Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Assistant Professor, NLU Jodhpur)).
A review of the effect of reservations to international human rights instruments
Reservations allow a state to be a party to a treaty and at the same time to exclude some of the provisions or to modify the same ((On the other hand declarations purports to be an understanding, i.e. an interpretation of the agreement in a particular respect and is not a reservation if it reflects the accepted view of the agreement, Section 313 of the Restatement (Third), Foreign Relations Law of the U.S. (1987). An example of declaration would be the declaration made by India while ratifying CEDAW in 1993 in respect to Article 16(2) making the registration of marriages compulsory. India declared that though they support the principle of universal and compulsory marriage registration, such registration is not practical in a vast country like India with its variety of customs, religions and level of literacy, http://www.hrdc.net/sahrdc/hrfeatures/HRF172.htm)). The most important point to note here is that reservations make it possible for the state which has difficulties in guaranteeing all the rights in the covenant or treaties at least to accept the generality of obligations in that instrument ((Human Rights Committee, Comment 24 (1994), Para 4)).
According to Art.2 (1) (d) of the Vienna Convention of the Law of Treaties, 1969 a reservation means a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. Article 19 of the Vienna Convention restricts the state to make reservations if the reservation is prohibited by the treaty, if the treaty provides for specific reservations and if it is incompatible with the object and purpose of the treaty (the latter one is often termed as the permissibility/admissibility doctrine). Clause 3 of article 21 specifies the legal effects of reservation wherein it provides that “when a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation (this is often termed as the opposability/admissibility doctrine).”
Human rights treaties and its non-reciprocal character
The Vienna Convention makes its definition and other incidental provisions applicable to all kinds of treaties. Most of the provisions in the convention are on the basis of reciprocity but here there is slight difference between human rights treaties and other treaties in regard to the fact that human rights treaties do not create reciprocal relationship and instead their prime objective is protection of human rights and obligations are towards individuals ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 437)). The general exception to this concept is reciprocity of inter-state complaints with regard to human rights that has been provided under article 41 of ICCPR ((Article 40, ICCPR: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration)).
The non reciprocal character of human rights treaties find mentioned in the Vienna Convention as under Article 60 which deals with termination due to breach clause 5 stipulates that these do not apply to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties ((Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach- 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties)).
It is argued that “the Vienna Convention’s rules on reservations are based on a bilateral pattern of relationships between states, and are therefore not well suited to human rights treaties which are of a non-reciprocal nature on the ground that the absence of reciprocity discourages states to object to inadmissible reservations, which makes the general regime of reservations when applied to human rights treaties extremely ineffective ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 441,442)).”
ICJ – Advisory Opinion
Generally in multilateral treaties if a state makes a reservation it will be valid only if the other contracting parties accept it and in case of objection the state may have to withdraw the reservation or leave the convention ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 84)). The ICJ was referred for an advisory opinion on the issue of reservations to Genocide Convention and the court observed that though one or more states object to reservation, the state making a reservation may be regarded as a party to the convention as long as the reservation is compatible with the object and purpose of the convention ((G.A. resolution of 16 Nov 1950 (1951 ICJ 15).)). It is true that there may not be inter partes agreement, i.e. the state making the reservation and the ones objecting to the same. But the observation of ICJ cannot be taken as a general rule as this ruling may be due to the specific nature of the Genocide Convention [major humanitarian instrument]. ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 85))The ICJ observed that “the object and purpose of the convention thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the convention that must furnish the criterion for the attitude of a state in making the reservation on accession as well as for the appraisal by a state in objecting to the reservation.”
General Comment No.24, Human Rights Committee
In the very early time itself the role of the supervisory bodies in judging the validity of reservations was discussed in the international scenario. In 1976 the Committee on the Elimination of Racial Discrimination referred to the Office of the Legal Affairs of the UN as to whether the committee had power to do so and the answer was in the negative. The same was the response when the Committee on the Elimination of Discrimination against Women referred the matter but the Office of Legal Affairs observed that the committee may, at the most, comment about the incompatibility of reservations in its report.
According to the General Comment No.24, though its not very easy to differentiate between a reservation and a declaration regard should be given to the intention of the state and not the form of the instrument ((Human Rights Committee, Comment 24 (1994), Para 3: if a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the state, it constitutes a reservation.)).
Regarding ICCPR the General Comment stated that the covenant that represent customary international law may not be the subject of reservations and the state may not reserve the right to engage in slavery, torture, cruel and inhuman punishment, arbitrary arrest and detention, to deny freedom of thought, conscience and religion, presumption of innocence, to execute pregnant women or children and many other. The comment also states that reservations to specific clauses of article 24 may be acceptable but a general reservation to the right to a fair trial will not be acceptable ((Human Rights Committee, Comment 24 (1994), Para 8)).
The intention of General comment No.24 is made clear in para 12 and it is that the covenant strives the domestic laws to be changed in order to protect the rights under the covenant and reservations allows the state not to change a particular law which may render the rights under the covenant ineffective.
As regards the reservations to the optional protocols to the covenant and generally, the comment under para 20 stated that the states may 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. It also stipulates that states should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the committee during examination of their reports ((Human Rights Committee, Comment 24 (1994), Para 20)).
However, regarding the manner of determining admissibility the General Comment in para 17 states that, “an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.” At the same time it also emphasize that non-objection does not mean that the reservation is in tune with the object and purpose of the covenant. In this regard it is pertinent to note the observation made in of Belilos v. Switzerland (1988) that “the silence of the Contracting Parties does not deprive the Convention organs of the power to make their own assessment of the reservation.”
Giving power to the committee to judge the validity of reservations has got its advantages especially in considering the fact that human rights treaties or the covenant for that matter is dynamic and the interpretation hence should also be dynamic. It means that a reservation may be made by a state during the time of ratification which may have obtained other states’ consent. But at a later time it may be felt that the reservation is in conflict with the object and purposes of the convention and the states will not be in a position to object as they consented to it earlier and in such circumstances it is in all ways better to empower the committee or the treaty monitoring bodies to adjudge incompatible reservations ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 457)).
Severability or Non-severability
As regards the observations made by the committee in para 18 of the General Comment No.24 regarding severability ((Human Rights Committee, Comment 24 (1994), Para 18: “The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.”))several criticisms were raised by U.S., U.K. and France. According to the U.S., “if it were determined that any or one or more of the US reservations were ineffective the consequence would be that the ratification as a whole could be nullified and the US would not be a party to the covenant ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” According to France, “the only course open is to declare that this consent is not valid and decide that the states cannot be considered parties to the instrument ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” United Kingdom observed that “the general comment would risk discouraging states from ratifying human rights conventions since they would not be in a position to reassure their national Parliaments as to the status of treaty provisions on which it was felt necessary to reserve ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).”
It is also mentioned that a presumption favouring severance is better in any case as the corrective action that the state may take in response to an erroneous decision not to sever would be reratification and in response to an erroneous decision to sever would be withdrawal and the latter one is comparatively much easier than the former ((Ryan Goodman, “Human rights Treaties, Invalid Reservations, and State Consent” 96 Am.J.Int.L. 531 in Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1151; according to the author “an adjudicator’s erroneous expulsion of a state from a treaty risks significant costs along two dimensions namely international, i.e. a sovereignty impact from the state’s expulsion against its will, reputational costs to the state’s international standing, loss of a leadership or participatory role in the regime and national, i.e. the unhinging of a wide array of judicially enforceable civil and political rights protections, facilitation of illiberal rollbacks.”)).
Preliminary Conclusions of the International Law Commission on Reservations to Normative Multilateral Treaties, Including Human Rights Treaties (1997 session)
Though the ILC tried to formulate the powers of treaty monitoring bodies it in fact resulted in wide variety of confusions as it was contrary to observations made in General Comment No.24. According to ILC the treaty monitoring bodies have only powers to comment and make recommendations and that too “the competence of the monitoring bodies does not exclude or otherwise affect the traditional modalities of control by the contracting parties ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 469)).” The ILC also observed that “unless monitoring bodies have been expressly provided with such competence, ‘the legal force of the findings made by monitoring bodies in the exercise of their power to deal with reservations cannot exceed that resulting from the powers given to them for the performance of their general monitoring role ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).” The most contradicting part is that where the General Comment No.24 gave importance to severability the ILC’s observations goes like this, “if reservations are found to be inadmissible, ‘it is the reserving State that has the responsibility for taking action…such action may consist in the state either modifying or withdrawing its reservation or abstaining from becoming a party to the treaty ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).”
Observations of Human Rights Committee
In Kennedy v. Trinidad and Tobago ((Communication No 845/1999, Human Rights Committee, 31 Dec 1999)), where the communication was received from person awaiting death sentence clamming violations of Articles 6 and 7 on grounds of compulsory nature death penalty for murder, non consideration of mitigating circumstances, lack of fair hearing, torture before trial and so on, the Committee had to consider the reservation made by the state with regard to article 1 of the Optional Protocol of the ICCPR whereby the Human Rights Committee was not empowered to entertain communications relating to any prisoner under death sentence or in relating to his prosecution or detention or trial or conviction ((The reservation was made after the publication of Human Rights Committee, Comment 24 (1994).)). The committee decided that the reservation excludes the competence of the committee not with regard to a specific provision of the covenant but with regard to the entire provisions for one group of complainants and the same is not in consonance with the object and purpose of the covenant. The committee called for a report from the state party in this regard on the ground that the reservation constitutes a discrimination, that is, discriminating one group of individuals (prisoners awaiting death sentence) from the rest of the individuals. The committee’s effort was not a complete success as Trinidad and Tobago withdrew from the Optional Protocol. But now the General Comment No.26 has expressly stated that the Committee is of the view that “international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it ((General Comment No. 26: Continuity of obligations: 12/08/1997 available on http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/06b6d70077b4df2c8025655400387939?Opendocument)).”
Reservations under ECHR and other conventions
Article 57 of the European Convention on Human Rights refers to the provisions of reservation ((Article 57, ECHR: Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. Any reservation made under this Article shall contain a brief statement of the law concerned)). It was for the first time in Temeltasch v. Switzerland (1982) that the European Commission, apart from the general rule of states judging validity of reservations, judged the validity of a reservation. In the instant case a declaration made by Switzerland in regard to Article 6(3) (e) of the Convention ((Removing the obligation to provide the free assistance of an interpreter if a person charged with a criminal offence cannot understand or speak the language used in court))was held to be a reservation and judged the same to be valid as it was not of a general character. Though there is an express requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved, it was absent in the instant reservation but the same was held to be a formal requirement and held the reservation valid. In the instant case the commission referred to the objectives of the Convention to derive its power by stating that “the Convention did not intend to concede to each other reciprocal rights and obligations in pursuance of their individual interests, but … to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedoms and the rule of law.”
In the case of Belilos v. Switzerland (1988) the declaration made by Switzerland on Art.6(1) of ECHR was considered to be a reservation and held it invalid by the European Court of Human Rights as it was a general one ((The court observed that the reservation is general if it is ‘couched in terms that are too vague or broad for it to be possible to determine [its] exact meaning and scope’.)). Contrary to observations mad in Temeltasch v. Switzerland (1982), the court observed that the requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved is not a purely formal requirement but a condition of substance. In this case the court derived its power to judge the validity of reservations from provisions enabling to ensure the observance of the engagements undertaken by the state parties to the Convention, jurisdiction of the court over the interpretation and application of the Convention and the jurisdiction of the court to determine its own jurisdiction. The court also noted the difference between the ‘will’ to be bound by the convention and the ‘will’ to enter a reservation and held that invalidating the reservation does not invalidate the consent to be bound by the convention.
Moreover in the case of Loizidou v. Turkey (1995) the court held the declarations of Turkey restricting the application of the Convention to Northern Cyprus to be an invalid reservation on the ground that the provisions governing reservations suggests that “States could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their “jurisdiction” from supervision of the Convention institutions”. In this case the authority of the court to judge the validity of reservations has been stated as follows, “the Court must bear in mind the special character of the Convention as an instrument of European public order for the protection of individuals, and its mission to ensure the observance of the engagements undertaken by the High Contracting Parties.”
When it comes to the American Convention on Human Rights it has been specifically provided under article 75 coming under Part III, Chapter X that the reservations to the convention shall be in conformity with the Vienna Convention on the Law of Treaties.
Advisory opinion on the Restrictions to the Death Penalty in regard to Arts.4 ((In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply))and 4 ((In no case shall capital punishment be inflicted for political offenses or related common crimes))of the American Convention on Human Rights ((OC-3/83, September 8, 1983, Inter-Am. Ct. H.R)).
The court was confronted with two main issues. One as to whether a state can apply the death penalty for crimes for which the domestic legislation did not provide for such punishment at the time the American Convention on Human Rights entered into force for said state and the other one was whether a government, on the basis of a reservation to Article 4(4) of the Convention made at the time of ratification, adopt subsequent to the entry into force of the Convention a law imposing the death penalty for crimes not subject to this sanction at the moment of ratification ((Para 8)). Apart from the jurisdictional issues, the court answered both these questions in the negative and observed that “it follows that a State which has not made a reservation to paragraph 2 is bound by the prohibition not to apply the death penalty to new offenses, be they political offenses, related common crimes or mere common crimes. On the other hand, a reservation made to paragraph 2, but not to paragraph 4, would permit the reserving State to punish new offenses with the death penalty in the future provided, however, that the offenses in question are mere common crimes not related to political offenses. This is so because the prohibition contained in paragraph 4, with regard to which no reservation was made, would continue to apply to political offenses and related common crimes ((Para 70)).”
In regard to CEDAW though the articles were framed to protect the human rights of women, the general reservations made by the countries have made the effectiveness of the convention doubtful. For example the Arab Republic of Egypt had made a general reservation on Article 2 by stating that they are willing to comply with the same provided that it does not run contrary to Sharia principles. One possibility to bring finality to issues with regarding to inadmissible reservations would be to make the findings of the Human Rights Committee binding but it may not work out at the international level where most of the activities depend upon cooperation between various states and the solution of making the committee’s finding binding on the state parties may not be acknowledged by them. There are still too many questions that require further consideration and they are the following:
1) What is the use of entering into a treaty if the current system of reservation benefits the state to get itself exempted from the specific obligations of the treaty? (especially in the light of CEDAW) / who should be the given the power to determine the validity of reservations: the states or treaty monitoring bodies?
2) Can the advisory opinion of the ICJ be made applicable to the general international human rights instruments or is it only applicable to the Genocide Convention?
Should the matters like Kennedy v. Trinidad and Tobago be left to a stage where the state backs out from the convention obligations and render the objectives of the covenant meaningless?