22
66.
The States Parties to the Convention must guarantee compliance with treaty
provisions and their effects (effet utile) at the level of their respective domestic
laws.35 This principle is applicable not only with regard to the substantive norms of
the human rights treaties (namely, those that contain provisions on protected
rights), but also with regard to the procedural norms,36 such as those referring to
compliance with the decisions of the Court (Articles 67 and 68(1) of the Convention).
The provisions contained in the said articles must be interpreted and applied so as to
ensure that the protected guarantee is truly practical and effective, recalling the
special nature of human rights treaties and their collective implementation.37
67.
Regarding the said principle of effet utile, in the Corfu Channel case, the
International Court of Justice reiterated what the Permanent Court of International
Justice had said, to the effect that:
[…] regarding the specific question on the competence pending decision, it may be
sufficient to observe that, when determining the nature and scope of a measure, the
Court must observe its practical effect instead of the predominant motive that it is
believed inspired it.38
B) SCOPE OF THE COMPETENCE OF THE COURT
TO DETERMINE ITS OWN COMPETENCE
68.
The Court, as any body with jurisdictional functions, has the authority
inherent in its attributions to determine the scope of its own competence
The instruments
(compétence de la compétence/ Kompetenz-Kompetenz).39
accepting the optional clause on obligatory jurisdiction (Article 62(1) of the
Convention) assume that the States submitting them accept the Court’s right to
settle any dispute relative to its jurisdiction,40 such as the dispute in this case on the
35
The Constitutional Court case. Competence. Judgment of September 24, 1999. Series C No. 55,
para. 36; and Ivcher Bronstein case. Competence. Judgment of September 24, 1999. Series C No. 54,
para. 37. Also, Cf., inter alia, Bulacio case, supra note 30, para. 142; “Five Pensioners” case, supra note
32, para. 164; and Cantos case, supra note 31, para. 59.
36
The Constitutional Court case. Competence, supra note 35, para. 36; and Ivcher Bronstein case.
Competence, supra note 35, para. 37. Also, Cf. Klass and others v. Germany, (Merits) Judgment of 6
September 1978, ECHR, Series A no. 28, para. 34; and Permanent Court of Arbitration, Dutch-Portuguese
Boundaries on the Island of Timor, Arbitral Award of June 25, 1914, The American Journal of International
Law, volume 9, 1915, pp. 250 and 266.
37
Cf. The Constitutional Court case. Competence, supra note 35, para. 36; and Ivcher Bronstein
case. Competence, supra note 35, para. 37.
38
Cf. Corfu Channel case, Judgment of April 9th, 1949: I.C.J. Reports 1949, p. 24; and P.C.I.J,
Advisory Opinion No. 13 of July 23rd, 1926, Series B, No. 13, p. 19.
39
Cf. The Constitutional Court case. Competence, supra note 35, para. 31; Ivcher Bronstein case.
Competence, supra note 35, para. 32; Hilaire, Constantine and Benjamin et al. case. Judgment of June 21,
2002. Series C No. 94, para. 17; Constantine et al. case. Preliminary objections. Judgment of September
1, 2001. Series C No. 82, para. 69; Benjamin et al. case. Preliminary objections. Judgment of September
1, 2001. Series C No. 81, para. 69; and Hilaire case. Preliminary objections. Judgment of September 1,
2001. Series C No. 80, para. 78.
40
Cf. The Constitutional Court case. Competence, supra note 35, para. 33; Ivcher Bronstein case.
Competence, supra note 35, para. 34; Hilaire, Constantine and Benjamin et al. case, supra note 39, para.