8
Conventions should not be modified22, it was acknowledged that that system of
reservations should be improved, given its lacunae, above all in relation to nonpermissible reservations23.
21.
In the debates of the Commission, it was even admitted that the conventional
organs of protection of judicial character (the regional European and Inter-American
Courts of Human Rights) pronounce on the permissibility of reservations when
necessary to the exercise of their functions24; such considerations were reflected in
the "Preliminary Conclusions on Reservations to Multilateral Normative Treaties
Including Human Rights Treaties", adopted by the Commission in 1997 (paragraphs
4-7)25. In my understanding, one has to go further: the important labour of the
International Law Commission on the matter can lead to satisfactory solutions to the
human rights international supervisory organs to the extent that it starts from the
recognition of the special character of human rights treaties and gives precision to
the juridical consequences - for the treatment of the question of reservations - which
ensue from that recognition.
22.
The attribution of the power of determination of the compatibility or otherwise
of reservations with the object and purpose of human rights treaties on the part of
the international supervisory organs themselves created by such treaties would be
much more in conformity with the special nature of these latter and with the
objective character of the conventional obligations of protection. There is a whole
logic and common sense in attributing such power to those organs, guardians as
they are of the integrity of human rights treaties, instead of abandoning such
determination to the interested States Parties themselves, as if they were, or could
be, the final arbiters of the scope of their conventional obligations. Such system of
objective determination would foster the process of progressive institutionalization of
the international protection of human rights26, as well as the creation of a true
international public order (ordre public) based on the full respect to, and observance
of, human rights.
23.
It ought to be said, with frankness and firmness, and without margin of error,
that, from the perspective of a minimally institutionalized international community,
the system of reservations to treaties, such as it still prevails in our days, is
rudimentary and 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
22.
U.N., Report of the International Law Commission on the Work of Its 49th Session (1997),
General Assembly Official Records - Supplement n. 10(A/52/10), p. 94, par. 47.
23.
Ibid., p. 112, par. 107. In this respect, it was warned that States often and consciously formulate
reservations incompatible with the object and purpose of human rights treaties for knowing that they will
not be challenged, and that the lack of sanctions for such reservations thus leads States to become Parties
to such treaties without truly committing themselves; ibid., pp. 117-118, pars. 129-130.
24.
Ibid., pp. 106-107, 119 and 121-122, pars. 82, 84, 134, 138 and 143, respectively.
25.
Text in ibid., pp. 126-127.
26.
For the conception of human rights as an "autonomous juridical imperative", cf. D. Evrigenis,
"Institutionnalisation des droits de l'homme et droit universel", in Internationales Colloquium über
Menschenrechte (Berlin, Oktober 1966), Berlin, Deutsche Gesellschaft für die Vereinten Nationen, 1966, p.
32.