7
Conventions of the Law of Treaties (of 1969 and 1986, Articles 19-23) 20, in joining the
formulation of reservations to the acquiescence or the objections thereto for the
determination of their compatibility with the object and purpose of the treaties, is of a
markedly voluntarist and contractualist character.
22.
Such a system leads to a fragmentation (in the bilateral relations) of the
conventional obligations of the States Parties to multilateral treaties, appearing
inadequate to human rights treaties, which are inspired in superior common values
and are applied in conformity with the notion of collective guarantee. That system of
reservations21 suffers from notorious insufficiencies when transposed from the law of
treaties in general into the domain of the International Law of Human Rights. To start
with, it does not distinguish between human rights treaties and classic treaties,
making abstraction of the jurisprudence constante of the organs of international
supervision of human rights, converging in pointing out that distinction.
23.
It allows reservations (not objected) of a wide scope which threaten the very
integrity of human rights treaties; it allows reservations (not objected) to provisions of
these treaties which incorporate universal minimum standards (undermining, e.g., the
basic judicial guarantees of inviolable rights). If certain fundamental rights - starting
with the right to life - are non-derogable (in the terms of the human rights treaties
themselves), thereby not admitting any derogations which, by definition, are of an
essentially temporal or transitory character, - with greater reason, it would seem to
me, a fortiori they do not admit any reservations, perpetuated in time until and unless
withdrawn by the State at issue; such reservations would be, in my understanding,
without any caveat, incompatible with the object and purpose of those treaties.
24.
Although the two Vienna Conventions on the Law of Treaties prohibit the
acceptance of reservations incompatible with the object and purpose of the treaty at
issue, they leave, however, various questions without answers. The criterion of the
compatibility is applied in the relations with the States which effectively objected to
the reservations, although such objections are often motivated by factors - including
political - other than a sincere and genuine concern on the part of the objecting States
with the prevalence of the object and purpose of the treaty at issue. For the same
reason, from the silence or acquiescence of the States Parties in relation to certain
reservations one cannot infer a belief on their part that the reservations are
compatible with the object and purpose of the treaty at issue.
25.
Such silence or acquiescence, moreover, appears to undermine the application
of the criterion of the compatibility of a reservation with the object and purpose of the
treaty. And the two Vienna Conventions referred to are not clear either, as to the legal
effects of a non-permissible reservation, or of an objection to a reservation considered
incompatible with the object and purpose of the treaty at issue. They do not clarify,
either, who ultimately ought to determine the permissibility or otherwise of a
reservation, or to pronounce on its compatibility or otherwise with the object and
purpose of the treaty at issue.
26.
The present system of reservations permits even reservations (not objected)
which hinder the possibilities of action of the international supervisory organs (created
by human rights treaties), rendering difficult the realization of their object and
purpose. The above-mentioned Vienna Conventions not only fail to establish a
20
. That is, the Vienna Convention on the Law of Treaties of 1969, and the Vienna Convention on the Law of
Treaties between States and International Organizations or between International Organizations of 1986, to which one may add, in the same sense, the Vienna Convention on Succession of States in the Matter of
Treaties of 1978 (Article 20).
21
. Endorsed, e.g., by the American Convention on Human Rights (cross-reference of Article 75).
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos