16
re-establish their identity.” Furthermore, harassment of witnesses and the
next of kin of the alleged victims has occurred subsequent to 1995; and
i)
“This case presents the Court with an issue of first impression, not
only as regards considering a formula of double exclusion, but also owing to
the special characteristics of the way in which the phenomenon of forced
disappearance is manifested in the in this case […]. In the instant case, the
recognition of the rights and obligations embodied in the Convention, and the
reciprocal obligation of respect and guarantee of the States, was perfected on
June 23, 1978. As of that date, the rights of Ernestina Serrano were
recognized, and then those of her sister, Erlinda, who was born later.”
Arguments of the representatives of the alleged victims and their next of kin
56.
The representatives of the alleged victims and their next of kin requested the
Court to reject this objection and presented the following arguments:
a)
Human rights treaties establish obligations of an objective nature that
must be guaranteed by the contracting States pursuant to their essential
purpose: the protection and primacy of the dignity of the human being. When
acceding to these treaties, States assumes various obligations, not only in
relation to other States, but also towards the persons subject to their
jurisdiction;
b)
In their arguments on the preliminary objections, the representatives
indicated that:
i)
“When recognizing the Court’s contentious jurisdiction, [the
State] was authorized to formulate the reservation of temporality with
regard to facts that occurred subsequent to the date of” this
recognition. However, not all reservations can be considered valid,
because reservations that are incompatible with the object and
purpose of the treaty cannot be formulated, pursuant to the provisions
of Article 19(c) of the Vienna Convention on the Law of Treaties. “The
reservation […] cannot invalidate the protection of human rights,
which is the object and purpose of the American Convention.
Additionally, a reservation that allows a State to continue violating
human rights “without any type of supervision or condemnation” is not
valid;
ii)
The crime of forced disappearance violates non-derogable
fundamental rights, so that “it constitutes an affront to humanity […
T]his type of fact [falls within] the international sphere of ius cogens.”
Consequently, a reservation intended to restrict the temporal
jurisdiction of the Court in such serious cases is contrary to the object
and purpose of the Convention, because it prevents international
protection;
iii)
The commencement of several of the alleged violations
occurred after recognition of the Court’s jurisdiction, “for example, the
obstruction of justice that has characterized the case and that
materialized with the denial of the remedy of habeas corpus in 1996,
and also the anguish caused to the girls’ mother when she realized
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