12
in the President’s note in no way implies that the Commission had conclusively and
inevitably abandoned its right to bring the case to the Court, all the more so since the
period had been suspended in response to the request for reconsideration.
g.
The Commission’s assertion that all the documents referred to three cases and not
solely to the instant case.
48.
As regards the implementation of Articles 50 and 51 of the Convention, in dealing with a
similar issue in the cases against Honduras the Court has pointed out that
however, it should be borne in mind that the preparation of the Article 51 report is
conditional upon the matter not having been submitted to the Court within the
three-month period set by Article 51(1). Thus, if the application has been filed
with the Court, the Commission has no authority to draw up the report referred to
in Article 51 [and that] [. . .] [o]nce an application has been filed with the Court,
the provisions of Article 51 regarding the Commission’s drafting of a new report
containing its opinion and recommendations cease to apply.
Under the
Convention, such a report is in order only after three months have elapsed since
transmittal of the communication referred to in Article 50. According to Article 51
of the Convention, it is the drafting of the report that is conditional on the failure
to file a case with the Court and not the filing of a case that is conditional on the
report not having been prepared or published. If, therefore, the Commission were
to draft or publish the report mentioned in Article 51 after having filed the
application with the Court, it could be said that the Commission was misapplying
the provisions of the Convention. Such action could affect the juridical value of the
report but would not affect the admissibility of the application because the
wording of the Convention in no way conditions such filing on failure to publish the
report required under Article 51. (Velásquez Rodríguez Case, Preliminary
Objections, supra 26, paras. 63 and 76; Fairén Garbi and Solís Corrales
Case, Preliminary Objections, supra 26, paras. 63 and 75; and, Godínez
Cruz Case, Preliminary Objections, supra 26, paras. 66 and 78.)
49.
In response to a request for advisory opinion submitted by the Governments of Argentina
and Uruguay regarding the correct interpretation of Articles 50 and 51 of the Convention, the
Court held that the procedure established in those articles involves three stages, as follows:
In the first, regulated by Article 50, when a friendly settlement has not been reached, the Commission
may state the facts and its conclusions in a preliminary document addressed to the State concerned.
This ‘report’ is transmitted in a confidential manner to the State so it may adopt the proposals and
recommendations of the Commission and resolve the problem. The State is not authorized to publish it.
Based upon the presumption of the equality of the parties, a proper interpretation of Article 50 implies
that neither may the Commission publish this preliminary report, which is sent, in the terminology of the
Convention, only ‘to the states concerned.’
[. . .]
A second stage is regulated by Article 51. If within the period of three months, the State to which the
preliminary report was sent has not resolved the matter by responding to the proposal formulated
therein, the Commission is empowered, within that period, to decide whether to submit the case to the
Court by means of the respective application or to continue to examine the matter. This decision is not
discretionary, but rather must be based upon the alternative that would be most favorable for the
protection of the rights established in the Convention.
[. . .]