6
the practices of torture, of summary and extra-legal executions, and of forced
disappearance of persons. The prohibitions of such practices pave the way for us to
enter into the terra nova of the international jus cogens. The emergence and
consolidation of imperative norms of general international law would be seriously
jeopardized if one were to decharacterize the crimes against humanity which fall
under their prohibition.
V.
The Specificity and Integrity of Human Rights Treaties.
16.
It will not be through the decomposition or fragmentation, pursuant to the
application of a classic postulate of the law of treaties, of the constitutive elements
of a particularly grave crime such as that of forced disappearance of person, that
one will advance in those important doctrinal developments. In the present Blake
case, the limitation ratione temporis to the competence of the Court not only has
negative repercussions on its own competence ratione materiae, but also discloses
a décalage between the law of treaties, and the International Law of Human Rights.
17.
The solutions of the former, set forth in the two Vienna Conventions on the
Law of Treaties (of 1969 and 1986), were erected to a large extent on the premise
of the balance of the accord de volontés among the sovereign States themselves,
with some significant concessions to the interests of the so-called international
comunity (identified above all in the assertion of jus cogens in Articles 53 and 64 of
both Vienna Conventions). The solutions of the latter are erected on distinct
premises, opposing to those States the human beings victimized under their
jurisdiction, ultimate subjects of the rights of protection.
18.
Hence the ineluctable tension between one and the other, of which the
problem raised in the present Blake case is but one manifestation. Among others,
one may recall the system itself -voluntarist and contractualist - of reservations to
treaties, enshrined in the two Vienna Conventions on the Law of Treaties (Articles
15
19-23) (inspired in the criterion sustained by the International Court of Justice in
its Advisory Opinion of 1951 on Reservations to the Convention against
16
Genocide ), which leads to a fragmentation (in bilateral relations) of the
conventional obligations of the States Parties in multilateral treaties. Such system
is, in my understanding, entirely inadequate to human rights treaties, which find
inspiration in superior common values and are applied in conformity with the notion
of collective guarantee.
19.
The rightful preoccupation in safeguarding above all the integrity of human
rights treaties nowadays calls for a wide revision of the individualist system of
17
reservations set forth in the two aforementioned Vienna Conventions . Cogent
15.
To which one could add, in the same sense, the Vienna Convention on Succession
of States in Respect of Treaties of 1978 (Article 20).
16.
In that Advisory Opinion, the International Court of Justice endorsed the so-called
pan-American practice relating to reservations to treaties, given its flexibility, and in search
of a certain balance between the integrity of the text of the treaty and the universality of
participation in it; hence the criterion of the compatibility of the reservations with the object
and purpose of the treaties. Cf. International Court of Justice, Opinion on the Reservations to
the Convention against Genocide, ICJ Reports (1951) pp. 15-30; and cf., a contrario sensu,
the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and Hsu Mo (pp. 31-48), as
well as the Dissenting Opinion of Judge Álvarez (pp. 49-55), for the difficulties generated by
this criterion.
17.
The current work (as from 1993) of the International Law Commission of the United
Nations on the topic of the Law and Practice Relating to Reservations to Treaties is thus