18
assume, as the denunciation clause under the American Convention (supra) was
surrounded by temporal limitations so as not to allow it to undermine the protection of
human rights thereunder.
56.
Thus, not even the institution of denunciation of treaties is so absolute in effects
as one might prima facie tend to assume. Despite its openness to manifestations of
State voluntarism, denunciation has, notwithstanding, been permeated with basic
considerations of humanity as well, insofar as treaties of a humanitarian character are
concerned. Ultimately, one is here faced with the fundamental, overriding and
inescapable principle of good faith (bona fides), and one ought to act accordingly.
4.
Considerations on the Termination and Suspension of the
Operation of Treaties.
57.
The interpretation and application of human rights treaties bear witness of the
twilight of reciprocity and of the prominence of considerations of ordre public in the
present domain. In fact, the prohibition of the invocation of reciprocity as a subterfuge
for non-compliance with humanitarian conventional obligations, is corroborated in
unequivocal terms by the 1969 Vienna Convention on the Law of Treaties, which, in
providing for the conditions in which a breach of treaty may bring about its termination
or suspension of its operation, excepts expressly and specifically the "provisions
relating to the protection of the human person contained in treaties of a humanitarian
character" (Article 60(5)).
58.
The provision of Article 60(5) of the two Vienna Conventions on the Law of
Treaties (1969 and 1986), acknowledging the special nature of "treaties of a
humanitarian character" and setting forth one of the juridical consequences ensuing
therefrom, constitutes a safeguard clause in defence of the human person. In this
sense I saw it fit to point out, in a study on the matter published 14 years ago, that
"the law of treaties itself of our days, as confirmed by Article
60(5) of the Vienna Convention [on the Law of Treaties], discards the
precept of reciprocity in the implementation of the treaties of
international protection of human rights and of International
Humanitarian Law, by virtue precisely of the humanitarian character of
those instruments. Piercing the veil in a domain of international law such as the one concerning treaties - so strongly infiltrated by the
voluntarism of States, the aforementioned provision of Article 60(5) of
the Vienna Convention de Viena constitutes a clause of
safeguard in defence of the human being"65.
59.
In the account of one of the participants in the 1968-1969 Vienna Conference
from which the first Vienna Convention on the Law of Treaties (1969) resulted, the
provision at issue resulted from a Swiss amendment, promptly supported by several
Delegations, to the effect that the grounds for termination or suspension of operation of
treaties should not apply to treaties of a humanitarian character, embodying provisions
of protection of the human person66. Article 60(5) was maintained in the second Vienna
65
. A.A. Cançado Trindade, A Proteção Internacional dos Direitos Humanos - Fundamentos Jurídicos e
Instrumentos Básicos, São Paulo/Brazil, Ed. Saraiva, 1991, pp. 11-12.
66
. G.E. do Nascimento e Silva, Conferência de Viena sobre o Direito dos Tratados, Rio de Janeiro,
MRE/Imprensa Nacional, 1971, p. 81.
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