11
Parties.”2 Similarly, in Ireland vs. the United Kingdom (1978), the European Court
held the following:
Unlike international treaties of the classic kind, the Convention comprises more than
mere reciprocal engagements between contracting States. It creates, over and above a
network of mutual, bilateral undertakings, objective obligations which, in the words of
the Preamble, benefit from a “collective enforcement”.3
In the Soering vs. United Kingdom case (1989), the European Court declared that in
interpreting the European Convention “regard must be had to its special character as
a treaty for the collective enforcement of human rights and fundamental freedoms….
Thus, the object and purpose of the Convention as an instrument for the protection
of individual human beings require that its provisions be interpreted and applied so
as to make its safeguards practical and effective.”4
46.
The optional clause recognizing the contentious jurisdiction of the InterAmerican Court is of particular importance to the operation of the system of
protection embodied in the American Convention. When a State consents to that
clause, it binds itself to the whole of the Convention and is fully committed to
guaranteeing the international protection of human rights that the Convention
embodies. A State Party may only release itself from the Court’s jurisdiction by
renouncing the treaty as a whole (cf. supra 40, infra 50). The instrument whereby it
recognizes the Court’s jurisdiction must, therefore, be weighed in light of the object
and purpose of the Convention as a human rights treaty.
47.
No analogy can be drawn between the State practice detailed under Article
36(2) of the Statute of the International Court of Justice and acceptance of the
optional clause concerning recognition of the binding jurisdiction of this Court, given
the particular nature and the object and purpose of the American Convention. The
European Court of Human Rights ruled similarly in its judgment on preliminary
objections in the Loizidou vs. Turkey case (1995), in connection with optional
recognition of the European Court’s binding jurisdiction (Article 46 of the European
Convention, before Protocol XI to the European Convention entered into force on
January 1, 1998).5 The European Court held that the European Convention was a
law-making treaty.6
48.
In effect, international settlement of human rights cases (entrusted to
tribunals like the Inter-American and European Courts of Human Rights) cannot be
compared to the peaceful settlement of international disputes involving purely
interstate litigation (entrusted to a tribunal like the International Court of Justice);
2.
European Commission of Human Rights, Decision as to the Admissibility of Application No.
788/60, Austria vs. Italy case, Yearbook of the European Convention on Human Rights, The Hague, M.
Nijhoff, 1961, p. 140.
3.
European Court of Human Rights, Ireland vs. United Kingdom case, judgment of 18 January
1978, Series A no. 25, p. 90, paragraph 239.
4.
European Court of Human Rights, Soering Case, decision of 26 January 1989, Series A no. 161,
paragraph 87.
5.
European Court of Human Rights, Case of Loizidou vs. Turkey (Preliminary Objections), judgment
of 23 March 1995, Series A no. 310 p. 25, paragraphs 82 and 68.
6.
Ibid., p. 25, paragraph 84.