115. Regarding this second preliminary objection raised by the State, the Inter-American Commission pointed out that:
a) technically speaking and in the strictest sense of the expression “preliminary objections,” under Article 36 of the Court’s Rules of Procedure such objections may only be filed in the brief answering the application. However, as the Rules of Procedure of the Court do not specify a specific opportunity to submit comments on the representatives’ brief of pleadings and motions, the Commission’s interpretation is that the State included those comments in the answer to the application and called them a “preliminary objection”;
b) in its answer to the application, the State must specify whether it accepts the facts and claims or whether it contests them, and the Court may consider accepted those facts that have not been expressly denied and the claims that have not been expressly contested. Therefore, it is the Commission’s application and the State’s answer that determine the object of the litis before the Court;
c) the Court has the inherent power to determine the scope of its own competence (compétence de la compétence / Kompetenz-Kompetenz) in the instant case. Moreover, by virtue of the principle of iura novit curia, “repeatedly invoked in the jurisprudence of international courts,” the Court has “the authority and even the duty to apply the pertinent legal provisions in a case, even when the parties do not expressly invoke them”;
d) the representatives never alleged that the State had violated Article 26 of the Convention or Articles XI, XII, XIII and XV of the American Declaration, either in their original petition or throughout the approximately five years of proceedings in the case in the Commission. The Commission, therefore, never forwarded any such allegations of law to the State, nor were they debated in the proceedings before the Commission; and
e) if the Court considers that the representatives’ argument pertains to the violation of Article 19 of the Convention and that the reference to Article 26 of the American Convention and the provisions of the American Declaration and the Convention on the Rights of the Child is for the purpose of steering the interpretation of Article 19 of the Convention, the Commission would not object, as Article 19 was at issue in the case before the Commission and figures in the report on the merits and in the application.
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