4
compatibility is applied in the relations with the States which effectively objected to
the reservations, although such objections are often motivated by factors - including
political - other than a sincere and genuine concern on the part of the objecting
States with the prevalence of the object and purpose of the treaty at issue. For the
same reason, from the silence or acquiescence of the States Parties in relation to
certain reservations one cannot infer a belief on their part that the reservations are
compatible with the object and purpose of the treaty at issue.
13.
Such silence or acquiescence, moreover, appears to undermine the
application of the criterion of the compatibility of a reservation with the object and
purpose of the treaty. And the two Vienna Conventions referred to are not clear
either, as to the legal effects of a non-permissible reservation, or of an objection to a
reservation considered incompatible with the object and purpose of the treaty at
issue. They do not clarify, either, who ultimately ought to determine the
permissibility or otherwise of a reservation, or to pronounce on its compatibility or
otherwise with the object and purpose of the treaty at issue.
14.
The present system of reservations permits even reservations (not objected)
which hinder the possibilities of action of the international supervisory organs
(created by human rights treaties), rendering difficult the realization of their object
and purpose. The above-mentioned Vienna Conventions not only fail to establish a
mechanism to determine the compatibility or otherwise of a reservation with the
object and purpose of a given treaty4, but - even more gravely - do not impede
either that certain reservations or restrictions formulated (in the acceptance of the
jurisdiction of the organs of international protection)5 come to hinder the operation
of the mechanisms of international supervision created by the human rights treaties
in the exercise of the collective guarantee. The present Blake case will remain as a
sad and disconcerting illustration in this respect.
15.
The present system of reservations, reminiscent of the old pan-American
practice, rescued by the International Court of Justice and the two Vienna
Conventions on the Law of Treaties, for having crystallized itself in the relations
between States, not surprisingly appears entirely inadequate to the treaties whose
ultimate beneficiaries are the human beings and not the Contracting Parties6.
4.
As neither the afore-mentioned Vienna Conventions, nor - prior to them - the cited Advisory
Opinion of the International Court of Justice on Reservations to the Convention against Genocide, define
what constitutes the compatibility or otherwise (of a reservation) with the object and purpose of a treaty,
the determination is left to the interpretation of this latter, without it having been defined either on whom
falls that determination, in what way and when it should be made. At the time of the adoption of that
Advisory Opinion (1951), neither the majority of the Hague Court, nor the dissenting Judges on the
occasion, foresaw the development of the international supervision of human rights by the conventional
organs of protection; hence the insufficiencies of the solution then advanced, and endorsed years later by
the two Vienna Conventions on the Law of Treaties referred to.
5.
There is a distinction between a reservation stricto sensu and a restriction in the instrument of
acceptance of the jurisdiction of an international supervisory organ, even though their legal effects are
similar.
6.
Hence the warning that I saw it fit to formulate, in an intervention in the debates of 12 March
1986 of the Vienna Conference on the Law of Treaties between States and International Organizations or
between International Organizations (reproduced in: U.N., United Nations Conference on the Law of
Treaties between States and International Organizations or between International Organizations (Vienna,
1986) - Official Records, vol. I, N.Y., U.N., 1995, pp. 187-188; and also in: 69/71 Boletim da Sociedade
Brasileira de Direito Internacional (1987-1989) pp. 283-285), for the manifest incompatibility with the
concept of jus cogens of the voluntarist conception of international law, which is not even capable to
explain the formation of rules of general international law.