11
31.
Just as the recent Advisory Opinion of the Inter-American Court on
Reports of the Inter-American Commission on Human Rights (Article 51 of the
American Convention on Human Rights - OC-15, of 14 November 1997) reached
the very bases of its advisory function, the question raised in the present Blake
case touches 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
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