1. General comment on 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, CCPR/C/21/Rev.l/Add.6. adopted by the Committee at its 1.382nd meeting (52nd session) on 2 Nov. 1994. reproduced in (1995) 2:1 Int. Human Rights Rep. 10–15 and in (1995) 15/11–12 Human Rights LJ. 464–467 (hereinafter “Comment”).

2. 999 U.N.T.S. 171: U.K.T.S. 6 (1977). Cmnd.6702. concluded on 16 Dec. 1966 and entered into force on 23 Mar. 1976 (hereinafter “the Covenant”). As of 31 Dec. 1995 there were 132 States party to the Covenant.

3. The Comment: (1) identifies the principles of international law applicable to reservations: (2) examines the role of States party in relation to the reservations of others: (3) addresses the role of the Committee itself in relation to reservations: and (4) makes recommendations to the parties, both present and future, regarding the legal and human rights policy considerations to be borne in mind in the making and review of reservations (para.2).

4. This latter point is also stressed by Prof. Higgins, Rosalyn. a member of the Human Rights Committee, in “Human Rights: Some Questions of Integrity” (1989) 52 M.L.R. 1. 12.Google Scholar

5. For a general review of State practice in respect of reservations to 27 human rights treaties see Shelton, D.. “State Practice on Reservations to Human Rights Treaties” (1983) 1 Can. Human Rights Y.B. 205–234Google Scholar; see also Coccia, M.. “Reservations to Multilateral Treaties on Human Rights” (1985) 15:1 Calif. W.I.LJ. 1–51.Google Scholar and P.-H. Imbert. “Reservations and Human Rights Conventions” (1981) Vl:l Human Rights Rev. 28–60. See also Lijnzaad, L.. Reservations to UN Human Rights Treaties: Ratify and Ruin? (1995). which addresses reservations to CERD. CEDAW, ICCPR and the Convention against Torture.Google Scholar

6. Miscl (1982). Cmnd.8444: (1979) 19 I.L.M. 33 (hereinafter “CEDAW”). CEDAW was concluded on 18 Dec. 1979 and entered into force on 3 Sept. 1981. For further discussion of CEDAW see Cook, R., “Reservations to the Convention on the Elimination of all Forms of Discrimination Against Women” (1990) 30 Virginia J.I.L. 643.Google Scholar

7. Annex to G.A.Res.44/25: U.K.T.S. 44 (1992). Cm.1976: (1989) 28 I.L.M. 1448. The Convention was concluded on 20 Nov. 1989 and entered into force on 2 Sept. 1990. See further Kuper, J., “The Convention on the Rights of the Child”, in Human Rights as General Norms and a State's Right to Opt Out: Reservations and Objections to Human Rights Conventions (BIICL. 1995).Google Scholar

8. Higgins, loc. cit. supra n.4.

9. It is not the purpose of this article exhaustively to analyse the compatibility with its object and purpose of reservations made to the Covenant, though throughout reference will be made to relevant illustrations of State practice.

10. U.K.T.S. 58 (1980), Cmnd.7964; (1969) 8 I.L.M. 679 (hereinafter “the Vienna Convention”).

11. Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May-26 July 1996, GAOR Supp. No.10 (A/51/10), para.l 16; see also Pellet's second report. contained in documents A/CN.4/477 (“overview of the study“) and A/CN.4/477/Add.l (“unity or diversity of the legal regime of reservations to treaties”).Google Scholar

12. The Commission nonetheless considers that these provisions might be clarified by a protocol to the existing Convention, or a guide on practice: Report of the International Law Commission on the Work of its Forty-Fifth Session, 3 May-23 July 1993Google Scholar, GAOR Supp. No.10 (A/48/10). para.440. See also the conclusion to Prof. Pellet's first preliminary report, A/CN.4/ 470. paras. 180–182. and in his second report, ibid.

13. Higgins, . op. cit. supra n.4. at p.11Google Scholar; Meron, T.. Human Rights and Humanitarian Norms as Customary Law (1989). pp.16–17Google Scholar: Shelton, , op. cit. supra n.5. at p.228.Google Scholar

14. Harris, D. J. in Harris, D. J. and Joseph, S. (Eds). The International Covenant on Civil and Political Rights and the United Kingdom (1995); p.76, n.295. relying in particular on para.8 of the Comment.Google Scholar

15. See further discussion in Meron, op. cit. supra n.13. at pp. 11 and 22. n.56Google Scholar; see also Shelton, . op. cit. supra n.5, at p.230.Google Scholar and Das, K.. “The United Nations Institutions and Procedures Founded on Conventions on Human Rights and Fundamental Freedoms”, in Vasak, K. (Ed.). The International Dimension of Human Rights (1982). Vol.1, p.305.Google Scholar

16. Joseph, S.. “New Procedures Concerning the Human Rights Committee's Examination of State Reports” (1995) 13:1 Netherlands Quarterly of Human Rights 5.Google Scholar

17. The US first report was considered at the 53rd session of the Human Rights Committee: see CCPR/C/79/Add.5O. That report simply indicates that the Committee “has taken note of the concerns addressed by the delegation in writing to its Chairman about the Committee's General Comment No.24(52)”: idem. para. 13. For further discussion of the US reservations to the Covenant, see below.

18. Comment, para. 1. This constitutes 36% of the States party to the Covenant.

19. The First Optional Protocol to the International Covenant on Civil and Political Rights was concluded on 16 Dec. 1966 and entered into force on 23 Mar. 1976:999 U.N.T.S. 171; U.K.T.S. 6 (1977). Cmnd.6702; (1967) 61.L.M. 383. It allows individuals to petition the Human Rights Committee in respect of alleged violations of the rights set forth in the Covenant.

20. The Second Optional Protocol to the International Covenant on Civil and Political Rights. Aiming at the Abolition of the Death Penalty, concluded on 15 Dec. 1989 and which entered into force on 11 July 1991. Annex to G.A.Res.44/128.15 Dec. 1989. expressly prohibits reservations “except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime” (Art.2( I)).

21. Nowak, M.. CCPR Commentary (1993). p.xxv.Google Scholar For a thorough discussion of the fate of a reservations clause see Higgins, R.. “Derogations Under Human Rights Treaties” (1976–1977) 48 B.Y.B.I.L. 281. 317–319Google Scholar; see also Imbert, . op. cit. supra n.5. at pp.42–43.Google Scholar

22. In fact the 19661LC Draft Articles on the Law of Treaties, on which debates on reservations under the Covenant were based, were modified before final adoption of the treaty text of the Vienna Convention on the Law of Treaties in 1969. The 1966 Draft Articles required an objecting State explicitly to affirm that treaty relations would nonetheless arise between it and the reserving State: (1966) 2 Y.B.I.L.C. 173.202. At Vienna this presumption against treaty relations arising between the objecting and reserving States was reversed, with the result that Art.20(4) now obliges an objecting State explicitly to indicate whether the consequence of an objection to a reservation is that treaty relations do not arise. See UN Doc.A/CONF.39/11/Add.l. p.35 (1969).Google Scholar

23. Op. cit. supra n.5. at p.42.Google Scholar Pechuta, on the other hand, points to dissatisfaction with the compatibility criterion which led the Commission in drafting the Covenant to submit to the General Assembly a summary of the views submitted by various delegations, but no conclusions: Pechuta, V.. “The Development of the Covenant on Civil and Political Rights”, in Vasak, op. cit. supra n.15. at pp.53–54.Google Scholar

24. Comment, p.3. n.3.

25. Idem. para.7.

26. Idem. para.l.

27. In objecting to the reservations made by the US on ratification, both Sweden and Finland recall that the name given a statement does not determine its legal effect. Both consider Understanding (1) to be a reservation and object to it on that ground: the Netherlands on the other hand expressly states that it does not consider the US understandings and declarations to modify or exclude the legal effect of provisions of the Covenant in their application to the US. nor limit in any way the competence of the Human Rights Committee to interpret these provisions in their application to the US. Multilateral Treaties Deposited with the Secretary-General, Status as at 31 Dec. 1995. ST/LEG/SER.E/14 (UN. 1996). pp.131–134 (hereinafter “Index”).Google Scholar

28. For analysis see Shelton, D.. “Issues Raised by the United States Reservations, Understandings and Declarations”, in Hannum, H. and Fischer, D. (Eds). U.S. Ratification of the International Covenants on Human Rights (1993), chap.V; see also the Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, reproduced from US Senate Executive Report 102–23 (102d Cong. 2d Sess.) in (1992) 31 I.L.M. 645 (hereinafter “Senate Report”); and D. P. Stewart, “U.S. Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations. Understandings and Declarations” (1993) 14/3–4 Human Rights LJ. 77.Google Scholar

29. Shelton, idem. p.272.

30. By 31 Dec. 1993 objections had been made by Belgium (5 Oct. 1993), Denmark (1 Oct. 1993). Finland (28 Sept. 1993), France (4 Oct. 1993), Germany (29 Sept. 1993), Italy (5 Oct. 1993), the Netherlands (28 Sept. 1993), Norway (4 Oct. 1993), Portugal (5 Oct. 1993), Spain (5 Oct. 1993) and Sweden (18 June 1993): Index, loc. cit. supra n.27. This is more than double the number of objections to reservations to the Covenant lodged up to the previous year: cf. Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1992, ST/LEG/SER.E/11 (UN, 1993), pp.133–134.Google Scholar

31. Art.20(5) of the Vienna Convention stipulates that if a State has not indicated its objection to a reservation within 12 months of the notification of it, then it is considered to have accepted the reservation. The 12 months is timed from when the States party are notified by the depositary of receipt of communications relating to the treaty (Art.78(c)). Notification must be in writing, though the Vienna Convention does not stipulate what form this writing should take: see 1976 Digest of U.S. Practice in International Law, p.216.Google Scholar

32. Italy and Germany consider the “reservation” in respect of Art.7 as a reference to Art.2 and thus not in any way affecting the obligations of the US as a State party to the Covenant: Index, supra n.27, at p.132.Google Scholar

33. Idem. p.130. Conversely, there appears to be general consensus that the US reservation to derogable Art.20 (prohibiting war propaganda and advocacy of national, racial or religious hatred) is legitimate and necessary to preserve one of the freedoms guaranteed in the Covenant: freedom of expression. None of the States which had objected to the US reservations as at the end of 1993 objected to this particular reservation.

34. See in particular Art.6(5) of the Covenant, which provides: “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” D. P. Stewart, Assistant Legal Adviser for Human Rights and Refugees in the US Department of State, notes in connection with this reservation that “however much one might disagree with [the continued use of capital punishmenta] in the United States, one could not realistically expect adoption of the Covenant to overrule the democratically expressed desires of a majority of citizens in a majority of states”: op. cit. supra n.28, at p.83. This point was also made by the US delegation before the Human Rights Committee: CCPR/C/SR 1405, 24 Apr. 1995, para.12 (Mr Harper) (decision to retain the death penalty “reflected a serious and considered democratic choice of the American public” which it was not appropriate to dismiss).

35. This reservation is similar to the one suggested in connection with the US ratification of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment: Senate Report, supra n.28, at p.654. Its roots may lie in part in the European Court of Human Rights decision in the Soering case, judgment of 7 July 1989, Ser. A. No.161, reprinted in (1989) 28 I.L.M. 1063: Shelton, , op. cit. supra n.28, at p.273Google Scholar: see also Stewart, idem. p.81. It will be recalled that there the Court held that prolonged judicial proceedings involving capital punishment may constitute “cruel, inhuman and degrading treatment or punishment”, a possibility directly alluded to by the Senate Foreign Relations Committee in supporting a reservation in connection with Art.7 of the Covenant: Senate Report, ibid.

36. See generally Hannum and Fischer, op. cit. supra n.28, and Senate Report, idem. p.653.

37. Comments of the Human Rights Committee on the US report at its 53rd session, CCPR/C/79/Add.5O, para. 14. See also individual remarks by e.g. Mr Kretzmer and Mr Bhagwati, CCPR/C/SR/1402,29 Mar. 1995, paras.3 and 22 respectively. For strong criticism of the US approach see also the Lawyers Committee for Human Rights statements on US ratification of the Covenant reproduced in (1993) 14/3–4 Human Rights LJ. 125. For a contrary view see Stewart, loc. cit. supra n.28.

38. Index, supra n.27, at pp. 133–134. For discussion of the objections by other States party, see further text following infra n.97.Google Scholar

39. Another example is drawn from the statements made by Italy on ratification, which include the following: “The provisions of article 14. paragraph 3(d), are deemed to be compatible with existing Italian provisions” and “Article 14, paragraph 5. shall be without prejudice to the application of existing Italian provisions”: Index, idem. p. 125. The first example purports to subject an international obligation to domestic law and. moreover, ignores the autonomous role of the Human Rights Committee in respect of the interpretation of the provisions of the Covenant. The second example again gives paramountcy to the provisions of domestic Italian law over international law.

40. Two other reservations made on accession, to Arts.23(4) and 14(7), were withdrawn with effect from 15 Mar. 1991 and 21 Jan. 1993 respectively: Index, idem. p.157. n.18.

41. Shelton, . op. cit. supra n.5. at p.227.Google Scholar

42. But see the particularly sweeping reservations removing fundamental guarantees in the event of the declaration of a state of emergency, made by France and by Trinidad and Tobago, and the Indian reservation to each of the Covenants limiting the right of self-determination. All three are singled out by Shelton ibid; for discussion of the Indian and French reservations see Higgins, , op. cit. supra n.4. at pp.13 and 16–17 respectively.Google Scholar

43. See e.g. the Libyan reservation to the Convention on the Elimination of Discrimination Against Women: Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1994. ST/LEG/SER.E/13 (UN. 1995). p.166.Google ScholarOn 6 July 1995 the Libyan government replaced this general reservation with more precisely worded reservations: Index, supra n.27. at p.172.Google Scholar

44. Idem. p.156, n.4 (7 June 1991).

45. Idem. p.132.

46. Idem. p.134.

47. On these difficulties, see further Horn. Reservations and Interpretative Declarations to Multilateral Treaties (1988), p.325.Google Scholar

48. This is evidently the approach favoured by Horn, idem. p.336, to statements of doubtful character.

49. Horn, idem. p.337, is of the view that there is no obligation to react to a “doubtful statement” before its nature is ascertained to avoid the application of the tacit acceptance rule, which applies only to reservations.

50. See the language used by the Netherlands in response to part of the Australian reservation to Art.10 (subsequently withdrawn): Index, supra n.27, at p.132.Google Scholar Australia is the only State to have filed as many conditions as the US to its initial acceptance of the Covenant: Shelton, , op. cit. supra n.28, at p.277.Google Scholar

51. See e.g. Art.20 of the 1966 Convention on the Elimination of All Forms of Racial Discrimination, which provides for a majority determination of the compatibility of reservations, thus pre-empting the application of the residual rules of the Vienna Convention and general principles of customary international law, as well as denying legal effect to any determination by the Committee thereunder of the compatibility of a reservation.

52. Sir Sinclair, I.. The Vienna Convention on the Law of Treaties (2nd edn, 1984), pp.13–14.Google Scholar

53. Imbert, , op. cit. supra n.5, at p.44Google Scholar, citing his Les Réserves aux Traités Multilateraux (1979), pp.103–105Google Scholar; contra Coccia. op. cit. supra n.5, at p.26, n.140Google Scholar (“probably not customary”) and Crawford, J.. “The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court of Justice” (1979) 50 B.Y.B.I.L. 61.79. n.2 (one of the likely exceptions to customary law force of Arts.19 and 20).Google Scholar

54. In its commentary to Art.20(5) the ILC observed: “That the principle of implying consent to a reservation from absence of objection has been admitted into State practice cannot be doubted”: (1966) I(II) Y.B.1.L.C 208, para.23Google Scholar

55. Eur. Court H.R., Belilos case, decision of 21 May 1987, Ser.A no.132, p.23, para.47.Google Scholar Imbert. writing in 1981, did not favour such an extension, arguing that the validity of a reservation should be brought before a control organ within the period for tacit consent because of the far-reaching consequences of challenging a reservation: op. cit. supra n.5, at p.44 (speaking in the context of Art.64 of the ECHR). He does, however, perceive some practical difficulties with a tacit acceptance time limit in respect of lodging and hearing applications before the Commission and the Court.Google Scholar

56. Two examples predating the Vienna Convention are Art.9 of the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 266 U.N.T.S. 40 (1957) and Art.9 of the 1960 Convention Against Discrimination in Education, 429 U.N.T.S. 93 (1962). ILO Conventions contain no reservations clause, but it is accepted ILO practice that reservations are prohibited: Bowman, M. J. and Harris, D. J.. Multilateral Treaties: Index and Current Status (1984). p.2.Google Scholar

57. Comment, para.4. See further Imbert. op. cit. supra n.5, at p.28.Google Scholar

58. See further Coccia. op. cit. supra n.5. at pp. 18–22, where he identifies a range of legal, political and practical factors influencing States in the making of reservations.Google Scholar

59. Index, supra n.27, at p. 122.Google Scholar

60. See Comment, para.22, which states, inter alia: “It is desirable for States entering a reservation to indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the Covenant obligation reserved: and to explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant” (emph. added).

61. And regarding possible interpretations of a treaty placed by a supervisory organ with the power to interpret its provisions: Shelton. op. cit. supra n.5, at p.208.Google Scholar

62. Imbert, op. cit. supra n.5. at p.30.Google Scholar

63. The Netherlands takes a precautionary approach to making reservations, as well as in objecting to statements of doubtful legal character made by other States. E.g.: “The Kingdom of the Netherlands clarify that although the reservations … are partly of an interpretational nature, [it] has preferred reservations to interpretational declarations in all cases, since if the latter form were used doubt might arise concerning whether the text of the Covenant allows for the interpretation put upon it. By using the reservation-form the Kingdom of the Netherlands wishes to ensure in all cases that the relevant obligations arising out of the Covenant will not apply to the Kingdom, or will apply only in the way indicated”: Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1985, ST/LEG/SER.E/4 (UN, 1986). p.132.Google Scholar Thus, concludes Horn, the statement “must be considered to contain normal reservations and qualified interpretative declarations which are latent reservations”: op. cit. supra n.47, at p.336.Google Scholar

64. See also the Indian “reservation” in respect of a common interpretation of self-determination, discussed in Higgins, op. cit. supra n.4, at p. 14. Concern regarding the interpretation of Art.6(l) of the ECHR by the Court was the motivation behind the Swiss “declaration” thereto: see Belilos, supra n.55.Google Scholar

65. Higgins, idem. p.17; Shelton, op. cit. supra n.5. at p.230 (Australia, Finland, Sweden. Denmark, Norway, Germany, Byelorussia, UK, Venezuela and the Netherlands among those States to have their reservations questioned).Google Scholar

66. McGoldrick, D., The Human Rights Committee (1991). p.273Google Scholar: van Boven, T. C., “Distinguishing Criteria of Human Rights”, in Vasak. op. cit. supra n.15, at pp.50–53.Google Scholar

67. Art.2(l)ICESCR.

68. McGoldrick, op. cit. supra n.66, at pp.12 and 274.Google Scholar

69. McGoldrick, idem, p.273, summarises the practice of the Committee as viewing “the obligation in article 2 as an immediate one but that they are sympathetic to States parties who can point to specific factors and difficulties which prevent or hinder the full and immediate implementation of the rights in the Covenant”.

70. Comment, para.4.

71. Idem. para.21 (consider the overall effect of a group of reservations, as well as the effect of each reservation on the integrity of the Covenant): see also para.7 (importance not only of each article, but their interplay, in securing the objectives of the Covenant).

72. See e.g. M. Schmidt in BIICL. op. cit. supra n.7. See also the objections by Belgium, Germany and Italy to the US reservation to Art.6, infra n.98.

73. Shelton, . op. cit. supra n.28, at p.32.Google Scholar

74. Index, supra n.27. at p.124.Google Scholar

75. Harris conveniently groups the factors considered relevant by the Committee to a determination of compatibility as: (1) whether the reservation relates to a provision reflecting customary international law (para.8): (2) whether the reservation concerns a non-derogable article (para.10): (3) the number and weight of the articles to which it applies (para.19); and (4) the reaction of other parties and of the Committee (para.17); op. cit. supra n.14. at pp.77–78 (with references to paras, of the Comment).

76. Higgins, , op. cit. supra n.4. at p.15.Google Scholar

77. See e.g. the Danish objection to the US reservations to Arts.6 and 7: Index.supra n.27. at p.134. See also the Netherlands objection to the US reservation to Art.7, which “has the same effect as a general derogation from this article” as well as being incompatible with the object and purpose of the Covenant: idem. p.136. Both States explicitly affirm that treaty relations arise with the US notwithstanding these objections.

78. Comment, para.10. Imbert, op. cit. supra n.5, at pp.31–32, also rejects such an approach; see also the comments of the US delegation, CCPR/C/SR 1405, 24 Apr. 1995, para.15.Google Scholar

79. Writing in 1989. Higgins, op. cit. supra n.4, at p. 15. not only supports this point, but also rejects the automatic correlation of incompatibility and non-derogability seemingly on the basis that as an exclusive touchstone it does not go far enough: “while I am prepared to concede that purported reservations to non-derogable articles are contrary to the object and purpose of the treaty, it seems to me that so also can be certain reservations to articles that are in principle derogable”.Google Scholar

80. Index, supra n.27. at p.131. n.4 and at pp.132xyd133.Google Scholar

81. Arts.9 and 27 are cited: Comment, para. 10.

82. Lillich, R. B.. “Civil Rights”, in Meron, T. (Ed.). Human Rights in International Law (1984), p. 120.Google Scholar

83. See Comment, para. 10.

84. For further discussion cf. Sinclair, op. cit. supra n.52. at chap.VII: in the human rights context see Meron, T., Human Rights Law-Making in the United Nations (1986). Part II. chap.IV, section VI.Google Scholar

85. Restrictions to the Death Penalty. Advisory Opinion No.OC-3/83, 8 Sept. 1983. in (1984) 231.L.M. 320.341. In an earlier advisory opinion the Court had interpreted Art. 17 of the Convention as permitting reservations on ratification or adhesion provided not incompatible with its object and purpose: Effect of Reservations on the Entry into Force of the American Convention on Human Rights. Advisory Opinion No.OC-2/82,24 Sept. 1982. in (1982) 3 Human Rights L.J. 153. See further Buergenthal. “The Advisory Practice of the Inter-American Human Rights Court” (1985) 79 A.J.I.L. 1.Google Scholar

86. The Court concluded that the Guatemalan reservation to non-derogable Art.4 of the Convention was permissible since it did not deprive the right to life as such but reserved the right to apply the death penalty in cases involving “related common crimes” under Art.4(4).

87. This is a point frequently reiterated, and indeed may be found in the language of the judgement of the IGJ in the Genocide case which was used in early attempts to restrict the Court's compatibility test to reservations of a normative type. See further Holloway. Modern Trends in Treaty Law (1967). Book 3. Part I.

88. See e.g. Comment, para. 17.

89. See in particular idem. para.16.

90. Ruda, “Reservations to Treaties” (1975) 146(111) Hag.Rec. 97; and.semble. Lijnzaad, . op. cit. supra n.5. at p.52. It is only in respect of reservations contrary to jus cogens that Lijnzaad. idem. p.53, considers reservations (not. note, ratification) to be “void ab initio”: in essence, the reservation is severed.Google Scholar

91. Bowett, D. W.. “Reservations to Non-Restricted Multilateral Treaties” (1976–1977) 48 B.Y.B.I.L. 67, 88–90Google Scholar: Jennings, and Watts, . Oppenheims International Law (9th edn). Vol.1. p.1247Google Scholar; and Redgwell, C.. “Universality or Integrity? Reservations to General Multilateral Treaties” (1993) 64 B.Y.B.I.L. 245. 261.Google Scholar Bowett emphatically rejects the question of permissibility as a matter for subjective determination by States; rather, the question is one regulated by the treaty itself: idem. p.81. A third approach is suggested by Coccia. op. cit. supra n.5. at pp.25–29, who views Ruda as reading too little into Arts. 19 and 20 and Bowett as reading in too much. Coccia posits using the obligation in Art. 19 itself as the grounds for legal challenge of an impermissible reservation. Moreover, this would be without the temporal limitation of Art.20(5). though the absence of objection could give rise to difficulties of acquiescence and estoppel in favour of the reserving State.Google Scholar

92. This point is made by Jennings and Watts, idem. p.1247, n.l: and by Bowett, idem. pp.83 and 89.

93. As Bowett, idem. p.80, stresses, there is a very real difference between an impermissible reservation (stage 1. Art. 19) and a permissible reservation to which a party objects (stage 2, Art.20): “Not only is the test for non-acceptance quite different [since States are free to object to permissible reservations on any ground], but the effect of objection will vary according to whether the reservation is regarded as impermissible or. in the alternative, permissible but objectionable and therefore ‘unopposable’ to the objecting State.”

94. See e.g. the UK's objections to the Syrian and Tunisian reservations to the dispute settlement provisions of the Vienna Convention itself: Index, supra n.27. at p.845.Google Scholar

95. One need look no further than the objections to the US reservations to the Covenant discussed immediately below.

96. Comment, para. 17. For the inhibitive effect of the Vienna regime on objections, see further Coccia, op. cit. supra n.5. at p.48Google Scholar; see also Shelton. op. cit. supra n.5. at p.229.Google Scholar

97. Denmark. Finland. France. Spain and Sweden.

98. Belgium, Germany and Italy. Neither the Vienna Convention nor the ICJ in the Genocide case speaks of compatibility with articles of a treaty, only with the treaty as a whole.

99. The Netherlands, Norway, and Portugal.

100. A point made in respect of other human rights treaties in the face of widespread reservations. See e.g. Byrnes, A. C.. “The ‘Other’ Human Rights Treaty Body: The Work of the Committee on the Elimination of Discrimination Against Women” (1989) 14 Yale J.I.L. 1.Google Scholar

101. (1988) 132 Eur. Ct. H.R. (Ser.A) 132: for further discussion see Marks, S., “Reservations Unhinged: the Belilos Case before the European Court of Human Rights” (1990) 39 I.C.L.Q. 300Google Scholar: Cameron, I. and Horn, F.. “Reservations to the European Convention on Human Rights: The Belilos Case” (1990) 33 German Y.I.L. 69.Google Scholar

102. Case of Loizidou v. Turkey. Judgment of the European Court of Human Rights of 23 Mar. 1995. 40/1993/435/514 (preliminary objections by Turkey), para.94. Here the Court held that the territorial restrictions which Turkey had attached to its Art.25 (competence of the Commission) and 46 (competence of the Court) declarations were severable: paras.90–98.

103. Comment, para. 18. If the provision to which the reservation attaches is severable. this is tantamount to giving effect to the reservation: Fitzmaurice, G., “The Law and Procedure of the International Court of Justice 1951–5: Treaty Interpretation and Other Treaty Points” (1957) 33 B.Y.B.I.L. 203. 287.Google Scholar

104. This was the approach of Judge Lauterpacht to the related problem of invalid reservations to Optional Clause declarations: Norwegian Loans case, I.C.J. Rep. 1957,43–66; see also his dissenting opinion in the Interhandel case (Preliminary Objections), I.C.J. Rep. 1959. 101–118.The appropriateness of this jurisprudence to the issue of impermissible reservations has been questioned by Bowett. op. cit. supra n.91. at p.76. n.3. and by the European Court of Human Rights in the Loizidou case (para.85).

105. “Unaffected” is not strictly accurate for the consent to be bound was given on the basis of the accompanying reservations, and may even constitute the foundation for the consent.

106. This was one of the points of departure between the majority judgment in Loizidou and the joint dissenting opinion, for the latter did not consider the territorial restrictions severable from the intention of Turkey to accept the competence of the Commission and Court: supra n.102. at p.33.

107. Para.96.

108. Paras.75 and 93.

109. See e.g. the EC Declaration on Yugoslavia and on the Guidelines on the Recognition of New States of 16 Dec. 1991 in (1992) 31 I.L.M. 1485. which sets forth respect for human rights as one of the preconditions for recognition of new States in Eastern Europe and the Soviet Union. This was a departure from the British practice since 1980 of usually recognising States which have satisfied the requirements for Statehood: however, the Declaration clearly does not make respect for human rights a new criterion of Statehood: Warbrick, C.. “Recognition of States” (1993) 42 I.C.L.Q. 433.441. See also the recent Report of the Secretary-General on Succession of States in respect of Human Rights Treaties in (1995) 2:2 Int. Human Rights Rep. 507–509.Google Scholar

110. Op. cit. supra n.5. at pp.230–231.Google Scholar

111. These points are summarised in the draft resolution which the Special Rapporteur proposed should be adopted by the Commission on Reservations to Normative Multilateral Treaties including Human Rights Treaties, reproduced in the ILC's Report, supra n. 11, at n.286.

112. In her criticism of the Vienna Convention regime, Shelton, , op. cit. supra n.5, at p.229. calls for “another mechanism for review and decision on legality” to be developed, and considers the supervisory organs established by human rights treaties, not in evidence at the time the ICJ rendered its decision in the Genocide case, to be best suited to undertake this function.Google Scholar

113. See Comment, para. 19. which is rather lukewarm in its description of the guidance which States' objections to reservations may provide in the Committee's interpretation of the compatibility of a reservation. In the recent Loizidou case, the European Court of Human Rights relied upon the responses by the governments of Sweden, Luxembourg. Denmark. Norway, Belgium and Greece, as well as the response by the Secretary General of the Council of Europe as depositary, to Turkey's declarations under Arts.25 and 46 of the ECHR. in holding the conditions attached to Turkey's declarations under these Arts, invalid and severable. In their joint dissenting opinion. Judges Gözlcüklü and Pettiti were critical of this reliance: supra n.102. at p.33 (referring in particular to paras.80and 82 of the judgment).

114. “Agreement on the Implementation of Part XI of the Convention”. G.A.Res.48/263. Cm.2705. adopted on 28 July 1994. See further Anderson, D. J.. “Legal Implications of the Entry into Force of the UN Convention on the Law of the Sea” (1995) 44 I.C.L.Q. 313. and “Further Efforts to Ensure Universal Participation in the United Nations Convention on the Law of the Sea” (1994) 43 I.C.L.Q. 886.Google Scholar

115. Op. cit. supra, n.l 1.

116. Imbert makes this point, op. cit. supra n.5. at pp.40–41. where he considers that any special regime for the assessment of reservations would be impractical in the absence of “collective control machinery”.Google Scholar

117. Fitzmaurice, G.. “Reservations to Multilateral Conventions” (1953) 2 I.C.L.Q. 1. 23–26 (which stipulates the legal consequences arising from a determination of compatibility under a collegiate system).Google Scholar

118. Suggested in connection with reservations to CEDAW: see Jacobson, R.. “The Committee on the Elimination of Discrimination Against Women”, in Alston, P. (Ed.), The United Nations and Human Rights (1992). p.469.Google Scholar

119. Lijnzaad attempts to draft a reservations clause suited to human rights treaties which is simple enough to be monitored by the depositary in the absence of “a tight supervisory structure”: see further op. cit. supra n.5, at pp.421–423. Particularly interesting is her suggestion that a time limit be placed on the validity of reservations, say five years' duration, subject to the possibility of renewal. This so-called “sunset” provision is drawn from the denunciation system under ILO Conventions: idem. p.423.Google Scholar

120. See also the suggestion by Judge Valticos in his partly dissenting opinion in the Chorherr case, namely, that the depositary of the ECHR, the Council of Europe, should request from the Court an opinion on the validity of reservations attached to new ratifications before registration of the instrument of ratification: (1993) 266 Eur. Ct. H.R. (Ser.A), p.42.Google Scholar

121. No functions additional to receiving and transmitting information are stipulated: see Part VI of the Covenant.

122. This practice was drawn to the attention of the Secretary General of the Council of Europe by Turkey in 1987 when it protested against comments attached to its Art.25 declaration when circulated to the high contracting parties of the ECHR. The Secretary General had informed the other parties to the ECH R that the Turkish authorities' attention had been drawn to the fact that notification under Art.25(3) did not prejudge the legal questions which could arise concerning the validity of Turkey's declaration. Loizidou case, supra n.102. at paras. 16–17.

123. Art.77(l).

124. See further supra n. 114.

125. A parallel example is the ECHR, where the Court in the Loizidou case. e.g., explicitly referred to the Convention as “a living instrument which must be interpreted in the light of present-day conditions” (supra n.102. at para.71).

126. It is not suggested that severance should apply to a category of treaties labelled “human rights instruments”, because of the problems of demarcation which would necessarily arise between “human rights” and “other” instruments.