15
44.
I see no sense in trying to try to escape from the acknowledgement of the
specificity of the International Law of Human Rights as a whole, the recognition of
which, in my understanding, in no way threatens the unity of Public International Law;
quite on the contrary, it contributes to develop the aptitude of this latter to secure, in
the present domain, compliance with the conventional obligations of protection of the
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
relations60.
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.
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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