RESERVATIONS TO UN HUMAN RIGHTS TREATIES: SOVEREIGN STATES SEEKING TO AVOID THEIR OBLIGATIONS?

Aistė Augustauskaitė-Keršienė

Abstract


This article explores specific reservations that are being declared to international treaties intended to protect human rights, and also whether the 1969 Vienna Convention on the Law of Treaties is sufficient to ensure such rights. The author considers if reservations declared by a state(s) are incompatible with the object and purpose of a treaty, and what consequences might follow if such a declaration(s) is made. To this end, the article investigates the practice of states that are party to the International Covenant on Civil and Political Rights, International Covenant on Social and Economic Rights, United Nations Convention on the Rights of Persons with Disabilities, and the United Nations Convention against torture and other Cruel, Inhuman or Degrading Treatment. These treaties were selected because they lay down significant principles for the protection of specific human rights, and also because they are frequently challenged through reservations which seek to alter fundamental provisions. On a theoretical level the regulation of reservations does not appear to be problematic, however on closer examination various reservations point to the inadequacy of current regulation in the 1969 Vienna Convention in terms of the protection of human rights. Accordingly, this article considers a major group of states that seek to become parties to treaties pertaining to human rights, but then make reservations with the intention of diluting fundamental provisions. Specifically, this applies to Islamic countries whose reservations claim incompatibility with Islamic law and by reference to their own cultural diversity. By objecting to the reservations, state parties must decide whether or not their reservation is compatible with the object and purpose of the treaty. According to provisions of the 1969 Vienna Convention on the Law of Treaties, a treaty may prohibit reservations for some or all of the treaty’s provisions, which complicates the position of state parties. Indeed, the withdrawal of reservations can be considered more problematic after analysis of practical cases of various states than it is shown in theory. The author’s analysis is intended to ascertain whether or not the 1969 Vienna Convention on the Law of the Treaties régime is suitable for the process of making reservations to the human rights treaties, and how the applicable regulation could be improved and thereby offer possible solutions to the problems outlined above.

Keywords


human rights, reservations, harmful practice, object and purpose of the treaty, Vienna Convention on the Law of Treaties, International Covenant on Civil and Political Rights, International Covenant on Social and Economic Rights, United Nations Convention

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DOI: https://doi.org/10.13165/j.icj.2020.12.002

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