14
States vis-à-vis all human beings under their jurisdictions. With the evolution of the
International Law of Human Rights, it is Public International Law itself which is
justified and legitimised, in affirming juridical principles, concepts and categories
proper to the present domain of protection, based on premises fundamentally distinct
from those which have guided the application of its postulates at the level of purely
inter-State relations 60.
45.
One is not, therefore, here proposing that the development of the International
Law of Human Rights be brought about to the detriment of the law of treaties: my
understanding, entirely distinct, is in the sense that the norms of the law of treaties
(such as those set forth in the two above-mentioned Vienna Conventions, anyway of a
residual character) can greatly enrich with the impact of the International Law of
Human Rights, and develop their aptitude to regulate adequately the legal relations at
inter-State as well as intra-State levels, under the respective treaties of protection. In
sustaining the development of a system of objective determination - which seems to
us wholly necessary - of the compatibility or otherwise of reservations with the object
and purpose of human rights treaties in particular, in which the organs of international
protection created by such treaties would exert an important role, we do not see in
that any threat to the "unity" of the law of treaties.
46.
Quite on the contrary, there could hardly be something more fragmenting and
underdeveloped than the present system of reservations of the two Vienna
Conventions, for which reason it would be entirely illusory to assume that, to continue
applying it as until now, one would thereby be fostering the "unity" of the law of
treaties. The true unity of the law of treaties, in the framework of Public International
Law, would be better served by the search for improvement in this area, overcoming
the ambiguities, uncertainties and lacunae of the present system of reservations,
through the development of a system of objective determination (supra), in
conformity with the special nature of human rights treaties and the objective
character of the conventional obligations of protection. The unity of Public
International Law itself is measured rather by its aptitude to regulate legal relations in
distinct contexts with equal adequacy and effectiveness.
3.
Considerations on the Denunciation of Treaties.
47.
The two Vienna Conventions on the Law of Treaties (1969 and 1986)
determine that a treaty which contains no provision on denunciation is not subject to
denunciation, unless it can be established that the parties intended to admit the
possibility of denunciation of that this latter "may be implied by the nature of the
treaty" (Article 56(1)). The two Vienna Conventions thus open the way to the taking
into account of the nature or specificity of certain treaties. As already seen, the special
nature of treaties of a humanitarian character (such as human rights treaties) has
indeed been taken into account, and has been widely acknowledged. Accordingly,
certain limits have been established with regard to the denunciation of such treaties.
48.
In fact, basic considerations of humanity have permeated also the clauses of
denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions on
denunciation of the four Geneva Conventions on International Humanitarian Law of
1949. According to those provisions (common Article 63/62/142/158), the
denunciation, which will take effect one year after its notification, shall not, however,
while the denouncing power is engaged in a conflict, take any effect "until peace has
been concluded", and until the "operations connected with the release and repatriation
of the persons protected" by the Geneva Conventions "have been terminated". In this
way, the obligations of the Parties as to the safeguard of the persons protected under
60
. A.A. Cançado Trindade, "The International Law of Human Rights at the Dawn of the XXIst Century", op.
cit. supra n. (53), pp. 145-221.
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