8
established by the Inter-American Court in its Judgments on Competence in the cases
of the Constitutional Tribunal and Ivcher Bronstein:
- "Recognition of the Court's compulsory jurisdiction is a fundamental clause
(cláusula pétrea) to which there can be no limitations except those expressly provided for
in Article 62(1) of the American Convention. Because the clause is so fundamental to the
operation of the Convention's system of protection, it cannot be at the mercy of limitations
not already stipulated but invoked by States Parties for reasons of domestic order"28.
The permissiveness of the insertion of limitations, not foreseen in the human rights
treaties, in an instrument of acceptance of an optional clause of compulsory
jurisdiction29, represents a regrettable historical deformation of the original conception
of such clause, in my view unacceptable in the field of the international protection of
the rights of the human person.
20.
It is the duty of an international tribunal of human rights to look after the due
application of the human rights treaty at issue in the framework of the domestic law of
each State Party, so as to secure the effective protection in the ambit of this latter of
the human rights set forth in such treaty30. Any understanding to the contrary would
deprive the international tribunal of human rights of the exercise of the function and of
the duty of protection inherent to its jurisdiction, failing to ensure that the human
rights treaty has the appropriate effects (effet utile) in the domestic law of each State
Party. It is for this reason that I sustain that the optional clause of compulsory
jurisdiction of the international tribunal of human rights constitutes a fundamental
clause (a cláusula pétrea) of the international protection of the human being, which
does not admit any restrictions other than those expressly provided for in the human
rights treaty at issue itself.
IV.
The Precise Formulation of the Optional Clause of Article 62 of
the American Convention on Human Rights (Numerus Clausus).
21.
The present case of Benjamin and Others versus Trinidad and Tobago leads one
to a more detailed examination of this specific point. Paragraphs 1 and 2 of Article 62
of the American Convention on Human Rights provide that
"A State Party may, upon depositing its instrument of ratification or adherence to
this Convention, or at any subsequent time, declare that it recognizes as binding, ipso
facto, and not requiring special agreement, the jurisdiction of the Court on all matters
relating to the interpretation or application of this Convention.
Such declaration may be made unconditionally, on the condition of reciprocity, for
a specified period, or for specific cases. It shall be presented to the Secretary General of
28
.
IACtHR, case of the Constitutional Tribunal (Competence), Judgment of 24.09.1999, Series C, n.
55, p. 44, par. 35; CtIADH, case of Ivcher Bronstein (Competence), Judgment of 24.09.1999, Series C, n.
54, p. 39, par. 36.
29
.
30
Exemplified by State practice under Article 36(2) of the ICJ Statute (supra).
.
If it were not so, there would be no juridical security in international litigation, with harmful
consequences above all in the domain of the international protection of human rights. The intended analogy
between the classic inter-State contentieux and the international contentieux of human rights fundamentally distinct domains - is manifestly inadequate, as in this latter the considerations of a superior
order ( international ordre public) have primacy over State voluntarism. The States cannot count on the
same latitude of discretionality which they have reserved to themselves in the traditional context of the
purely inter-State litigation.