VYTAUTO DIDŽIOJO UNIVERSITETAS
TEISĖS FAKULTETAS
Vėjus Napeklys
RESERVATIONS TO TREATIES ON INTERNATIONAL HUMAN RIGHTS
Magistro baigiamasis darbas
Teisės vientisųjų studijų programa, valstybinis kodas 601M90004
Vadovas
Apginta
Charles F. Szymanski_____
__________ __________
(vardas, pavardė)
(Parašas)
Doc.dr. Tomas Berkmanas_
__________ __________
(Fakulteto dekanas)
(Parašas)
(Data)
(Data)
Kaunas, 2016
1
TABLE OF CONTENTS
ABSTRACT IN LITHUANIAN ......................................................................................................... 3
ABSTRACT ........................................................................................................................................ 6
INTRODUCTION ............................................................................................................................... 7
1. NOTION OF A RESERVATION ................................................................................................... 9
1.1. The concept of reservations under Genocide Convention Case ............................................... 9
1.2. Reservations under the Vienna Convention on the Law of Treaties ...................................... 10
1.3. Object and purpose test........................................................................................................... 11
1.4. Legal Effect of Invalid Reservations ...................................................................................... 12
1.5. Permissibility .......................................................................................................................... 12
1.6. Opposability ........................................................................................................................... 13
1.7. Severability ............................................................................................................................. 14
2. RESERVATIONS IN PRACTICE................................................................................................ 15
2.1. General human rights ............................................................................................................. 15
2.2. Non-General human rights ..................................................................................................... 17
2.3. Absolute rights ........................................................................................................................ 17
2.4. Non-Derogable rights ............................................................................................................. 18
2.5. Derogable rights ..................................................................................................................... 19
2.6. Reservations ........................................................................................................................... 20
2.7. Treaty guidance on reservations ............................................................................................. 21
2.8. Permissible reservations ......................................................................................................... 22
2.9. Incompatible reservations ....................................................................................................... 23
2.10. Subordinating international obligations ............................................................................... 24
2.11. Numerous reservations to a single treaty.............................................................................. 26
3. CONCLUSION ............................................................................................................................. 28
BIBLIOGRAPHY LIST .................................................................................................................... 30
2
ABSTRACT IN LITHUANIAN
IŠLYGOS SUTARTIMS DĖL TARPTAUTINIŲ ŽMOGAUS TEISŲ
APSAUGOS
Santrauka
Šioje tezėje bus nagrinėjama Vienos konvencija dėl tarptautinių sutarčių teisės ir išlygų į
žmogaus teisių sutartis. Dabartinė išlygų praktika leidžia narėms valstybėms vienašališkai keisti
įsipareigojimus, kurie bus taikytini patvirtinus Sutartį. Daugiašalės tarptautinės sutartys apima
daugelį
dalykų,
kai
sutartyje
nėra
nustatyta
specifinė
išlygų
sudarymo
tvarka,
tokiu atveju visoms sutartims, įskaitant ir žmogaus teisių sutartis, išlygų sudarymas bus
reglamentuojama pagal Vienos konvencijos išlygų sudarymo taisykles. Taikant Vienos
konvencija išlygų sudarymo sistema iškyla daug neaiškumu dėl to, kas yra leistina, taisyklės yra
dviprasmiškos ir lanksčios, tai ypač pastebima, išlygoms daromoms dėl žmogaus teisių sutarčių.
Dėl Vienos konvencijos išlygų sudarymo režimo ir ypatingo žmogaus teisių apsaugos sutarčių
pobūdžio, valstybė narė, nusprendusi sudaryti išlygą nebus priversta imtis veiksmų padėčiai
ištaisyti, situacija išlieka tokia pati net jei kita valstybė narė nustato, kad išlyga pažeidžia sutarties
tikslą ir objektą. Tačiau išimtiniais atvejais, jei neleistiną išlygą sudariusi valstybė atkreipia į save
pakankamai dėmesio, kad pritrauktų kompetetingo ginčų sprendimo organo dėmesį, pavyzdžiui
teismo, teismas gali nustatyti, kad išlyga yra negaliojanti, problemos kyla iš to, kad kitos valstybės
narės nenori įsitraukti į teisminį ginčą dėl išlygų galiojimo žmogaus teisių sutartims. Pažvelgus į
pagrindines žmogaus teisių sutartis, tampa aišku, kad tarptautinių sutarčių teisė nepakito, kadangi
per pastaruosius kelis dešimtmečius išliko ta pati išlygų sudarymo sistema, taikoma išlygoms dėl
žmogaus teisių sutarčių. Išlyga, kuri gali būti laikoma negaliojančia yra pripažintina, kaip tokio pat
lygio, kaip galiojanti ir sutarčiai neprieštaraujanti išlyga, tokia keista situacija gali egzistuoti, nes
Vienos konvencijos taisyklės nesprendžia pasekmių dėl negaliojančių išlygų nustatymo, kurios
sudarytos prieš žmogaus teisių sutartis, taisyklės vertina tik tradicinę išlygų taikymo sistemą tarp
šalies kuri sudaro išlyga ir šalies kuri prieštarauja šiai išlygai. Šiame kontekste, bus nagrinėjama, ar
Vienos konvencija su dabartine išlygų sudarymo sistema, yra tinkamas instrumentas reguliuoti
išlygų sudarymą sistemą žmogaus teisių sutartims.
Tarptautinis Teisingumo Teismas paaiškino savo poziciją dėl išlygų sudarymo poveikio
daugiašalėms, tarptautinėms žmogaus teisių sutartims, 1951 patariamojoje išvadoje dėl išlygų
sudarymo Genocido Konvencijai. Iki šio įvykio valstybių bendra praktika dėl išlygų sudarymo buvo
grindžiama vieningo balsavimo taisyklę, tai reiškė, kad visos Sutarties šalys turėjo išreikšti savo
sutikimą dėl visų pateiktų išlygų. Ši taisyklė paaukojo lankstumą, siekiant užtikrinti Sutarties
vientisumą, kadangi tokia praktika ribojo Sutarties dalyvių skaičių. Pažymėtina, kad Genocido
Konvencija neturi straipsnių kurie nustatytų tvarką dėl išlygų sudarymo. Tarptautinis Teisingumo
3
Teismas taip pat paaiškino, kad sutartinė absoliutaus vientisumo nuostata nėra susieta su Genocido
Konvencija ir nėra absoliučios tarptautinės teisės taisyklės, kuri leidžia sudaryti išlygas tik, kai tai
joms neprieštarauja visos kitos sutarties šalys. Po Genocidas Konvencijos patariamosios išvados
pristatymo, visiškai pasikeitė išlygų sudarymo samprata ir bendra valstybių praktika dėl jų
sudarymo. Genocido Konvencijos patariamoji išvada atidarė duris naujai praktikai, išlygų
sudarymui daugiašalėms sutartims dėl žmogaus teisių. Tarptautinis Teisingumo Teismas nurodė,
kad šalių ketinimas nepažeisti sutarties turi būti aiškiai matomas, susitariančiosios šalys privalo
išsaugoti esmines Konvencijos nuostatas, jos objektą, jei šis ketinimas nėra nustatytas, darytina
išvada, kad Konvencija nebus taikoma efektyviai ir žmogaus teisių apsaugos nebus efektyviai
taikomos.
1951 Genocido Konvencijos patariamojoje išvadoje buvo pristatyta teisių paskirstymo į
įvairias kategorijas idėja. Nustatyti, į kurią kategoriją priskiriama tam tikra teisė buvo pritaikytas
objekto ir tikslo testas. Objekto ir tikslo testas pakeitė ankstesnę tarptautinę praktiką, pagal kurią
buvo būtinas visuotinis šalių sutikimas dėl išlygos galiojimo. Vėliau šis testas buvo įtrauktas į 1969
Vienos konvenciją dėl tarptautinių sutarčių ir, iki šiol testas yra vienintelis būdas nustatyti, ar
sudaryta išlyga yra leidžiama, kai konkreti sutartis neturi specifinės išlygų patikrinimo sistemos.
Žmogaus teisių sutartys yra sudarytos iš įvairių teisių, kai sudaroma išlyga, kyla klausimas, ar
apribojimai žmogaus teisėms yra leistini pagal sudarytą išlygą. Pažvelgus į dabartinės šalių
pateikiamas išlygas žmogaus teisių sutartims matoma, kad nėra aiškios apsaugos sistemos nuo
neleistinų išlygų. Kadangi Vienos konvencijos taisyklės veikia pagal prielaidą, kad valstybės
sudarys tik tokias išlygas, kurios neprieštarauja sutarties objektui ir tikslui, taisyklės nenumato
gairių dėl prieštaravimų pateikimo išlygoms kurios turėtų būti pripažintos negaliojančiomis. Ši
problema kyla todėl, kad įsipareigojimai žmogaus teisių sutartyse nėra abipusiai, kadangi išlygomis
yra modifikuojami ne sutartiniai santykiai tarp valstybių, o santykiai tarp valstybės ir piliečių, todėl
Vienos Konvencijos apsaugos mechanizmai yra neveiksmingi, kadangi patys piliečiai jais negali
pasinaudoti, kitos valstybės nejaučia poreikio prieštarauti, nes Vienos konvencija neapibrėžia jokių
pasekmių išlygą sudariusiai šaliai ir paprotinės tarptautinės teisės taisyklė nenurodo, kad išlygą
sudariusi valstybė turi atsiimti savo negaliojančią išlygą. Leistinumo ir nuginčijimo doktrinos
nepateikia išeities dėl negaliojančių išlygų žmogaus teisių sutartims taikytinų teisinių pasekmių, nes
šios doktrinos reglamentuoja santykius tarp valstybių. Tačiau pripažintina, kad atskyrimo doktrina
dėl negaliojančių išlygų nustatymo yra palanki žmogaus teisių sistemai, tačiau, kaip ir leistinumo ir
nuginčijimo doktrinos, ji yra taikoma tik santykiams tarp valstybių narių, o ne tarp valstybės ir
piliečio santykių, kurie nėra pripažintini pagal Vienos konvenciją.
Vienos konvencijoje numatyto išlygų režimo neapibrėžtumas galėtų būti išsklaidytas
specialaus organo, kuris nurodytų reikalingas gaires ir sukurtų teisinį tikrumą skundų nagrinėjimui
4
dėl negaliojančių išlygų sudarymo praktikos. Pagrindinės žmogaus teisių sutartys galėtų nustatyti
kompetentingus išlygų sudarymo peržiūros organus, nes jos jau turi specialius priežiūros
mechanizmus, kurie stebi žmogaus teisių sutarčių įgyvendinimą valstybėse narėse. Taigi yra
įmanoma, kad Vienos konvencijos išlygų sudarymo sistema galėtų tinkamai reguliuoti išlygas
žmogaus teisių sutartims, jei stebėsenos mechanizmai būtų sustiprinti ir būtų sukurtas
kompetentingas organas sprendžiantis išlygų galiojimo ir sudarymo problemą.
5
ABSTRACT
This thesis will examine the application of the Vienna Convention on the Law of Treaties
reservation rules to reservations to human rights treaties. The current reservation practice allows
states to unilaterally modify the obligations that they will have under the treaty. Multilateral treaties
address a wide array of subjects, when a treaty does not have its own reservation regime in its
articles, this applies to all treaties, human rights treaties are no exception, it will be governed by the
reservation rules of the Vienna Convention. When the Vienna Convention system is applied the
rules on what is permissible are ambiguous since the rules are flexible, this is especially applicable
to reservations that are made to human rights treaties. Due to the nature of the Vienna Convention
reservation regime and the special nature of human rights treaties, states that decide to make
reservations will not be forced to take any remedial action, this seems to hold true even another
member state determines that reservation to be invalid. However an exception to this happens when
the offending state draws enough attention to itself that a specific dispute resolution mechanism,
such as a court deems the reservation invalid, the problem is that other member states are very
reluctant to engage in disputes over the validity of a reservation to a human rights treaty submitted
to a court. Looking at the core human rights treaties it becomes clear that treaty law has been
frozen, that is, because for past few decades the same reservation mechanisms have been applied to
reservations to human rights treaties. Reservations which can be said to be invalid are considered to
be on the same level as valid reservations, this strange situation is allowed to persist, because the
Vienna Convention rules do not address the consequence for a reservation determined to be invalid
in the context of a human rights treaty, they only address the traditional application of the
reservation between the reserving and objecting states. In the aforementioned context, this thesis
will examine if the Vienna Convention with its current reservation rules, is adequate enough to
govern reservations to human rights treaties.
6
INTRODUCTION
The relevance of the thesis - The Human rights treaty regime and the Vienna Convention
on the Law of Treaties on reservations is quite complex and it is worth to analyze the inner
workings of this regime. There are a many states, which want to join treaties on international human
rights however at the same time these states make reservations to these treaties. Issues arise when
other state parties try to object to these reservations, since determining if a reservation is compatible
with the object and purpose of the treaty is not simple task. Furthermore, the regulation mechanisms
of the Vienna Convention bring uncertainty where, there should really be none.
The novelty of the thesis - Stems from the fact that examining the current reservation
practice of the international community can help gain insight on how reservations affect the
implementation of human rights treaties and what are the effects on the domestic level and
international level, by understanding the current situation we can make inferences on the future of
human rights treaties.
The object of the thesis - Is examining the reservations made to human rights treaties and
the consequences that they bring under the current reservation practice.
The aim of the thesis - Is to conclude if the Vienna Convention reservation regime is
effective in the context of human rights treaties, to determine what reservations are invalid under
human rights treaties and are human rights still respected and efficiently protected under a treaty
that has been subjected to reservations.
The main tasks of the thesis are to:
1.
Analyze the notion of reservations according to the Vienna Convention regime;
2.
Analyze what reservations are made to international human rights treaties;
3.
Present the existing relationship between reservations and the object and purpose of a
treaty;
4.
Examine the effect of objections provided by other state parties to treaty reservations;
5.
Draw a conclusion on how the issues of the invalid reservations are handled and if the
current reservation practice is optimal to the growth of human rights protections.
The source material - The Vienna Convention on the Law of the Treaties, the core human
rights treaties will be regarded in the light of reservations and their effects. The practice of states,
specific reservations made to human rights treaties and the objections to those reservations.
Landmark cases, such as the Genocide Convention case, Belilos case and the provisions that were
formulated in relation to the practice of reservations. The work done by United Nations bodies will
be used to further analyze and interpret the treaty provisions that related to reservations. The most
7
important reports, observations and announcements will be provided as well. Lastly, the text of this
thesis will be based on the works, thoughts, statements and ideas provided by various authors.
8
1. NOTION OF A RESERVATION
1.1. The concept of reservations under Genocide Convention Case
The concept of reservations under the Genocide Convention Case is one of the aspects of
the law of treaties that has brought much uncertainty and discussions, often reflecting very
conflicting views, both in the doctrine and practice of international law. This chapter will analyze
the general concept of making reservations to treaties and the practice of reservations to human
rights treaties from the view of the International Court of Justice (Hereinafter ICJ), specifically the
1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide.1
It is clear that the Member States of the UN are highly diverse, however this diversity
should not be a reason for withholding human rights which exist regardless of where the person
might be. The main limitation of progressive rights in international law is sovereignty of states. And
according to the rules of international law a state may only be bound to a treaty to the extent to
which it consents. This is based on the concept of absolute state sovereignty. However International
human rights push toward a less "state-centric"2 approach of individual protections by ensuring that
states be held accountable for violations of these rights. Because of this it can be hard for states to
determine when it is appropriate to criticize other states for their human rights performance.3
ICJ has explained its approach to the effects of reservations to a multilateral human rights
treaty in its 1951 advisory opinion on Reservations to the Genocide Convention4. Until this point
the general practice of States concerning reservations was based on the unanimity rule, which meant
that all parties to the treaty had to provide their consent to all reservations. This rule sacrificed
flexibility, for the sake of securing the integrity of the treaty at the cost of limiting treaty
participation.5
It is noteworthy that the Genocide Convention itself does not have a rule on reservations.
ICJ also explained that the contractual rule of absolute integrity is not relevant in relation to the
Genocide Convention, and that there is no absolute rule of international law which only permits a
reservation upon the acceptance by all the parties. However, "It must clearly be assumed that the
1
Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, 9 December 1948, entered
into force 12 January 1951.
2
B. S. Brown "The Protection of Human Rights in Disintegrating States: A New Challenge - Chicago-Kent Dedication
Symposium:
International
Law"
(Chicago-Kent
Law
Review
1992)
p.
204;
<http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2865&context=cklawreview> [Visited 2016-05-08].
3
M.N. Shaw. International Law. 6th. ed., Cambridge University Press, Cambridge. (2008) p. 914.
4
Reservations to the Convention on Genocide Advisory Opinion : I.C.J . Reports (1951), p. 1.5.
5
M. Fitzmaurice, "On the protection of human rights, the Rome statute and reservations to multilateral treaties" ( 10
Singapore
Year
Book
of
International
Law
and
Contributors
133,
2006),
p.
134;
<
http://www.commonlii.org/sg/journals/SGYrBkIntLaw/2006/9.pdf> [Visited 2016-03-17].
9
contracting States are desirous of preserving intact at least what is essential to the object of the
Convention; should this desire be absent, it is quite clear that the Convention itself be impaired both
in its principle and in its application".6 After the Genocide opinion was delivered, the concept of
reservations and the general practice of States were completely changed. The opinion gave way to
new practice of making reservations to multilateral treaties on human rights. The Court stated that it
must be clearly visible, that the contracting States are willing to preserve the essential provisions to
the object of the Convention, if this will is not found, it is clear that the Convention will be impaired
and its application will suffer because of that.7
1.2. Reservations under the Vienna Convention on the Law of Treaties
Vienna Convention8 Articles 19-23 constitute the current reservation regime in
international law and the analysis of these rules is one of the tasks of this thesis. The Vienna
Convention is generally acknowledged as the codification of customary international law governing
treaties. The Convention operates under the presumption that a treaty in force is binding upon the
parties and must be performed by them in good faith, Article 26. Reservations are generally not
prohibited by the Vienna Convention a state may seek to adjust certain provisions of a treaty in their
application to itself. This is often a requirement of a domestic parliament or legislature.9 If a treaty
does not specifically address reservations then the Vienna Convention articles will be applied.
The big problem with the Vienna Convention is that it only offers one type of reservation
to international treaties. These reservation articles, once applied show the gap in the law that
provides the answer about the effectiveness of the application of the Vienna Convention rules to
reservations to human rights treaties. Article 19 allows a state to make a reservation when the
reservation is not prohibited by the treaty and is compatible with the object and purpose of the
treaty. Acceptance and objections of reservations are under Article 20 which provides that an
objection does not stop the treaty from entering into force between the objecting and reserving
states unless expressly indicated by the objecting state, Article 20(4)(b). Article 20(5) notes that
unless the treaty states otherwise, all reservations will be accepted if there are no objections at the
end of twelve months. Article 21 governs the legal effect of reservations and provides that a
reservation will modify the relations between the reserving state and the state parties accepting the
reservation to the extent of the reservation and that the provision affected by the reservation will not
6
Reservations to the Convention on Genocide, Advisory Opinion : I.C.J. Reports 1951, p. 15. p 27.
Ibid. p. 20.
8
Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969, entered into force 27 January 1980.
9
O. A. Hathaway, "Do Human Rights Treaties Make a Difference?" (2002) 111 Yale Law Journal, p.1947-1952; <
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1852&context=fss_papers> [Visited 2016-05-03].
7
10
apply between the reserving state and any objecting state not opposing entry into force of the treaty
between the two.
The Vienna Convention rules outline the object and purpose test as an objective test that
must be used to determine the compatibility of a reservation with Article 19(c). No direct guidance
on what organ is to apply the test is provided by the Vienna Convention rules. Articles 20 and 21
illustrate the options for non-reserving states and the legal effects of a reservation in the case of
acceptance or objection by another state. However these legal effects are misleading the statement
that only valid reservations will produce the effect are incorrect, as show by practice.
1.3. Object and purpose test
The primary problem with the Vienna Convention is that regardless of treaty type the text
only provides very vague description of what is the object and purpose. Some authors have called
the object and purpose test "both transparent and opaque at the same time"10 because, even though
the wording seems to be clear on what reservations will be acceptable under a treaty, it is actually
unclear in practice. Lack of clarity on what factors make up the core, the object and purpose of a
treaty weakens the claim for maintaining the absolute integrity of the treaty. An argument that no
reservation can be made to any of the core provisions of a treaty raises many issues, because of the
confusion regarding what are the core provisions.11
The object and purpose test comes from the Genocide Opinion and the Genocide
Convention. This convention had an easily determinable object and purpose. The test is reflected in
Article 19(c) of the Vienna Convention however the test is never defined.12 A set practice to
applying the object and purpose test, has not been defined in the context of reservations, but
generally most commentators have interpreted the test as focusing on the essence or overall goal of
the treaty rather than parsing the individual articles, thus, the test has proven difficult to apply.13
There is no settled definition of the object and purpose of a treaty. Due to the nature of the
obligations in the core human rights treaties states often disagree as to which provisions can be said
to make up the object and purpose of a treaty. The confusion resulting from the lack of clarity of the
object and purpose allows reserving states to avoid obligations of protecting human rights and other
state parties remain powerless after determining that a reservation is invalid under the Vienna
Convention.
10
L. Lijnzaad, "Reservations to UN-Human Rights Treaties: Ratify and Ruin?" (Martinus Nijhoff, Dordrecht 1995), p.
4.
11
Supra note 5, p.1947-1952.
A. Pellet, Tenth report on Reservations, DOCUMENT A/CN.4/558 (2005) para. 77.
13
D. Harris, Cases and Materials on International Law, 7th ed. (Sweet & Maxwell, London 2010), p. 653.
12
11
1.4. Legal Effect of Invalid Reservations
As it was discussed above, Article 19(c) of the Vienna convention prevents a state from
making a reservation that is incompatible with the object and purpose of the treaty. This provision
reflects the view taken by the ICJ in the Advisory Opinion on Reservations to the Convention on
the Prevention and Punishment of the Crime of Genocide.14 The major issue is determining whether
reservations are in conformity with the object and purpose of the treaty. Several authors suggest
different theories and doctrines that will be discussed and analyzed below, along with the main
approaches for determining the validity of reservations, the permissibility, opposability and
severability doctrines.
1.5. Permissibility
So the conclusion should be that an invalid reservation, regardless of objections or
acceptances by other state parties will have no effect to the status of the reserving state as a party to
the treaty. However, in practice, the main reason for objections from member states is the
incompatibility with human rights treaties.15 However, some states choose the permissibility
doctrine. One such state was Austria, when in 1994 it made an objection to the reservation to the
Convention on the Elimination of All Forms of Discrimination against Women16 (hereinafter
CEDAW) made by the Maldives: The reservation made by the Maldives is incompatible with the
object and purpose of the Convention and is therefore inadmissible under article 19(c) of the Vienna
Convention on the Law of Treaties and shall not be permitted, in accordance with article 28 (2) of
the CEDAW. Austria therefore states that this reservation cannot alter or modify the obligations
arising from the Convention for any State Party.17
Though, under the permissibility approach, an objection is not necessary. A similar
objection asserting the permissibility doctrine was made by Portugal in 1994 to the same
reservations made by the Maldives.18 Also, under the permissibility doctrine the twelve month rule
that facilitates tacit acceptance of reservations should not be applicable, since the reservation is
impermissible.19
14
R. Moloney, "Incompatible Reservations to Human Rights Treaties: Severability and the Problem of State Consent"
(2004) Melbourne Journal of International Law p. 155; <http://www.austlii.edu.au/au/journals/MelbJIL/2004/6.html>
[Visited 2016-04-28].
15
E. T. Swaine, "Reserving" 31 Yale Journal of International Law, (2006)
p. 316-17; <
http://www.yale.edu/yjil/PDFs/vol_31/Swaine.pdf> [Visited 2016-04-28],
16
Convention on the Elimination of all forms of Discrimination against Women, 1249 UNTS 13, 18 December 1979,
entered into force 3 September 1981.
17
UN
Treaty
Collection,
Objections
to
CEDAW.;
<
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> [Visited 201604-09].
18
Ibid.
19
Supra note 11, p. 317.
12
In the context of international treaties, members of the ILC acknowledge that while the
permissibility doctrine is probably right in theory, the opposability doctrine more accurately
describes the actual practice of states practice.20
1.6. Opposability
According to the opposability doctrine if a reservation is objected by another state party to
the treaty, the reserving state will not be considered a party to that treaty. It does not matter if the
reservation is valid or not, there will be no treaty relations between the reserving and objecting
state.
This was the doctrine position that was applied before the Genocide Case. However, due to
the nature of human rights treaties now,21 objecting states will specifically articulate that the
objection will not inhibit the entry into force of the treaty between the two states, as such the
opposability doctrine is completely avoided. A rare case of following the opposability doctrine was
shown in a reservation by Fiji to the International Convention on the Elimination of All Forms of
Racial Discrimination22 (hereinafter CERD), Fiji also claimed that it interprets article 20 and the
other related provisions of Part III of the Convention as meaning that if a reservation is not
accepted, the State making the reservation does not become a Party to the Convention. 23 However
no states have provided a response to this.
Considering the fact that states can become a party regardless of objections by other
member states, "it makes little sense then to suggest that the reservation may be opposable,"24
hence, the opposability doctrine is not the solution for achieving universal treaty ratification and
"has little salience in the context of human rights treaties".25 Under the opposability doctrine,
objections to invalid reservations generate the same effect as objections to validly formulated
reservations.26 And so, the issues of the legal effect of invalid reservations to human rights treaties
under the Vienna Convention are not solved by applying this doctrine.
20
ILC Yearbook 1995, UN Doc. A/50/10 (1995), para. 457.
Vienna Convention, Art. 21(3).
22
Convention on the Elimination of all forms of Racial Discrimination, 660 UNTS 195, 7 March 1966, entered into
force 4 January 1969.
23
UN
Treaty
Collection,
Fiji,
Reservations
to
CERD.
;<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-2&chapter=4&lang=en> [Visited 2016-0505].
24
M. Craven, "Legal Differentiation and the Concept of the Human Rights Treaty in International Law" (2000) 11
EJIL, p. 508; < http://www.ejil.org/pdfs/11/3/540.pdf> [Visited 2016-05-05].
25
Ibid. p. 497.
26
Supra note 11, p. 315.
21
13
1.7. Severability
The doctrine of severability of reservations has been developed through court and treaty
body jurisprudence, as well as observations by states. This doctrine states that if an invalid or
incompatible reservation is made then the author state will be bound to the treaty without the benefit
of the reservation.
The severance principle was affirmed by the two following European cases. Weber v
Switzerland (1990),27 in which the court examined a revisal of a reservation to Article 6(1) where
the Swiss did not append its statement about the law, which was required by Article 64(2), because
of this the court held the reservation to be invalid and applied the ordinary meaning of Article 6,
following the precedent set in the Belilos case.28 The second case Loizidou v Turkey (1995)29
further reaffirmed the practice of the court which sways in the favor of severance and that Turkey's
reservation could be severed from the instruments of acceptance leaving intact the acceptance of the
optional clauses. These rulings made clear to all state parties that a reservation or anything
amounting to a reservation cannot stray from the form of reservation as it is defined in the
Convention. Higgins noted that the Loizidou case was viewed as a departure from the ICJ
jurisprudence on reservations, this depends on the interpretations of the scope of the ICJ judgment
in the 1951 advisory opinion on Reservations to the Genocide Convention, that is - determining
whether it precluded a court from doing anything other than noting when a particular State had
objected to a reservation.30
The Human Rights Committee (hereinafter HRC) agreed with General Comment No. 24,
supporting the position that "a reservation will generally be severable, in the sense that the
Covenant will be operative for the reserving party without the benefit of the reservation" 31 in the
event that an invalid reservation is made. Regarding the severance approach, Bradley and
Goldsmith argue that it is incorrect to conclude that a state continues to be bound by articles to
which it has made reservations even if other states claim that those reservations violate the object
and purpose of the treaty.32
27
ECHR case: Weber v. Switzerland, judgment of 22 May 1990, Series A No. 177.
ECHR case: Belilos v. Switzerland (10328/83) [1988] ECHR 4 (29 April 1988).
29
ECHR case: Loizidou v Turkey (preliminary objections) , Judgment of 23 March 1995, Series A No 310.
30
Rosalyn Higgins Speech to the European Court of Human Rights council of europe (2009), p 82; <
http://echr.coe.int/Documents/Dialogue_2009_ENG.pdf> [Visited 2016-04-21].
31
HRC, General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 18.
32
Bradley and Goldsmith, "Treaties, Human Rights, and Conditional Consent" (University of Pennsylvania Law
Review
2000)
p.
426;
<
http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3294&context=penn_law_review> [Visited 2016-04-21].
28
14
2. RESERVATIONS IN PRACTICE
This part of the thesis will examine the different types of reservations and how they
interact with the default reservation regime and evaluate the effectiveness of the Vienna Convention
on reservations to human rights treaties. When applying the Vienna convention rules to reservations
made by state parties it becomes apparent that there are no clear legal consequences for when a
reservation is deemed impermissible. In response to this there have been declarations, that
reservations are a necessary evil, which at least brings countries into the treaties and adds some
accountability for human rights violations, where otherwise, there would be no accountability at
all.33 However this point of view does not take into account that even with treaty ratification, many
states remain outside the accountability regime due to their reservations. In order to get to the root
of this issue it is necessary to examine the types of reservations states are making. Many of the
reservations that states have made in the current times are written in such a way that does not allow
to measure the level of commitment they place in the treaty. Even though human rights are called
"universal, indivisible and interdependent and interrelated"34 it cannot be stated that all provisions
of human rights treaties are equal, which was the main argument in the Genocide Opinion. 35 Some
authors believe that in order to achieve the goals of human rights treaties, it is necessary to adhere
to many separate provisions, and a reservation to even one of these provisions can prevent
achieving that.36 The first step of evaluating a reservation is determining what right is being
protected and the extent that this protection can be altered by a reservation. Once this right has been
determined, is it needed to examine if the reservations is contrary to the object and purpose of the
specific convention. Issues also arise out of reservations which are based on the incompatibility
with domestic law of the state.
2.1. General human rights
The International human rights regime has an inherent level of flexibility which is
necessary, to allow human rights to reach all types of states and societies. This flexibility is
expressed in the form of permissible limitations to rights, protections and freedoms which can be
determined by examining the text of the treaties and their wording.
33
M. Morris, "Few Reservations about Reservations" (2000) 1 Chicago Journal of International Law p. 341; <
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1061&context=faculty_scholarship> [Visisted 2016-0427].
34
UN World Conference on Human Rights, UN Doc. A/CONF.157/23 (1993), Art. 5.
35
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951
ICJ Reports 15, 28 May 1951.
36
F. Hampson, Specific Human Rights Issues, Reservations to Human Rights Treaties, Final working
paper, UN Doc. E/CN.4/Sub.2/2004/42 (2004) para. 50.
15
The majority of rights, protections and freedoms found in human rights treaties fall into the
category of general human rights. As such, they will be subject to limitations according the laws of
a state, but only if the general object and purpose of the treaty is not violated and the proposed
limitation is not overreaching. These rights may also be derogated during a states state of
emergency.37 The core treaties have many overlapping rights, which is a characteristic set by the
Universal Declaration on Human Rights. For example non-discrimination and equal recognition
before the law are found in all of the treaties. Equality between men and women was established as
an international right by the International Covenant on Civil and Political Rights 38 (hereinafter
ICCPR), as well as International Covenant on Economic, Social and Cultural Rights 39 (hereinafter
ICESCR), long before the conclusion of CEDAW. Freedom from torture, in addition to being a
peremptory norm of customary international law, is enforced not only by the Convention on the
Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 40
(hereinafter CAT) but also by ICCPR Article 7, Convention on the Rights of the Child41
(hereinafter CRC) Article 37, The Convention on the Rights of Persons with Disabilities42
(hereinafter CRPD) Article 15, and the International Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families 43 (hereinafter ICRMW) Article 10. Protection
of the freedoms of thought conscience and religion are also in CERD Article 5(VII), ICCPR Article
18 and ICRMW Article 12.
Looking at these examples it is clear that human rights cover all the major treaties. States
must not only try to not violate human rights, but also to actively implement human rights into their
domestic law and create mechanisms that prevent violation of these rights. This mechanism is
called the difference between positive and negative obligations of the state, it must be noted that
these obligations are imposed on the member states and not on individual citizens.
A positive obligation, like CEDAW Article 15(1): "State parties shall accord to women
equality with men before the law" will require State Parties to take action, most likely in the form of
introducing or repealing legislative measures, to ensure equality between men and women. On the
other hand a negative obligation, like CRC Article 37: "No child shall be subjected to torture or
37
HRC, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/Add.11, (2001).
International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966, entered into force 23
March 1976.
39
International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 16 December 1966, entered into
force 3 January 1976.
40
Convention on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465
UNTS 85, 10 December 1984, entered into force 26 June 1987.
41
Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989, entered into force 2 September 1990.
42
Convention on the Rights of Persons with Disabilities, UN Doc. A/61/611, 13 December 2006, entered into force 3
May 2008.
43
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,
2220 UNTS 3, 18 December 1990, entered into force 1 July 2003.
38
16
other cruel, inhuman or degrading treatment or punishment" after making such an obligation a
state will refrain from engaging in such a manner and order third parties to do the same.
The existence of positive and negative obligations makes it clear that states must prevent
violations in the public and private level accordingly.44
2.2. Non-General human rights
The ICJ in its 1951 Genocide Opinion stated that rights in the Genocide Convention are
not all equal. The Court came to the conclusion that rights can be classified as major or minor,
major rights being those against which reservations can not be made.
However, as more human rights treaties were being signed it became clear that this simple
system of major and minor obligations is not as effective as it would seem in actual practice. That is
because rights, protections and freedoms are not only expressed independently but they also form,
inter-related, stand-alone obligations. While there are a number of rights that can easily be termed
"major" and "minor", a more appealing method of distinction could be by categorizing the nature of
the potential limitations. This distinction is achieved by using absolute rights, non-derogable rights,
and their variations as a means of reference for measuring the validity of reservations.
2.3. Absolute rights
The flexibility of general human rights obligations does not cover all rights. These rights
are known as absolute rights, they can not be limited in any way and neither can they be
undermined under a state of emergency.
One such example is the ICCPR, Article 8, it states that No one shall be held in slavery;
slavery and the slave-trade in all their forms shall be prohibited, which does not allow any deviation
from it, neither by reservation nor derogation. In General Comment No. 2 of 2008, the CAT
Committee, addressed issues regarding the implementation of the CAT and the status of the
absolute rights protected by Article 2, the positive obligation on states to prevent torture, and
Article 16, the positive obligation to prevent cruel, inhuman or degrading treatment or punishment.
The Committee stated that under the CAT there are no circumstances, no matter how exceptional or
exigent, which will justify the use of torture, including a state of emergency or a state of war, and
that torture may never be used to protect the public safety or avert emergencies.45
In response to post 11th of September, 2001 anti-terrorism measures and treatment of
individuals, the CAT Committee left no room for movement on the issue of this absolute right by
unambiguously stating that torture can never be employed even if the aim is to prevent a terrorist
44
45
General Comment No. 2, UN Doc. CAT/C/GC/2 (2008), para. 15.
UN Doc. CAT/C/GC/2 (2007), para. 5.
17
inspired catastrophe.46 It can be concluded that there is no valid reason to compromise absolute
rights set in human rights treaties.
2.4. Non-Derogable rights
A non-derogable right differs from an absolute right because non-derogable rights may be
limited by law if it is necessary to protect other members of society or the life of a nation, unlike
absolute rights which can not be limited under any circumstances. The core treaties usually have an
article in them, which indicates the non-derogable rights, one example is ICCPR Article 4(2) which
specifies eight non-derogable obligations under the covenant.47
Other treaties also contain provisions on non-derogable rights yet some are quite vague,
such as ICESCR Article 5(2) which states: No restriction upon or derogation from any of the
fundamental human rights recognized or existing in any country in virtue of law, conventions,
regulations or custom shall be admitted on the pretext that the present Covenant does not recognize
such rights or that it recognizes them to a lesser extent. The existence of these issues were addressed
by the 1984 Siracusa Principles48 though they primarily addressed rights protected by the ICCPR
the general idea is applicable to all the core treaties. The Siracusa Principles outlined these basic
non-derogable rights:
No State Party shall, even in time of emergency threatening the life of the nation, derogate
from the Covenant's guarantees of the right to life; freedom from torture, cruel, inhuman or
degrading treatment or punishment, and from medical or scientific experimentation without free
consent; freedom from slavery or involuntary servitude; the right not to be imprisoned for
contractual debt; the right not to be convicted or sentenced to a heavier penalty by virtue of
retroactive criminal legislation; the right to recognition as a person before the law; and freedom of
thought, conscience and religion. These rights are not derogable under any conditions even for the
asserted purpose of preserving the life of the nation.49
In regard to non-derogable rights issue, the CAT Committee in the 2008 General Comment
No. 2, also declared the non-derogable status of Article 2 (prohibition against torture, which is also
an absolute right), Article 15 (prohibiting confessions extracted by torture from being admitted as
evidence, except against the torturer) and Article 16 (the positive obligation to prevent cruel,
inhuman or degrading treatment or punishment).50 The Committee emphasized that certain rights,
no matter what the situation or the cost, can not be violated and are non-derogable. However the
46
Supra note 34. para. 6.
No derogation is permitted from Arts. 6, 7, 8(1), 8(2), 11, 15, 16 or 18.
48
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political
Rights, UN Doc. E/CN.4/1985/4 (1984).
49
Ibid., para. 58.
50
UN Doc. CAT/C/GC/2 (2007), para. 6.
47
18
non-derogability of a right does not mean that a reservation can not be made against it. The InterAmerican Court of Human Rights in its 1983 opinion said that a reservation that would suspend a
non-derogable fundamental right must be deemed incompatible with the American Convention on
Human Rights and yet the court stated that restrictions to non-derogable fundamental rights would
not necessarily fail the object and purpose test.51 Non-derogable rights which can not be limited also
include absolute rights that are peremptory norms,52 such as the prohibition against slavery,
meanwhile other rights, such as the right to life53 protected by ICCPR Article 6, will be susceptible
to limitation during states of emergency despite being non-derogable.
Limitations made while derogating from a treaty must be not be confused with limitations
that are already allowed in the conditions in the article. In General Comment No. 29 the Human
Rights Committee, noted the importance of the difference between a limitation pursuant to
derogation and a limitation pursuant to normal implementation of an obligation. 54 This can be seen
in the text in ICCPR, Article 18, paragraph 3 which states that the non-derogable right to freedom
of thought, conscience and religion may be limited by law as necessary to protect the public and the
freedom of others at any time. However, in the event of a state of emergency, this right may be the
subject of further limitations though it can never be completely discarded. Hence, in an official
state of emergency, the derogating state may place restrictions on a non-derogable right but only as
far as is necessary and in proportion to the situation, however this does not apply to absolute rights,
which can not be restricted or limited.
Setting limitations and proportionality aside, the HRC has pointed out that the primary goal
of a derogating state should be the "restoration of a state of normalcy where full respect for the
Covenant can again be secured,"55 this goal is applicable to all core treaties to which derogations
were made.
2.5. Derogable rights
Derogable rights, unlike their non-derogable version, are such rights which allow
derogation during a state of emergency where the life of a nation is under threat. An example of a
derogable right is ICCPR Article 4(1) which expressly recognizes derogation to general rights
during a state of emergency but makes it clear that the derogation may only be to the extent
absolutely necessary for the state of emergency.
51
Restrictions on the Death Penalty (Articles 4(2) and (4) of the American Convention on Human Rights), Advisory
Opinion, OC-3/83 (1983), para. 61.
52
Christian Tomuschat, Jean Marc Thouvenin "The Fundamental Rules of the International Legal Order: Jus Cogens
and Obligations Erga Omnes" (2006) Brill-Nijhoff, p. 87-93.
53
The right to life is also protected by CRC, Art. 6; ICRMW, Art. 9; CRPD, Art. 10.
54
Supra note 33.
55
Supra note 37. para 1.
19
Derogation can not violate the principle of non-discrimination, that means that no
distinction may be made solely on the basis of race, color, sex, language, religion or social origin,
however, distinctions based on citizenship can be allowed. The factors of necessity and nondiscrimination related to derogations also apply to other core treaties which do not specifically
address derogation. When a state party wishes to make a derogation, it must specify which rights
the derogation will affect, and the duration of the derogation, so that the treaty depositary may
inform all other state parties. The scope of rights in human rights treaties is highly varied, as some
rights are subject to limitation and others are not. In light of this, the different types of reservations
made to such rights will be examined. It must also be noted, that the validity of a reservation is
often questionable for a variety of reasons, like structural ambiguity, effect of uncertainability and
specifically because of the different views on compatibility with Article 19(c) of the Vienna
Convention.
2.6. Reservations
It is generally accepted that the law of treaties is premised on reciprocal contractual
relationships between state parties.56 The HRC noted that, full compliance is more desirable
"because the human rights norms are the legal expression of the essential rights that every person is
entitled to as a human being"57 This directly applies to general multilateral treaties, however that is
not the case for human rights treaties, the object of which are the people and not the states,
reservations to these treaties do not give rise to revised reciprocal agreements, so it follows that
state parties will not treat reserving states differently from non-reserving states. This is true even in
the event of an invalid reservation.
Since it is clear that the practice of making reservations cannot be entirely eliminated it is
important to understand how various types of reservations work in practice, that is - reservations to
human rights treaties are accepted passively, rather than with an active statement of acceptance.
58
Issues tend to arise when a reservation has been both the subject of an objection and an acceptance
by passive acceptance. The relationships between obligations and reservations and the way states
treat both is a mixture of customary international law, treaty law, state practice, as well as
international relations. Under the Vienna Convention reservations regime, not all reservations are
prohibited and states are free to make permissible reservations. However permissible reservations
can still be objected to. The objections to permissible reservations are set by Articles 20 and 21 of
the Vienna Convention on the law of treaties. Under the first and second conditions of Article 19,
which allow states to make reservations, invalid reservations are easily recognized as not compliant
56
Supra note 11. p. 342.
Supra note 31. para. 4.
58
Ibid. para. 17.
57
20
with the rules of treaty law as well as the treaty itself. However the third condition of Article 19(c)
of the Vienna Convention opens the door to reservations that either blatantly contravene the object
and purpose of a treaty or reservations that appear not to violate reservation rules yet, in practice
they create uncertainty as to actual obligations and create enforceability issues. Examining the
various categories of rights, and the application of specific types of reservations to these rights,
reveal a lack of legal rules in the practice of making reservations to human rights.
There are those reservations which can easily be said to violate the object and purpose of a
treaty and are the reservations to which objections are most often made. The following chapter
compares reservations against various rights and shows examples of how the uncertainty resulting
from applying the Vienna Convention reservations rules to human rights treaties undermines the
international human rights regime.
2.7. Treaty guidance on reservations
The first step of analyzing the different types of reservation is analyzing and evaluating the
core human rights treaties on reservations, like the CERD Article 20, CEDAW Article 28, CRC
Article 51, ICRMW Article 91 and CRPD Article 46, each of which set restrictions on the ability of
states to make reservations to those treaties while the other four treaties do not provide any
guidance.
These five reservation provisions prohibit reservations that are contrary to the object and
purpose of the treaty. However, CERD also includes any reservations which would obstruct the
operation of any of the bodies established by it or that is considered incompatible by two-thirds of
the State Parties. For treaties without a reservation provision, the Vienna Convention articles will be
applied for interpreting reservations. Regardless of whether there is a treaty-specific article guiding
reservation evaluation or, as is the case with four of the treaties, the Vienna Convention is used, and
reservations contrary to the object and purpose of the treaty are prohibited. It is left to the states
themselves to work out what the object and purpose of a treaty is because, since it is rarely
explicitly defined. Because of this the guidance provided by the treaties that do have reservation
provisions are not particularly useful. Since the rights framed as absolute would be the very object
and purpose of a treaty and therefore can not be the subject of a reservation. When evaluating the
CAT, we can see that the object and purpose is the prevention of torture and cruel, inhuman or
otherwise degrading treatment or punishment and each of the obligations is designed to further the
objective of the CAT to eliminate these activities.
Thus, reservations affecting rights framed in absolute terms, or those rights that provide
means of fulfilling the over-arching obligations, are equally important. Comparing CEDAW with
the CAT, it is clear that the object and purpose is to establish equality among women and men. To
21
realize this aim, the first sixteen articles set a list of areas where governments should be put an end
to discrimination according to the Convention. Depending on the state, a particular obligation may
be a goal which a state aspires to achieve, however, it may be entirely unattainable at the time of
ratification, because of this the state will make a reservation against that particular article. And if
the state maintains the other obligations then it would seem to be sustaining the object and purpose
of the treaty.
The issue of using the object and purpose test as a guide on reservations is the fact that has
been largely ignored in practice and states keep making reservations with no regard to the object
and purpose of the treaty.
2.8. Permissible reservations
The full implementation of obligations in human rights treaties is the goal of human rights,
however the reality is that full compliance to human rights obligations is quite difficult to achieve.
Firstly, we have permissible reservations, which do not violate the Vienna Convention
Article 19 or any other provision of the convention that might make the reservation invalid. The
ILC provides a proposal to ensure reservations are detailed sufficiently and give guidance on how
member states wish to preserve their domestic laws.59 This suits reservations made by states which
have legitimate domestic reasons for reserving against an obligation, such as the will of the
domestic population or compliance with laws enacted by a legitimate government. The reservation
made by Belize to ICCPR Article 12(2) is a good showcase of this practice: "The Government of
Belize reserves the right not to apply paragraph 2 of Article 12 in view of the statutory provisions
requiring persons intending to travel abroad to furnish tax clearance certificates."60 In this example
Belize provides the domestic legal reason for why it can not comply with the obligation fully. The
restriction is minimal and arises from a legislative measure in the operation of the state. Austria also
has a clear and detailed reservation to ICCPR Article 10(3) where it reserves the right to detain
juvenile prisoners together with adults under 25 years of age who would not provide any negative
influence on the juvenile. Both examples clearly show how the state will comply with the
obligation. In these cases, the states compliance to the treaty is altered but the object and purpose of
the treaty is not violated.
59
Commentary upon proposed Reservations to Treaties, Draft Guideline 3.1.11, UN Doc. A/62/10, (2007), p. 109.
UN
Treaty
Collection,
ICCPR,
Reservation
by
Belize.;
<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en> [Visited 2016-0510].
60
22
2.9. Incompatible reservations
Human rights treaties are noteworthy of being treaties which receive the most reservations
which violate the object and purpose of a treaty - impermissible reservations. A recent example of
an impermissible reservation is the one made by Pakistan when it ratified the ICCPR on 23 June
2010. Among other reservations, Pakistan made a reservation to Article 40: "The Government of
the Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the
Committee provided for in Article 40 of the Covenant."61 Article 40 requires State Parties to submit
reports and establishes the HRC as the periodic reporting supervisor. The periodic reporting system
is a core feature of the UN human rights treaty system so, it follows that making a reservations
against this system clearly violates the object and purpose of the treaty. An objection to the
reservation was made by Austria, where it stated that Article 40 of the Covenant does not provide
the option of excluding the Committee from its competence and Pakistan's reservation is
incompatible with the object and purpose of the Covenant.62
The other reservations that Pakistan made to Articles 6, 7 and 18, which according to
ICCPR Article 4(2), are non-derogable and, this raises the question if Pakistan can remain a party to
the Covenant. Many states, in fact the largest number of objections made to any expressed
reservation, have objected to this long list of reservations made by Pakistan on the grounds of
incompatibility with the object and purpose of the treaty.63
The most peculiar thing is that none of the objecting states were against Pakistan joining
the treaty and only four states, made it known that the treaty would be in effect, with the exception
of Pakistan's reservations. This is a big problem in practice of the ICCPR, obligations are not for the
benefit of the State Parties but for the citizens of the State Party. Because of this, the relations of the
states remain unchanged. Additionally the US included that the treaty would be in effect between it
and Pakistan "except to the extent of Pakistan’s reservations"64 but this still leaves Pakistan on the
same standing, as if all the reservations made would have been valid.
61
UN
Treaty
Collection,
ICCPR,
Reservation
by
Pakistan.;
<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en> [Visited 2016-0510].
62
UN Treaty Collection, ICCPR, Objection by Austria with regard to the reservations made by
Pakistan
(24
Jun.
2011).;
<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV4&chapter=4&lang=en> [Visited 2016-05-10].
63
UN Treaty Collection, ICCPR, objections to the reservations by Pakistan based on incompatibility
with the object and purpose of the treaty: Australia, Austria, Belgium, Canada, Czech Republic,Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Netherlands,Norway, Poland, Portugal, Slovakia,
Spain, Sweden, Switzerland, UK and US. <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV4&chapter=4&lang=en> [Visited 2016-05-10].
64
UN Treaty Collection, ICCPR, Objection by the US with regard to the reservations made by Pakistan (29
June 2011). <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&lang=en> [Visited
2016-05-10].
23
This shows another inconsistency in the application of the Vienna Convention rules to
reservations to human rights treaties. Just as was the case with the ICCPR, Pakistan also made the
same type of reservations to the CAT which were also met with the same level of opposition. 65
Even without the objections of other states a reservation to ICCPR Article 40 is a violation of the
object and purpose of the treaty. Pakistan has not made any response to the objections and it has not
withdrawn any of the reservations. The above mention situation remains to persist, since the Vienna
Convention lacks any guidance on the consequence for determinations of incompatibility in this
type of situation.
2.10. Subordinating international obligations
Another type of reservation, are reservations subordinating specific treaty obligations to
domestic law. This practice once again spreads more uncertainty, which is inherent in some
domestic systems and their negative approach to the recognition of international obligations and it
only works as a catalyst for breeding more uncertainty in the reservation regime. 66
Article 27 of the Vienna Convention states that a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty, so, when a reservation references its
internal law as a means of making the reservation unascertainable, Article 27 along with Article
19(c) can be applied. The use of Article 27 for objecting to reservations is contestable, even though
it is commonly used.67
Article 26 of the Vienna Convention talks about the treaty law concept of "pacta sunt
servanda"68. So, with Article 26, in conjunction with Article 27, we can conclude that a state party
applying domestic law in order to avoid the application of a particular human rights treaty not only
violates Article 27 but also Article 26. However, these articles are ignored repeatedly by a large
number of states. Conflict with domestic law is the reason which gives rise to many reservations.
These reservations greatly reduce the reserving states obligations and, depending on the
actual realization of the reservation on the domestic level, can be held as non-performance of the
treaty obligations. These policy decisions showcase that states are aware of the commitments that
would be needed to become a true party to the treaty, yet states place their constitutions or existing
laws above the treaty.69 According to A. Pellet, a state "should not use its domestic law as a cover
65
UN
Treaty
Collection,
Pakistan’s
reservations
to
CAT.
<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&lang=en> [Visited 2016-0505].
66
F. Hampson, E/CN.4/Sub.2/2004/42, para. 56.
67
Ibid. para. 56.
68
Latin for "agreements must be kept".
69
Supra note 6, p.78.
24
for not actually accepting any new international obligations"70 despite the fact that the guideline
allows such reservations if they do not violate the object and purpose of the treaty. 71 In theory,
states should change their domestic laws so that at least the minimum protections of the treaty
would be applied. This shows that the need for a proper violation review procedure.
It is noteworthy that some of these reservations will be used only for as long as it takes for
the state to bring its domestic law into conformity with international obligations, these are known as
"transitional"72 reservations. An example of this practice is the reservation to the ICCPR made by
Barbados: Where it stated that it reserves the right not to apply in full, the guarantee of free legal
assistance in accordance with paragraph 3 (d) of Article 14 of the Covenant, since, while accepting
the principles contained in the same paragraph, the problems of implementation prevent it from
being applied. Legislation on the domestic level is outside the scope of international law, however
human rights treaties create an obligation for state parties to develop new laws or repeal existing
laws in order to bring domestic law into conformity with the treaty obligations. Though the aim of
human rights treaties is to improve protections, new legislation is harder to assess compared to
existing legislation with a proven record of implementation.73
One of the many problems of this practice is the fact that the existing domestic law itself is
unclear. These examples show the undermining effect of reservations on absolute rights that put
international treaty obligations on domestic laws, however the same issues of uncertainty exist for
general rights reservations as well. Another negative implication of this reservation practice which
transfers international human rights obligations to domestic law arises in the form of derogations.
Due to discrepancies between definitions of the conventions and those that exist under
domestic laws, either incorporating the treaty or otherwise, there exists a potential loophole for
impunity, as pointed out by the CAT Committee.74 This potential loophole is shown by the
reservation made by Botswana against torture and cruel or inhuman treatment (CAT Article 1). The
Committee requested that State Parties give assurance that domestic definitions are compatible with
those set under the CAT. In regard to these reservations states have argued that they are invalid
because of the contravention of Vienna Convention Article 27 and the incompatibility with the
object and purpose test.75 However, regardless of this, the same result, reserving states maintain
their reservation and there is no legal effect or consequences for this behavior.
70
A. Pellet, UN Doc. A/CN.4/558/Add.1 (2005), para. 105.
Ibid. para 106.
72
E.A. Baylis, "General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties" (1999) 17
Berkeley
Journal
of
International
Law
277,
p.
311.;
<
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1181&context=bjil> [Visited 2016-05-10].
73
Supra note 6, p.85.
74
UN Doc. CAT/C/GC/2, (2008), para. 9.
75
F. Hampson, E/CN.4/Sub.2/2004/42, para. 56.
71
25
2.11. Numerous reservations to a single treaty
The types of reservations discussed above are not the only cause for concern, as there are
State parties who make many reservations to specific rights due to incompatibility with their
domestic laws or local customs, which shows their unwillingness to apply progressive human rights
protections and the rights embodied in the treaty remain unapplied. Because human rights treaties
have many different types of obligations, it is difficult to assess, what kind of reservation will be
invalid under the object and purpose test.
And it is even more difficult to assess at what point a large number of reservations made
by a state party, will violate the object and purpose of the treaty. If the object and purpose is
violated there is no sure-fire way of rectifying the offending reservation other than to urge the
reserving state to withdraw it. The Republic of Niger demonstrated this practice by making a large
number of specific reservations to CEDAW which puts the realization of human rights obligations
in serious jeopardy.76 Even though Article 28 of CEDAW prohibits reservations incompatible with
the object and purpose of the Convention, it has the highest number of reservations made against,
compared to any other human rights treaty.
Niger reserved against eighteen of the commitments pointing to its "regard to the
modification of social and cultural patterns of conduct of men and women"77 and due to the fact that
the indicated provisions were contrary to the existing customs and practices within the country
which could be modified only with the passage of time and the evolution of society and could only
be abolished by an act of authority. Article 5 of CEDAW identifies the purpose of the treaty, which
is to modify the social and cultural patterns of conduct of men and women, and to achieve the
elimination of prejudices and customary and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
Niger’s status as a State Party is only in name, as clearly shown by the large number of reservations
it has made against the elimination of all forms of discrimination against women, which is the main
purpose of CEDAW. These reservations made by Niger were objected by France and the
Netherlands, however the objections have not had any effect on Niger as it has not withdrawn any
of its reservations.78 The CEDAW Committee General Recommendations addressed the issue of
this large number of seemingly invalid reservations made to the Convention.79 The committee
wanted states to reconsider their reservations, and suggested the application of a common procedure
76
Niger, Reservations to CEDAW, <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&lang=en> [Visited 2016-04-09].
77
Ibid.
78
UN Treaty Collection, CEDAW, Objections to Reservations made by Niger to CEDAW by France, 14 Nov. 2000,
and Netherlands, 6 Dec. 2000.; <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV8&chapter=4&lang=en> [Visited 2016-04-09].
79
General Recommendation No. 20, Reservations to the Convention, UN Doc. A/47/38 (1992).
26
on reservations similar to other human rights treaties.80 Sadly, the other core human rights treaties
seem to be facing the same issue. Chile has shown a better approach when it made its declaration
signing the CEDAW in 1980, it stated that at the time of the signing many provisions of CEDAW
were not compatible with Chilean laws but it had already established a law reform committee to
amend the law and reach compatibility with the convention.81 By 1989 Chile had ratified the
Convention without any reservations.82
There are several types of reservations that hinder the fulfillment of obligations set in the
core human rights treaties. Following the principles set by the Vienna Convention, reservations
must not violate the object and purpose of a treaty and they should not use domestic law as
justification for failure to comply with international human rights treaty obligations. These
requirements for the validity of reservations have brought upon a lot of compliance issues because
of the nature of the Vienna Convention regime. The analysis of different types of reservations made
by states clearly shows the difficulty in determining when a reservation is invalid and the issues of
legal uncertainty, when a state party determines that a reservation is invalid.
Human rights obligations, require a genuine effort from the state parties, otherwise the
protections that exist in the core human rights treaties will not be realized. Recognizing the different
types of rights protected by human rights treaties and the categories of reservations to these rights
reveals the contradictory state practice. It is the lack of guidance and certainty on how reservations
should work that causes issues in the implementation of human rights. The rules that exist currently
can be easily disregarded by states choosing their own interpretation of the Vienna Convention.
80
UN Doc. A/47/38 (1992), para. 2.
UN
Treaty
Collection,
CEDAW,
Declarations
and
resevations
of
Chile;
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> [Visited 201604-09].
82
Ibid.
81
27
3. CONCLUSION
In 1951 the Genocide Opinion introduced the idea of splitting rights into different
categories. The test for figuring out into which category a right belongs to was the object and
purpose test. The object and purpose test changed the previous international practice, which
required unanimous consent to reservations. This test was then included in the 1969 Vienna
Convention on the Law of Treaties and currently remains the only method of determining if a
reservation is permissible, when the specific treaty does not have a reservation regime. Human
rights treaties are made up from a wide variety of rights when reservations are made to them, the
question of whether limitations are possible to these rights arise. Looking at the current catalogue of
reservations that have been made to human rights treaties shows that there is no clear system of
protections. Due to the broad scope of the most common types of reservations made to human rights
treaties, the Vienna Convention reservations rules are used to attempt to keep these reservations
from violating the treaty.
Because the Vienna Convention rules presume that states will only make reservations
which are valid, the rules do not provide the necessary guidance in the case of objections to invalid
reservations. This problem stems from the fact that obligations in human rights treaties are not
reciprocal, modification of treaty relations between states are ineffective and have no bearing on the
state and citizen relationship that these treaties are designed to protect and so, other states do not
feel the need to object, since there are no consequences defined by the Vienna Convention and no
rule of customary international law states that the reserving state has to withdraw its invalid
reservation. The doctrines of permissibility and opposability do not provide a solution to the issue
of legal effect of invalid reservation to human rights treaties because these doctrines govern the
relationships between states. However, the increased recognition of the severability doctrine as a
remedy for invalid reservations sets a good example to the human rights system as a whole, even
though it too, as the permissibility and opposability doctrines, only applies to relations between
states and not the state and citizen relationship, which is not recognized under the Vienna
Convention, and so the ineffectiveness of the Vienna Convention system to provide guidance in the
case invalid reservation appears.
The uncertainty of the Vienna Convention reservations regime could be dispelled by the
designation of a special organ which would provide the needed guidance and legal certainty against
the practice of invalid reservations. Because, as it currently stands there are states that are parties to
human rights treaties and have made reservations to the core provisions of those treaties, in these
cases the treaty monitoring bodies should be used more effectively, because now these bodies only
make reports on the treaty implementation by the state parties and the effectiveness of human rights
28
protections in the national legal system, the treaty bodies provide reports to the other treaty
members, via the commission reports, however the issue lies in the fact that the reports of the treaty
bodies do not have the power to effectively discipline member states who are not following their
treaty obligations. This could be remedied by giving more power to the reports of the treaty
monitoring bodies and additionally, the human rights treaty system could set a competent
reservation review organ, because the special supervisory mechanisms to these treaties already exist
and monitor treaty implementation of state parties. So, it is possible that the Vienna Convention
reservations regime could properly regulate reservations to human rights treaties if the monitoring
mechanisms are fully applied and a competent organ for reservation validity is created.
Finally, the current state of the reservation system has the object and purpose test as the
main test of reservation permissibility. The international reservation practice, which was analyzed
in this thesis, leads to the realization that states will continue to make reservations. It is clear that
the international community must come together and strive for a more progressive and citizen
friendly approach, create a more effective system of recognizing the invalidity of a reservation,
since issues of invalid reservations are not handled in an optimal way, which would promote the
growth of human rights protections. Until this is achieved, the issues of legal effect or consequence
of invalid reservations will not be resolved, however, in the light of the aforementioned a balance
between having a certain degree of flexibility in order to encourage treaty participation and
protection of the integrity of Human Rights treaties must be maintained.
29
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30
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32
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33