16
49)
The State added that the International Court of Justice, in its Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide (1951), indicated that
[…] if a party to the Convention objects to a reservation which it considers to be
incompatible with the object and purpose of the Convention, it can in fact consider the
reserving State is not a party to the Convention […]
50)
The State indicated out that, in its legal system, it is the Legislative Power
that makes the laws. The Executive cannot, at the moment of ratification of a
treaty, alter the laws of the Republic or create a constitutional breach. For this
reason, the Executive, at the time of accession to the Convention and acceptance of
the compulsory jurisdiction of the Court, formulated the “reservation” under Article
62. In this same manner, the State denounced the Convention in May of 1998, in
virtue of the need to observe the provisions of the Constitution of the Republic of
Trinidad and Tobago.
51)
If the “reservation” of the State were, for any reason, considered invalid, it
would not mean that the State declared its unlimited acceptance of the compulsory
jurisdiction of the Court. On the contrary, it is clear that the State never intended to
accept, in its totality, the jurisdiction of the Court. If the “reservation” is invalid,
then the declaration was invalid, and the State never made a declaration.
Arguments of the Commission
52)
The Commission sustained that the impugned term in the State’s declaration
of acceptance of the Court’s jurisdiction should be considered invalid because it is
impossible to determine its exact nature or scope. It is excessively vague and
should not be interpreted in a manner that affects the Court’s jurisdiction to decide
cases against the State. If a meaning is to be attributed, it should be interpreted in a
manner that limits the legal effects of the Court’s judgments, and not the Court’s
jurisdiction to decide cases against the State.
53)
The Commission indicated that the United Nations Human Rights Committee
has stated that reservations to human rights treaties must be specific and
transparent so that courts, individuals under the jurisdiction of a reserving State,
and other States parties can know which human rights obligations have or have not
been undertaken. The term contained in the State’s “reservation” appears to modify
the degree of acceptance of the compulsory jurisdiction of the Court. However, a
simple reading of the term makes it difficult to determine the restrictions that the
State has purported to establish under Article 62 to its obligations assumed under
the Convention.
54)
The term can also be interpreted in various ways. For example, it could be
interpreted to mean that the Court is precluded from hearing and deciding a case
related to allegations of violations of a Convention right if the same right is not
protected under the State’s Constitution. Alternatively, it could be interpreted to
mean that while the Court has jurisdiction to hear and determine a matter, the
Court’s judgment must be consistent with certain unstipulated sections of Trinidad
and Tobago’s Constitution.
55)
The Commission noted that the State only relies upon the first part of the
declaration in concluding that the Court has no jurisdiction. It pointed out that the