19
57.
The State filed the second part of the preliminary objection on the lack of
jurisdiction ratione temporis of the Inter-American Court so that, in this case, based
on the terms in which it recognized the Court’s jurisdiction, the Court should not
consider facts prior to the date on which it recognized the Court’s compulsory
jurisdiction or those that commenced before the declaration of recognition was
deposited.
58.
The preliminary objection filed by the State is based on paragraph II of the
declaration of recognition of the contentious jurisdiction of the Court deposited with
the OAS Secretary General on June 6, 1995; for the instant case, the relevant part
reads as follows:
I.
The Government of El Salvador accepts as binding ipso facto and not requiring
special agreement, the jurisdiction of the Inter-American Court of Human Rights, in
accordance with the provisions of Article 62 of the American Convention on Human
Rights, or “Pact of San José”.
II.
The Government of El Salvador, when recognizing this jurisdiction, places on
record that its recognition is for an indefinite period, on the condition of reciprocity, and
with the reservation that the cases in which it accepts the jurisdiction include only and
exclusively subsequent juridical facts and acts or juridical facts and acts which
commence subsequent to the date of the deposit of this Declaration of Recognition […].
[…]
59.
The recognition of the Court’s contention jurisdiction is regulated by Article 62
of the American Convention, which establishes that:
1.
A State Party may, upon depositing its instrument of ratification or adherence
to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso
facto, and not requiring special agreement, the jurisdiction of the Court on all matters
relating to the interpretation or application of this Convention.
2.
Such declaration may be made unconditionally, on the condition of reciprocity,
for a specified period, or for specific cases. It shall be presented to the Secretary
General of the Organization, who shall transmit copies thereof to the other member
states of the Organization and to the Secretary of the Court.
3.
The jurisdiction of the Court shall comprise all cases concerning the
interpretation and application of the provisions of this Convention that are submitted to
it, provided that the States Parties to the case recognize or have recognized such
jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by
a special agreement.
60.
In this regard, it is necessary to refer to what the Court has stated on
recognition of its jurisdiction:
It is clear from the text of the Convention that a State may be a party to it and
recognize or not the binding jurisdiction of the Court. Article 62 of the Convention uses
the verb “may” to signify that recognition of the jurisdiction is optional […]3.
61.
Here, it should be reiterated that the Court has made a distinction between
the possibility of the State making “reservations to the [American] Convention,”
according to Article 75 thereof, and the act of “recognition of the jurisdiction” of the
Court, in accordance with Article 62 thereof (supra para. 59). Regarding this
difference, the Court has stated that:
3
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections. Judgment of September 3,
2004. Series C No. 113, para. 68; and Cantos case. Preliminary objections. Judgment of September 7,
2001. Series C No. 85, para. 34.
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