2
4.
The Vienna Convention on the Law of Treaties (1969) determines that the
provisions of a treaty do not bind a Party in relation to "any act or fact" which "took
place before the date of the entry into force of the treaty" with respect to the State
Party at issue, or to "any situation" which at that date "has ceased to exist". That is,
the Vienna Convention referred to establishes the imperative character of the principle
of non-retroactivity of treaties in relation specifically to acts or facts, or situations, when
have been consummated before the entry into force of the treaty (numerus clausus) for
the State Party at issue.
5.
Thus, the law of treaties itself has paved the way for the evolution of the notion
of continuing situation, in the ambit of the International Law of Human Rights, which
comes to fulfil the needs of protection of the human being, and transcend the
contingencies of law to accomplish the ideal of justice. To this effect the Constitutional
Tribunal of Bolivia has also contributed, in the ambit of the concrete case, when, in a
judgment of November 2001, it clarified that
"the illegal deprivation of freedom or illegal detentions, as comparative doctrine and caselaw have understood them in a uniform way, is a permanent delict; (...) and (...) while (...)
the delict lasts it is reproduced at each instant in its action of consummation. (...) To
calculate the prescription of the permanent delicts one ought to begin to count as from the
day in which the execution of the delict ceases. (...) The Fifth Judge of Penal Instruction of
the city of Santa Cruz and the Vocales of the First Penal Chamber of the Court of the
Judicial District of Santa Cruz, in declaring extinguished the penal action for prescription
(...) have made an incorrect application of the invoked laws, thereby violating the
fundamental right of the appellant to the juridical security set forth in constitutional Article
7(a)"3.
6.
Article 62 of the American Convention establishes the jurisdictional basis for the
exercise of the contentious function of the Inter-American Court. Article 62(3)
stipulates that the Court has competence to know any case concerning the
interpretation and application of the provisions of the Convention which may be brought
before it, whenever the State Party at issue has recognized or recognizes such
competence. In fact, Bolivia has recognized the contentious competence of the Court
(under Article 62(2)), on 27.07.1993, in an uncondicional way4, and, moreover, in the
course of the contentious proceedings before the Court in the case Trujillo Oroza, has
recognized also its international responsibility for the totality of the facts of the present
case, referred to in the complaint (supra), which it acceded to. In this way, the
competence of the Court to pronounce itself on the continuing situation of the victim in
its integrality was established. Boni judicis est ampliare jurisdictionem.
3
.
Constitutional Tribunal [of Bolivia], constitutional judgment n. 1190/01-R, of 12.11.2001.
4
.
The instrument of acceptance of the compulsory jurisdiction of the Court on the part of Bolivia
provides, in its paragraph II, that it undertakes "the recognition as fully compulsory de jure, unconditionally
and for an indefinite time", the competence of the Inter-American Court in contentious matters, under Article
62 of the American Convention.