13
the Vienna Convention and, consequently, do not require acceptance by any other
State party” 6.
46)
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.
47)
Trinidad and Tobago contended that the American Convention does not
contain a provision parallel to Article 64(c) (sic) of the European Convention 7 and
that, in fact, the framers of the American Convention preferred to follow the
provisions of the Vienna Convention on the Law of Treaties, which “does not prohibit”
(sic) reservations of a general character.
48)
The State added that the Constitution of Trinidad and Tobago is and was, at
the moment of ratification of the Convention, compatible with the same. 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.
49)
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.
50)
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 […]
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.
7
Article 64(1) of the European Convention before Protocol 11 went into effect corresponds to
current Article 57(1) and reads:
Any State may, when signing this Convention or when depositing its instrument of
ratification, make a reservation in respect of any particular provision of the Convention
to the extent that any law then in force in its territory is not in conformity with the
provision. Reservations of general character shall not be permitted under this article.