21
case. Therefore, according to the provisions of the said Article 28 of the 1969 Vienna
Convention on the Law of Treaties, the Court may consider acts and facts that have
taken place after the date of recognition of the Court’s jurisdiction and situations
which, at that date, had not ceased to exist. In other words, the Court has
jurisdiction to consider continuing violations that persist after this recognition, based
on the provisions of the said Article 28 and, consequently, the principle of nonretroactivity is not violated.
66.
The Court cannot exercise its contentious jurisdiction to apply the Convention
and declare that its provisions have been violated when the alleged facts or the
conduct of the defendant State which might involve international responsibility
precede recognition of the Court’s jurisdiction.
67.
However, in case of a continuing or permanent violation, whose
commencement occurred before the defendant State had recognized the Court’s
contentious jurisdiction and which persists even after this recognition, the Court is
competent to consider the conducts that occurred after the recognition of its
jurisdiction and the effects of the violations.8
68.
When interpreting the Convention pursuant to its object and purpose, the
Court must act so as to preserve the integrity of the mechanism established in
Article 62(1) of the Convention. It would be inadmissible to subordinate this
mechanism to restrictions that render inoperative the system for the protection of
human rights established in the Convention and, consequently, the jurisdictional
function of the Court.9
69.
As in other cases, the Court also reiterates that the clause on recognition of
the Court’s jurisdiction is essential to the effectiveness of the international protection
mechanism and must be interpreted and applied so that the guarantee it establishes
is truly practical and effective, bearing in mind the special nature of human rights
treaties and their collective implementation. Moreover, regarding the principle of
effet utile, it has said that:
The States Parties to the Convention must guarantee compliance with its provisions and
its effects (effet utile) within their own domestic laws. This principle applies not only to
the substantive provisions of human rights treaties (in other words, the clauses on the
protected rights), but also to the procedural provisions, such as the one concerning
recognition of the Court’s contentious jurisdiction.10
8
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections, supra note 3, para. 79; and
Blake case. Preliminary objections. Judgment of July 2, 1996. Series C No. 27, paras. 39 and 40.
9
Cf. Baena Ricardo et al. case. Competence, supra note 6, para. 128; Hilaire, Constantine y
Benjamin et al. case, supra note 6, para. 19; 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. 73; and Hilaire case. Preliminary objections. Judgment of
September 1, 2001. Series C No. 80, para. 82.
10
Cf. Baena Ricardo et al. case. Competence, supra note 6, para. 66; Constantine et al. case.
Preliminary objections, supra note 9, para. 74; Benjamin et al. case. Preliminary objections, supra note 9,
para. 74; Hilaire case. Preliminary objections, supra note 9, para. 83; 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, Case of the
“Juvenile Reeducation Institute”. Judgment of September 2, 2004. Series C No. 112, para. 205; Case of
the Gómez Paquiyauri Brothers. Judgment of July 8, 2004. Series C No. 110, paras. 150 and 151; and
Bulacio case. Judgment of September 18, 2003. Series C No. 100, para. 142. Likewise, Cf. Klass and
others v. Germany, (Merits) Judgment of 6 September 1978, ECHR, Series A no. 28, para. 34; and
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