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of the individual. Trinidad and Tobago’s denunciation of the Convention was
profoundly regrettable for the cause of a universal regime of human rights
protection, but the State was fully within its rights to take that unprecedented step.
But its contumelious refusal to acknowledge its continuing obligations under a
treaty that remained in force for it when the violations in this case took place
represents a gratuitous attack on the Rule of Law, all the more astonishing in a
State that, like other Commonwealth Caribbean states, prides itself on its Common
Law traditions, where respect for human rights and for the Rule of Law are deeply
embedded in the legal culture.
At present, in the wake of Trinidad and Tobago’s brief sojourn and
precipitous withdrawal, only four of those states are party to the Convention. Only
one, Barbados, has accepted the contentious jurisdiction of the Court. On the
evidence of that State’s recent refusal, in the context of its very first procedural
contact with the Court, to obey an interlocutory Order of the Court in a matter
referred to the Court by the Inter-American Commission under the terms of Article
63.2 of the Convention, it seems that Barbados is bent on following the scofflaw
example of its CARICOM colleague and neighbour.
Although - unlike Trinidad and Tobago in the instant case - Barbados has
displayed a minimum of courtesy in actually making a response to the Order of the
Court, that response is in the form of a claim that the State is exempt from the
Court’s jurisdiction, on the juridically incoherent ground that to obey any such order
would conflict with its Constitution. This is in direct antithesis to the precept
contained in Article 27 of the Vienna Convention: “A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
There is, unfortunately, no evidence that any of the Commonwealth
Caribbean States Parties to the Convention has taken action to meet the obligation
set out in Article 2, “Domestic Legal Effects”, viz:
“Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the
States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to
those rights or freedoms.”
“Savings Clauses”
As the Court has found both in the instant case and, previously, in the
Hilaire case, Section 6 of the Trinidad and Tobago Constitution, the so-called
“savings clause”, (mirrored in similar constitutional provisions in the
Commonwealth Caribbean) has the effect of protecting from scrutiny in the national
Courts certain State acts that would otherwise be in breach of the fundamental
rights provisions of the said Constitution. However, by virtue of the principle set out
in Article 26 of the Vienna Convention, this does not exempt the State from its duty
under international law; to the extent that such a provision purports so to do, it
constitutes a clear breach of the relevant international obligations.
Countries that enter voluntarily and sovereignly into treaties cannot pick
and choose which treaty obligations to obey and which to flout. Even where
reservations are entered, it is clearly settled international law and practice that
such reservations must not be “incompatible with the object and purpose of the
treaty”. (Vienna Convention: Article 19).
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