11
(Article 60(5)), together with those concerning jus cogens (Articles 53 and 64),
represent what exists of most progressive in the Vienna Convention, fostering,
ultimately, the very moralization of the law of treaties30.
32.
Besides constituting a true clause of safeguard in defense of the human
being, the provision of Article 60(5) of the two above-mentioned Vienna Conventions
pierces the stronghold (previously exclusive) of inter-State relations in the
framework of the law of treaties, and recognizes the special nature of the treaties of
a humanitarian character with all its juridical consequences. Such recognition is
strengthened by the assertion, in the preamble of the two Vienna Conventions, of
the principle of universal respect and observance of human rights (sixth paragraph of
the Preamble), to be taken into account in the interpretation of the Vienna
Conventions of 196931 and 1986 themselves. There is no reason for this evolution to
be circumscribed to the specific issue of the termination or the suspension of the
application of a treaty (supra), and not extending itself likewise, e.g., to the forms of
manifestation of the consent of the State (i.e., signature, approval, and ratification of
a treaty, or accession to it, and acceptance of an optional clause of recognition of the
jurisdiction of an international supervisory organ). In contracting conventional
obligations of protection, it is not reasonable, on the part of the State, to assume a
discretion so unduly broad and conditioning of the extent itself of such obligations,
which would militate against the integrity of the treaty.
33.
The principles and methods of interpretation of human rights treaties,
developed in the case-law of conventional organs of protection, can much assist and
foster this necessary evolution. Thus, in so far as human rights treaties are
concerned, one is to bear always in mind the objective character of the obligations
enshrined therein, the autonomous meaning (in relation to the domestic law of the
States) of the terms of such treaties, the collective guarantee underlying them, the
wide scope of the obligations of protection and the restrictive interpretation of
permissible restrictions. These elements converge in sustaining the integrity of
human rights treaties, in seeking the fulfillment of their object and purpose, and,
accordingly, in establishing limits to State voluntarism. From all this one can detect a
new vision of the relations between public power and the human being, which is
summed up, ultimately, in the recognition that the State exists for the human being,
and not vice-versa.
34.
The juridical concepts and categories, inasmuch as they enshrine values, are
a product of their time, and, as such, are in constant evolution. The protection of the
human being in any circumstances, against all the manifestations of arbitrary power,
corresponds to the new ethos of our times, which is to be reflected in the postulates
of Public International Law. There is - may I insist - no juridical imposibility to
reconsider such postulates in the light of the needs of protection of the human being.
Such needs ought to prevail over limitations ratione temporis, or of other kind, of the
conventional organs of protection. Otherwise, we will always be revolving in vicious
circles generated by the already mentioned tension between the postulates of the
Diritto dei Trattati Secondo la Convenzione di Vienna", Convenzione di Vienna sul Diritto dei Trattati,
Padova, Cedam, 1984, p. 61.
30.
P. Reuter, La Convention de Vienne sur le Droit des Traités, Paris, Libr. A. Colin, 1970, pp. 21-23.
31.
E. Schwelb, "The Law of Treaties and Human Rights", in Toward World Order and Human Dignity
- Essays in Honor of M.S. McDougal (eds. W.M. Reisman and B.H. Weston), N.Y./London, Free
Press/Collier Macmillan, 1976, pp. 263 and 265.