20
“Recognition of the jurisdiction” of the Court […] is a unilateral act of each State,
qualified by the terms of the American Convention as a whole and, therefore, not
subject to reservations. Although some legal doctrine speaks of “reservations” to the
recognition of an international court’s jurisdiction, in fact this refers to limitations to the
recognition of that jurisdiction and not technically to reservations to a multilateral
treaty.4
62.
The American Convention expressly establishes the authority of the States
Parties to establish limitations to the Court’s jurisdiction when declaring that they
recognize as binding, ipso facto, and not requiring special agreement, the jurisdiction
of the Court, pursuant to the provisions of Article 62 thereof. Thus, the instrument in
which El Salvador recognizes the Court’s jurisdiction includes a temporal condition to
this jurisdiction, which is not technically a reservation to the American Convention.
In other words, El Salvador used the authority stipulated in Article 62 of the
Convention and established a temporal limitation with regard to cases that might be
submitted to the consideration of the Court.
63.
The Court must examine the limitations invoked by El Salvador when
recognizing the Court’s contentious jurisdiction and determine its competence to
consider the different facts of this case. The fact that the OAS member State did not
raise any objection to the limitation invoked by El Salvador, as the latter has argued,
does not mean that the Court cannot examine this limitation in light of the American
Convention.5 To the contrary, the Court, as all organs with jurisdictional functions,
has the authority inherent in its attributes to determine the scope of its own
competence
(compétence
de
la
compétence/Kompetenz-Kompetenz).
The
instruments recognizing the optional clause of the compulsory jurisdiction (Article
62(1) of the Convention) presume that the State depositing them accept the Court’s
right to resolve any dispute relating to its jurisdiction.6
64.
Since, according to Article 62(1) of the Convention, the date on which the
Court’s jurisdiction is recognized depends on the moment at which the State declares
that it recognizes as binding ipso facto and not requiring special agreement, the
jurisdiction of the Court on all matters relating to the interpretation or application of
the American Convention, the Court must recall the provisions of Article 28 of the
1969 Vienna Convention on the Law of Treaties7, when deciding whether or not it has
jurisdiction to hear a case. This article states:
Unless a different intention appears from the treaty or is otherwise established, its
provisions do not bind a party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the treaty with
regard to that party.
65.
The above principle of non-retroactivity applies to the effective exercise of the
juridical effects of the recognition of the Court’s jurisdiction to hear a contentious
4
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections, supra note 3, para. 68; and
Cantos case. Preliminary objections, supra note 3, para. 34.
5
Cf. Case of Belilos v. Switzerland, judgment of 29 April 1988, Series A No. 132, § 47.
6
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections, supra note 3, para. 69; Baena
Ricardo et al. case. Competence. Judgment of November 28, 2003. Series C No. 104, para. 68; and
Hilaire, Constantine y Benjamin et al. case. Judgment of June 21, 2002. Series C No. 94, paras. 16 and
17.
7
Cf. Alfonso Martín del Campo Dodd case. Preliminary objections, supra note 3, para. 68; and
Cantos case. Preliminary objections, supra note 3, paras. 35 and 37.
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