7
Greek case (1967-1970), further discussed by the Commission and the European Court
in the Ireland versus United Kingdom case (1971-1978).
20.
In this particular instance, international case-law influenced international
legislation in the field of human rights protection. The extensive case-law of the
European Court covers virtually the totality of the rights protected under the European
Convention and some of its Protocols. The growing case-law of the Inter-American
Court, in its turn, appears innovative and forward-looking with regard to the right to
life, reparations in its multiple forms, and provisional measures of protection, these
latter sometimes benefiting members of entire human collectivities18.
2.
Considerations on the Reservations to Treaties.
21.
International supervisory organs in the domain of human rights protection have
in recent years disclosed their awareness - and, on some occasions, their determination
- to the effect of preserving the integrity of human rights treaties. It may be recalled
that, inspired in the criterion sustained by the International Court of Justice in its
Advisory Opinion of 1951 on the Reservations to the Convention against Genocide19,
the present system of reservations set forth in the two Vienna Conventions of the Law
of Treaties (of 1969 and 1986, Articles 19-23)20, in joining the formulation of
reservations to the acquiescence or the objections thereto for the determination of their
compatibility with the object and purpose of the treaties, is of a markedly voluntarist
and contractualist character.
22.
Such a system leads to a fragmentation (in the bilateral relations) of the
conventional obligations of the States Parties to multilateral treaties, appearing
inadequate to human rights treaties, which are inspired in superior common values and
are applied in conformity with the notion of collective guarantee. That system of
reservations21 suffers from notorious insufficiencies when transposed from the law of
treaties in general into the domain of the International Law of Human Rights. To start
with, it does not distinguish between human rights treaties and classic treaties, making
abstraction of the jurisprudence constante of the organs of international supervision of
human rights, converging in pointing out that distinction.
23.
It allows reservations (not objected) of a wide scope which threaten the very
integrity of human rights treaties; it allows reservations (not objected) to provisions of
18
. Cf. A.A. Cançado Trindade, "Les Mesures provisoires de protection dans la jurisprudence de la Cour
Interaméricaine des Droits de l'Homme", 4 Revista do Instituto Brasileiro de Direitos Humanos (2003) pp. 1325; A.A. Cançado Trindade, "The Evolution of Provisional Measures of Protection under the Case-Law of the
Inter-American Court of Human Rights (1987-2002)", 24 Human Rights Law Journal - Strasbourg/Kehl (2003)
n. 5-8, pp. 162-168.
19
. In which, - it may be recalled, - the Hague Court endorsed the so-called Pan-American 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. 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.
20
. That is, the Vienna Convention on the Law of Treaties of 1969, and the Vienna Convention on the Law of
Treaties between States and International Organizations or between International Organizations of 1986, - to
which one may add, in the same sense, the Vienna Convention on Succession of States in the Matter of
Treaties of 1978 (Article 20).
21
. Endorsed, e.g., by the American Convention on Human Rights (cross-reference of Article 75).
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