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of intemporality proper to the International Law of Human Rights which the law of
treaties cannot keep on failing to take into due account: this is a legal order of
protection destined to be applied in any circumstances and without temporal
limitation, that is, all the time.
5.
The tension between the precepts of Public International Law and those of the
International Law of Human Rights is not of difficult explanation: while the juridical
concepts and categories of the former have been formed and crystallized above all at
the level of inter-State relations (under the dogma that only the States, and later on
the international organizations, are subjects of that legal order), the juridical
concepts and categories of the latter have been formed and crystallized at the level
of intra-State relations, that is, in the relations between the States and the human
beings under their respective jurisdictions (erected these latter as subjects of that
legal order).
6.
The tension referred to - of which the present Blake case bears eloquent
testimony - was, thus, to be expected. The juridical concepts and categories of Public
International Law, constructed in the framework of a legal order of coordination in
accordance with the principle of the juridical equality of States, have shown
themselves not always adequate when transposed into the domain of the
International Law of Human Rights. This latter, in its turn, went on to contribute
decisively to the historical rescue of the position of the human being in the law of
nations (droit des gens), in accordance, even, with the historical origins of this
discipline. In regulating new forms of legal relations, imbued with the imperatives of
protection, the International Law of Human Rights came of course to question and
challenge certain dogmas of the past.
7.
Distinctly from Public International Law, the International Law of Human
Rights does not regulate the relations between equals; it operates precisely in
defense of those who are ostensibly weaker and more vulnerable (the victims of
violations of human rights). In the relations between unequals, it stands in defense
of those in greater need of protection. It does not seek to obtain an abstract balance
between the parties, but rather to remedy the effects of the lack of equilibrium and
of the disparities to the extent that they affect human rights. It does not feed on the
concessions of reciprocity, but it rather inspires itself in the considerations of ordre
public in defense of superior common interests. It is a true law of protection (droit de
protection), marked by a logic of its own, and turned to the safeguard of the rights of
human beings and not of States.
8.
This is the proper sense of the International Law of Human Rights, whose
juridical norms are interpreted and applied bearing always in mind the pressing
needs of protection of the victims, and requiring, in this way, the humanization of
the postulates of classic Public International Law. There is no reason for the alreadymentioned tension between the postulates of Public International Law and those of
the International Law of Human Rights to last always, but quite on the contrary: the
great challenge which faces us is precisely in the sense of the overcoming of that
tension.
9.
One of the most eloquent manifestations of such tension emanates from the
question of reservations to human rights treaties. Inspired in the criterion sustained
by the International Court of Justice in its Advisory Opinion of 1951 on the