978, para.
34, and Permanent Court of Arbitration, Dutch-Portuguese Boundaries on the Island of Timor, Netherlands v.
Portugal Arbitral Award of 25 June 1914, pages 7 and 8.