12
37.
It seems unlikely, however, that it is prepared to pursue that approach. In its
more recent version of its Draft Guidelines on Reservations to Treaties (2003),
provisionally adopted by the ILC, it urged States and international organizations to
"undertake a periodic review" of their reservations to treaties, and to "consider
withdrawing those which no longer serve their purpose" 50, - though it did not pursue
the aforementioned approach. Such review, - added the ILC, - "should devote special
attention to the aim of preserving the integrity of multilateral treaties" 51. Thus, draft
guideline 2.5.3 reflects the concerns of monitoring bodies ("particularly but not
exclusively in the field to human rights"), to call often upon States to reconsider their
reservations and if possible to withdraw them 52. The ILC has conceded that
"The reference to the integrity of multilateral treaties is an
allusion to the drawbacks of reservations, that may undermine the
unity of the treaty regime" 53.
38.
It may be pointed out that human rights treaties have in a way been singled
out when one comes to denunciation, and termination and suspension of the
operation of treaties; I see, thus, no epistemological or juridical reason why the same
could not be done also in relation to reservations. In my view, the conferment of the
power of determination of the compatibility or otherwise of reservations with the
object and purpose of human rights treaties on 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 54.
39.
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 55.
Such system of objective determination would foster the process of progressive
institutionalisation of the international protection of human rights 56, as well as the
creation of a true international public order (ordre public) based on the full respect to,
and observance of, human rights. It is about time for the current process of
humanization of International Law 57 to encompass likewise the domain of the law of
treaties, traditionally so vulnerable to manifestations of State voluntarism.
50
. Cf. U.N./ILC, Report of the International Law Commission (55th Session, May-June and July-August
2003), G.A.O.R. - Suppl. n. 10 (doc. A/58/10), of 2003, p. 184.
51
. Ibid., p. 184.
52
. Ibid., p. 207.
53
. Ibid., p. 208, and cf. pp. 216, 244 and 251 (on the "limitation" of the scope of previous reservations,
conducive to their withdrawal).
54
. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto
Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 152-170.
55
. Cf. A.A. Cançado Trindade, "The International Law of Human Rights at the Dawn of the XXIst Century", 3
Cursos Euromediterráneos Bancaja de Derecho Internacional - Castellón/Spain (1999) pp. 145-221.
56
. 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.
57
. A.A. Cançado Trindade, "La Humanización del Derecho Internacional y los Límites de la Razón de Estado",
40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais - Belo Horizonte/Brazil (2001)
pp. 11-23.
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