14
Court, provided that this recognition [was] compatible with the provisions of
the Constitution of the Republic of El Salvador”;
i)
When answering a question raised by the Court during the public
hearing, it indicated that the terms of recognition of the Court’s jurisdiction
were technically equivalent to a reservation in the terms of the reservations
regime of the Vienna Convention on the Law of Treaties and also equivalent
to a limitation or restriction of recognition of the Court’s jurisdiction;
j)
When answering a question raised by the Court during the public
hearing, it indicated that, according to Article 62(2) of the Convention, the
limitation of the declaration recognizing the Court’s jurisdiction made by El
Salvador fell within the category of “specific cases,” in the understanding that
“specific cases” are those that occurred before the recognition or whose onset
took place before this recognition; and
k)
“Under the Vienna Convention on the Law of Treaties [it is possible to
formulate a reservation] subsequent to the ratification of a treaty.” El
Salvador ratified the American Convention in 1978 with a reservation in which
it indicated that it would accept the Court’s jurisdiction in terms to be
determined subsequently. Based on this reservation and in accordance with
Article 62 of the Convention, the State made the “reservation” in its
declaration recognizing the Court’s jurisdiction. No State raised an objection
to the “reservation” made by El Salvador. A State is able to recognize the
jurisdiction of an international tribunal in its own terms, regardless of what is
expressly established in the optional clause on the Court’s compulsory
jurisdiction.
Arguments of the Commission
55.
The Inter-American Commission requested the Court to reject this preliminary
objection on the grounds that:
a)
The State wishes the Court to apply “the 1995 reservation” relating to
the recognition of its contentious jurisdiction. However, the “situation of
violations set out in the application was confirmed and renewed as of June
1995, when the judicial authorities of El Salvador had the treaty obligation to
do justice” by implementing all possible investigatory measures to determine
the whereabouts of the Serrano Cruz sisters, identify those responsible for the
violations committed, and make reparation to the next of kin;
b)
The continuing situation of human rights violations “includes facts and
effects subsequent to the date on which the Court’s jurisdiction was
recognized.” “The condition made by El Salvador when recognizing the
jurisdiction of the Court does not prevent the latter from making a ruling in
this case and ending the denial of justice to the detriment of the Serrano Cruz
sisters and their next of kin”;
c)
“Depending on the moment when an act that violates the Convention
(in force for El Salvador since 1978) occurred, or its ‘commencement’
occurred, the Commission considers that the limitation formulated by the
State would have the effect of creating three different situations for the
protection of human rights in the inter-American sphere.” The first situation
includes violations that took place from 1978 to 1995, over which the Court
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