1
HUMAN RIGHTS DIALOGUE BETWEEN THE EUROPEAN UNION AND CHINA
SEMINAR OF 8 AND 9 NOVEMBER, THE HAGUE
Practice by States in regard to reservations and declarations
Questions of validity in the light of objections by States parties
Olivier de Frouville
Senior Lecturer at the University of Paris X
This study[1] has been developed from an analysis of the "objections" raised by States in their approach to the six main treaties on human rights. Its aim is to determine the legal basis on which States raise objections, and the consequences they associate with the finding that a reservation or declaration is invalid. The study also examines the conditions in which a State can "confirm" a reservation, that is to say, regularise it when one or more States have objected to it.
But first of all a clear definition must be given, for the purposes of the study, of what is meant by "reservations", "declarations" and "objections".
a) Reservations
Article 2 § 1 d) of the Vienna Convention on the Law of Treaties (1969) gives the following definition for this term:
" '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."
b) Declarations
i ) Interpretative declarations
There is a conflict between reservations and "interpretative declarations" that have not been defined as such in the Vienna Convention. The Rapporteur of the International Law Commission (henceforth ILC), on the question of reservations in treaties, has nevertheless produced this definition as part of the draft Commission's Guide to practice:
"The expression "interpretative declaration" means a unilateral statement, regardless of the wording or designation thereof, made by a State or an international organisation, whereby that State or organisation purports to explain or clarify the meaning or the import which the declarant attributes to a treaty or to certain terms thereof."[2]
In other words, interpretative declarations are not an alternative procedure to reservations: their aim is not to exclude or modify the application of a treaty provision to the State that makes the reservation. However, care must be taken not to fall into abstract nominalism: some declarations described as "interpretative declarations" are really reservations in disguise.
ii) Conditional interpretative declarations
In the draft Guide to practice, the ILC distinguishes simple "interpretative declarations" from "conditional interpretative declarations", a concept which it defines as follows:
"A unilateral statement formulated by a State or an international organisation when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State or international organisation subjects its consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof, shall constitute a conditional interpretative declaration".
In fact, since this type of declaration tends to render the State's consent to be bound by the treaty "conditional", it could just as well be termed simply a reservation. Moreover, the CDI recognises that the regime governing conditional interpretative declarations is very similar, if not identical, to the regime governing reservations. So ultimately the import of the distinction between them is merely technical.
iii) Conditions for recognising the competence of a monitoring body
The category into which reservations fall often encompasses, for linguistic convenience, those restrictions and conditions imposed by States in their statement acknowledging the competence of a monitoring or dispute-settlement body. In reality, these are not reservations, within the meaning given to this term by the Law of Treaties, since the purpose of these declarations is not to modify the State's consent to be bound by the treaty, but to modify the State's acceptance of the obligatory competence of a monitoring body. There is no doubt that the regime covering these conditions is not quite analogous to that of reservations, not least because they do not formally come under the intersubjective regime set up in articles 20 to 22 of the Vienna Convention. Nonetheless, the fact remains that they are conditions, set down in an act of consent to be bound, which are at the same time reservations.
iv) Other treaty-related unilateral declarations
Other kinds of "declarations" are encountered which, in some cases, can have effects equivalent to reservations or interpretative declarations, although they could not be described as such.
This the case with the alternative procedures to reservations that take the form of special contractual opting out[3] or opting in[4] clauses, clauses allowing the State to cherry-pick among different obligations listed in the treaty[5].
It is also the case with non-recognition statements and even general policy statements, which States sometimes insist on adding to their instrument of ratification, but which have no real effect on the import of their consent.
c) Objections
The term "objection" is not defined by the Vienna Convention on the Law of Treaties. An apposite definition is currently under discussion by the ILC. At its last meeting, the special Rapporteur, Alain Pellet, proposed a new version of his draft directive 2.6.1. taking account of the remarks made by members of the ILC. This draft offers a definition we consider satisfactory for the purposes of the present study:
"The expression "objection" means a unilateral statement, regardless of the wording or designation thereof, made by a State or international organisation, [in response to][opposing] a reservation to a treaty [made][formulated] by another State or international organisation, whereby the State or organisation that made the objection purports to exclude or modify the effects that the reservation will have on the relations between the author of the reservation and the objecting party."
China expressed several reservations regarding the International Covenant on Economic, Social and Cultural Rights (henceforth ICESCR) and the Convention on the Rights of the Child (henceforth CRC). Norway, Sweden and the Netherlands raised objections to China's reservations concerning article 8 of the ICESCR. From the perspective of the ratification of the International Covenant on Civil and Political Rights (ICCPR), it seems important that China should be aware of the basis on which some States might contest the validity of the reservations it would wish to express (I), and what types of legal consequences these States would attach to such an objection (II). It is of interest to enquire into the degree to which a State can modify, with a view to regularising, a reservation to which one or more States have objected (III).
I – Validity of reservations
Article 19 of the Vienna Convention on the Law of Treaties states:
"A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty."
Reservations are prohibited by some treaties[6]. When this is not the case, the right to put forward reservations is usually framed in a special clause: thus, at a universal level, there is the Convention for the Elimination of Racial Discrimination (henceforth CERD)[7], the CRC[8], the Convention for the Elimination of Discrimination against Women (henceforth CEDW)[9] and the Second Optional Protocol to the ICCPR[10]; and at a regional level, the European Convention of Human Rights (henceforth ECHR)[11] and the Inter-American Convention on Human Rights (henceforth IACHR)[12]. But some conventions are silent on the issue of reservations: this is the case with the ICCPR, the ICESCR and the African Charter on Human and People's Rights (henceforth ACHPR)
In the latter case, the criterion for compatibility with the object and purpose of the treaty is the additional default criterion, applicable when there is no explicit contractual stipulation.
But from this additional criterion, gradually the criterion for compatibility has metamorphosed into "common law". A large number of convention clauses refer to it[13], whilst the absence of a clause often signifies an implicit reference. Moreover States, when objecting to a reservation, frequently refer to it. But this convergence is misleading: one cannot help noting that the criterion is now used nominally, and that behind it lie concealed a wide variety of grounds and motives. In other words, the reference to the criterion is often a mere formality[14]. In reality, by "decryphering" the objections and validity criteria selected for reservation clauses, we can in fact distinguish the substantial notion of "compatibility with the object and purpose of the treaty" (A) from the interdiction of potestative reservations (B).
A – criteria OF compatibility WITH THE objeCt and PURPOSE OF THE TREATY
Most of these conventions contain two types of provisions: substantive provisions, generally stating rights or prohibitions (1), and procedural provisions establishing the competence of a body to "monitor" or "control" compliance by States with their obligations. However, some treaties are exclusively devoted to the implementation of guarantees, such as the Optional Protocol to the ICCPR (2).
1°) Reservations to substantive provisions
a) Incompatibility based on the "fundamental" character of a right
In conventions with an overriding clause, States readily rely on the non-derogable character of a right to emphasise its fundamental nature. The Congo (Brazzaville) made a reservation to article 11 of the ICCPR which states:
"No one may be imprisoned for the sole reason of being unable to perform a contractual obligation"
This article is included in the list of non-derogable rights in article 4 § 2 of the Covenant. The reservation by the Congo was worded as follows:
"The Government of the People's Republic of the Congo declares that it does not feel bound by the terms of article 11. (…)
Article 11 of the International Covenant on Civil and Political Rights diverges significantly from articles 386 and following of the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, resulting from Law 51- 83 of 21 April 1983 under the terms of which, in private law, the execution of decisions or conciliation proceedings may be pursued through personal arrest when all other measures of execution have been exhausted, provided that the principal amount of the order exceeds 20,000 francs CFA and that the debtor, aged over 18 years and less than 60 years, has become insolvent as a result of bad faith."[15]
Belgium raised an objection to this reservation "as a protective measure", emphasising the non-derogable character of the right contemplated. Even though, according to Belgium, the Congolese reservation was in reality superfluous, given the fact that there was no contradiction between the legislation mentioned and article 11, the sole act of making a reservation to a non-derogable right was liable to "constitute, in principle, a precedent the international effects of which could be considerable":
"Under the terms of paragraph 2 of article 4 of the aforementioned Covenant, article 11 is excluded from the scope of application of the regulation which provides that, in the event of exceptional danger to the public, States parties to the Covenant may, in certain circumstances, take measures derogating the obligations provided in the Covenant. Article 11 is one of those that contain a provision whereby it may not be derogated in any circumstance. Any reservation concerning this article would make it ineffective and therefore would not be in keeping with the letter and spirit of the Covenant."[16]
Some objections are comparable to reservations by a State to a non-derogable right to permanent derogations: from the prohibition of all derogations to the article in question, it would be possible to deduce that all reservations to the same article are prohibited. The objection by Denmark to two reservations of the United States of America in the context of the ICCPR is, among other things, significant in this regard. Moreover it explicitly associates non-derogability and fundamentality:
"In the opinion of Denmark, reservation 2) of the United States concerning the death penalty for crimes committed by persons under 18 years of age[17], and reservation 3) relative to article 7[18], constitute derogations of a general nature to articles 6 and 7, when under the terms of paragraph 2 of article 4 of the Covenant, such derogations are not permitted.
For this reason, and given the fact that articles 6 and 7 protect two of the most fundamental rights stated in the Covenant, the Danish Government considers the said reservations to be incompatible with the object and purpose of the Covenant (...)"[19]
When the convention considered contains no overriding clause, then non-derogability cannot provide an explanation for fundamentality. The argument of fundamentality is therefore put forward as such, as if it were a quality intrinsic to the right in question. Thus, the objection by Finland against the Yemeni reservations to the CERD:
"In the first place, the reservations have to do with questions of fundamental importance in the Convention. The first paragraph of article 5 is very explicit on this subject, stipulating that the parties undertake to guarantee the rights listed in the said article "in accordance with the fundamental obligations stated in article 2 of the Convention." There is no doubt that provisions barring racial discrimination in granting political rights and civil liberties as fundamental as the right to take part in public affairs, the right to marry and choose a spouse, the right to inherit, and the right to freedom of opinion, conscience and religion, are essential in a convention against racial discrimination. Consequently, these reservations are incompatible with the object and purpose of the Convention, in terms of paragraph 2 of article 20 of the said convention and sub-paragraph c) of article 19 of the Vienna Convention on the Law of Treaties."[20]
The objections by Norway, Sweden and the Netherlands to the reservations formulated by China to article 8 of the ICESCR are more or less on the same lines.
In an objection to a reservation by Kuwait to the ECRW, Finland notes the need to avoid distorting the treaty by circumventing an obligation of essential importance for compliance with the object and purpose of the Convention[21]. The qualifier "essential" refers here not to the fundamental nature "per se" of the right in question, but to its relative importance, in the context of the Convention, to the object and purpose of this Convention.