2
violations of the Pact took place before this last date. 5 Finally, the Court has
demonstrated, in this same Judgment to which I attach my Separate Opinion, that
the State cannot invoke provisions of its domestic law to avoid fulfilling its
international treaty obligations. 6 It is important to note, as well, that Trinidad and
Tobago ratified the Pact of San José on May 28, 1991, long after promulgating its
Constitution.
3. The incompatibility of the Offences Against the Person Act with the American
Convention, that I now propose to examine, and which has already been analysed
and resolved by the Court in its Judgment, arises from the lack of agreement
between the terms in which the Act prevents and sanctions murder, ordering the
mandatory penalty of death penalty in the process, and the two provisions
formulated under Article 4 of the American Convention concerning the death
penalty. This implies a violation of Article 2 of the Pact of San José, in relation to
Article 4, paragraphs 1 and 2 (to which could be added - as it will be shown below
- paragraph 6 of this same precept).
The relevant portion of paragraph 1 of Article 4 indicates that "[n]o one shall be
arbitrarily deprived of his life" (emphasis added); and the relevant portion of
paragraph 2 stipulates that "[i]n countries which have not abolished the death
penalty, it may be imposed only for the most serious crimes" (emphasis added).
There are, therefore, two definite restrictions on the imposition of the death
penalty: One, which concerns the extreme seriousness of the crimes to which it
may relate, and the other, the prohibition of arbitrariness in the deprivation of life.
In my mind, the Offences Against the Person Act fails to respect these restrictions
and as a result offends the American Convention that the State adopted and
accepted as binding the respective obligations emanating from it, when it became
a party to this international treaty.
4. Before examining these incompatibilities, it is important to recall that the Pact of
San José does not abolish the death penalty. That widely demanded possibility
derives from other national and international acts. 7 The American Convention
likewise recognizes and shares this abolitionist proclivity, and in its proper
5
Cf. id., paras. 27-28.
6
This principle, found in Article 27 of the Vienna Convention on the Law of Treaties of 1969 (to
which Trinidad and Trinidad and Tobago is not a party), constitutes a rule of customary international law.
Article 27 "goes to the very foundation of international law, and for which there exist significant
precedents." (translation of the Secretariat) De la Guardia, Ernesto, and Delpech, Marcelo, El Derecho de
los tratados y la Convención de Viena, Buenos Aires, La Ley, 1970, p. 286. The Vienna Convention is in
itself, in essence, a codification of preexisting international law, and as such affects even those states that
have not ratified it. Cf. Harris, D. J., Cases and materials on International Law, London, Sweet & Maxwell,
1998, p.765; Van Hoof, G.J.H., Rethinking the sources of International Law, Deventer, The Netherlands,
Kluwer Law and Taxation Publishers, 1983, No. 464; in a similar sense, Tunkin, Grigory, "Is general
International Law Customary Law only?", European Journal of International Law, vol. 4, No. 4, 1993, pp.
534 and ff. With respect to the jurisprudence of the Inter-American Court in regard to the non-opposability
of domestic law to the fulfillment of international obligations, cf. I/A Court H.R., International responsibility
for the promulgation and enforcement of laws in violation of the Convention (Arts. 1 and 2 American
Convention on Human Rights). Advisory Opinion OC-14/94 of December 9, 1994. Series A No. 14; and I/A
Court H.R., Castillo Petruzzi et al. Case. Compliance with Judgment. Order of November 17, 1999. Series C
No. 59, considering 4.
7
Among the most recent are, the Protocol to the American Convention on Human Rights to Abolish
the Death Penalty, June 8, 1990, and the Second Optional Protocol to the International Covenant on Civil
and Political Rights, aiming at the abolition of the death penalty, adopted by the General Assembly of the
United Nations on December 15, 1989.
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