9
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 rights 26, 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
an express provision in future human rights treaties, or the adoption to that effect of
protocols to the existing instruments 27.
24.
Only with such a system of objective determination we will succeed in
guarding coherence with the special character of human rights treaties, which set
forth obligations of an objective character and are applied by means of the exercise
of the collective guarantee. Only thus we will succeed to establish, in the ambit of
the law of treaties, standards of behaviour which contribute to the creation of a true
international ordre public based on the respect and observance of human rights, with
the corresponding obligations erga omnes of protection. The acts which took place in
the present Blake case, in my view, demand in an eloquent way the renovation and
humanization of the law of treaties as a whole, comprising also the forms of
manifestation of State consent.
25.
I do not see how not to take into account the experience of international
supervision accumulated by the conventional organs of protection of human rights in
the last decades. Any serious evaluation of the present system of reservations to
treaties cannot fail to take into account the practice, on the matter, of such organs of
protection. It cannot pass unnoticed that the International Court of Justice, in its
already mentioned Advisory Opinion of 1951, effectively recognized, in a pioneering
way, the special character of the Convention for the Prevention and Punishment of
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.
27.
As suggested in the afore-mentioned "Preliminary Conclusions" of 1997 (paragraph 7)
of the International Law Commission; cf. U.N., Report of the International Law Commission...
(1997), op. cit. supra n. (22), pp. 126-127.