Mind the Gaps: The ILC Guide to Practice and Reservations to Human Rights Treaties

16:3 International Community Law Review 263-305

Posted: 2 Mar 2016

Date Written: July 1, 2014

Abstract

At the best of times the rules on reservations to treaties baffle many international law practitioners and the states that must navigate them. The persisting confusion from the application of the default reservations regime codified by the 1969 Vienna Convention on the Law of Treaties (Vienna Convention) is exacerbated when these rules are used to interpret reservations to human rights treaties. Great hope for clarity in the reservations rules was focused on the outcome of the eighteen year study on reservations to treaties conducted by the International Law Commission (ILC). However, following the 2011 publication of the ILC Guide to Practice on Reservations to Treaties (Guide to Practice or Guide) it is apparent that despite several progressive guidelines, little has changed in the context of reservations to human rights treaties.

This article examines the practice of making reservations to human rights treaties in light of the historical attitude of states to these treaties as well evolving state practice and forward-thinking efforts on the part of the ILC and others. It is based on case study of reservations to the core UN human rights treaties and a doctrinal study of the general law of reservations in relation to treaties. While the enduring problems of applying the Vienna Convention regime to reservations to human rights treaties will be outlined, this article forgoes a repeat of the historical development of the reservations rules that have been set forth on many occasions. Instead, it will focus on the reservations practice particular to human rights and examine the different types of reservations that plague human rights treaties. Specifically it will address the problems perpetuated by the object and purpose test, the lack of clarity of the legal effect and consequence of invalid reservations as well as the question of who decides invalidity and how this decision is impacted by the non-reciprocal nature of human rights treaties. Finally, the pertinent features of the Guide to Practice will be introduced and examined in light of the practical application of the guidelines in response to the problems most prevalent when analysing reservations to human rights treaties.

Keywords: human rights, reservations, International Law Commission, Guide to Practice on Reservations, treaty law

Suggested Citation

McCall-Smith, Kasey L., Mind the Gaps: The ILC Guide to Practice and Reservations to Human Rights Treaties (July 1, 2014). 16:3 International Community Law Review 263-305, Available at SSRN: https://ssrn.com/abstract=2740333

Kasey L. McCall-Smith (Contact Author)

University of Edinburgh School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

HOME PAGE: http://www.law.ed.ac.uk/people/kaseymccallsmith

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