11
likewise the bases of its competence in contentious matters (its delimitation in
time, ratione temporis). The present stage of (insufficient) evolution of the law of
treaties allows me, at least, to formulate a precision on this question, which fulfills
only in part one of my concerns.
32.
As I pointed out in my Dissenting Opinion (paragraph 24 n. 19) in the
Genie Lacayo versus Nicaragua case (Resolution of the Court on the Request for
Revision of Judgment, of 13.09.1997), it is my understanding that it is from the
moment of the ratification of the American Convention, or accession to it, that the
new State Party undertakes to respect all the rights protected by the Convention
and to secure their free and full exercise (starting with the fundamental right to
life); the acceptance, by that State, of the compulsory jurisdiction of the Court in
contentious matters refers only to the judicial means of settlement, by the Court, of
a concrete case of human rights. It is certain that the Court can only pronounce on
the case on the basis of the terms of acceptance of its competence in contentious
matters by such State, but it is equally certain that this in no way affects the
responsibility of a State Party for violations of the rights set forth in the Convention.
33.
Even if the Court cannot in the circumstances pronounce upon the matter
at issue, there subsist nevertheless the conventional obligations of the State Party,
undertaken by it as from the moment of its ratification of the Convention, or
accession to it. Thus, the moment as from which Guatemala undertook to protect
all the rights set forth in the American Convention, including the right to life and
the right to personal liberty (Articles 4 and 7), is the moment of its ratification of
the Convention, on 25 May 1978. The subsequent moment of its acceptance of the
jurisdiction of the Court in contentious matters, on 09 March 1987, conditions only
the judicial means of settlement of a concrete case under the Convention.
34.
One ought to avoid the confusion between the question of the invocation of
the responsibility for compliance with the conventional obligations undertaken by
the State Party and the question of the submission of this latter to the jurisdiction
of the Court. One and the other are rendered possible in distinct moments: the
former, of substantive or material order, as from the ratification of the Convention
(or the accession to it) by the State, and the latter, of jurisdictional order, as from
the acceptance of the jurisdiction of the Court in contentious matters. Every and
any State Party to the Convention, even if it has not recognized the compulsory
jurisdiction of the Court, or has recognized it with limitations ratione temporis,
remains bound by the provisions of the Convention since the moment of its
ratification of this latter, or of its accession to it.
35.
Even though the Court was not able to pronounce on all the rights
encompassed in the present Blake case as a result of the limitation ratione temporis
to its competence, nothing impedes it to point out that Guatemala, as well as all
the States Parties to the American Convention on Human Rights, are bound by all
the protected rights, as from the date of the ratification of the Convention or
accession to it. Despite the silence of the Court on, for example, the rights to life
and to personal liberty, on them subsist the considerations of the Inter-American
Commission on Human Rights in its Report of 15.02.1995 on the case.
26
36.
As the Court points out both in the present Judgment (paragraph 108) as
well as in the Judgment of 17.09.1997 in the Loayza Tamayo versus Peru case
(Merits, paragraph 81), given that the Commission is an organ, together with the
Court, with competence "with respect to matters relating to the fulfillment of the
26.
CIDH, Informe 5/95 - Caso 11.219 (Guatemala), doc. OEA/Ser.L/V/II.88-Doc.17, of
15.02.1995, pp. 15-18.