7
19.
In the face of the uncertainties, ambiguities and lacunae of the present
system of reservations to treaties of the two Vienna Conventions of 1969 and 1986,
one can already identify in contemporary doctrine15 some proposals tending at least
to reduce the tension between the law of treaties and the International Law of
Human Rights in the matter of reservations, namely: first, the inclusion of an
express indication in human rights treaties of the provisions which do not admit any
reservations (such as those pertaining to the fundamental non-derogable rights), as
an irreducible minimum to participate in such treaties; second, as soon as the States
Parties have proceeded to the harmonization of their domestic legal order with the
norms of those treaties (as required by these latter), the withdrawal of their
reservations to them16; third, the modification or rectification, by the State Party, of
a reservation considered non-permissible or incompatible with the object and
purpose of the treaty17, whereby a reservation would thus be seen no longer as a
formal and final element of the manifestation of State consent, but rather as an
essentially temporal measure, to be modified or removed as soon as possible;
fourth, the adoption of a possible "collegial system" for the acceptance of
reservations18, so as to safeguard the normative character of human rights treaties,
bearing in mind, in this respect, the rare example of the Convention on the
Elimination of All Forms of Racial Discrimination19; fifth, the elaboration of guidelines
(although not binding) on the existing rules (of the two Vienna Conventions of 1969
and 1986) in the matter of reservations, so as to clarify them in practice20; and
sixth, the attribution to the depositaries of human rights treaties of the faculty to
request periodic information from the reserving States on the reasons why they have
not yet withdrawn the reservations to such treaties.
20.
The current work (as from 1993) of the International Law Commission of the
United Nations on the topic of the Law and Practice Concerning Reservations to
Treaties tends to identify the essence of the question in the need to determine the
powers of the human rights international supervisory organs in the matter, in the
light of the general rules of the law of treaties21. This posture makes abstraction of
the specificity of the International Law of Human Rights, attaching itself to the
existing postulates of the law of treaties. The debates of 1997 of the International
Law Commission focused effectively on the question of the applicability of the system
of reservations of the Vienna Conventions in relation to human rights treaties.
Although the point of view prevailed that the pertinent provisions of those
15.
Cf., e.g., references in n. (10), supra.
16.
Cf., in this line of reasoning, the Vienna Declaration and Programme of Action (1993), main
document adopted by the II World Conference on Human Rights, part II, paragraph 5, and cf. part I,
paragraph 26.
17.
Cf. note (21), infra.
18.
1969.
Possibility that came to be considered at the Vienna Conference which adopted the Convention of
19.
System of the two-thirds of the States Parties, set forth in Article 20(2) of that Convention.
20.
Such as drawn up in 1998 by the International Law Commission of the United Nations; cf. note
(7), supra.
21.
Cf. A. Pellet (special rapporteur of the U.N. International Law Commission), Second Report on the
Law and Practice Relating to Reservations to Treaties (1997), paragraphs 164, 204, 206, 209, 227, 229
and 252.