11
law of treaties. The true unity of the law of treaties, in the framework of Public
International Law, would be better served by the search for improvement in this
area, overcoming the ambiguities, uncertainties and lacunae of the present system
of reservations, through the development of a system of objective determination
(supra), in conformity with the special nature of human rights treaties and the
objective character of the conventional obligations of protection. The unity of Public
International Law itself is measured rather by its aptitude to regulate legal relations
in distinct contexts with equal adequacy and effectiveness.
30.
Despite of what happened in the present Blake case, in which the terms of
acceptance by the respondent State of the contentious jurisdiction of the Court
brought about the decomposition of the crime of forced disappearance of person
(with direct consequences for the reparations to the injured party), there is no
reason for desperation, for not existing juridical impossibility of achieving the
humanization of the law of treaties. Thus, to quote one example in this sense, in
providing for the conditions in which a breach of a treaty can result in its termination
or the suspension of its application, the two Vienna Conventions on the Law of
Treaties expressly and specifically exclude "the provisions relating to the protection
of the human person contained in treaties of a humanitarian character" (Article
60(5)).
31.
This provision resulted from a proposal submitted by Switzerland, in the
second session of the Vienna Conference (1969) which adopted the first Vienna
Convention on the Law of Treaties. Its purpose was that of pointing out that the
treaties of a humanitarian character have a special nature, do not exist for the sole
benefit of the States, and transcend the reciprocity between the Parties in
incorporating obligations of protection of an absolute character 29. Such provision
(Article 60(5)), together with those concerning jus cogens (Articles 53 and 64),
represent what exists of most progressive in the Vienna Convention, fostering,
ultimately, the very moralization of the law of treaties 30.
32.
Besides constituting a true clause of safeguard in defense of the human
being, the provision of Article 60(5) of the two above-mentioned Vienna Conventions
pierces the stronghold (previously exclusive) of inter-State relations in the
framework of the law of treaties, and recognizes the special nature of the treaties of
a humanitarian character with all its juridical consequences. Such recognition is
strengthened by the assertion, in the preamble of the two Vienna Conventions, of
the principle of universal respect and observance of human rights (sixth paragraph of
the Preamble), to be taken into account in the interpretation of the Vienna
Conventions of 1969 31 and 1986 themselves. There is no reason for this evolution to
29.
I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, University
Press/Oceana, 1973, pp. 104-105; and cf. G.E. do Nascimento e Silva, Conferência de Viena
sobre o Direito dos Tratados, Rio de Janeiro, M.R.E., 1971, pp. 80-81; E. de la Guardia y M.
Delpech, El Derecho de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970,
pp. 458 and 454; F. Capotorti, "Il Diritto dei Trattati Secondo la Convenzione di Vienna",
Convenzione di Vienna sul Diritto dei Trattati, Padova, Cedam, 1984, p. 61.
30.
P. Reuter, La Convention de Vienne sur le Droit des Traités, Paris, Libr. A. Colin, 1970,
pp. 21-23.
31.
E. Schwelb, "The Law of Treaties and Human Rights", in Toward World Order and
Human Dignity - Essays in Honor of M.S. McDougal (eds. W.M. Reisman and B.H. Weston),
N.Y./London, Free Press/Collier Macmillan, 1976, pp. 263 and 265.