Although it might have had a determinative influence upon the Committee s response, it is not available to any person who was not both present at the time and was privileged to gain access to the documentation.

The State party contends that the examination of the matter by the Jamaican courts is determinative, since it is an issue of fact and evidence upon which the Committee has emphasized that is not competent to adjudicate.

The Department observes that customarily, as indicated by the decision in Clark v. Allen and a number of other decisions of the United States Supreme Court, the determinative factor is whether or not there is such an incompatibility between the treaty provision in question and the maintenance of a state of war as to make it clear that the provision should not enforced.