13
40.
It is my understanding that, from the perspective of a minimally
institutionalised international community, the system of reservations to treaties, such
as it still prevails in our days, is rudimentary and rather primitive. There is pressing
need to develop a system of objective determination of the compatibility or otherwise
of reservations with the object and purpose of human rights treaties, although for that
it may be considered necessary an express provision in future human rights treaties,
or the adoption to that effect of protocols to the existing instruments 58.
41.
Only with such a system of objective determination will we succeed in guarding
coherence with the special character of human rights treaties, which set forth
obligations of an objective character and are applied by means of the exercise of the
collective guarantee. Only thus will we succeed to establish, in the ambit of the law of
treaties, standards of behaviour which contribute to the creation of a true
international ordre public based on the respect and observance of human rights, with
the corresponding obligations erga omnes of protection. We stand in need of the
renovation and humanization of the law of treaties as a whole, comprising also the
forms of manifestation of State consent.
42.
I do not see how not to take into account the experience of international
supervision accumulated by the conventional organs of protection of human rights in
the last decades. Any serious evaluation of the present system of reservations to
treaties cannot fail to take into account the practice, on the matter, of such organs of
protection. It cannot pass unnoticed that the International Court of Justice, in its
already mentioned Advisory Opinion of 1951, effectively recognised, in a pioneering
way, the special character of the Convention for the Prevention and Punishment of the
Crime of Genocide of 1948, but without having extracted from its acknowledgement
all the juridical consequences for the regime of reservations to treaties.
43.
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 humanitarian" purpose,
"(...) the Contracting States do not have any interest 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" 59.
44.
I see no sense in trying to try to escape from the acknowledgement 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
58
. As suggested in the aforementioned "Preliminary Conclusions" of 1997 (paragraph 7) of the International
Law Commission; cf. U.N., Report of the International Law Commission... (1997), op. cit. supra n. (46), pp.
126-127.
59
. 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.
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