7
17.
In the domain of the international protection of human rights, there are no
"implicit" limitations to the exercise of the protected rights; and the limitations set
forth in the treaties of protection ought to be restrictively interpreted. The optional
clause of the compulsory jurisdiction of the international tribunals of human rights
makes no exception to that: it does not admit limitations other than those expressly
contained in the human rights treaties at issue, and, given its capital importance, it
could not be at the mercy of limitations not foreseen therein and invoked by the States
Parties for reasons or vicissitudes of domestic order 25.
18.
In their classic studies on the basis of the international jurisdiction, two
distinguished scholars, C.W. Jenks and C.H.M. Waldock, warned, already in the
decades of the fifties and the sixties, as to the grave problem presented by the
insertion, by the States, of all kinds of limitations and restrictions in their instruments
of acceptance of the optional clause of compulsory jurisdiction (of the ICJ) 26. Although
those limitations had never been foreseen in the formulation of the optional clause, the
States, in the face of such legal vacuum, have felt, nevertheless, "free" to insert them.
Such excesses have undermined, in a contradictory way, the basis itself of the system
of international compulsory jurisdiction. As well pointed out in a classic study on the
matter, the instruments of acceptance of the contentious jurisdiction of an international
tribunal should be undertaken "on terms which ensure a reasonable measure of
stability in the acceptance of the jurisdiction of the Court" 27, - that is, in the terms
expressly provided for in the international treaty itself (cf. infra).
19.
The clause pertaining to the compulsory jurisdiction of the international
tribunals of human rights constitutes, in my view, a fundamental clause (cláusula
pétrea) of the international protection of the human being, which does not admit any
restrictions other than those foreseen in the human rights treaties. This has been so
established by the Inter-American Court in its Judgments on Competence in the cases
of the Constitutional Tribunal and Ivcher Bronstein:
582-738, respectively). - On more than one occasion the undue emphasis on the consent of States led the
ICJ to incongruous decisions, as its Judgment of 1995 in the case of East Timor; cf. criticisms in, e.g., J.
Dugard, "1966 and All That: the South West African Judgment Revisited in the East Timor Case", 8 African
Journal of International and Comparative Law (1996) pp. 549-563; A.A. Cançado Trindade, "O Caso do
Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense", 1 Revista de Derecho de la
Universidad Católica del Uruguay (2000) pp. 68-75. As well pointed out by Shabtai Rosenne, the
international judicial procedure of the Hague Court unfortunately continues to follow nowadays the model of
bilateralism in international litigation, proper of the XIXth century; S. Rosenne, "Decolonisation in the
International Court of Justice", 8 African Journal of International and Comparative Law (1996) p. 576.
25
.
Cf. Inter-American Court of Human Rights, case of Castillo Petruzzi and Others versus Peru
(Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A.
Cançado Trindade, pars. 36 and 38.
26
.
Examples of such excesses have been the objetions of domestic jurisdiction (domestic
jurisdiction/compétence nationale exclusive) to the States (criticized in my essay "The Domestic Jurisdiction
of States in the Practice of the United Nations and Regional Organisations", 25 International and Comparative
Law Quarterly (1976) pp. 744-751), the foreseeing of withdrawal at any moment of the acceptance of the
optional clause, the foreseeing of subsequent modification of the terms of acceptance of the clause, and the
foreseeing of insertion of new reservations in the future; cf. C.W. Jenks, The Prospects of International
Adjudication, London, Stevens, 1964, p. 108, and cf. pp. 113, 118 and 760-761; C.H.M. Waldock, "Decline
of the Optional Clause", op. cit. supra n. (19), p. 270.
27
.
C.W. Jenks, op. cit. supra n. (26), pp. 760-761.