Do Human Rights Treaties Call For Special Treatment Under The Law Relating To Reservations Laid Down In The Vienna Convention Of The Law Of Treaties 1969?

2909 words - 12 pages

Where reservations to human rights treaties are concerned, two conflicting views exist. One view is that, as consent remains the governing principle of the reservation regime, the discretionary power to determine the permissibility and validity of reservations should be left to the individual states who are party to the treaty. On the other hand, it is argued that because of the special features of human rights treaties, a different kind of regime should apply to these treaties, with the supervisory organs of these treaties being competent to decide on the permissibility of reservations, and to decide on the effect of inadmissible reservations. These opposing views are based on the wider controversy between supporters of the interests of the international community, and those of state sovereignty. A key issue to this discussion is whether human rights treaties are sufficiently different from other treaties so as to require distinct rules for determining the admissibility of reservations.In its controversial General Comment 24/52 of 2 November 1994, the UN Human Rights Committee (HRC) responded to the concerns that the large number of reservations to the International Covenant on Civil and Political Rights 1996 (ICCPR) might undermine its effectiveness. The application of the VCLT in relation to other human rights treaties was also discussed. The Committee emphasised the special nature of human rights treaties and stated that the provisions of the VCLT laying down the circumstance in which reservation would be allowed were "inappropriate to address the problems of reservations to human rights treaties". It was felt that reservations are incompatible with human rights treaties because of the nature of such treatiesIn relation to the ICCPR, the Committee stated that states could not make reservations in relation to provisions of the ICCPR which reflected customary international law, and in relation to its other provisions, states would have a heavy burden to prove that such reservations are justified. The Committee also stated that the effect of an impermissible reservation should be that it would be severable from the rest of the treaty, so it would be binding in full against the state making the reservation, and since the reservation is severable, it would not vitiate consent to the treaty as a whole. Furthermore, the Committee also regarded itself as the only body able to determine whether a specific reservation was compatible with the purpose and object of the ICCPR. However, it failed to provide a legal justification for this claim.The justifications for this view were based on the fact that the VCLT is silent as to the effects of an impermissible reservation, and also does not answer the question of the legal effect of an impermissible reservation. Therefore, in the absence of any guiding criteria within the VCLT on this issue, the HRC felt that intervention by itself on these issues was justified.The views of the HRC seem to have been applied...

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