16
constitute a violation of those obligations" and that "has been taken by that State
prior to the effective date of denunciation". The issue of the effects of denunciation,
within such limits, became a central one in recent cases concerning Trinidad and
Tobago under the American Convention on Human Rights.
53.
Trinidad and Tobago became a Party to the American Convention on Human
Rights on 28.05.1991, and accepted the Inter-American Court's jurisdiction in
contentious matters on that same date. Later on, on 26.05.1998, it denounced the
American Convention; pursuant to Article 78 of the Convention, such denunciation
began to have effects one year later, on 26.05.1999. One day before this date the
Inter-American Commission on Human Rights filed before the Court the Hilaire case;
subsequently, after that date, it lodged with the Court the Constantine et allii case (on
22.02.2000) and the Benjamin et allii case (on 05.10.2000), - the three of them
concerning Trinidad and Tobago.
54.
As they pertained to acts taken by that State prior to the date of its
denunciation, the Court retained jurisdiction and took cognizance of the cases
(pursuant to Article 78(2) of the Convention), and rendered its Judgments on
preliminary objections in the three cases on 01.09.2001, dismissing an undue
restriction formulated by the State in its instrument of acceptance of the Court's
compulsory jurisdiction (reiterated in the three cases in the form of a preliminary
objection). That restriction would have limited the Court's jurisdiction to the extent
that its exercise would be consistent with the national Constitution; the Court
considered it incompatible with the object and purpose of the Convention, and an
attempt to subordinate this latter to the national Constitution, what would be
inadmissible64.
55.
The Court then ordered the joinder of the three cases and their respective
proceedings (on 30.11.2001), and delivered its Judgment on the merits, finding
violations of the American Convention, on 21.06.2002. Parallel to that, also after the
denunciation by Trinidad and Tobago became effective (on 26.05.1999), the Court
ordered successive Provisional Measures of Protection, from 27.05.1999 to
02.12.2003, in the case James et allii versus Trinidad and Tobago (as they also
pertained to acts taken by the State prior to the date of its denunciation of the
Convention). All these decisions of the Court remain binding upon the respondent
State; its denunciation of the Convention does not have the sweeping effect that one
might prima facie tend to assume, as the denunciation clause under the American
Convention (supra) was surrounded by temporal limitations so as not to allow it to
undermine the protection of human rights thereunder.
56.
Thus, not even the institution of denunciation of treaties is so absolute in
effects as one might prima facie tend to assume. Despite its openness to
manifestations of State voluntarism, denunciation has, notwithstanding, been
permeated with basic considerations of humanity as well, insofar as treaties of a
humanitarian character are concerned. Ultimately, one is here faced with the
fundamental, overriding and inescapable principle of good faith (bona fides), and one
ought to act accordingly.
4.
Considerations on the Termination and Suspension of the
Operation of Treaties.
57.
The interpretation and application of human rights treaties bear witness of the
twilight of reciprocity and of the prominence of considerations of ordre public in the
present domain. In fact, the prohibition of the invocation of reciprocity as a subterfuge
64
. IACtHR, pars. 93 and 98-99 of the Court's Judgment in the Hilaire case; and pars. 84 and 89-90 of the
Court's Judgments in the Benjamin et allii and the Constantine et allii cases.
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