63:3 International and Comparative Law Quarterly 599-634
Posted: 2 Mar 2016
Date Written: July 1, 2014
How to address invalid reservations has been an on-going struggle for States, legal practitioners and academics. This article considers the evolution of severability and whether States intend the language of severance to serve as a signal of their view on legality to reserving States or simply use severability to bolster their own public reputation. Over the past decade, State practice toward invalid reservations to norm-creating treaties has shifted and this shift and its impact on treaty law must be acknowledged. The arguments and assertions that follow rely heavily on the contemporary practice relating to reservations made to the core UN human rights treaties which, admittedly, limits the application of the doctrine in many ways. Review of State practice, especially to human rights treaties, demonstrates that a broader number of States are slowly opting for severability when defining their treaty relations with States authoring invalid reservations. The doctrine of severability is gaining a slow but steady following by a growing number of States though there is tension about whether severing reservations is lex specialis, pertaining only to human rights treaties, or lex ferenda. This article examines the evolving practice and forecasts the role it will play in the future of treaty law.
Keywords: Treaty law, reservations, invalid reservation, permissibility, severability, Vienna Convention on the Law of Treaties, human rights
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