10
in the ambit of the International Law of Human Rights, bearing in mind the great
potential of application of the notion of collective guarantee, underlying all human
rights treaties, and responsible for some advances already achieved in this
domain.
27.
Half a century passed since the adoption of the American and the
Universal Declarations of Human Rights, and after so many years of continuing
operation of the existing systems of international protection of human rights,
what else is contemporary international case-law waiting for to develop the
contents and legal effects of the erga omnes obligations in the present domain?
Among the elements to be, from the start, taken into account, are the direct
applicability of the international norms of protection in the ambit of the domestic
law of the States, and the adoption of measures that secure the faithful execution
of the judgments of the existing international tribunals of human rights (the
Inter-American and European Courts of Human Rights).
28.
The consolidation of erga omnes obligations of protection, as a
manifestation of the emergence itself of imperative norms of international law,
would represent the overcoming of the pattern erected upon the autonomy of the
will of the State. The absolute character of the autonomy of the will can no longer
be invoked in view of the existence of norms jus cogens. It is not reasonable that
the contemporary law of treaties continues to aligning itself to a pattern from
which it sought gradually to free itself, in giving expression to the concept of jus
cogens in the two Vienna Conventions on the Law of Treaties. It is not reasonable
that, by the almost mechanical application of postulates of the law of treaties
erected upon the autonomy of the will of the State, one would restrain - as in the
present case - a reassuring evolution, fostered above all by the opinio juris as a
manifestation of the universal juridical conscience, to the benefit of all human
beings.
29.
There is pressing need for the law of treaties to reconsider itself, so as to
accompany and to regulate, with the precision which is characteristic of it, this
evolution, in such a way as to fulfill the new needs of safeguard - in any
circumstances - of the human being, ultimate subject (titulaire) of the rights of
protection. One ought to demystify the presentation, frequent and undue, of
certain postulates as eternal and immutable truths, as they appear rather as a
product of their time, that is, juridical solutions found in a given stage of the
evolution of law, in accordance with the ideas prevailing in the epoch.
30.
It is not reasonable that, despite the efforts of contemporary doctrine,
and including of the representatives of the States which participated of the
process of elaboration of treaties such as the Inter-American Convention on
Forced Disappearance of Persons, one would refrain from promoting such
developments, as a result of the fragmenting application - in relation to the
forced disappearance of persons, as in the present case - of a rigid postulate of
the law of treaties. Human rights are demanding a transformation and
revitalization of the law of treaties.
VIII. Conventional
Obligations
Settlement (Jurisdiction).
(Responsibility)
and
Judicial
happening that some rights of protection "have entered into the body of general international law",
and others are set forth in international instruments of universal or almost universal character;
Barcelona Traction case (Belgium versus Spain, 2nd. phase), ICJ Reports (1970) p. 32, paragraphs 3334.
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