13
f)
Since, contrary to the presentation in the introduction and body of the
application, in the object and plea of the application the facts are
“rationalized” and not presented as a continuing event, the State alleges the
objection of lack of jurisdiction ratione temporis as follows:
i)
Regarding the “alleged capture and subsequent disappearance
of Ernestina and Erlinda Serrano Cruz […,] the commencement of this
fact did not occur after June 6, 1995”;
ii)
“The alleged separation of [Ernestina and Erlinda Serrano Cruz]
from their parents and next of kin, and also the alleged denial of
identity, were not facts whose commencement occurred after June 6,
1995; consequently, the Court also lacks jurisdiction”;
iii)
Regarding the “alleged suffering of the next of kin of the
Serrano Cruz sisters resulting from the capture and subsequent
disappearance of the Serrano Cruz sisters, [...] these alleged violations
also relate to past facts, because from the moment it is affirmed that
they refer to violations of the right to humane treatment, protection of
the family, and the obligation to respect rights embodied in the
Convention, reference is being made to a fact which, as the plea states
so well, occurred in the past”; and
iv)
Regarding the “alleged failure to respect the right of the next of
kin of the victims to know the truth, which would imply the violation of
the right to judicial guarantees, judicial protection and the obligation
to respect rights embodied in the American Convention [… ,] it should
be recalled that the criminal proceeding that began clarifying this fact
began in 1993, so that it is also affected by the exclusion mentioned in
the reservation made by El Salvador in June 1995, when recognizing
the Court’s jurisdiction, because the commencement of this fact did
not occur as of that year, but previously”;
g)
“The 1995 reservation made by the State of El Salvador was made in
accordance with and based on the 1978 reservation [...] when El Salvador
ratified the American Convention on Human Rights. Article 20 of the Vienna
Convention on the Law of Treaties is applicable to the said instrument
recognizing the Court’s jurisdiction, so that it should be considered that a
reservation has been accepted by a State if it shall have raised no objection
to the reservation by the end of a period of twelve months after it was
notified of the reservation. In this regard, “there is no record that a member
State of the system has raised an objection to the content of the 1995
reservation by the State of El Salvador or that it has been challenged;
therefore, to question its validity almost ten years later would not only create
a situation of legal uncertainty among the States but, above all, in legal
doctrine on the law of treaties. […] In this regard, regarding the 1995
reservation, it could be said that the State of El Salvador has acquired a right
owing to the passage of time, because lack of legal certainty cannot exist
forever among States”;
h)
“Both the 1978 and the 1995 reservations are in keeping with [the
Constitution], since the 1978 reservation put on record that the Convention
was ratified with the proviso that this ratification was understood to be
notwithstanding those provisions of the Convention that might enter into
conflict with specific principles of the Constitution; and the 1995 reservation
noted that the Government of El Salvador recogniz[ed] the jurisdiction of the
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