15
those Conventions subsist, in whatever circumstances, vis-à-vis the denouncing
power, while the conflict lasts and the release and repatriation of the persons
protected are not concluded 61.
49.
Furthermore, the denunciation provisions of the aforementioned four Geneva
Conventions (common Article 63/62/142/158) expressly preserves the obligations
based on "the principles of the law of nations" as they result from "the laws of
humanity" and "the dictates of the public conscience" (the Martens clause). Such
obligations, as aptly remarked by B.V.A. Röling, continue governing human conduct
even when treaties are no longer binding 62, - contrary to, I would add, what
positivists would mechanically argue. As I have sustained at length in my Concurring
Opinion in this Court's Advisory Opinion n. 18 on the Juridical Condition and Rights of
Undocumented Migrants (2003), the law of protection of the human being does not
exhaust itself in the norms and rules of positive law, it encompasses likewise the
principles (which inform and conform those norms and rules), without which there is
no legal system at all.
50.
Half a decade after the adoption of the 1969 Vienna Convention on the Law of
Treaties, H.W. Briggs pertinently pointed out that the consideration of that Convention
in international case-law
"has been helpful in furthering the consolidation of the law
against unilateral denunciation of international agreements without
accountability therefore" 63.
The 1984 U.N. Convention against Torture, in this line of concern, provides (Article
31(2)) that a denunciation of it shall not have the effect of releasing the denouncing
Party from its obligations under the Convention with regard to "any act or omission
which occurs prior to the date at which the denunciation becomes effective", nor shall
the denunciation prejudice in any way the "continued consideration" of any matter
already under scrutiny by the U.N. Committee against Torture "prior to the date at
which the denunciation becomes effective".
51.
At regional level, the European Convention on Human Rights, as amended by
Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not have
the effect of releasing the denouncing Party from its obligations under the Convention
in respect of "any act which, being capable of constituting a violation of such
obligations, may have been performed by it before the date at which the denunciation
became effective". On its turn, in a similar line of thinking, the 1999 Inter-American
Convention on the Elimination of All Forms of Discrimination against Persons with
Disabilities determines (Article XIII) that a denunciation of it "shall not exempt" the
State Party from the obligations imposed upon it under the Convention in respect of
"any action or omission prior to the date on which the denunciation takes effect".
52.
And the American Convention on Human Rights (Article 78) only admits
denunciation "at the expiration of a five-year period from the date of its entry into
force", and by means of "notice given one year in advance". Moreover, such a
denunciation shall not have the effect of releasing the denouncing State Party from
the obligations contained in the Convention with respect to "any act that may
61
. Traditional considerations of reciprocity are also discarded when it comes to apply, e.g., the provisions of
the 1949 Geneva Conventions on International Humanitarian Law, such as those of common Article 3,
pertaining to conventional obligations of the State vis-à-vis persons under its jurisdiction; reciprocity here
yields of considerations of protection of a superior order.
62
. B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan, 1960, pp. 37-38.
63
. H.W. Briggs, "Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of
Justice", 68 American Journal of International Law (1974) p. 68.
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