10
the Crime of Genocide of 1948, but without having extracted from its
acknowledgement all the juridical consequences for the regime of reservations to
treaties.
26.
Almost half a century having lapsed, this is the task which is incumbent upon
us, all of us who have the responsibility and the privilege to act in the domain of the
international protection of human rights. The words pronounced by the Hague Court
in 1951 remain topical nowadays, in pointing out that, in a Convention such as that
of 1948, adopted for a "purely humanitaran" purpose,
"(...) the Contracting States do not have any interests of their own; they merely
have, one and all, a common interest, namely, the accomplishment of those high
purposes which are the raison d'être of the Convention. Consequently, in a
Convention of this type one cannot speak of individual advantages and
disadvantages to States, of the maintenance of a perfect contractual balance
between rights and duties. The high ideals which inspired the Convention provide, by
virtue of the common will of the Parties, the foundation and measure of all its
provisions" 28.
27.
I see no sense in trying to escape from the reality of the specificity of the
International Law of Human Rights as a whole, the recognition of which, in my
understanding, in no way threatens the unity of Public International Law; quite on
the contrary, it contributes to develop the aptitude of this latter to secure, in the
present domain, compliance with the conventional obligations of protection of the
States vis-à-vis all human beings under their jurisdictions. With the evolution of the
International Law of Human Rights, it is Public International Law itself which is
justified and legitimized, in affirming juridical principles, concepts and categories
proper to the present domain of protection, based on premises fundamentally
distinct from those which have guided the application of its postulates at the level of
purely inter-State relations.
28.
I am not, therefore, here proposing that the development of the Internacional
Law of Human Rights be brought about to the detriment of the law of treaties: my
understanding, entirely distinct, is in the sense that the norms of the law of treaties
(such as those set forth in the two above-mentioned Vienna Conventions, anyway of
a residual character) can greatly enrich with the impact of the International Law of
Human Rights, and develop their aptitude to regulate adequately the legal relations
at inter-State as well as intra-State levels, under the respective treaties of
protection. In sustaining the development of a system of objective determination which seems to me wholly necessary - of the compatibility or otherwise of
reservations with the object and purpose of human rights treaties in particular, in
which the organs of international protection created by such treaties would exert an
important role, I do not see in that any threat to the "unity" of the law of treaties.
29.
Quite on the contrary, there could hardly be something more fragmenting and
underdeveloped than the present system of reservations of the two Vienna
Conventions, for which reason it would be entirely illusory to assume that, to
continue applying it as until now, one would thereby be fostering the "unity" of the
28.
International Court of Justice, Advisory Opinion of 28.05.1951, ICJ Reports (1951) p.
23; and, for a study on the matter, cf. A.A. Cançado Trindade, "La jurisprudence de la Cour
Internationale de Justice sur les droits intangibles / The Case-Law of the International Court of
Justice on Non-Derogable Rights", Droits intangibles et états d'exception / Non-Derogable
Rights and States of Emergency (ed. D. Prémont), Brussels, Bruylant, 1996, pp. 53-89.