10
the ambit of the International Law of Human Rights, bearing in mind the great
potential of application of the notion of collective guarantee, underlying all human
rights treaties, and responsible for some advances already achieved in this domain.
27.
Half a century passed since the adoption of the American and the Universal
Declarations of Human Rights, and after so many years of continuing operation of
the existing systems of international protection of human rights, what else is
contemporary international case-law waiting for to develop the contents and legal
effects of the erga omnes obligations in the present domain? Among the elements
to be, from the start, taken into account, are the direct applicability of the
international norms of protection in the ambit of the domestic law of the States,
and the adoption of measures that secure the faithful execution of the judgments of
the existing international tribunals of human rights (the Inter-American and
European Courts of Human Rights).
28.
The consolidation of erga omnes obligations of protection, as a
manifestation of the emergence itself of imperative norms of international law,
would represent the overcoming of the pattern erected upon the autonomy of the
will of the State. The absolute character of the autonomy of the will can no longer
be invoked in view of the existence of norms jus cogens. It is not reasonable that
the contemporary law of treaties continues to aligning itself to a pattern from which
it sought gradually to free itself, in giving expression to the concept of jus cogens in
the two Vienna Conventions on the Law of Treaties. It is not reasonable that, by the
almost mechanical application of postulates of the law of treaties erected upon the
autonomy of the will of the State, one would restrain - as in the present case - a
reassuring evolution, fostered above all by the opinio juris as a manifestation of the
universal juridical conscience, to the benefit of all human beings.
29.
There is pressing need for the law of treaties to reconsider itself, so as to
accompany and to regulate, with the precision which is characteristic of it, this
evolution, in such a way as to fulfill the new needs of safeguard - in any
circumstances - of the human being, ultimate subject (titulaire) of the rights of
protection. One ought to demystify the presentation, frequent and undue, of certain
postulates as eternal and immutable truths, as they appear rather as a product of
their time, that is, juridical solutions found in a given stage of the evolution of law,
in accordance with the ideas prevailing in the epoch.
30.
It is not reasonable that, despite the efforts of contemporary doctrine, and
including of the representatives of the States which participated of the process of
elaboration of treaties such as the Inter-American Convention on Forced
Disappearance of Persons, one would refrain from promoting such developments,
as a result of the fragmenting application - in relation to the forced disappearance
of persons, as in the present case - of a rigid postulate of the law of treaties.
Human rights are demanding a transformation and revitalization of the law of
treaties.
VIII. Conventional
Obligations
Settlement (Jurisdiction).
(Responsibility)
and
Judicial
31.
Just as the recent Advisory Opinion of the Inter-American Court on Reports
of the Inter-American Commission on Human Rights (Article 51 of the American
Convention on Human Rights - OC-15, of 14 November 1997) reached the very
bases of its advisory function, the question raised in the present Blake case touches
instruments of universal or almost universal character; Barcelona Traction case (Belgium
versus Spain, 2nd. phase), ICJ Reports (1970) p. 32, paragraphs 33-34.