8
distinctly from other treaties the validity (vigencia) of which may even be expressly
limited in time, human rights treaties create obligations of protection of an
objective character, without temporal restriction. Thus, even though foreseen the
denunciation (through certain requisites), its application, in an extreme case, ought
to be subject to controls, as it is not reasonable that a State Party undertakes to
respect human rights and to secure their full exercise only for some years, and
that, once the treaty was denounced, everything would be permissible...
21.
No one would dare to attempt to sustain that position. Moreover, even if
the denunciation was made, there would subsist in relation to the denouncing State
the obligations set forth in the treaty which correspond also to rules of customary
international law, which would deprive the denunciation of any practical effect. In
the long run, there is an element of intemporality in the corpus juris of the
International Law of Human Rights, as it is a law of protection (droit de protection)
of the human being as such, irrespective of his nationality or of any other condition
or circumstance, and thereby constructed to be applied without temporal limitation,
that is, all the time. The law of treaties cannot keep on not taking into due account
this element of intemporality proper to the International Law of Human Rights.
22.
Definitively, also in the law of treaties, - in relation, e.g., to reservations
22
and denunciation (supra), as well as to other aspects , - the voluntarism of the
States has its limits, without which the object and purpose of human rights treaties
would hardly be fulfilled. In any case, if a State Party in fact complied with the
general duty to harmonize its domestic law with the international norms of
23
protection , it would be very difficult to make the denunciation, by reason to the
controls of domestic law itself in a democratic State. No State Party to a human
rights treaty would contemplate, in all conscience, the faculty of denunciation (even
if foreseen), given the highly negative effect which this latter would have on the
objetive regime of protection, inspired in superior common values and applied in
conformity with the notion of collective guarantee, which that same State helped to
establish and consolidate, when it ratified, or acceded to, the treaty at issue.
VI.
The Imperative Norms of International Law (Jus Cogens).
23.
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, I allowed myself to draw attention to the
manifest incompatibility with the concept of jus cogens of the voluntarist conception
of international law, which is not capable even of explaining the formation of the
does not provide for denunciation; in this respect, the Human Rights Committee, operating
under the Covenant, in its general comment n. 26(61), of October 1997, sustained that the
Covenant at issue, by its own nature, does not admit the possibility of denunciation.
22.
To recall one of them, in providing for the conditions in which a violation of a treaty
may bring about its termination or the suspension of its operation, the two Vienna
Conventions on the Law of Treaties expressly and specifically except therefrom "the
provisions relating to the protection of the human person contained in treaties of
humanitarian character" (Article 60(5)), - in a true clause of safeguard in defence of the
human being.
23.
As set forth, e.g., in Article 2 of the American Convention on Human Rights.