7
18.
At global level, in the I. Gueye et alii versus France case (1989), e.g., the
Human Rights Committee (under the United Nations Covenant on Civil and Political
Rights), in spite of a reservation ratione temporis of the respondent State 12,
understood that the question - pertaining to pension benefits of more than 700
retired Senegalese members of the French army - was justiciable under the
Covenant (as the effects of the French legislation on the matter lasted until then),
and concluded that there was a violation of Article 26 of the Covenant 13. The same
Committee, in its general comment n. 24(52), of November 1994, warned that the
provisions of the two Vienna Conventions and the classic rules on reservations
(based upon reciprocity) were not appropriate to the human rights treaties; given
the special character of the Covenant as a human rights treaty, the question of the
compatibility of a reservation with its object and purpose, instead of being left at the
discretion of the manifestations of the States Parties inter se, should be objectively
determined, on the basis of juridical principles, by the Human Rights Committee
itself (paragraphs 17 and 20) 14.
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 doctrine 15 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 them 16; third, the modification or rectification, by the State Party, of
a reservation considered non-permissible or incompatible with the object and
purpose of the treaty 17, 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
reservations 18, 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
12 .
To Article 1 of the [first] Optional Protocol to the Covenant on Civil and Political Rights.
13.
Communication n. 196/1985, decision of 03.04.1989 (and previous decision of
admissibility of 05.11.1987).
14.
Text in U.N./Human Rights Committee, document
02.11.1994, pp. 6-7.
15.
CCPR/C/21/Rev.1/Add.6, of
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.
Possibility that came to be considered at the Vienna Conference which adopted the
Convention of 1969.