El Salvador during the armed conflict. The State observes that the petitioners did not notify
either of these organizations of the facts now being alleged.
32. Summarizing, the State asserts that the petitioners had various options to pursue to bring
the alleged facts to its attention; it also contends that El Salvador had routine procedures
available in either the criminal or constitutional courts that the petitioners could have pursued
to assert their claims. According to the State, those avenues were not exhausted. It is
therefore asking the Commission to declare the case inadmissible.
IV.
ANALYSIS
A.
The Inter-American Commission’s competence ratione personae, ratione
materiae, ratione temporis and ratione loci
33. Under Article 44 of the American Convention, the petitioners have standing to file a petition
with the Commission. The petition sub examine states that the alleged victims were under the
jurisdiction of the Salvadoran State at the time the facts alleged were said to have occurred.
The State, for its part, is party to the American Convention, having deposited its instrument of
ratification, in due and proper form, on June 23, 1978. The Commission therefore has
competence ratione personae to examine this petition.
34. The Commission has competence ratione materiae because the petition alleges possible
violations of human rights protected by the American Convention. The State’s contention is
that the applicable law during a domestic armed conflict is international humanitarian law. The
Commission’s understanding, however, is that the mere fact that some of the facts denounced
were alleged to have occurred in the midst of an armed conflict does not preclude the
Commission from exercising its authority to issue its finding on those facts. Indeed, under
Article 27 of the American Convention a State party may derogate from its obligations with
respect to some rights in the context of an armed conflict; however, the Convention does not
allow suspension of all Convention obligations, nor does it strip this Commission of its
authority. It is worth noting that the rights of the child are among the international obligations
that cannot be suspended under any circumstance. The foregoing notwithstanding, in the
merits phase of the case the Commission will have to examine the State’s obligations under
the Convention in light of the provisions of international humanitarian law, which will serve as
lex specialis pursuant to Article 29 of the Convention.
35. The Commission has competence ratione temporis to examine the complaints. The petition
is based on allegations of facts said to have commenced on August 19 1982, the date on which
the disappearance of the children Manuel Antonio Bonilla Osorio and Ricardo Ayala Abarca
allegedly began. The facts alleged, therefore, occurred subsequent to June 23, 1978, the date
on which El Salvador undertook the obligations of a State party to the American Convention,
i.e., to respect and ensure the rights protected therein.
36. In relation to what the State of El Salvador states regarding the acceptance of the litigious
competence of the Inter-American Court, it placed a reservation against it pursuant to Article
62.2 of the American Convention. However, it is necessary to point out that the State is a
signatory State of the American Convention since June 23, 1978; accordingly on the date of
the events referred in the instant petition, the obligations to protect the rights contemplated
by the Convention were in force. In addition, the reservation to the jurisdiction of the Court is
unrelated to the jurisdiction of the Commission.
37. The American Convention does not contain a definition of the term “child” or “children”.
Therefore, under Article 31 of the Vienna Convention on the Law of Treaties, the interAmerican human rights system applies the concept established in international law in the
United Nations Convention on the Rights of the Child, which defines a child as “every human
being below the age of eighteen years unless under the law applicable to the child, majority is
attained earlier.”
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