10
proper to the present domain of protection, based on premises fundamentally
distinct from those which have guided the application of its postulates at the level of
purely inter-State relations.
28.
I am not, therefore, here proposing that the development of the Internacional
Law of Human Rights be brought about to the detriment of the law of treaties: my
understanding, entirely distinct, is in the sense that the norms of the law of treaties
(such as those set forth in the two above-mentioned Vienna Conventions, anyway of
a residual character) can greatly enrich with the impact of the International Law of
Human Rights, and develop their aptitude to regulate adequately the legal relations
at inter-State as well as intra-State levels, under the respective treaties of
protection. In sustaining the development of a system of objective determination which seems to me wholly necessary - of the compatibility or otherwise of
reservations with the object and purpose of human rights treaties in particular, in
which the organs of international protection created by such treaties would exert an
important role, I do not see in that any threat to the "unity" of the law of treaties.
29.
Quite on the contrary, there could hardly be something more fragmenting and
underdeveloped than the present system of reservations of the two Vienna
Conventions, for which reason it would be entirely illusory to assume that, to
continue applying it as until now, one would thereby be fostering the "unity" of the
law of treaties. The true unity of the law of treaties, in the framework of Public
International Law, would be better served by the search for improvement in this
area, overcoming the ambiguities, uncertainties and lacunae of the present system
of reservations, through the development of a system of objective determination
(supra), in conformity with the special nature of human rights treaties and the
objective character of the conventional obligations of protection. The unity of Public
International Law itself is measured rather by its aptitude to regulate legal relations
in distinct contexts with equal adequacy and effectiveness.
30.
Despite of what happened in the present Blake case, in which the terms of
acceptance by the respondent State of the contentious jurisdiction of the Court
brought about the decomposition of the crime of forced disappearance of person
(with direct consequences for the reparations to the injured party), there is no
reason for desperation, for not existing juridical impossibility of achieving the
humanization of the law of treaties. Thus, to quote one example in this sense, in
providing for the conditions in which a breach of a treaty can result in its termination
or the suspension of its application, the two Vienna Conventions on the Law of
Treaties expressly and specifically exclude "the provisions relating to the protection
of the human person contained in treaties of a humanitarian character" (Article
60(5)).
31.
This provision resulted from a proposal submitted by Switzerland, in the
second session of the Vienna Conference (1969) which adopted the first Vienna
Convention on the Law of Treaties. Its purpose was that of pointing out that the
treaties of a humanitarian character have a special nature, do not exist for the sole
benefit of the States, and transcend the reciprocity between the Parties in
incorporating obligations of protection of an absolute character29. Such provision
29.
I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, University
Press/Oceana, 1973, pp. 104-105; and cf. G.E. do Nascimento e Silva, Conferência de Viena sobre o
Direito dos Tratados, Rio de Janeiro, M.R.E., 1971, pp. 80-81; E. de la Guardia y M. Delpech, El Derecho
de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970, pp. 458 and 454; F. Capotorti, "Il