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Reservations to human rights treaties and their validity - a contemporary analysis
RESERVATIONS TO HUMAN RIGHTS TREATIES AND THEIR VALIDITY - A CONTEMPORARY ANALYSIS
An ongoing debate in international human rights law concerns the universality of human rights treaties versus their integrity. The use of reservations and unilateral declarations by states, while apparently encouraging the universality of human rights treaties, has also created 'a feeling of unease' among human rights activists and jurists considering the 'indivisible and interdependent nature of the rights set out in such treaties'. The question here, therefore, is to what extent states can validly make reservations to human rights treaties. While the Vienna Convention on the Law of Treaties continues to govern the matters of reservations to human rights treaties and the fundamental rule remains that a reservation cannot be incompatible with the object and purpose of a treaty, the question of validity of reservations cannot be addressed solely on these premises anymore and there has been growing jurisprudence on the view that human rights treaties need to take exception from certain rules of VCLT, especially those concerning reservations, as the latter focuses predominantly on the bilateral elements of treaties and not law-making or multilateral treaties. This paper, in addition to bringing out the conditions and extent for the validity of reservations under the Vienna Convention regime, will also address the additional conditions to be satisfied vis-a-vis human rights treaties which are being developed by the International Law Commission vide its Draft Guidelines on Reservations to treaties and the practice of human rights treaty bodies, while highlighting the lacunae in the laws of reservations in relation to human rights treaties. It must be noted that this paper addresses the research question on a purely theoretical aspect and not on the basis of state practice or specific human rights treaties.
2. Validity of reservations to human rights treaties: Compatibility with the Vienna Convention Regime
1. Reservations under the Vienna Convention regime
Part Two Section Two of VCLT lays down the provisions regarding the formulation of reservations, objections and their consequences. The fundamental rules for the formulation of a valid reservation under the Vienna Convention regime, which have been accepted to govern reservations to human rights treaties, are contained in Article 19 of VCLT. It provides that a State can, while signing, ratifying, accepting, approving or acceding to a treaty, formulate reservations if the treaty does not expressly prohibit them, or they are included in the specific reservations provided for in the treaty. Where a reservation is not prohibited by the treaty or falls within the specified categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. These continue to be the conditions for and the extent to which a state can validly make reservations to human rights treaties. While the first two conditions in Article 19 are rather straightforward, although there might be problems in determining whether a particular reservation falls within those specified in a treaty, it is the third condition, viz., the incompatibility test that gives rise to serious problems more in practice than in theory. It must be observed, however, that although the abovementioned remain the conditions for the formulation of a valid reservation, they do not necessarily have to be the criteria for the permissibility of such reservation. The permissibility of reservations to treaties has been left to the judgment of the states parties, with VCLT laying down no criteria which states have to essentially consider while determining such permissibility. As for the consequences of an objection, it makes no difference in the applicability of the treaty as between the reserving and objecting states unless the latter expressly precludes the entry into force of the treaty between itself and the reserving state.
2.2 Inadequacy of the regime in governing reservations to human rights treaties
The flexible regime created by VCLT has worked well for treaties which have reciprocity as their basis but has not been very effective in the realm of legislative treaties, especially human rights treaties which deal with community and not bilateral interests. At the outset, Article 19 of VCLT presumes the right of states to make a reservation unless certain other situations exist, which is not necessarily and ideally should not be the case in human rights treaties. From their very nature and purpose, it would not be wrong to assume that the integrity of human rights treaties is as important as their universal ratification. As stated earlier, the permissibility of a reservation depends on its acceptance by even one of the contracting states parties and the application of Article 19 and 20 to human rights treaties would make States alone the judges of both the validity and permissibility of reservations. While the 'object and purpose' test is contained in Article 19 which deals with the formulation of a reservation, it does not find any mention in Article 20 which deals with its acceptance and objection. Thus, although this may be a consideration for states in deciding their acceptance or objection to such reservation, they need not necessarily be guided by it and therefore even an invalid reservation, when accepted by one or more of the contracting states parties would become permissible. However, the debate as to whether these provisions are applicable only to reservations which are compatible with the object and purpose test (the doctrine of 'admissibility') or that a reservation cannot be invalidated on the ground of being incompatible with the object and purpose of the treaty as long as it has been accepted by even one of the contracting states parties (the doctrine of 'opposability'), is relevant to be mentioned here. It is submitted that the doctrine of admissibility is more suited for human rights treaties as it is apparent that "State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties" and inter-State reciprocity not being a guiding factor, "States have not found the legal interest or need to object to reservations". The few objections against numerous sweeping and generic reservations which have been made to various human rights treaties stand proof of this. Acceptance of an invalid reservation to a human rights treat or objecting to it with no legal consequence should not make such reservation permissible as this would not serve the integrity of the treaty and would reduce human rights treaties into a set of innumerable bilateral treaties.
In this context, it must be noted that VCLT does not define the 'object and purpose' of a treaty, nor does it provide for the criteria or the means to determine the same. Guidance is available in the Advisory Opinion on Reservations made under the Genocide Convention by the International Court of Justice where the Court observed that "[N]one of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d'etre of the convention", yet the practical and objective applicability of this test remains a problem. In as much as it may appear to be simple, it indeed is not so. For instance, although the 'object and purpose' of the Convention against torture is the prevention of torture, what would be the case of a provision establishing a mechanism for the implementation of the Convention? Would it be wrong to consider it a purpose of the Convention, as the very implementation of the object of the Convention is dependent on it? VCLT throws little light on issues such as these, which are peculiar to legislative treaties in general and human rights treaties in particular.
The most important defect in applying these provisions of VCLT to reservations to human rights treaties relates to the consequences of an objection vis-a-vis the validity of a reservation. That states have to either accept the reservation or preclude the entry into force of the treaty with the reserving state cannot be the only options available to a state in the case of human rights treaties, for they do not envisage a bilateral relationship between states but reflect community interests and choosing either of these options is not going to serve the purpose of these treaties. Questions arise, therefore, as to who should be the determining authority of the validity of reservations, what would be the consequences of the determination of an invalidity of a reservation and whether it is severable. Neither does VCLT address questions such as these nor is it equipped totally to answer them.
3. Substantive validity of reservations - ILC Draft Guidelines on Reservations to Treaties
There has been ongoing work on the part of the International Law Commission to develop guidelines on 'Reservations to Treaties', the fourteen report of which has been submitted recently by Special Rapporteur Prof. Alain Pellet. Part III of the Guidelines lay down the criteria for the substantive validity of reservations, assessment of such validity and the consequences of invalidity of reservations, of which this paper concerns the first part thereof. It has been reaffirmed time and again that the substantive validity of reservations is grounded in Article 19 of VCLT and the Guidelines expand, clarify and provide examples to determine the validity of reservations. For this purpose Guideline 3.1 reproduces, nearly verbatim, the text of that Article. Guidelines 3.1.1 to 3.1.4 clarify and elaborate Article 19(a) and (b), defining reservations prohibited by the treaty and specified reservations, along with elaborating on their permissibility, but do not depart from the VCLT provisions and as discussed earlier, this is not adequately equipped to deal with reservations to human rights treaties. It must be noted that the use of the terms 'permissibility' and 'impermissibility' for Part III as a whole was opposed vehemently by states, on the grounds that they 'prejudge the doctrinal controversy' of permissibility versus opposability and that they 'reflected upon the consequences of the formulation of reservations contrary to the substantive conditions in Article 19' including that of engaging the responsibility of the reserving state. Therefore the terms validity, invalidity or non-validity were adopted as being neutral. However, the term 'permissibility' was retained to denote the substantive validity of reservations fulfilling the requirements of Article 19, dealt with in Guidelines 3.1 to 3.1.13, which does not seem to have been explained sufficiently. In the context of human rights treaties, this would still leave room for the doctrinal debate and also for the argument that the legal effect of a reservation depends not only on its validity but on the reactions of states. In effect, this does not alter the existing law and therefore does no service to human rights treaties. However, by providing that treaty implementation monitoring bodies shall be competent to determine the validity of reservations, the guidelines have acknowledged the consistent findings and practice of human rights treaty bodies. That there is no human rights treaty body which has the capacity to render binding decisions but only to make findings which are in the nature of recommendations will continue to affect the consequences which attach to the determination of invalidity and States may chose to maintain their position. This is a matter to be addressed by specific human rights treaties.
3.1 Object and Purpose Test
Draft Guideline 3.1.5 deals with the incompatibility of a reservation with the object and purpose of the treaty. This guideline does not provide for a definition, either substantive or operational, of the concept of 'object and purpose of the treaty' but merely clarifies when a reservation could be considered as being incompatible with the object and purpose of the treaty and how the same can be determined. As for the mode of determining the object and purpose of a treaty, Guideline 3.1.6 does not innovate but merely condenses the provisions of Article 31 of the Convention. It does not appear to be a rational move to state when and how a reservation is incompatible with the object and purpose of a treaty, without actually explaining the concept. Placing this in the context of human rights treaties, Guideline 3.1.12 provides that "in determining the compatibility of a reservation with the object and purpose of a treaty, account shall be taken of the indivisibility, interdependence and interrelatedness of the rights set out in the treaty". However, it goes on to add that "account should also be taken of the importance that the right or provision which is the subject of the reservation has within the general thrust of the treaty, and the gravity of the impact the reservation has upon it". Although it is reasonable to consider that not all the provisions of a human rights treaty are of the same import, there cannot be a hierarchy of importance among the rights guaranteed by a human rights treaty and this cannot be an objective ground for determining the validity of a reservation as it makes the process more subjective than it is now. As an attempt in clarifying this concept further, Guidelines 3.1.7 to 3.1.13 are meant to provide specific examples of reservations that may be considered incompatible with the object and purpose of a treaty. However, most of those examples do not deal with the validity of the reservations per se, but only with them being incompatible with the object and purpose of a treaty, such as reservations protecting internal laws or those against non-derogable rights, which makes the whole exercise convoluted. This can be explained further through an analysis of the validity of vague and general reservations.
2. Vague and general reservations
Vague and sweeping reservations made by states to various human rights treaties have given rise not just to objections from other states but also problems in determining their effect vis-a-vis the implementation of such treaties in the reserving states. The Vienna Convention does not address this issue and as a result, the practice, both by states and by treaty bodies, has not been consistent. One of the most common reservations of this type is restricting the implementation of a treaty on the basis of its compatibility with the reserving state's domestic law, as has been pointed out by the Human Rights Committee ("Committee") in its highly acclaimed and controversial General Comment No. 24. For instance, Kuwait's interpretative declaration under ICCPR, which reads thus "the rights to which the articles refer must be exercised within the limits set by Kuwaiti law", was objected to by Finland, Germany, the Netherlands, Norway and Sweden. The Committee observed in its General Comment No. 24 that such reservations "essentially render(s) ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted." In respect of Saudi Arabia's reservation to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), whereby it precluded itself from any obligation to observe those terms of CEDAW which is in contradiction with the norms of Islamic law, the CEDAW Committee held that this reservation was so widely drawn that it defeats the object and purpose of the Convention. However, it was silent about the consequence of such a finding. It must be noted that in these cases, although a determination as to the compatibility with the object and purpose of the treaties was made, the practical consequences remained the same and the reserving states continued to enjoy the benefits of such reservations, except where it has been objected to with the intention of precluding the entry into force of the treaty with the objecting state or where the reservations have been withdrawn.
Guideline 3.1.7 attempts to fill the existing gap by providing that "a reservation shall be worded in such a way as to allow its scope to be determined, in order to assess in particular its compatibility with the object and purpose of the treaty". Although this clarifies an area with the VCLT is silent about, one must note that this guideline could be interpreted as necessitating a correlation between a vague and general reservation and the object and purpose of a treaty. The guideline on vague and general reservations, as the others following it, has been used to exemplify situations where a reservation may be incompatible with the object and purpose of a treaty. What is necessary, however, is a norm for invalidating a reservation which is vague and general as it would be impossible to determine whether they meet all the conditions for validity, and not merely the incompatibility test. In this context, reference shall also be made to Guideline 3.1.11 which deals with reservations relating to internal law and is distinguished from Guideline 3.1.7 by the fact that while the latter deals with reservations which are lacking specifics or are formulated in reference to the internal law in general, the former deals with "whether the formulation of a reservation - clearly expressed and sufficiently detailed - could be justified by considerations arising from internal law". Guideline 3.1.11 provides that "a state may formulate reservations to protect the integrity of specific norms of internal law insofar as it is compatible with the object and purpose of the treaty". Although the use of the term 'specific norms' would exclude sweeping reservations preserving the entire domestic laws of the reserving state, it still does not address the problem, which is amplified in case of human rights treaties. In the case of human rights treaties, the mere exclusion of internal laws (whether generally or with specifics) is against the state's commitment to such treaties. A human rights treaty has, apart from rights and obligations, certain 'supportive guarantees' and a reservation which protects the internal laws of the reserving state from any modification with respect to such guarantees cannot be valid, even if it is compatible with the object and purpose of the treaty.
3.3 Other Reservations
In the specific examples contained in Guidelines 3.1.7 to 3.1.13, other than those already discussed, there are certain other kinds of reservations. Guideline 3.1.9 declares an established rule which has been adopted by most human rights treaty bodies that reservations cannot modify or be contrary to peremptory norms of international law. The human rights committee in its General Comment No. 24 categorized a number of the Covenant provisions as reflecting peremptory norms and that reservations to such provisions would be incompatible with the object and purpose of the treaty. Guideline 3.1.10 provides that "reservations against non-derogable rights may not be formulated by a state unless they are not incompatible with the essential rights and obligations arising out of the treaty". It is interesting to note that the validity of reservations to non-derogable rights have not been judged on the basis of their compatibility with the object and purpose of the treaty, but with the essential rights and obligations of the treaty. This recognizes, as has been observed in the commentary to this guideline, that while reservations to non-derogable rights are impermissible when they are incompatible with the object and purpose of the treaty, there could be other situations where such reservations might be impermissible. In applying this to human rights treaties, this is a highly subjective condition leading to another issue regarding the determination of what rights and obligations are essential. The onus here is on the determining authority, be it states or human rights treaty bodies, to justify that a reservation to a non-derogable provision is incompatible with an essential right or obligation arising under the treaty.
The substantive validity of reservations to human rights treaties continue to be governed by Article 19 of the Vienna Convention, while the bar has been raised by the practice of human rights treaty bodies and the Guidelines of the International Law Commission. The 'object and purpose' test remains the fulcrum on which the validity of a reservation rests. However the application of this test to reservations to human rights treaties, both in terms of substantive rules and procedure, is changing to accommodate the needs of human rights treaties. In terms of substantive rules, sweeping reservations, including those which protect the internal law of the reserving state, which defeat the object and purpose of a treaty, should be considered invalid. Also reservations to non-derogable provisions, whether or not they are compatible with the object and purpose of the treaty, should be considered invalid. Needless to mention, reservations against provisions which reflect peremptory norms of international law shall be invalid. In terms of procedure, states cannot be the judges in determining the validity of reservations owing to the lack of inter-state reciprocity and the legislative nature of human rights treaties. Human rights treaty bodies are better equipped for this purpose and a number of human rights treaties have adopted this stand, which has been reaffirmed in the Draft Guidelines. The problem does remain with respect to the implementation of the findings of these treaty bodies and can be solved by including in human rights treaties a provision regarding the competence of the monitoring bodies and the binding nature of their finding vis-a-vis reservations. Any conclusions as to the consequence of an invalid reservation and its severability from the treaty, is beyond the reach of this paper. Owing to "the insufficient evolution of the precepts of the law of treaties to fulfill the basic purpose of effective protection of human rights", human rights treaties and reservations to them have to be considered under the general international law regime, taking into consideration their lex specialis nature.
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