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Reservations and Objections to Multilateral Treaties on Human Rights

Anderson, Niina (2001)
Department of Law
Abstract
Treaties are the most important source of international law, but treaties are only binding when in force, and only with respect to the nations that have expressly agreed to become parties to them. The Vienna Convention on the Law of Treaties, from 1969, is the ''treaty on treaties''. The rules on reservations in the Vienna Convention, articles 19 to 23, govern the situation where provisions on reservations in a particular treaty are left out. Prior to the Vienna Convention, the rule concerning reservations in international practice was that unanimous consent of the other state parties was a requirement for admitting a reservation. In the Genocide Convention case, the ICJ, in its Advisory Opinion, introduced the ''object and purpose'' test,... (More)
Treaties are the most important source of international law, but treaties are only binding when in force, and only with respect to the nations that have expressly agreed to become parties to them. The Vienna Convention on the Law of Treaties, from 1969, is the ''treaty on treaties''. The rules on reservations in the Vienna Convention, articles 19 to 23, govern the situation where provisions on reservations in a particular treaty are left out. Prior to the Vienna Convention, the rule concerning reservations in international practice was that unanimous consent of the other state parties was a requirement for admitting a reservation. In the Genocide Convention case, the ICJ, in its Advisory Opinion, introduced the ''object and purpose'' test, or the compatibility test, to be used by the other state parties when assessing the admissibility of reservations. If a reservation is incompatible with the object and purpose of the treaty, it is inadmissible, and states are not allowed to lodge such a reservation. The compatibility test found its way into the Vienna Convention, and is regulated in article 19(c). Article 20.4(b) stipulates that the general rule is that an objection to a reservation does not preclude the entry into force of the treaty between the reserving and the objecting states. Such preclusion requires a definitely expressed intention by the objecting state. Critical voices have been raised, claiming that the objectivity is impaired when the compatibility test is performed by the individual state parties, who might have, besides the legal, also extralegal considerations in mind when deciding on the admissibility of a reservation. The critics have furthermore stressed their disapproval with the fact that an objection as a general rule has the same legal effect as accepting a reservation, i.e. establishment of treaty relations. International law, and treaty law as part of such law, is in constant progressive development. New trends have occurred in recent practice. An example of such a trend is that certain states object without allowing the reserving state to benefit from its reservation. This new practice is called the Nordic ''No Benefit'' Approach and appears to be an inspiring and hopefully an effective method to re-open the discussion on inadmissible reservations. Universality and integrity are important goals, but seem to be interrelated in an unfriendly balance, in which achieving one is necessarily at the expense of the other. It is important to emphasise that reservations are a natural part of the treaty-making process. Drafting of the instruments under the auspices of the United Nations takes place on the basis of consensus. Occasionally states may not want to disagree with the final result, in spite of disagreeing with a particular provision. Reservations are a reaction to drafting based on the political wishes of majority and compromising. Another way of expressing this is to say that reservations are the price to be paid for striving for universality, in the sense of widespread participation. Ideas that have been articulated in the debate suggest making the compatibility test a task for the monitoring bodies, in order to achieve more certainty in the outcome of the test. The by the present author proposed changes were inspired by this thought, and would result in a tilt of the balance in favour of the integrity of the treaty text. (Less)
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author
Anderson, Niina
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt
language
English
id
1555651
date added to LUP
2010-03-08 15:55:18
date last changed
2010-03-08 15:55:18
@misc{1555651,
  abstract     = {Treaties are the most important source of international law, but treaties are only binding when in force, and only with respect to the nations that have expressly agreed to become parties to them. The Vienna Convention on the Law of Treaties, from 1969, is the ''treaty on treaties''. The rules on reservations in the Vienna Convention, articles 19 to 23, govern the situation where provisions on reservations in a particular treaty are left out. Prior to the Vienna Convention, the rule concerning reservations in international practice was that unanimous consent of the other state parties was a requirement for admitting a reservation. In the Genocide Convention case, the ICJ, in its Advisory Opinion, introduced the ''object and purpose'' test, or the compatibility test, to be used by the other state parties when assessing the admissibility of reservations. If a reservation is incompatible with the object and purpose of the treaty, it is inadmissible, and states are not allowed to lodge such a reservation. The compatibility test found its way into the Vienna Convention, and is regulated in article 19(c). Article 20.4(b) stipulates that the general rule is that an objection to a reservation does not preclude the entry into force of the treaty between the reserving and the objecting states. Such preclusion requires a definitely expressed intention by the objecting state. Critical voices have been raised, claiming that the objectivity is impaired when the compatibility test is performed by the individual state parties, who might have, besides the legal, also extralegal considerations in mind when deciding on the admissibility of a reservation. The critics have furthermore stressed their disapproval with the fact that an objection as a general rule has the same legal effect as accepting a reservation, i.e. establishment of treaty relations. International law, and treaty law as part of such law, is in constant progressive development. New trends have occurred in recent practice. An example of such a trend is that certain states object without allowing the reserving state to benefit from its reservation. This new practice is called the Nordic ''No Benefit'' Approach and appears to be an inspiring and hopefully an effective method to re-open the discussion on inadmissible reservations. Universality and integrity are important goals, but seem to be interrelated in an unfriendly balance, in which achieving one is necessarily at the expense of the other. It is important to emphasise that reservations are a natural part of the treaty-making process. Drafting of the instruments under the auspices of the United Nations takes place on the basis of consensus. Occasionally states may not want to disagree with the final result, in spite of disagreeing with a particular provision. Reservations are a reaction to drafting based on the political wishes of majority and compromising. Another way of expressing this is to say that reservations are the price to be paid for striving for universality, in the sense of widespread participation. Ideas that have been articulated in the debate suggest making the compatibility test a task for the monitoring bodies, in order to achieve more certainty in the outcome of the test. The by the present author proposed changes were inspired by this thought, and would result in a tilt of the balance in favour of the integrity of the treaty text.},
  author       = {Anderson, Niina},
  keyword      = {Folkrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {Reservations and Objections to Multilateral Treaties on Human Rights},
  year         = {2001},
}