Reservations to human rights treaties
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McCall-Smith2012.doc (976Kb)
Date
26/06/2012Author
McCall-Smith, Kasey Lowe
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Abstract
This thesis examines the default application of the 1969 Vienna Convention on the
Law of Treaties reservation rules to reservations to human rights treaties. The
contemporary practice of formulating reservations allows states to unilaterally
modify their treaty obligations following the conclusion of negotiations. Though
multilateral treaties address a broad spectrum of subjects and are negotiated using a
variety of methods, all treaties are governed by the same residual reservation rules of
the Vienna Convention when there is not a treaty-specific reservation regime in
place. The Vienna Convention system is only engaged if a state seizes the
opportunity to determine whether a reservation is valid pursuant to default rules or if
a challenge regarding the validity of a reservation is brought before another
competent mechanism of review, such as a dispute resolution mechanism. Even
when applied, the Vienna Convention rules are ambiguous at best and have been
criticised since their inception due to the high degree of flexibility in their
application, especially in relation to human rights treaties. In light of the inherent
flaws of the Vienna Convention reservation regime and the structural characteristics
of human rights treaties, rarely will a reserving state be deprived of the benefit of the
reservation even if it is determined to be invalid by another State Party. Though the
consequences of an invalidity determination are more concrete when the decision is
taken by a dispute resolution mechanism, such as a court, seldom are disputes over
the validity of a reservation to a human rights treaty submitted to a competent
mechanism. Using the core UN human rights treaties as a case study this research
highlights that the past thirty years have revealed a practical impasse in treaty law
when the default reservation rules are relied upon to regulate reservations to human
rights treaties. Reservations of questionable validity gain the same status as valid
reservations because the Vienna Convention rules do not address the consequence for
a reservation determined to be invalid outwith the traditional inter se application of
the reservation between the reserving and objecting states, which is not logical in the
context of a human rights treaty. Against this background, this thesis examines
whether the default reservation rules adequately govern reservations to human rights
treaties. The conclusion affirms that the Vienna Convention reservation regime can
regulate reservations to human rights treaties but only if there is a clearly defined final view on the validity of a reservation taken by an organ other than the state.
Therefore, it is argued that treaty-specific supervisory mechanisms attached to each
of the core UN human rights treaties should be invested with the competency to
serve a determinative function with respect to evaluating reservations to human
rights treaties in order to facilitate a stronger basis for the international human rights
system.