8
these treaties which incorporate universal minimum standards (undermining, e.g., the
basic judicial guarantees of inviolable rights). If certain fundamental rights - starting
with the right to life - are non-derogable (in the terms of the human rights treaties
themselves), thereby not admitting any derogations which, by definition, are of an
essentially temporal or transitory character, - with greater reason, it would seem to
me, a fortiori they do not admit any reservations, perpetuated in time until and unless
withdrawn by the State at issue; such reservations would be, in my understanding,
without any caveat, incompatible with the object and purpose of those treaties.
24.
Although the two Vienna Conventions on the Law of Treaties prohibit the
acceptance of reservations incompatible with the object and purpose of the treaty at
issue, they leave, however, various questions without answers. The criterion of the
compatibility is applied in the relations with the States which effectively objected to the
reservations, although such objections are often motivated by factors - including
political - other than a sincere and genuine concern on the part of the objecting States
with the prevalence of the object and purpose of the treaty at issue. For the same
reason, from the silence or acquiescence of the States Parties in relation to certain
reservations one cannot infer a belief on their part that the reservations are compatible
with the object and purpose of the treaty at issue.
25.
Such silence or acquiescence, moreover, appears to undermine the application
of the criterion of the compatibility of a reservation with the object and purpose of the
treaty. And the two Vienna Conventions referred to are not clear either, as to the legal
effects of a non-permissible reservation, or of an objection to a reservation considered
incompatible with the object and purpose of the treaty at issue. They do not clarify,
either, who ultimately ought to determine the permissibility or otherwise of a
reservation, or to pronounce on its compatibility or otherwise with the object and
purpose of the treaty at issue.
26.
The present system of reservations permits even reservations (not objected)
which hinder the possibilities of action of the international supervisory organs (created
by human rights treaties), rendering difficult the realization of their object and purpose.
The above-mentioned Vienna Conventions not only fail to establish a mechanism to
determine the compatibility or otherwise of a reservation with the object and purpose
of a given treaty22, but - even more gravely - do not impede either that certain
reservations or restrictions formulated (in the acceptance of the jurisdiction of the
organs of international protection)23 come to hinder the operation of the mechanisms of
international supervision created by the human rights treaties in the exercise of the
collective guarantee.
22
. As neither the aforementioned Vienna Conventions, nor - prior to them - the cited Advisory Opinion of the
International Court of Justice on Reservations to the Convention against Genocide, define what constitutes the
compatibility or otherwise (of a reservation) with the object and purpose of a treaty, the determination is left
to the interpretation of this latter, without it having been defined either on whom falls that determination, in
what way and when it should be made. At the time of the adoption of that Advisory Opinion (1951), neither
the majority of the Hague Court, nor the dissenting Judges on the occasion, foresaw the development of the
international supervision of human rights by the conventional organs of protection; hence the insufficiencies of
the solution then advanced, and endorsed years later by the two Vienna Conventions on the Law of Treaties
referred to.
23
. There is a distinction between a reservation stricto sensu and a restriction in the instrument of acceptance
of the jurisdiction of an international supervisory organ, even though their legal effects are similar.
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