9
an express provision in future human rights treaties, or the adoption to that effect of
protocols to the existing instruments27.
24.
Only with such a system of objective determination we will succeed in
guarding coherence with the special character of human rights treaties, which set
forth obligations of an objective character and are applied by means of the exercise
of the collective guarantee. Only thus we will succeed to establish, in the ambit of
the law of treaties, standards of behaviour which contribute to the creation of a true
international ordre public based on the respect and observance of human rights, with
the corresponding obligations erga omnes of protection. The acts which took place in
the present Blake case, in my view, demand in an eloquent way the renovation and
humanization of the law of treaties as a whole, comprising also the forms of
manifestation of State consent.
25.
I do not see how not to take into account the experience of international
supervision accumulated by the conventional organs of protection of human rights in
the last decades. Any serious evaluation of the present system of reservations to
treaties cannot fail to take into account the practice, on the matter, of such organs of
protection. It cannot pass unnoticed that the International Court of Justice, in its
already mentioned Advisory Opinion of 1951, effectively recognized, in a pioneering
way, the special character of the Convention for the Prevention and Punishment of
the Crime of Genocide of 1948, but without having extracted from its
acknowledgement all the juridical consequences for the regime of reservations to
treaties.
26.
Almost half a century having lapsed, this is the task which is incumbent upon
us, all of us who have the responsibility and the privilege to act in the domain of the
international protection of human rights. The words pronounced by the Hague Court
in 1951 remain topical nowadays, in pointing out that, in a Convention such as that
of 1948, adopted for a "purely humanitaran" purpose,
"(...) the Contracting States do not have any interests of their own; they merely have, one and
all, a common interest, namely, the accomplishment of those high purposes which are the
raison d'être of the Convention. Consequently, in a Convention of this type one cannot speak of
individual advantages and disadvantages to States, of the maintenance of a perfect contractual
balance between rights and duties. The high ideals which inspired the Convention provide, by
virtue of the common will of the Parties, the foundation and measure of all its provisions"28.
27.
I see no sense in trying to escape from the reality 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 legitimized, in affirming juridical principles, concepts and categories
27.
As suggested in the afore-mentioned "Preliminary Conclusions" of 1997 (paragraph 7) of the
International Law Commission; cf. U.N., Report of the International Law Commission... (1997), op. cit.
supra n. (22), pp. 126-127.
28.
International Court of Justice, Advisory Opinion of 28.05.1951, ICJ Reports (1951) p. 23; and, for
a study on the matter, cf. A.A. Cançado Trindade, "La jurisprudence de la Cour Internationale de Justice
sur les droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights",
Droits intangibles et états d'exception / Non-Derogable Rights and States of Emergency (ed. D. Prémont),
Brussels, Bruylant, 1996, pp. 53-89.