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The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women

Published online by Cambridge University Press:  27 February 2017

Belinda Clark
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Extract

The law governing the admission of reservations to treaties has evolved over the past sixty years, as is demonstrated by the Vienna Convention on the Law of Treaties, which incorporates a regime on reservations that represents a significant change in the law as it was generally understood in the first part of this century. Whereas it was once widely considered that the unanimous consent of the other parties to a treaty was required to admit a reservation, the Vienna Convention implemented a new system in which this condition is generally not necessary. The regime on reservations is contained in section 2 of the Convention (Articles 19-23), which, together with the definitional article (Article 2(1)(d)), determines what constitutes a reservation, the criteria it must meet to be permissible, and the effect it will have, both in the event that it is accepted by other contracting states and in the more problematic event that it is not.

Type
Research Article
Information
American Journal of International Law , Volume 85 , Issue 2 , April 1991 , pp. 281 - 321
Copyright
Copyright © American Society of International Law 1991

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References

1 Opened for signature May 23, 1969, 1155 UNTS 331 (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].

2 At least by Western European states. See text at notes 57–65 infra.

3 This system reflects the approach taken by the International Court of Justice in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep. 15 (Advisory Opinion of May 28) [hereinafter Genocide Convention case]. For discussion of the case, see part III infra. As of December 1989, there were only 59 states parties to the Vienna Convention. Multilat eral Treaties Deposited with the Secretary-General: Status as at 31 December 1989, at 811, UN Doc. ST/LEG/SER.E/8 (1990) [hereinafter Multilateral Treaties]. The Convention, however, is widely regarded, even by nonparties, as reflective of customary international law. The United States signed it on April 24, 1970, but has not yet ratified it. Although the United States does not accept the entire Vienna Convention as customary law, the Restatement (Third) cites the Convention extensively and with respect to reservations lists, inter alia, “the requirement confirmed by the Court that a reservation must be compatible with the object and purpose of the agreement.” Restatement (Third) of the Foreign Relations Law of the United States §313 comment b (1987) [hereinafter Restatement].

4 GA Res. 34/180 (Dec. 18, 1979).

5 Within the General Assembly, it is not the Sixth (Legal) Committee that has discussed the issue but the Third (Social, Humanitarian and Cultural) Committee. The human rights component of the public international law role of the United Nations has generally been undertaken by the Third, rather than the Sixth, Committee.

6 See, e.g., Cook & Stout, Memorandum: Re Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, International Women’s Rights Action Watch (Jan. 5, 1987).

7 Dec. 9, 1948, 78 UNTS 277.

8 The debate was conducted through the various mechanisms of the Secretary-General’s depositary function, General Assembly and ECOSOC meetings, written comments submitted to the Secretary-General, and CEDAW Committee and states parties’ meetings.

9 A. McNair, The Law of Treaties 170 (1961). A notable exception is the UN Convention on the Law of the Sea (not yet in force), which specifies that “[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles to this Convention.” Convention on the Law of the Sea, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, Art. 309, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983).

10 By substantive reservations is meant “true” reservations, as opposed to declarations of a political or strictly interpretive nature (which constitute a further three reservations to CEDAW, to give an overall total of 44 reservations). For the reservations, see Multilateral Treaties, supra note 3, at 170–79.

11 Article 29(1) of the Convention, supra note 4, specifies that any dispute between parties over the interpretation or application of the Convention not settled by negotiation shall be referred to the ICJ at the request of any one of those parties. Article 29(2) gives parties the right to declare that they do not consider themselves bound by paragraph 1 of the article.

12 Opened for signature Mar. 7, 1966, 660 UNTS 195, reprinted in 60 AJIL 650 (1966).

13 That is, 39 reservations characterized as such; a further 34 statements are described as “declarations” or “interpretative statements.” Multilateral Treaties, supra note 3, at 170–83.

14 Furthermore, it is arguable whether the reservation entered by Antigua and Barbuda is properly described as such or is really a declaration. It states that the protections of the Convention are already part of the Antiguan Constitution and that acceptance of the Convention does not imply the accept ance of obligations going beyond the constitutional limits; and it interprets Article 4 as requiring the enactment of legislation only where it is necessary. Yemen’s reservation is to four specific clauses ((c), (d)(iv), (d)(vi) and (d)(viii)) of the catalog of rights in Article 5. The other two reservations, by Fiji and Tonga, relate to the particular circumstances of land tenure rights as between indigenous and nonindigenous populations. Id. at 106, 107, 109, 112, 115.

15 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3; Internationa/ Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171.

16 Multilateral Treaties, supra note 3, at 123–61.

17 But also the United States, Australia, New Zealand and some members of the European Community, particularly Greece and the Netherlands.

18 Report of the Committee on the Elimination of Discrimination against Women on its Fifth Session, 41 UN GAOR Supp. (No. 45) at 46, UN Doc. A/41/45 (1986).

19 Report of the Third Meeting of the States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/SP/10, at 4 (1986) [hereinafter Parties’ 1986 Report].

20 UN Docs. E/1986/SR.7, E/1986/SR.8, E/1986/SR.9, E/1986/SR.13, and E/1986/SR.16.

21 ESC Res. 1986/4 (May 21, 1986).

22 Their comments are reproduced in UN Docs. A/41/608 and Add. 1 (1986).

23 Canada, Czechoslovakia, Denmark, the Federal Republic of Germany, Mexico, Portugal, Spain and Sweden. UN Doc. A/41/608, at 6; UN Doc. A/41/608/Add.l, at 1; and UN Doc. A/41/608, at 7, 8, 10, 11, 13, and 14, respectively.

24 UN Doc. A/41/608, at 8, 15.

25 Id. at 9.

26 W. at 10.

27 Id. at 16.

28 China, Cuba, Gabon, Ireland and St. Lucia.

29 UN Doc. A/41/608, at 16.

30 Id.

31 Id. at 8.

32 For the memorandums, see Written Statements, 1951 ICJ Pleadings (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide) 15 [hereinafter Genocide Pleadings].

33 Those of Mexico, Sweden and Czechoslovakia.

34 See, for example, the views submitted by Japan and Turkey to the Secretary-General, text at notes 25–26 and 29 supra.

35 UN Doc. A/41/608, at 14.

36 Id. at 15.

37 Id.

38 International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1984) (entered into force June 26, 1987) [hereinafter Torture Convention]. It may fairly be noted, however, that the Covenants, CERD and the Torture Convention were all adopted by consensus, whereas CEDAW was adopted by a vote of 130-0-10. Among the 10 abstentions were both Mexico and Bangladesh.

39 GA Res. 44/25 (Nov. 20, 1989) (not yet in force).

40 UN Doc. A/41/608, at 13 (Spain), 11 (Portugal).

41 Id. at 12.

42 Id. at 10.

43 Id. at 8 and 15.

44 And subsequently by the Plenary: GA Res. 41/108 (Dec. 4, 1986).

45 Id.

46 General Recommendation 4, Report of the Committee on the Elimination of Discrimination against Women, Sixth Session, 42 UN GAOR Supp. (No. 38), para. 579, UN Doc. A/42/38 (1987) [hereinafter 1987 CEDAW Report].

47 1987 CEDAW Report, supra note 46, para. 583.

48 UN Doc. E/1987/SR. 11, at 13. Byrnes comments that “[t]o suggest that [the] CEDAW [Committee] had singled out Islam … is simply wrong. The Committee has consistently sought information about the influence that religious beliefs and institutions have on women’s position in a country.” Byrnes, The “Other” Human Rights Treaty Today: The Work of the Committee on the Elimination of Discrimination Against Women, 14 Yale J. Int’l L. 1, 55 n.195 (1989). But only Islamic states have specifically cited religious beliefs as grounds for limiting their treaty obligations.

49 ESC Res. 1987/3 (May 26, 1987).

50 GA Res. 42/60 (Nov. 30, 1987).

51 Parties’ 1986 Report, supra note 19, at 4.

52 Report of the Fourth Meeting of the States Parties to the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/SP/14, at 2 (1988).

53 Id.

54 In 1968 and 1969.

55 1951 ICJ Rep. at 23–26.

56 The Convention follows in most respects the final draft articles submitted by the ILC to the UN General Assembly in 1966. Report of the International Law Commission on the Work of its eighteenth session, 21 UN GAOR Supp. (No. 9) at 10, UN Doc. A/6309/Rev.l (1966), reprinted in [1966] 2 Y.B. Int’l L. Comm’n 169, 177, UN Doc. A/CN.4/SER.A/1966/Add.1.

57 Although Sinclair refers to “contracting parties,” and Kearney and Dalton to “parties,” it seems from both Sinclair’s discussion and Ruda’s fuller exposition of early practice that it was the consent of the signatories, not the parties, that was required. See I. Sinclair, The Vienna Convention on the Law of Treaties 55 (2d ed. 1984); Kearney & Dalton, The Treaty on Treaties, 64 AJIL 495, 509 (1970); Ruda, Reservations to Treaties, 146 Recueil des Cours 95, 111–15 (1975 III).

58 I. Sinclair, supra note 57, at 56.

59 Malkin, Reservations to Multilateral Conventions, 7 Brit. Y.B. Int’l L. 141 (1926). See also discussion by I. Sinclair, supra note 57, at 55; and Ruda, supra note 57, at 111–12.

60 For example, in 1905 the French Government (as headquarters government) insisted that reservations made by Britain at the time of its ratification of the International Sanitary Convention (Paris 1903) be communicated to all the signatories and agreed to by them, before the ratification could be accepted. Similarly, the Dutch Government refused to accept Britain’s signature, subject to a reservation, of the Hague Convention for the Adaptation of the Principles of the Geneva Convention to Maritime Warfare (1899), on the grounds that the only reservations that could be admitted were those which had been recorded in the minutes of the conference and had thus been brought officially to the notice of the other delegations. The Dutch Government advised that it could not accept the reservation without referring it to the other signatories. See Malkin, supra note 57, at 149 and 155–56.

61 The USSR maintained this position in its submission to the ICJ. Statement of the Soviet Union, Genocide Pleadings, supra note 32, at 21 (Jan. 13, 1951).

62 The Pan-American Union was established in 1910. For a detailed exposition of its development, see Ruda, supra note 57, at 115–33. The 1928 Havana Convention on Treaties (based on the “Draft of Treaties” approved by the International Commission of American Jurists in 1927) recognized the possibility of tacit acceptance of a reservation. It also incorporated the reciprocity rule; that is, just as the reserving state could invoke its reservation as against other parties, so the other parties could invoke it in their favor against the reserving state. See Inter-American Juridical Committee, Report on the Juridical Effect of Reservations to Multi-lateral Treaties, Pan-American Union Doc. C.I.J. 23, at 3 (1955).

63 Ruda, supra note 57, at 115.

64 Id. at 116.

65 Indeed, the United States participated in a number of the drafting exercises leading to the establishment of the Pan-American system.

66 Malkin, supra note 59.

67 Ruda, supra note 57, at 115.

68 Secretary-General’s Report, 5 UN GAOR Annex 2 (Agenda Item 56) at 2–16, UN Doc. A/1372 (1950).

69 Ruda, supra note 57, at 137. For this debate, see 5 UN GAOR C.6 (217th-225th mtgs.) at 31–88, UN Docs. A/C.6/SR.217–25 (1950) [hereinafter C.6 Debate].

70 See remarks of Mr. Morozov, delegate of the USSR, C.6 Debate, supra note 69, at 60.

71 C.6 Debate, supra note 69, at 33 (Mr. Jiménez de Aréchaga, Uruguay), 49 (Mr. Ortiz Tirado, Mexico), 50 (Mr. Palacio, Colombia), 51 (Mr. Cortina, Cuba), 54 (Mr. Maurtua & Mr. Herrera Baez, Peru & Dominican Republic), 71 (Mr. Cabana, Venezuela); cf. the remarks of Mr. Amado of Brazil, id. at 37–38.

72 Id. at 64–65 (Mr. Fitzmaurice, United Kingdom), 87 (Mr. Ballard, Australia).

73 GA Res. 478 (V) (Nov. 16, 1950).

74 Genocide Pleadings, supra note 32, at 21.

75 Written Statement of the United Kingdom, id. at 48, 49 (January 1951).

76 Although as a member of the Pan-American Union it had itself subscribed to the Pan-American system, at least insofar as inter-American treaties were concerned.

77 Written Statement of the United States, Genocide Pleadings, supra note 32, at 23, 30 (n.d.).

78 Id. at 23–47.

79 Id. at 41.

80 1951 ICJ Rep. at 22.

81 Id.

82 Id. at 23.

83 Id. (emphasis added).

84 Id. at 26.

85 Id. at 27. The Court considered that only the objections of states parties had legal effect; those of signatories merely served as notice of the eventual attitude of the signatory state.

86 Id.

87 Id. at 21.

88 Id. at 21–22.

89 Id. at 21.

90 Id. at 23.

91 Id. As has frequently been observed, most treaties concluded under UN auspices are normative rather than contractual in character (unlike, for example, most treaties of the Pan-American Union).

92 Ruda, supra note 57, at 145.

93 See League of Nations Committee of Experts Report to the Council on Questionnaire No. 5, 8 League of Nations O.J. 749–57, 770–72 (1927).

94 Harvard Research in International Law, Law of Treaties, 29 AJIL 653 (Supp. 1935).

95 1951 ICJ Rep. at 45 (joint diss. op. of Guerrero, McNair, Read and Hsu Mo, J.J.).

96 Id. at 45–46. The fifth dissenting judge, Judge Alvarez, took a completely different view, dissenting from both the classical theory and the concept of the Court. He considered that some multilateral conventions—for example, those of a humanitarian type, those establishing international organizations, those determining the territorial status of certain states, and those which sought to establish new and important principles of international law—must not be made the subject of reservations unless it was otherwise provided. 1951 ICJ Rep. at 51–53 (diss. op. Alvarez, J.).

97 J. Brierly, The Law of Nations 249–50 (5th ed. 1955).

98 I. Sinclair, supra note 57, at 58.

99 See Fitzmaurice, Reservations to Multilateral Conventions, 2 Int’l & Comp. L.Q. 1 (1953); and The Law and Procedure of the International Court of Justice 1951–4; Treaty Interpretation and Other Treaty Points, 33 Brit. Y.B. Int’l L. 203, 272–93 (1957).

100 Saying that “it had been the general practice of the United States to accept and follow the advisory opinions of the International Court of Justice, even when it had itself originally advanced different views.” The Court’s conclusions were “generally sound,” whereas the United States could not agree with the ILC’s suggestion that reservations should be allowed only if unanimously accepted by all parties. 6 UN GAOR C.6 (264th mtg.) at 71, UN Doc. A/C.6/SR.264 (1951).

101 GA Res. 598 (VI) (Jan. 12, 1952). The Secretary-General is the depositary of treaties adopted under UN auspices as well as of those for which the Secretariat of the League of Nations acted as depositary.

102 Earlier that year, India had transmitted its instrument of acceptance to the 1948 Convention establishing the Inter-governmental Maritime Consultative Organisation (IMCO). The acceptance was subject to what was called a “condition.” The Secretary-General as depositary of the Convention advised the IMCO Secretariat of the Indian ratification, describing the statement therein as being “in the nature of a reservation” and suggesting that it be considered by the IMCO Assembly. The IMCO Assembly asked the Secretary-General to invite members’ views on the Indian document and, in accordance with this decision, the Secretary-General informed the Indian Government that if he received no objection to the instrument of acceptance from any state party, he would include India as a party. In the light of replies received from France and the Federal Republic of Germany, the Secretary-General later informed India that he could not accept its instrument of acceptance as definitive. The Secretary-General added that this procedure was in accordance with his previous practice, which the General Assembly had recognized as applicable to conventions concluded prior to the adoption of Resolution 598 (VI), supra note 101. India objected that the Secretary-General had formed a judgment about the nature of India’s declaration that indicated adherence to the unanimity principle concerning the effect of reservations. In India’s view the Secretary-General should simply have accepted the Indian instrument of ratification and let the other contracting states draw their own conclusions about the consequences of the attached declaration.

At India’s request the question was included on the agenda of the General Assembly. India maintained that there was no General Assembly resolution authorizing the Secretary-General, as depositary, to apply the unanimity rule and that this practice was contrary to both the Court’s Genocide Convention opinion and Resolution 598 (VI). The General Assembly was asked to pronounce clearly on the principles and procedures that the Secretary-General should follow as depositary of conventions concluded prior to the adoption of Resolution 598 (VI), and especially with respect to the IMCO Convention. See Ruda, supra note 57, at 153–56.

103 GA Res. 1452B (XIV) (Dec. 7, 1959).

104 Espoused in its first (1950) and second (1951) reports on the law of treaties. The ILC believed it reasonable to assume that parties regard the provisions of a treaty as an integral whole, so that a reservation to any one of them might be deemed to impair its object and purpose. It criticized the compatibility test as too subjective. The work of the ILC on this subject is discussed in detail by Ruda, supra note 57, at 157–75.

105 For example, a large body of treaties governing labor conditions was drawn up by the International Labour Organisation; and shipping and civil aviation were becoming subject to extensive regulation by IMCO and the International Civil Aviation Organization.

106 Ruda, supra note 57, at 105.

107 Restatement, supra note 3, §313 comment b.

108 I. Sinclair, supra note 57, at 68.

109 [1951] 2 Y.B. Int’l L. Comm’n 125–31, UN Doc. A/CN.4/SER.A/1951/Add.l.

110 See text at notes 156–65 infra.

111 At the Vienna Conference several delegations argued for the adoption of a collective system. Australia considered that a reserving state should not be able to become a party to a treaty unless two-thirds of the contracting states expressly or impliedly accepted the reservation or stated when objecting to it that the other provisions of the treaty should enter into force for the reserving state. Other delegations such as Japan, Sweden and the United Kingdom supported consideration of the possibility of setting up some machinery for determining whether or not a reservation was compatible with the object and purpose of the treaty. However, this middle course was not favored by the majority. See United Nations Conference on the Law of Treaties, First Session, Official Records 117–20, UN Doc. A/CONF.39/11, UN Sales No. E.68.V.7 (1969).

112 1951 ICJ Rep. at 24.

113 Notwithstanding the Genocide Convention advisory opinion. A. McNair, supra note 9, at 168.

114 Those of Bangladesh, Brazil, Cyprus, Egypt, Iraq.Jamaica, Malawi, Mauritius, New Zealand, the Republic of Korea, Thailand, Tunisia and Turkey. Multilateral Treaties, supra note 3, at 171–83.

115 Mexico’s statement in respect of Malawi’s reservation was described by Mexico itself and by the Secretary-General, on October 8, 1987, in his initial notification to states parties as a “declaration.” UN Doc. C.N.210.1987.TREATIES-4 (IV.8), at 48–49. Only a few days later, on October 13, he characterized it as an objection in his report to the General Assembly on the status of CEDAW. UN Doc. A/42/627 (1987). However, the statement is worded quite differently from Mexico’s objections to other reservations (all of which employ a uniform formula), which suggests that the initial characterization of the statement, as something less than an objection, is the correct one.

116 Multilateral Treaties, supra note 3, at 171.

117 UN Doc. A/41/608, at 35 (1986).

118 A question obliquely posed by Canada in its response to the Secretary-General’s invitation to states to comment. Id. at 6.

119 Multilateral Treaties, supra note 3, at 173.

120 CEDAW, supra note 4, Arts. 9 and 16.

121 The Federal Republic of Germany objected to the reservations to Article 9(2), Article 10, Article 11(1)(b), Article 15(3) and Article 16; while Sweden and Mexico objected only to the reservations concerning Article 9(2), Article 15(3) and Article 16. UN Doc. C.N.251.1986.TREATIES-9 (IV.8).

122 CEDAW, supra note 4, Art. 16.

123 Id., Arts. 2(f), 5(a).

124 Id., Art. 15.

125 Id., Art. 16.

126 Id., Arts. 9(2), 15(4), and 16(1)(c) and (f).

127 UN Doc. C.N.78.1987.TREATIES-3 (IV.8).

128 UN Doc. C.N.210.1987.TREATIES-4 (IV.8).

129 UN Doc. A/41/608, at 32 (1986).

130 Under Article 9(2) of CEDAW, supra note 4. Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1986, UN Doc. ST/LEG/SER.E/5, at 161 (1987).

131 Restatement, supra note 3, §313 comment c.

132 None of the three reserving states that became parties in 1989 had had objections entered as of December 31, 1989, although two of the reservations are of a type that had previously attracted objections. Chile’s reservation—on points “not entirely compatible with Chilean legislation”—had parallels with Tunisia’s, and Libya’s was in the same terms as those of Bangladesh and Egypt—“accession cannot conflict with the laws on personal status derived from the Islamic Shariah.” See Multilateral Treaties, supra note 3, at 172, 175. It is difficult to determine whether this is simply attributable to tardiness or reflects disillusionment on the part of the Federal Republic of Germany, Mexico and Sweden with the objection process because of the lack of progress of the review of the earlier reservations.

133 Article 20(4)(a) of the Vienna Convention, supra note 1, provides: “In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting state of a reservation constitutes the reserving state a party to the treaty in relation to that other state if or when the treaty is in force for those states.” For subparagraph (b), see text following note 106 supra.

134 Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit. Y.B. Int’l L. 67, 88 (1976–77).

135 I. Sinclair, supra note 57, at 61; Ruda, supra note 57, at 190; Bowett, supra note 134, at 87; Restatement, supra note 3, §313 comment c (“Since other states could reject even a permissible reservation …”).

136 Ruda, supra note 57, at 190.

137 See Bowett, supra note 134, at 88.

139 Id.

140 The other ground, of course, being express prohibition by the treaty itself. Vienna Convention, supra note 1, Article 19(a).

141 Ruda, supra note 57, at 190.

142 Bowett, supra note 134, at 77.

143 The Court’s view was that “if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention.” 1951 ICJ Rep. at 29.

144 Id. at 24.

145 Id. at 26.

146 Id. at 27. See also the Interhandel Case (Switz. v. U.S.), 1959 ICJ Rep. 6, 55–59, 93–94, 116–19 (Judgment of Mar. 21,1959), where several judges of the Court viewed the reservation of the United States (in accepting the compulsory jurisdiction of the Court) to determine itself what is a domestic matter, as a nullity, because it was incompatible with the object and purpose of the Court’s Statute.

147 Restatement, supra note 3, §313 Reporters’ Note 4.

148 Id.

149 Bowett, supra note 134, at 84.

150 I. Sinclair, supra note 57, at 81 n.78.

151 For a full discussion on this point, see Koh, Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, 23 Harv. Int’l L.J. 71 (1982).

152 This is in reference to reservations falling under paragraph (c) of Article 19.

153 Although the Swedish Government put forward the view that “other states should object” to incompatible reservations. UN Doc. A/41/608, at 14 (1986).

154 Id. at 12–13 (Spain), 10–11 (Portugal).

155 On Sinclair’s view as to whether this provision can be utilized by an objecting state to preclude treaty relations only as regards part of a treaty, see text at note 108 supra and I. Sinclair, supra note 57, at 68.

156 Id. at 76.

157 Ruda, supra note 57, at 199.

158 Id. at 198.

159 For a full discussion on the debate on Article 21 at the Vienna Conference, see id. at 197–99. For the ILC draft article, then Article 19, see the ILC report, supra note 56.

160 The United States, the United Kingdom.

161 Ruda, supra note 57, at 199.

162 Id. at 200.

163 I. Sinclair, supra note 57, at 77; Ruda, supra note 57, at 200.

164 Ruda, supra note 57, at 200.

165 I. Sinclair, supra note 57, at 77. The court of arbitration in the 1977 UK/France Continental Shelf case looked at Article 21(3) in considering the legal effect of the combination of reservation and objection. It decided that the effect was not to render the provision that was the subject of the reservation wholly inapplicable, but to render it “inapplicable … only to the extent of the reservations as envisaged in such cases by Article 21(3).” Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf, 18 R. Int’l Arb. Awards 3, 38–41 (1977). This conclusion does not greatly clarify the situation since, as Sinclair points out, the consequence of the tribunal’s conclusion was that, in that case, owing to the nature of the reservation, the provision it related to did have to be excluded entirely. See I. Sinclair, supra note 57, at 75–77.

166 Article 2(1)(d) of the Vienna Convention, supra note 1, defines a reservation as 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.”

167 UN Doc. C.N.251.1986.TREATIES-9 (IV.8), at 2.

168 Id.

169 Buergenthal, The Advisory Practice of the Inter-American Human Rights Court, 79 AJIL 1,21 (1985).

170 And even those with presumably greater resources—witness Sweden’s inability to register its objections to CEDAW reservations on time.

171 Nov. 22, 1969, reprinted in Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System 25, OEA/Ser.L/V/II.71, doc. 6, rev.l (1988).

172 See Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Inter-Am. Ct. H.R., ser. A, No. 2 (Advisory Opinion of Sept. 24, 1982). The Inter-American Commission on Human Rights had sought a ruling regarding the date on which the Convention entered into force for a state that ratified it with a reservation.

173 Id., para. 35.

174 UN Doc. A/41/608, at 35 (1986).

175 UN Docs. C.N.93.1988.TREATIES-2 (IV.8) (Sweden), and C.N.88.1988.TREATIES-1 (IV.8) (Federal Republic of Germany).

176 UN Doc. A/41/608, at 35.

177 Multilateral Treaties Deposited with the Secretary-General: Status as at 31 De Cember 1988, UN Doc. ST/LEG/SER.E/7 (1989).

178 All except the reservations to Articles 5(b) and 16(1)(g) were withdrawn on July 21, 1986. UN Doc. A/42/627, at 14 (1987).

179 UN Doc. A/41/608, at 14.

180 See text at notes 131–32 supra.

181 Byrnes notes that “[m]any governments care whether the supervisory committees make positive or adverse comments on their human rights performance.” Byrnes, supra note 48, at 6. Governments care equally, if not more so, about the comments of other states parties.

182 Restatement, supra note 3, §313 Reporters’ Note 5.

183 See text at notes 12–16 supra on the number of reservations to the major human rights instruments.

184 See text at notes 25–26 and 29–30 supra on the remarks made by Japan and Turkey.

185 On the work of the CEDAW Committee generally, see Byrnes, supra note 48.

186 It is worth recalling in this regard Judge Alvarez’s dissenting opinion in the Genocide Convention case, 1951 ICJ Rep. at 49.

187 UN Doc. A/41/608, at 36 (emphasis added).

188 Id. at 35.

189 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Inter-Am. Ct. H.R., ser. A, No. 3, para. 61 (Advisory Opinion of Sept. 8, 1983), reprinted in 23 ILM 320 (1984) [hereinafter Death Penalty case].

190 Buergenthal, supra note 169, at 23–25.

191 Similar to Article 4 of the Covenant on Civil and Political Rights, supra note 16.

192 Death Penalty case, supra note 189, para. 61.

193 Buergenthal, supra note 169, at 25.

194 Id.

195 Id. at 26.

196 See “The one-tier test,” supra p. 306.

197 See notes 38 and 39 supra.