REASONED CONCURRING OPINION OF
JUDGE SERGIO GARCÍA RAMÍREZ
1.
I join the majority of the judges of this Court in the reasoning and decision on
the preliminary objections in the Las Palmeras Case (judgment of February 4, 2000).
However, I believe it is advisable to expand on the reasoning with regard to the
second preliminary objection filed by the State (the lack of competence of the
Commission, paras. 16, second, and 34, and the third ruling), which the Court
admitted. This decision is consistent with the one adopted on the third objection
(the lack of competence of the Court, paras. 28-33, and the second ruling), which is
extensively reasoned in the judgment.
2.
In this Concurring Opinion, I set forth some specific considerations on the
third objection, without detriment to the shared concepts that underlie the decision
made by the Court with regard to both objections.
3.
It is possible to discuss the nature of the assertions filed by the State as
preliminary objections. When examining this point, it is necessary to take into
account that the method of defense characterized as preliminary objections serves to
prevent, detain or restrict the exercise of jurisdiction. To the contrary, exceptions or
defenses of a substantive nature relate to the merits of the case, seek to adversely
affect the claim of the plaintiff and are aimed at sustaining a judgment for dismissal.
4.
In my opinion – and with the greatest respect for other points of view – the
procedural defenses filed by the State have the characteristics mentioned in the first
instance, independent of their legal basis and of the possibility that the problem they
pose could be approached from another perspective under some circumstances. The
purpose of the objection to the competence of the Commission was to detain a
procedure that had been initiated, in the State’s opinion, beyond the attributions of
the respective organ. The fact that, to this end, it could have been sufficient to file
the objection of the incompetence of the Court does not deprive the argument
submitted regarding the competence of the Commission of its nature of preliminary
objection. The Court considered it thus, and proceeded to decide on both objections.
5.
In the second preliminary objection examined in the judgment, the State
maintained – and the Court accepted – that the Commission did not have
competence to apply international humanitarian law and other international treaties.
Here, the allusion is to competence in its broadest sense, synonymous with terms of
reference or power of an authority, not in the strict sense, as an ambit within which
jurisdiction is exercised; the latter would only be applicable to a jurisdictional organ,
which is the case of the Court, but not of the Commission.
6.
In view of the foregoing, it is pertinent to examine briefly the Commission’s
terms of reference with regard to the instant case. This important organ of the
inter-American system has an essential function with a generic scope: “to promote
respect for and defense of human rights” (Article 41, initial paragraph, of the
American Convention on Human Rights (hereinafter “the Convention”).
7.
Within these generic terms of reference, the Commission has different specific
powers, which constitute other expressions or perspectives of its “competence.” It is
useful to distinguish between: a) the functions that the Commission performs for the
respect for and defense of human rights, in genere, that do not terminate in a