Quest for the harmony: On the vienna reservations regime and international human rights treaties

Abstract

The reservation is one of the most important and controversial topics in international treaty law. The validity of reservations and their application came to the fore and customary reservation rules were reviewed with the Convention on the Prevention and Punishment of the Crime of Genocide in international law. Also, in the Vienna Convention on the Law of Treaties, rules on reservations were codified, which were asserted as the rules of customary international law. However, in human rights treaties, because of their distinctive characteristics, the rules of reservations needed to be applied and interpreted compatible to these particularities. First of all, human rights treaties are different from standard contractual treaties and they do not create a balanced system between the state parties’ rights and obligations. Therefore, the reciprocal effect of the reservation which gives equivalency to the parties’ rights and obligations cannot function properly in human rights treaties. The second aspect is the main ideal of ensuring the universality of human rights which challenges the integrity of these treaties. The choice between integrity and universality gives us a hint about the status of the treaties regarding reservations. Another issue is the compliance of a reservation with the object and purpose of the treaty which is rated among the main rules about validity of a reservation in the Vienna Convention on the Law of Treaties. In human rights treaties, a reservation’s compatibility with the object and purpose and even determining the object and purpose of the treaty is controversial. In this context two different mechanisms issuing from the Vienna Convention – opposability and permissibility- will be handled to determine the validity of the reservations in international human rights treaties. In this paper, within the scope of the human rights treaties’ aspects stated above, the application and the validity of the reservations to international human rights treaties will be discussed by assessing the solutions in the ILC’s Guide to Practice on Reservations.