14
40.
It is my understanding that, from the perspective of a minimally institutionalised
international community, the system of reservations to treaties, such as it still prevails
in our days, is rudimentary and rather primitive. There is pressing need to develop a
system of objective determination of the compatibility or otherwise of reservations with
the object and purpose of human rights treaties, although for that it may be considered
necessary an express provision in future human rights treaties, or the adoption to that
effect of protocols to the existing instruments58.
41.
Only with such a system of objective determination will we succeed in guarding
coherence with the special character of human rights treaties, which set forth
obligations of an objective character and are applied by means of the exercise of the
collective guarantee. Only thus will we succeed to establish, in the ambit of the law of
treaties, standards of behaviour which contribute to the creation of a true international
ordre public based on the respect and observance of human rights, with the
corresponding obligations erga omnes of protection. We stand in need of the renovation
and humanization of the law of treaties as a whole, comprising also the forms of
manifestation of State consent.
42.
I do not see how not to take into account the experience of international
supervision accumulated by the conventional organs of protection of human rights in
the last decades. Any serious evaluation of the present system of reservations to
treaties cannot fail to take into account the practice, on the matter, of such organs of
protection. It cannot pass unnoticed that the International Court of Justice, in its
already mentioned Advisory Opinion of 1951, effectively recognised, in a pioneering
way, the special character of the Convention for the Prevention and Punishment of the
Crime of Genocide of 1948, but without having extracted from its acknowledgement all
the juridical consequences for the regime of reservations to treaties.
43.
Almost half a century having lapsed, this is the task which is incumbent upon
us, all of us who have the responsibility and the privilege to act in the domain of the
international protection of human rights. The words pronounced by the Hague Court in
1951 remain topical nowadays, in pointing out that, in a Convention such as that of
1948, adopted for a "purely humanitarian" purpose,
"(...) the Contracting States do not have any interest of their
own; they merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d'être of
the Convention. Consequently, in a Convention of this type one cannot
speak of individual advantages and disadvantages to States, of the
maintenance of a perfect contractual balance between rights and duties.
The
high ideals which inspired the Convention provide, by virtue of
the common will of the Parties, the foundation and measure of all its
provisions"59.
58
. As suggested in the aforementioned "Preliminary Conclusions" of 1997 (paragraph 7) of the International
Law Commission; cf. U.N., Report of the International Law Commission... (1997), op. cit. supra n. (46), pp.
126-127.
59
. International Court of Justice, Advisory Opinion of 28.05.1951, ICJ Reports (1951) p. 23; and, for a study
on the matter, cf. A.A. Cançado Trindade, "La jurisprudence de la Cour Internationale de Justice sur les droits
intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights", Droits intangibles
et états d'exception / Non-Derogable Rights and States of Emergency (ed. D. Prémont), Brussels, Bruylant,
1996, pp. 53-89.
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