b) Procedural Issues. 15. Both the European and Inter-American Courts have rightly set limits to State voluntarism, have safeguarded the integrity of the respective human rights Conventions and the primacy of considerations of ordre public over the will of individual States, have set higher standards of State behaviour and established some degree of control over the interposition of undue restrictions by States, and have reassuringly enhanced the position of individuals as subjects of the International Law of Human Rights, with full procedural capacity. In so far as the basis of their jurisdiction in contentious matters is concerned, eloquent illustrations of their firm stand in support of the integrity of the mechanisms of protection of the two Conventions are afforded, for example, by the decisions of the European Court in the Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case (Preliminary Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa versus Moldovia and the Russian Federation case (2001), as well as by the decisions of the Inter-American Court in the Constitutional Tribunal and Ivcher Bronstein versus Peru cases (Jurisdiction, 1999), and in the Hilaire, Constantine and Benjamin and Others versus Trinidad and Tobago (Preliminary Objection, 2001). 16. The two international human rights Tribunals, by correctly resolving basic procedural issues raised in the aforementioned cases, have aptly made use of the techniques of public international law in order to strengthen their respective jurisdictions of protection of the human person. They have decisively safeguarded the integrity of the mechanisms of protection of the American and European Conventions on Human Rights, whereby the juridical emancipation of the human person vis-à-vis her own State is achieved. They have, furthermore, achieved a remarkable jurisprudential construction on the right of access to justice (and of obtaining reparation) at international level. 17. In its historical Judgment in the case, concerning Peru, of the massacre of Barrios Altos (2001), e.g., the Inter-American Court warned that provisions of amnesty, of prescription and of factors excluding responsibility, intended to impede the investigation and punishment of those responsible for grave violations of human rights (such as torture, summary, extra-legal or arbitrary executions, and forced disappearances) are inadmissible; they violate non-derogable rights recognised by the International Law of Human Rights. This case-law has been reiterated by the Court (with regard to prescription) in its decision in the Bulacio versus Argentina case (2003).
c) Substantive Law. 18. As to substantive law, the contribution of the two international human rights Courts to this effect is illustrated by numerous examples of their respective case-law pertaining to the rights protected under the two regional Conventions. The European Court has a vast and impressive case-law, for example, on the right to the protection of liberty and security of person (Article 5 of the European Convention), and the right to a fair trial (Article 6). The Inter-American Court has a significant case-law on the fundamental right to life, comprising also the conditions of living, as from its decision in the paradigmatic case of the so-called "Street Children" (Villagrán Morales and Others versus Guatemala, Merits, 1999). 19. Yet another example can be recalled. The definition of the crime of torture found today in two of the three co-existing Conventions against Torture (the U.N. Convention of 1984, Article 1, and the Inter-American Convention of 1985, Article 2) owes its contents to international human rights case-law, rather than to the tipification of the crime of torture at domestic law level. In fact, the constitutive elements of torture in the definition found in the two aforementioned Conventions73 ensue from the jurisprudential construction of the old European Commission of Human Rights in the Greek case (1967-1970), further discussed by the Commission and the European Court in the Ireland versus United Kingdom case (1971-1978). 20. In this particular instance, international case-law influenced international legislation in the field of human rights protection. The extensive case-law of the European Court covers virtually the totality of the rights protected under the European Convention and some of its Protocols. The growing case-law of the Inter-American Court, in its turn, appears innovative and forward-looking with regard to the right to life, reparations in its multiple forms, and provisional measures of protection, these latter sometimes benefiting members of entire human collectivities74. 2. Considerations on the Reservations to Treaties. 21. International supervisory organs in the domain of human rights protection have in recent years disclosed their awareness - and, on some occasions, their determination - to the effect of preserving the integrity of human rights treaties. It may be recalled that, inspired in the criterion sustained by the International Court of Justice in its Advisory Opinion of 1951 on the Reservations to the Convention against Genocide75, the present system of reservations set forth in the two Vienna Conventions of the Law of Treaties (of 1969 and 1986, Articles 19-23)76, 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 reservations77 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 mechanism to determine the compatibility or otherwise of a reservation with the object and purpose of a given treaty78, 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)79 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 Justice80 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 matter81, 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, led the U.N. International Law Commission (ILC) to engage itself, as from 1998, in the preparation of a Draft Practical Guide on Reservations to Treaties82 (cf. infra). 29. It calls the attention, for example, to find one's extensive list of reservations, numerous and at times long, and often incongruous, of States Parties to the U.N. Covenant on Civil and Political Rights83; and the practical problems generated by many of the reservations (also numerous and not always consistent) of the States Parties to the U.N. Convention on the Elimination of All Forms of Discrimination against Women are well-known, - to what one may add the reservations to the U.N. Convention against Torture and the Convention on the Elimination of All Forms of Racial Discrimination84.
30. With the persistence of the inadequacy and the insufficiencies of the present system of reservations, it is not at all surprising that, firstly, multiple expressions of dissatisfaction in this respect in contemporary legal doctrine (both in general studies on the matter85 and in respect of specific human rights treaties86); and secondly, the preparedness of human rights international supervisory organs to assert their competence to apply by themselves the criterion of the compatibility (supra) and to contribute thereby to secure the integrity of the respective human rights treaties. 31. At regional level, in its well-known judgment in the Belilos versus Switzerland case (1988)87, locus classicus on the issue, the European Court of Human Rights considered the declaration amounting to a reservation (of a general character) of Switzerland to the European Convention on Human Rights incompatible with the object and purpose of this latter (in the light of its Article 64). On its turn, the Inter-American Court of Human Rights, in its second and third Advisory Opinions88, pointed out the difficulties of a pure and simple transposition from the system of reservations of the Vienna Convention on the Law of Treaties of 1969 into the domain of the international protection of human rights. 32. At global level, in the I. Gueye et alii versus France case (1989), e.g., the Human Rights Committee (under the U.N. Covenant on Civil and Political Rights), in spite of a reservation ratione temporis of the respondent State89, understood that the question at issue90 was justiciable under the Covenant91, and concluded that there was a violation of Article 26 of the Covenant92. The same Committee, in its general comment n. 24(52), of November 1994, warned that the provisions of the two Vienna Conventions and the classic rules on reservations (based upon reciprocity) were not appropriate to the human rights treaties; given the special character of the Covenant as a human rights treaty, the question of the compatibility of a reservation with its object and purpose, instead of being left at the discretion of the manifestations of the States Parties inter se, should be objectively determined, on the basis of juridical principles, by the Human Rights Committee itself93. 33. Given the specificity of the International Law of Human Rights, there appears a strong case for leaving the determination of the compatibility or otherwise of reservations with the object and purpose of human rights treaties with the international supervisory organs established by them, rather than with the States Parties themselves; it would be more in keeping with the special character of human rights treaties. To the two international human rights tribunals (the European and Inter-American Courts), the individualistic system of reservations does not seem to be in keeping with the notion of collective control machinery proper to human rights treaties. The obiter dicta of the two regional Human Rights Courts have been rendered despite the fact that the European Convention (Article 64)94 and the American Convention (Article 75) on Human Rights do not expressly confer this function upon them; the American Convention, in fact, limits itself to referring to the pertinent provisions of the 1969 Vienna Convention on the Law of Treaties. 34. Given the uncertainties, ambiguities and lacunae in the present system of reservations to treaties of the two Vienna Conventions of 1969 and 1986 (supra), proposals have been advanced in contemporary doctrine95 tending at least to reduce the tension as to the proper application of human rights treaties in the matter of reservations, namely: first, the inclusion of an express indication in human rights treaties of the provisions which do not admit any reservations (such as those pertaining to the fundamental non-derogable rights), as an irreducible minimum to participate in such treaties; second, as soon as the States Parties have proceeded to the harmonization of their domestic legal order with the norms of those treaties (as required by these latter), the withdrawal of their reservations to them96; third, the modification or rectification, by the State Party, of a reservation considered non-permissible or incompatible with the object and purpose of the treaty97, whereby a 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 reservations98, 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 Discrimination99; 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 practice100; 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 treaties101. 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 modified102, it was acknowledged that that system of reservations should be improved, given its lacunae, above all in relation to non-permissible reservations103. 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 functions104; 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 4-7)105. 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. 37. It seems unlikely, however, that it is prepared to pursue that approach. In its more recent version of its Draft Guidelines on Reservations to Treaties (2003), provisionally adopted by the ILC, it urged States and international organizations to "undertake a periodic review" of their reservations to treaties, and to "consider withdrawing those which no longer serve their purpose"106, - though it did not pursue the aforementioned approach. Such review, - added the ILC, - "should devote special attention to the aim of preserving the integrity of multilateral treaties"107. Thus, draft guideline 2.5.3 reflects the concerns of monitoring bodies ("particularly but not exclusively in the field to human rights"), to call often upon States to reconsider their reservations and if possible to withdraw them108. The ILC has conceded that "The reference to the integrity of multilateral treaties is an allusion to the drawbacks of reservations, that may undermine the unity of the treaty regime"109. 38. It may be pointed out that human rights treaties have in a way been singled out when one comes to denunciation, and termination and suspension of the operation of treaties; I see, thus, no epistemological or juridical reason why the same could not be done also in relation to reservations. In my view, the conferment of the power of determination of the compatibility or otherwise of reservations with the object and purpose of human rights treaties on the international supervisory organs themselves created by such treaties, would be much more in conformity with the special nature of these latter and with the objective character of the conventional obligations of protection110. 39. There is a whole logic and common sense in attributing such power to those organs, guardians as they are of the integrity of human rights treaties, instead of abandoning such determination to the interested States Parties themselves, as if they were, or could be, the final arbiters of the scope of their conventional obligations111. Such system of objective determination would foster the process of progressive institutionalisation of the international protection of human rights112, as well as the creation of a true international public order (ordre public) based on the full respect to, and observance of, human rights. It is about time for the current process of humanization of International Law113 to encompass likewise the domain of the law of treaties, traditionally so vulnerable to manifestations of State voluntarism. 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 instruments114. 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"115. 44. I see no sense in trying to try to escape from the acknowledgement of the specificity of the International Law of Human Rights as a whole, the recognition of which, in my understanding, in no way threatens the unity of Public International Law; quite on the contrary, it contributes to develop the aptitude of this latter to secure, in the present domain, compliance with the conventional obligations of protection of the States vis-à-vis all human beings under their jurisdictions. With the evolution of the International Law of Human Rights, it is Public International Law itself which is justified and legitimised, in affirming juridical principles, concepts and categories proper to the present domain of protection, based on premises fundamentally distinct from those which have guided the application of its postulates at the level of purely inter-State relations116. 45. One is not, therefore, here proposing that the development of the International Law of Human Rights be brought about to the detriment of the law of treaties: my understanding, entirely distinct, is in the sense that the norms of the law of treaties (such as those set forth in the two above-mentioned Vienna Conventions, anyway of a residual character) can greatly enrich with the impact of the International Law of Human Rights, and develop their aptitude to regulate adequately the legal relations at inter-State as well as intra-State levels, under the respective treaties of protection. In sustaining the development of a system of objective determination - which seems to us wholly necessary - of the compatibility or otherwise of reservations with the object and purpose of human rights treaties in particular, in which the organs of international protection created by such treaties would exert an important role, we do not see in that any threat to the "unity" of the law of treaties.
46. Quite on the contrary, there could hardly be something more fragmenting and underdeveloped than the present system of reservations of the two Vienna Conventions, for which reason it would be entirely illusory to assume that, to continue applying it as until now, one would thereby be fostering the "unity" of the law of treaties. The true unity of the law of treaties, in the framework of Public International Law, would be better served by the search for improvement in this area, overcoming the ambiguities, uncertainties and lacunae of the present system of reservations, through the development of a system of objective determination (supra), in conformity with the special nature of human rights treaties and the objective character of the conventional obligations of protection. The unity of Public International Law itself is measured rather by its aptitude to regulate legal relations in distinct contexts with equal adequacy and effectiveness.