16
48.
In fact, basic considerations of humanity have permeated also the clauses of
denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions on
denunciation of the four Geneva Conventions on International Humanitarian Law of
1949. According to those provisions (common Article 63/62/142/158), the
denunciation, which will take effect one year after its notification, shall not, however,
while the denouncing power is engaged in a conflict, take any effect "until peace has
been concluded", and until the "operations connected with the release and repatriation
of the persons protected" by the Geneva Conventions "have been terminated". In this
way, the obligations of the Parties as to the safeguard of the persons protected under
those Conventions subsist, in whatever circumstances, vis-à-vis the denouncing power,
while the conflict lasts and the release and repatriation of the persons protected are not
concluded61.
49.
Furthermore, the denunciation provisions of the aforementioned four Geneva
Conventions (common Article 63/62/142/158) expressly preserves the obligations
based on "the principles of the law of nations" as they result from "the laws of
humanity" and "the dictates of the public conscience" (the Martens clause). Such
obligations, as aptly remarked by B.V.A. Röling, continue governing human conduct
even when treaties are no longer binding62, - contrary to, I would add, what positivists
would mechanically argue. As I have sustained at length in my Concurring Opinion in
this Court's Advisory Opinion n. 18 on the Juridical Condition and Rights of
Undocumented Migrants (2003), the law of protection of the human being does not
exhaust itself in the norms and rules of positive law, it encompasses likewise the
principles (which inform and conform those norms and rules), without which there is no
legal system at all.
50.
Half a decade after the adoption of the 1969 Vienna Convention on the Law of
Treaties, H.W. Briggs pertinently pointed out that the consideration of that Convention
in international case-law
"has been helpful in furthering the consolidation of the law
against unilateral denunciation of international agreements without
accountability therefore"63.
The 1984 U.N. Convention against Torture, in this line of concern, provides (Article
31(2)) that a denunciation of it shall not have the effect of releasing the denouncing
Party from its obligations under the Convention with regard to "any act or omission
which occurs prior to the date at which the denunciation becomes effective", nor shall
the denunciation prejudice in any way the "continued consideration" of any matter
already under scrutiny by the U.N. Committee against Torture "prior to the date at
which the denunciation becomes effective".
51.
At regional level, the European Convention on Human Rights, as amended by
Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not have the
61
. Traditional considerations of reciprocity are also discarded when it comes to apply, e.g., the provisions of
the 1949 Geneva Conventions on International Humanitarian Law, such as those of common Article 3,
pertaining to conventional obligations of the State vis-à-vis persons under its jurisdiction; reciprocity here
yields of considerations of protection of a superior order.
62
. B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan, 1960, pp. 37-38.
63
. H.W. Briggs, "Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of
Justice", 68 American Journal of International Law (1974) p. 68.
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