11
clarify the meaning and scope of a given conventional provision, it is an interpretative
declaration, while if one intends to modify a given conventional provision or to exclude
its application, it is a reservation. In practice, it is not always easy to draw the dividing
line between one and the other 35, as illustrated by the controversy which has
surrounded, in the last decades, the question of the legal effects of declarations
inserted into the instruments of acceptance of the optional clause of compulsory
jurisdiction, given the sui generis character of such clause.
31.
In any way, in considering the meaning and scope of a declaration of
acceptance of an optional clause of compulsory jurisdiction, - such as the one presented
by Trinidad and Tobago under Article 62 of the American Convention and interposed as
preliminary objection in the present case Constantine, - one has to bear in mind the
nature of the treaty in which that clause appears. This corresponds to the "context",
precisely the second component element of the general rule of interpretation of treaties
set forth in Article 31 of the two Vienna Conventions on the Law of Treaties. In the
present Judgment, the Court has duly done so, in stressing the special character of the
human rights treaties (pars. 94-97).
32.
Likewise, the Court has kept constantly in mind the third component element of
that general rule of interpretation, namely, the "object and purpose" of the treaty at
issue, the American Convention on Human Rights (pars. 82-83 and 88). Thus, the
understanding advanced in the cas d'espèce by the respondent State of the scope of its
own acceptance of the optional clause of compulsory jurisdiction of the Inter-American
Court, does not resist the
proper interpretation of Article 62 of the American Convention, developed in the light of
the canons of interpretation of the law of treaties.
33.
As I saw it fit to point out in my Separate Opinion in the case Blake versus
Guatemala (Reparations, 1999),
"(...) In contracting conventional obligations of protection, it is not reasonable, on
the part of the State, to assume a discretion so unduly broad and conditioning of the extent
itself of such obligations, which would militate against the integrity of the treaty.
The principles and methods of interpretation of human rights treaties,
developed in the case-law of conventional organs of protection, can much assist and
foster this necessary evolution. Thus, in so far as human rights treaties are concerned,
one is to bear always in mind the objective character of the obligations enshrined
therein, the autonomous meaning (in relation to the domestic law of the States) of the
terms of such treaties, the collective guarantee underlying them, the wide scope of the
obligations of protection and the restrictive interpretation of permissible restrictions.
These elements converge in sustaining the integrity of human rights treaties, in seeking
the fulfillment of their object and purpose, and, accordingly, in establishing limits to
State voluntarism. From all this one can detect a new vision of the relations between
public power and the human being, which is summed up, ultimately, in the recognition
that the State exists for the human being, and not vice-versa.
The juridical concepts and categories, inasmuch as they enshrine values, are a
product of their time, and, as such, are in constant evolution. The protection of the human
being in any circumstances, against all the manifestations of arbitrary power, corresponds
35
.
It may be recalled that in the well-known case of Belilos versus Switzerland (1988), the European
Court of Human Rights considered that a declaration interposed by Switzerland amounted to a reservation - of
a general character - to the European Convention on Human Rights, incompatible with the object and purpose
of this latter. European Court of Human Rights, Belilos versus Switzerland case, Judgment of 29.04.1988,
Series A, n. 132, pp. 20-28, pars. 38-60.