10
international law as a legal order endowed with an intrinsic value of its own (and
thereby superior to a simply "voluntary" law), - as well recalled by H. Accioly32, - as it
derives its authority from certain principles of sound reason (est dictatum rectae
rationis).
27.
In the present Judgment in the case of Constantine and Others versus Trinidad
and Tobago, the Court has rightly pondered that, if restrictions interposed in the
instrument of acceptance of its contentious jurisdiction were accepted, in the terms
proposed by the respondent State in the cas d'espèce, not expressly foreseen in Article
62 of the American Convention, this
"would lead to a situation in which the Court would have as first parameter of reference
the Constitution of the State and only subsidiarily the American Convention, situation
which would bring about a fragmentation of the international legal order of protection of
human rights and would render illusory the object and purpose of the American
Convention" (par. 93).
28.
that
And the Court has, furthermore, in the present Judgment, correctly observed
" (...) The instrument of acceptance, on the part of Trinidad and Tobago, of the
contentious jurisdiction of the Tribunal, does not fit into the hypotheses foreseen in
Article 62(2) of the Convention. It has a general scope, which ends up by subordinating
the application of the American Convention to the domestic law of Trinidad and Tobago
in a total way and pursuant to what its national tribunals decide. All this implies that this
instrument of acceptance is manifestly incompatible with the object and purpose of the
Convention" (par. 88).
29.
This conclusion of the Court finds clear support in the precise, and quite clear,
formulation of Article 62(2) of the American Convention. Bearing in mind the three
component elements of the general rule of interpretation bona fides of treaties - text in
the current meaning, context, and object and purpose of the treaty - set forth in Article
31(1) of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986), it can
be initially inferred that the text, in the current meaning (numerus clausus), of Article
62(2) of the American Convention, fully corroborates the decision taken by the Court in
the present Judgment.
30.
In the theory and practice of international law one has sought to distinguish a
"reservation" from an "interpretative declaration" 33, in conformity with the legal effects
which are intended to be attributed to one and the other 34: thus, if one intends to
32
.
H. Accioly, Tratado de Derecho Internacional Público, volume I, Rio de Janeiro, Imprensa Nacional,
1945, p. 5.
33
.
Cf. U.N./International Law Commission, "Draft Guidelines on Reservations to Treaties", in: U.N.,
Report of the International Law Commission on the Work of Its 51st Session (May/July 1999), G.A.O.R. Suppl. n. 10 (A/54/10/Corr.1-2), 1999, pp. 18-24, item 1.3; and in: Report of the International Law
Commission on the Work of Its 52nd Session (May/June and July/August 2000), G.A.O.R. - Suppl. n. 10
(A/55/10), 2000, pp. 229-272, item 1.7; and cf. also, more recently, A. Pellet (special rapporteur), Sixth
Report on Reservations to Treaties (Addendum), U.N./I.L.C. doc. A/CN.4/518/Add.1, of 21.05.2001, pp. 3-31,
pars. 38-133.
34
.
For an examination of the question, cf., e.g., F. Horn, Reservations and Interpretative Declarations to
Multilateral Treaties, The Hague/Uppsala, T.M.C. Asser Institut/Swedish Institute of International Law, 1988,
pp. 98-110 and 229-337, and cf. pp. 184-222; D.M. McRae, "The Legal Effect of Interpretative Declarations",
49 British Year Book of International Law (1978) pp. 155-173.