8
presence: distinctly from other treaties the validity (vigencia) of which may even
be expressly limited in time, human rights treaties create obligations of protection
of an objective character, without temporal restriction. Thus, even though
foreseen the denunciation (through certain requisites), its application, in an
extreme case, ought to be subject to controls, as it is not reasonable that a State
Party undertakes to respect human rights and to secure their full exercise only for
some years, and that, once the treaty was denounced, everything would be
permissible...
21.
No one would dare to attempt to sustain that position. Moreover, even if
the denunciation was made, there would subsist in relation to the denouncing
State the obligations set forth in the treaty which correspond also to rules of
customary international law, which would deprive the denunciation of any
practical effect. In the long run, there is an element of intemporality in the corpus
juris of the International Law of Human Rights, as it is a law of protection (droit
de protection) of the human being as such, irrespective of his nationality or of
any other condition or circumstance, and thereby constructed to be applied
without temporal limitation, that is, all the time. The law of treaties cannot keep
on not taking into due account this element of intemporality proper to the
International Law of Human Rights.
22.
Definitively, also in the law of treaties, - in relation, e.g., to reservations
23
and denunciation (supra), as well as to other aspects , - the voluntarism of the
States has its limits, without which the object and purpose of human rights
treaties would hardly be fulfilled. In any case, if a State Party in fact complied
with the general duty to harmonize its domestic law with the international norms
24
of protection , it would be very difficult to make the denunciation, by reason to
the controls of domestic law itself in a democratic State. No State Party to a
human rights treaty would contemplate, in all conscience, the faculty of
denunciation (even if foreseen), given the highly negative effect which this latter
would have on the objetive regime of protection, inspired in superior common
values and applied in conformity with the notion of collective guarantee, which
that same State helped to establish and consolidate, when it ratified, or acceded
to, the treaty at issue.
VI.
The Imperative Norms of International Law (Jus Cogens).
23.
In an intervention in the debates of 12 March 1986 of the Vienna
Conference on the Law of Treaties between States and International
Organizations or between International Organizations, I allowed myself to draw
attention to the manifest incompatibility with the concept of jus cogens of the
voluntarist conception of international law, which is not capable even of
under the Covenant, in its general comment n. 26(61), of October 1997, sustained that
the Covenant at issue, by its own nature, does not admit the possibility of denunciation.
22.
To recall one of them, in providing for the conditions in which a violation of a treaty may
bring about its termination or the suspension of its operation, the two Vienna Conventions on the Law
of Treaties expressly and specifically except therefrom "the provisions relating to the protection of the
human person contained in treaties of humanitarian character" (Article 60(5)), - in a true clause of
safeguard in defence of the human being.
23.
As set forth, e.g., in Article 2 of the American Convention on Human Rights.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos