11
surrounded, in the last decades, the question of the legal effects of declarations
inserted into the instruments of acceptance of the optional clause of compulsory
jurisdiction, given the sui generis character of such clause.
31.
In any way, in considering the meaning and scope of a declaration of
acceptance of an optional clause of compulsory jurisdiction, - such as the one
presented by Trinidad and Tobago under Article 62 of the American Convention and
interposed as preliminary objection in the present case Hilaire, - one has to bear in
mind the nature of the treaty in which that clause appears. This corresponds to the
"context", precisely the second component element of the general rule of interpretation
of treaties set forth in Article 31 of the two Vienna Conventions on the Law of Treaties.
In the present Judgment, the Court has duly done so, in stressing the special character
of the human rights treaties (pars. 94-97).
32.
Likewise, the Court has kept constantly in mind the third component element of
that general rule of interpretation, namely, the "object and purpose" of the treaty at
issue, the American Convention on Human Rights (pars. 82-83 and 88). Thus, the
understanding advanced in the cas d'espèce by the respondent State of the scope of its
own acceptance of the optional clause of compulsory jurisdiction of the Inter-American
Court, does not resist the proper interpretation of Article 62 of the American
Convention, developed in the light of the canons of interpretation of the law of treaties.
33.
As I saw it fit to point out in my Separate Opinion in the case Blake versus
Guatemala (Reparations, 1999),
"(...) In contracting conventional obligations of protection, it is not reasonable, on
the part of the State, to assume a discretion so unduly broad and conditioning of the
extent itself of such obligations, which would militate against the integrity of the treaty.
The principles and methods of interpretation of human rights treaties, developed
in the case-law of conventional organs of protection, can much assist and foster this
necessary evolution. Thus, in so far as human rights treaties are concerned, one is to bear
always in mind the objective character of the obligations enshrined therein, the
autonomous meaning (in relation to the domestic law of the States) of the terms of such
treaties, the collective guarantee underlying them, the wide scope of the obligations of
protection and the restrictive interpretation of permissible restrictions. These elements
converge in sustaining the integrity of human rights treaties, in seeking the fulfillment of
their object and purpose, and, accordingly, in establishing limits to State voluntarism.
From all this one can detect a new vision of the relations between public power and the
human being, which is summed up, ultimately, in the recognition that the State exists for
the human being, and not vice-versa.
The juridical concepts and categories, inasmuch as they enshrine values, are a
product of their time, and, as such, are in constant evolution. The protection of the human
being in any circumstances, against all the manifestations of arbitrary power, corresponds
to the new ethos of our times, which is to be reflected in the postulates of Public
International Law. (...)" 36.
V.
The International Compulsory Jurisdiction: Reflections De Lege
Ferenda.
of a general character - to the European Convention on Human Rights, incompatible with the object and
purpose of this latter. European Court of Human Rights, Belilos versus Switzerland case, Judgment of
29.04.1988, Series A, n. 132, pp. 20-28, pars. 38-60.
36
.
IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48,
Separate Opinion of Judge A.A. Cançado Trindade, pp. 114-115, pars. 32-34.