Abstract
On 2 November 1994, the Human Rights Committee adopted General Comment No. 24 (52),633 which was clearly provoked by the great number of reservations deposited by States to the International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols.634 In this decision, the Committee states its opinion on a variety of matters. All relate to the permissibility and effect of reservations. Among the issues addressed is the question of how to determine whether a reservation is compatible or not with the objects and purposes of the Covenant and the two Optional Protocols. The question is of great import; for — according to a recognised rule of international law laid down in Article 19 of the 1969 Vienna Convention on the Law of Treaties (Vienna Convention, VCLT),635 — when a State finds itself in the process of ratifying or acceding to the Covenant or to any of the two Protocols, it may only make such reservations as are compatible with that treaty’s object and purpose.636
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References
‘Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’, General Comment No. 24, adopted on 4 November 1994, by the Human Rights Committee at its 52nd session.
The Comment opens up with the following statement: ‘As of 1 November 1994, 46 of the 127 States parties to the International Covenant on Civil and Political Rights had, between them, entered 150 reservations of varying significance to their acceptance of the obligations of the Covenant.’ (Para. 1.)
UNTS, Vol. 1155, p. 331 et seq.
Article 19 reads as follows: ‘A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) The reservation is prohibited by the treaty; (b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.’
See, for instance, W. Schabas, ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’, 32 Canadian Yearbook of International Law (1994), pp. 39–81;
W. Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?’, 21 Brooklyn Journal of International Law (1995), pp. 277–325;
M. Nowak, ‘The Activities of the UN Human Rights Committee: Developments from 1 August 1992 through 31 July 1995’, 16 Human Rights Law Journal (1995), pp. 380–382;
G. Jonathan-Cohen, “Les réserves dans les traités institutionnels relatifs aux droits de l’homme: Nouveaux aspects européens et internationaux’, Revue générale de droit international public (1996), pp. 915–949;
C. Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment No. 24 (52)’, 46 International and Comparative Law Quarterly (1997), pp. 390–412;
B. Simma, ‘Reservations to Human Rights Treaties: Some Recent Developments’, in G. Hafner et al. (eds.), Liber Amicorum- Prof Seidl-Hohenveldern in honour of his 80th birthday (Kluwer, The Hague, 1998), pp. 659–682;
E. Baylis, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’, 17 Berkeley Journal of International Law (1999), pp. 277–329;
R. Baratta, ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?’, 11 European Journal of International Law (2000), pp. 413–425;
Y.K. Tyagi, ‘The Conflict of Law and Policy on Reservations to Human Rights Treaties’, 71 British Yearbook of International Law (2000), pp. 181–258;
G. McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to the First Optional Protocol’, 23 Human Rights Quarterly (2001), pp. 769–826
K. Korkelia, ‘New Challanges to the Regime of Reservations Under the International Covenant on Civil and Political Rights’, 13 European Journal of International Law (2002), pp. 437–477;
R. Goodman, ‘Human Rights Treaties, Invalid Reservations, and State Consent’, 96 American Journal of International Law (2002), pp. 531–560.
Proof of this, if anything, is the work done by the International Law Commission on the law and practice relating to reservations to treaties, reports and summary records are available at the ILC homepage >www.un.org/law/ilc/convents.htm#current>.
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands, Judgment of 20 February 1969, Dissenting Opinion of Judge Tanaka, ICJReports, 1969, p. 182.
UNTS, Vol. 499, p. 311 et seq.
See, for instance, M. Shaw, International Law, 5th ed. (Cambridge, 2003), p. 118;
A. Casseese, International Law (Oxford, 2001), p. 144;
T. Mann, Further Studies in International Law (Oxford, 1990), pp. 88–89;
L. Hannikainen, Peremptory Norms in International Law (Helsinki, 1988), p. 149.
Today, it is generally recognised that Article 19 of the Vienna Convention not only confirms the obligations of the States parties to that treaty. It is also reproduces a rule of customary international law that entails obligations for all States, whether they are parties to the Vienna Convention or not. For reasons of simplicity, I will continue to speak solely about the provisions of Article 19 of the Vienna Convention, and not about the identically similar rule of international custom.
See, for instance, L. Lijnzaad, Reservations to Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff, Dordrecht, 1995), p. 82.
Vienna Convention, Article 53.
See, for instance, M. Shaw, International Law, 5th ed. (Cambridge, 2003), p. 118;
K. Bartschoch B. Elberling, ‘Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropoulou et al v. Greece and Germany Decision’, 4 German Law Journal (2003), p. 485.
Of course, this very blunt qualification — ‘if only partly’ — needs to be further explained. The explanation is given below.
According to the provisions of Article 19 of the Vienna Convention, a prohibited reservation is one to which any of the following descriptions applies: (1) The reservation is of a kind expressly prohibited by the treaty. (2) The reservation is not of such a kind that according to an express provision in the treaty shall be allowed. (3) The reservation, not fitting any one of the descriptions above, is incompatible with the object and purpose of the treaty.
See U. Linderfalk, ‘On the meaning of the ‘object and purpose’ criterion, in the context of the Vienna Convention on the Law of Treaties, article 19’, 72 Nordic Journal of International Law (2003), pp. 429–448.
For references, see U. Linderfalk, On the Interpretation of Treaties, chapter 7 (forthcoming).
Ibid.
The issue has been excellently analysed by the late professor Horn. See F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties (Kluwer, The Hague, 1988), pp. 145–169. See also Korkelia, supra note 5, pp. 439–440.
United Nations, Status of Multilateral Treaties Deposited with the Secretary General, as of 29 January 2004. Available at >http://untreaty.un.org/ENGLISH/ bible/englishinternetbible/partI/chapterXXI/treaty4.asp<.
We should be careful not to confuse the two concepts obligations erga omnes and obligations erga omnes partes. (See L.A. Sicilianos, ‘The Classification of Obligations and the the Multilateral Dimension of the Relations of International Responsibility’, 13 European Journal of International Law (2003), pp. 1134–1137.)
See, for instance, I. Brownlie, Principles of Public International Law, 6th ed. (Oxford University Press, 2003), p. 488; Oppenheim’s Internationa Law, 9th ed. (Harlow, Essex, 1992), p. 1293, M. Byers, ‘Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules’, 66 Nordic Journal of International Law (1997), pp. 220–229, Mann, supra note 9, p. 86; J. Paust, ‘The reality of Jus Cogens’, 1 Connecticut Journal of International Law (1991), p. 81. See also the following statement of the International Criminal Tribunal for the Former Yugoslavia: ‘Because of the importance of the values it protects, [the prohibition against torture] has evolved into a peremptory norm of jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules.’ (Prosecutor v. Anto Furundzija, ICTY Trial Chamber, Judgment of 10 December 1998, para. 153. Italics are added.)
United Nations, Status of Multilateral Treaties Deposited with the Secretary General, as of 29 January 2004. Available at <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/treaty4.asp>.
See the very long list provided by the Human Rights Committee, in its General Comment No. 24, para. 8.
Conspicious examples include the prohibition of torture and the prohibition of slavery. See, for instance, the Commentaries of the International Law Commission to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the Commission at its 53rd session (2001), Report of the International Law Commission (A/56/10), p. 208, para. 5.
See Article 60, para. 2(a).
Article 60, para. 3.
See Article 60, para 2(a).
The Vienna Convention, Article 53. See also above, Section 2.
Nor could it be used as an excuse for terminating the provision. See Vienna Convention, Article 42, paragraph 2.
See above, Section 2.
See, for instance, J. A. Frowein, ‘Reservations and the International Ordre Public’, in J. Makarczyk (ed.) Theory of International Law at the Threshold of the 21st Century, (The Hague, London, Boston, 1996), p. 411; C.L. Rozakis, “The Law on Invalidity of Treaties’, Archiv des Völkerrechts, Vol. 16 (1974/1975), pp. 165–177; Mann, supra note 9, pp. 84–85, et passim; E. Wyler, ‘From ‘state Crime’ to ‘serious Breaches of Obligations under Peremptory Norms of General International Law’, 13 European Journal of International Law (2002), p. 1150 et passim; A.J. de Hoogh, ‘The Relationship Between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective’, 42 Austrian Journal of Pubic International Law (1991), p. 186.
See, once again, the above quoted statement by the International Criminal Tribunal for the Former Yugoslavia in the case of Furundzija, supra note 22.
Compare the reservation made by Chile to Article 2, paragraph 3, of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at the ratification of that treaty. United Nations, Multilateral Treaties Deposited with the Secretary General, Status as of 31 December 1989, p. 186. The reservation has later been redrawn.
See, for instance, the following statement recently made by the International Law Commission: ‘Where there is an apparent conflict between primary obligations, one of which arises for a State directly under a peremptory norm of general international law, it is evident that such an obligation must prevail.’ (Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries, adopted by the ILC at its 53rd session (2001), Report of the International Law Commission (A/56/10), p. 207, para. 3.)
The conclusion is based on the implicit assumption that the reservation of State S is made at the time of the Covenant’s ‘conclusion’. When the treaty is concluded, the rule of jus cogens already exists. But it is also possible that the rule of jus cogens is developed later, after the conclusion of the Covenant. In that case, the applicable rule would not be that of Article 53 but of Article 64 of the Vienna Convention. The Covenant would then necessarily not be null and void in its entirety. Granted that the conflict is due only to a particular clause of the Covenant, or to a few particular clauses, it is possible that the clause or clauses in question is severed from the Covenant and the remainder retained. (Compare the provisions of Vienna Convention, Article 44.) Article 19(c) would then have to be seen as a means of preserving the existence, not of the entire Covenant, but only of particular clauses.
See the qualifications above, Section 2.
See Rozakis, supra note 32, pp. 170–171.
Throughout the text of the Vienna Convention, the conclusion of a treaty is frequently referred to. It is a matter of some concern that the term is not used with a consistent meaning. Compare for instance the provisions of Article 49 with those of Article 7, paragraph 2. In the former case, the ‘conclusion’ of a treaty is quite clearly the point in time when a treaty is established as definite; in the latter, it is the time period from when negotiations on a treaty started to when the treaty enters into force. On this problem in general, see the excellent article written by professor Vierdag. (B. Vierdag, ‘The time of the ‘Conclusion’ of a Multilateral treaty’: Article 30 of the Vienna Convention on the Law of Treaties and related provisions’, 59 British Yearbook of International Law, (1988), pp. 75–111.) On the problems caused in the application specifically of Articles 31 and 32, see U. Linderfalk, On the Interpretation of Treaties, forthcoming, in particular chapters 5, 6 and 8.
Ibid.
See, for instance, T.O. Elias, The Modern Law of Treaties (Leiden, 1974), p. 182; B. Vierdag, supra note 39, p. 90.
See above, Section 2.
See above, Section 2.
See, for instance, Resolution 662 (concerning the purported Iraqi annexation of Kuwait), adopted by the UN Security Council on 9 August 1990, operative paragraph 1.
See, for instance, Brownlie, supra note 22, p. 490; Mann, supra note 9, p. 100; Hannikainen, supra note 9, pp. 302–305.
See, for instance, Article 20, compared to Article 26, of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, supra note 35.
See, for instance, Articles 23–25, compared to Article 26, of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission in 2001, supra note 35.
See, for instance, Brownlie, supra note 22, p. 12, n. 56; Byers, supra note 22, pp. 217–218; H. Thirlway, International Customary Law and Codification (Leiden, 1972), p. 110.
See, for instance, Byers, supra note 22, pp. 216–217; Paust, supra note 22, pp. 139–140; D. Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter (The Hague, 2001), p. 197. See also the statement made by Judge Lauterpacht in his separate opinion to the judgment of the International Court of Justice in the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, ICJ Reports (1993), p. 440, para. 100.
See Vienna Convention, Articles 53 and 64.
Compare the provisions of Article 44, paragraph 3, of the Vienna Convention.
Contra: Mann, supra note 9, p. 87, n. 14.
Rozakis, supra note 32, p. 176.
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Linderfalk, U. (2004). Reservations to Treaties and Norms of Jus Cogens — A Comment on Human Rights Committee General Comment No. 24. In: Ziemele, I. (eds) Reservations to Human Rights Treaties and the Vienna Convention Regime. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6019-5_10
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