8
did not find any limitation to its jurisdiction to adjudge and declare over Article 26
of the Convention. They further asserted that “what it [had] requested the Court
is to [declare] the violation of Article 26 of the Convention” and not to “establish
the violation of rights contained in the Protocol of San Salvador”.
15.
The controversy in the case at hand, as it springs from the briefs
submitted by the parties, aims at determining the international responsibility of
the State for the alleged non-compliance with what was ordered in favor of 273
alleged victims in the two judgments rendered by the Peruvian Constitutional
Court in relation to their right to social security in Perú. According to the
Commission, said alleged non-compliance constitutes a violation of the rights
enshrined in Articles 25 and 21 of the Convention, in conjunction with the general
obligation contained in Article 1(1) therein. Moreover, the representative
requested an additional decision from the Court regarding Article 26 of the
Convention. The preliminary objection rose by the State focuses on the alleged
lack of competence ratione materiae to hear over Article 26 of the Convention.
Therefore, it is the Tribunal’s decision to analyze if it is competent to hear over an
alleged violation of said Article.
16.
As a judiciary organ, this Tribunal, in exercise of the authority vested in it,
may determine the scope of its own jurisdiction (competence de la competence).
To determine the scope of its own competence, the Court has to take into account
that the instruments recognizing the optional clause on compulsory competence
(Article 62(1) of the Convention) presuppose the acceptance of the Court’s right
to decide any dispute relating to its competence by the States that submit it.10
Moreover, the Tribunal has asserted on other occasions, that the broad wording
of the Convention indicates that the Court has full jurisdiction over all matters
pertaining to its Articles and provisions.11
17.
In addition, since Perú is a State Party to the American Convention and
has acknowledged the adversarial jurisdiction of the Court, the Court is
competent to decide whether the State has failed to comply with or violated any
of the rights enshrined in the Convention, even the aspect concerning Article 26
thereof. Therefore, the analysis of the controversy, that is, the determination of
whether the State is responsible for the violation of Article 26 of the Convention,
shall be made in the chapter on the merits of this Judgment (infra paras. 92 to
107).
18.
Moreover, the Tribunal notes that the violation of the Protocol of San
Salvador has not been alleged in the case at hand, and therefore the Court
considers it is unnecessary to decide whether it has jurisdiction over said Treaty.
19.
Consequently, the Tribunal rejects the preliminary objection on the lack of
the Court’s competence ratione materiae raised by the State and considers it is
competent to analyze the arguments related to the merits of the case at hand.
*
*
*
10
Cf. Case of Ivcher Bronstein V. Perú. Competence. Judgment of September 24, 1999. Series
C No. 54, para. 32 and 34; Case of Heliodoro Portugal V. Panamá. Preliminary Objections, Merits,
Reparations and Costs. Judgment of August 12, 2008. Series C No. 186, para. 23; and Case of García
Prieto et al. V. El Salvador. Preliminary Objection, Merits, Reparations and Costs. Judgment of
November 20, 2007. Series C No. 168, para. 38.
11
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26,
1987. Series C No. 1, para. 29; and Case of the 19 Tradesmen V. Colombia. Preliminary Objection.
Judgment of June 12, 2002. Series C No. 93, para. 27.