15
b)
the treaty provides, that only specified reservations, which do not include the
reservation in question, may be made; or
c)
in cases not falling under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
44)
The State also mentioned that in its Advisory Opinion on The Effect of
Reservations on the Entry into Force of the American Convention on Human Rights
(OC-2/82), the Court had stated that the reference in Article 75 to the Vienna
Convention was intended to be a reference to paragraph (c) of Article 19 of the
Vienna Convention and “makes sense only if it is understood as an express
authorization designed to enable States to make whatever reservations they deem
appropriate, provided the reservations are not incompatible with the object and
purpose of the treaty. As such they can be said to be governed by Article 20(1) of
the Vienna Convention and, consequently, do not require acceptance by any other
State party” 6.
45)
The State argued that its “reservation” was made relative to its acceptance of
the Court’s jurisdiction and is limited to Article 62 of the American Convention.
According to Trinidad and Tobago, Article 62 of the Convention is an optional clause
that States can freely “accept or reject”. Those States that accept and so declare
are expressly authorized to do so subject to conditions. The Convention permits
restrictions at the moment of acceptance of the Court’s jurisdiction under Article 62,
which does not affect the enjoyment or exercise of the rights and liberties recognized
in the Convention. Consequently, given that the “reservation” does not deny the
exercise of any of the rights provided for in the Convention, it can be considered
compatible with the object and purpose of the same.
46)
Trinidad and Tobago contended that, in accordance with universally
recognized principles of International Law, the exercise of the jurisdiction by an
international court with respect to a State is not a right but a privilege only
exercisable with the express consent of the State. Article 62 of the Convention
reflects this position.
47)
The State added that the Constitution of Trinidad and Tobago is and was, at
the moment of ratification of the Convention, compatible with the Convention. It
argued that its “reservation” cannot be interpreted as contrary to the object and
purpose of the Convention because the “reservation” is only related to the optional
procedure contained in Article 62 of the Convention, which in no way affects the
substantive rights guaranteed in the Convention. The “reservation,” as presented, it
argued, does not restrict the obligations assumed by the State under the Convention
in relation to individuals within its jurisdiction.
48)
Trinidad and Tobago also maintained that, if the Court declares the State’s
Article 62 “reservation” incompatible with the object and purpose of the American
Convention, the effect of such a determination would be to render the State’s
declaration accepting the Court’s compulsory jurisdiction null and void ab initio.
6
The Effect of Reservations on the Entry into Force of the American Convention on Human Rights
(Arts. 74 and 75), Advisory Opinion OC-2/82 of September 24, 1982. Series A No. 2, para. 35. To this
respect, Article 20 of the Vienna Convention “Acceptance of and objection to reservations” establishes the
following in paragraph 1:
1.
A reservation expressly authorized by a treaty does not require any subsequent
acceptance by the other contracting States unless the treaty so provides.