8
mechanism to determine the compatibility or otherwise of a reservation with the
object and purpose of a given treaty 22, but - even more gravely - do not impede
either that certain reservations or restrictions formulated (in the acceptance of the
jurisdiction of the organs of international protection) 23 come to hinder the operation of
the mechanisms of international supervision created by the human rights treaties in
the exercise of the collective guarantee.
27.
The present system of reservations, reminiscent of the old Pan-American
practice, rescued by the International Court of Justice 24 and the two Vienna
Conventions on the Law of Treaties, for having crystallised itself in the relations
between States, not surprisingly appears entirely inadequate to the treaties whose
ultimate beneficiaries are the human beings and not the Contracting Parties.
Definitively, human rights treaties, turned to the relations between States and human
beings under their jurisdiction, do not bear a system of reservations which approaches
them as from an essentially contractual and voluntarist perspective, undermining their
integrity, allowing their fragmentation, leaving at the discretion of the Parties
themselves the final determination of the extent of their conventional obligations.
28.
As the two Vienna Conventions of 1969 and 1986 do not provide any indication
for an objective application of the criterion of the compatibility or otherwise of a
reservation with the object and purpose of a treaty, they leave it, on the contrary, to
be applied individually and subjectively by the Contracting Parties themselves, in such
a way that, at the end, only the reserving State knows for sure the extent of the
implications of its reservation. Despite the efforts in expert writing to the effect of
systematizing the practice of States on the matter 25, it is difficult to avoid the
impression that such practice has been surrounded by uncertainties and ambiguities,
and has remained inconclusive to date. This indefinition is not at all reassuring for
human rights treaties, endowed as they are with mechanisms of international
supervision of their own. This general picture of indefinition has thus, not surprisingly,
22
. As neither the aforementioned Vienna Conventions, nor - prior to them - the cited Advisory Opinion of the
International Court of Justice on Reservations to the Convention against Genocide, define what constitutes
the compatibility or otherwise (of a reservation) with the object and purpose of a treaty, the determination is
left to the interpretation of this latter, without it having been defined either on whom falls that
determination, in what way and when it should be made. At the time of the adoption of that Advisory
Opinion (1951), neither the majority of the Hague Court, nor the dissenting Judges on the occasion, foresaw
the development of the international supervision of human rights by the conventional organs of protection;
hence the insufficiencies of the solution then advanced, and endorsed years later by the two Vienna
Conventions on the Law of Treaties referred to.
23
. There is a distinction between a reservation stricto sensu and a restriction in the instrument of acceptance
of the jurisdiction of an international supervisory organ, even though their legal effects are similar.
24
. The Advisory Opinion of the ICJ on the Reservations to the Convention against Genocide (1951) marked
the gradual passage, in the matter of reservations to treaties, from the rule of unanimity (of its approval by
the States Parties), to the test of its compatibility with the object and purpose of the treaty. In a general
way, the Vienna Convention incorporated the flexible Pan-American doctrine on reservations, in accordance
with a tendency to this effect of the international practice already formed in the epoch; I.M. Sinclair, "Vienna
Conference on the Law of Treaties", 19 International and Comparative Law Quarterly (1970) pp. 47-69; and
cf. Articles 19-20 of the Vienna Convention.
25
. Cf., e.g., J.M. Ruda, "Reservations to Treaties", 146 Recueil des Cours de l'Académie de Droit
International de La Haye (1975) pp. 95-218; D.W. Bowett, "Reservations to Non-Restricted Multilateral
Treaties", 48 British Year Book of International Law (1976-1977) pp. 67-92; P.-H. Imbert, Les réserves aux
traités multilatéraux, Paris, Pédone, 1979, pp. 9-464; K. Holloway, Les réserves dans les traités
internationaux, Paris, LGDJ, 1958, pp. 1-358; K. Zemanek, "Some Unresolved Questions Concerning
Reservations in the Vienna Convention on the Law of Treaties", Essays in International Law in Honour of
Judge Manfred Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 323-336; Ch. Tomuschat,
"Admissibility and Legal Effects of Reservations to Multilateral Treaties", 27 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht (1967) pp. 463-482; F. Horn, Reservations and Interpretative
Declarations to Multilateral Treaties, Uppsala, Swedish Institute of International Law, 1988, pp. 184-222.
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