11
reservation would thus be seen no longer as a formal and final element of the
manifestation of State consent, but rather as an essentially temporal measure, to be
modified or removed as soon as possible; fourth, the adoption of a possible "collegial
system" for the acceptance of reservations 42, so as to safeguard the normative
character of human rights treaties, bearing in mind, in this respect, the rare example
of the Convention on the Elimination of All Forms of Racial Discrimination 43; fifth, the
elaboration of guidelines (although not binding) on the existing rules (of the two
Vienna Conventions of 1969 and 1986) in the matter of reservations, so as to clarify
them in practice44; and sixth, the attribution to the depositaries of human rights
treaties of the faculty to request periodic information from the reserving States on the
reasons why they have not yet withdrawn their reservations to such treaties.
35.
The recent work (as from 1993) of the International Law Commission of the
United Nations on the topic of the Law and Practice Concerning Reservations to
Treaties tends to identify the essence of the question in the need to determine the
powers of the human rights international supervisory organs in the matter, in the light
of the general rules of the law of treaties 45. This posture makes abstraction of the
specificity of the International Law of Human Rights, attaching itself to the existing
postulates of the law of treaties. The debates of 1997 of the International Law
Commission focused effectively on the question of the applicability of the system of
reservations of the Vienna Conventions in relation to human rights treaties. Although
the point of view prevailed that the pertinent provisions of those Conventions should
not be modified 46, it was acknowledged that that system of reservations should be
improved, given its lacunae, above all in relation to non-permissible reservations47.
36.
In the debates of the Commission, it was even admitted that the conventional
organs of protection of judicial character (the regional European and Inter-American
Courts of Human Rights) pronounce on the permissibility of reservations when
necessary to the exercise of their functions 48; such considerations were reflected in
the "Preliminary Conclusions on Reservations to Multilateral Normative Treaties
Including Human Rights Treaties", adopted by the Commission in 1997 (paragraphs 47) 49. In my understanding, there are compelling reasons to go further, and the
relevant labour of the ILC on the matter could lead to solutions satisfactory to human
rights international supervisory organs to the extent that it started from the
recognition of the special character of human rights treaties and gave precision to the
juridical consequences - for the treatment of the question of reservations - which
ensue from that recognition.
42
. Possibility that came to be considered at the Vienna Conference which adopted the Convention of 1969.
43
. System of the two-thirds of the States Parties, set forth in Article 20(2) of that Convention.
44
. Such as drawn up in 1998 by the International Law Commission of the United Nations; cf. note (24),
supra.
45
. Cf. A. Pellet (special rapporteur of the U.N. International Law Commission), Second Report on the Law
and Practice Relating to Reservations to Treaties (1997), paragraphs 164, 204, 206, 209, 227, 229 and 252.
46
. U.N., Report of the International Law Commission on the Work of Its 49th Session (1997), General
Assembly Official Records - Supplement n. 10(A/52/10), p. 94, par. 47.
47
. Ibid., p. 112, par. 107. In this respect, it was warned that States often and consciously formulate
reservations incompatible with the object and purpose of human rights treaties for knowing that they will not
be challenged, and that the lack of sanctions for such reservations thus leads States to become Parties to
such treaties without truly committing themselves; ibid., pp. 117-118, pars. 129-130.
48
. Ibid., pp. 106-107, 119 and 121-122, pars. 82, 84, 134, 138 and 143, respectively.
49
. Text in ibid., pp. 126-127.
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