6
international law would be seriously jeopardized if one were to decharacterize the
crimes against humanity which fall under their prohibition.
V.
The Specificity and Integrity of Human Rights Treaties.
16.
It will not be through the decomposition or fragmentation, pursuant to
the application of a classic postulate of the law of treaties, of the constitutive
elements of a particularly grave crime such as that of forced disappearance of
person, that one will advance in those important doctrinal developments. In the
present Blake case, the limitation ratione temporis to the competence of the
Court not only has negative repercussions on its own competence ratione
materiae, but also discloses a décalage between the law of treaties, and the
International Law of Human Rights.
17.
The solutions of the former, set forth in the two Vienna Conventions on
the Law of Treaties (of 1969 and 1986), were erected to a large extent on the
premise of the balance of the accord de volontés among the sovereign States
themselves, with some significant concessions to the interests of the so-called
international comunity (identified above all in the assertion of jus cogens in
Articles 53 and 64 of both Vienna Conventions). The solutions of the latter are
erected on distinct premises, opposing to those States the human beings
victimized under their jurisdiction, ultimate subjects of the rights of protection.
18.
Hence the ineluctable tension between one and the other, of which the
problem raised in the present Blake case is but one manifestation. Among
others, one may recall the system itself -voluntarist and contractualist - of
reservations to treaties, enshrined in the two Vienna Conventions on the Law of
16
Treaties (Articles 19-23) (inspired in the criterion sustained by the International
Court of Justice in its Advisory Opinion of 1951 on Reservations to the Convention
17
against Genocide ), which leads to a fragmentation (in bilateral relations) of the
conventional obligations of the States Parties in multilateral treaties. Such system
is, in my understanding, entirely inadequate to human rights treaties, which find
inspiration in superior common values and are applied in conformity with the
notion of collective guarantee.
19.
The rightful preoccupation in safeguarding above all the integrity of
human rights treaties nowadays calls for a wide revision of the individualist
18
system of reservations set forth in the two aforementioned Vienna Conventions .
15.
To which one could add, in the same sense, the Vienna Convention on Succession of States
in Respect of Treaties of 1978 (Article 20).
16.
In that Advisory Opinion, the International Court of Justice endorsed the so-called panAmerican practice relating to reservations to treaties, given its flexibility, and in search of a certain
balance between the integrity of the text of the treaty and the universality of participation in it; hence
the criterion of the compatibility of the reservations with the object and purpose of the treaties. Cf.
International Court of Justice, Opinion on the Reservations to the Convention against Genocide, ICJ
Reports (1951) pp. 15-30; and cf., a contrario sensu, the Joint Dissenting Opinion of Judges Guerrero,
McNair, Read and Hsu Mo (pp. 31-48), as well as the Dissenting Opinion of Judge Álvarez (pp. 49-55),
for the difficulties generated by this criterion.
17.
The current work (as from 1993) of the International Law Commission of the United Nations
on the topic of the Law and Practice Relating to Reservations to Treaties is thus endowed with
importance; it remains to be seen whether it will or not fulfil the expectations existing nowadays about
the evolution of the matter, particularly in so far as the application of human rights treaties is
concerned.
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