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Human Rights Treaties, Invalid Reservations, and State Consent

Published online by Cambridge University Press:  27 February 2017

Ryan Goodman
Ryan Goodman*
Affiliation:
Harvard Law School
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Extract

A continuing debate in international human rights law concerns the result of invalid reservations to multilateral treaties. The cardinal rule holds that a reservation cannot be incompatible with the object and purpose of a treaty. Yet a normative puzzle remains: what legal remedy should follow the determination of the invalidity of a reservation? Leading commentators have discussed a limited set of options. Three choices can be identified:

Type
Research Article
Information
American Journal of International Law , Volume 96 , Issue 3 , July 2002 , pp. 531 - 560
Copyright
Copyright © American Society of International Law 2002

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References

1 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 19, 1155 UNTS 331; Anthony Aust, Modern Treaty Law And Practice 110-12 (2000).

2 E.g., Belilos Case: Note of the Public Hearings, Oct. 26,1987 (morning), Eur. Ct. H.R. Doc. Cour/Misc (87) 237, at 45-47 (statement by Luzius Wildhaber) (on file with author); Horn, Frank, Reservations And Interpretative Declarations To Multilateral Treaties 219 (1988)Google Scholar; Cameron, Iain & Horn, Frank, Reservations to the European Convention on Human Rights: The Belilos Case, 1990 German Y.B. Int’l L. 69, 115–16 Google Scholar.

3 This article concerns human rights treaties exclusively; whether its conclusions extend to other areas of public international law raises important considerations that are not addressed here. Its implications are especially limited, or nonexistent, in areas in which treaty regimes generally do not permit reservations—e.g., arms control. The reasons that some states enter human rights regimes—e.g., to lock in domestic policy choices or to promote obligations in other countries—may have analogues in other areas, such as global environmental regulation or humanitarian law. However, one would have to study treaty practices and governmental objectives closely before rendering any conclusions on the efficacy or normative appeal of severability in those domains.

4 Observations by France on General Comment 24, 4 Int’l Hum. Rts. Rep. 6 (1997) [hereinafter France Observations] ; Observations by the United Kingdom on General Comment 24,3 Int’l Hum. Rts. Rep. 261 (1996) [hereinafter UK Observations]; Observations by the United States on General Comment 24, 3 Int’l Hum. Rts. Rep. 265 (1996) [hereinafter U.S. Observations]. For the Human Rights Committee’s General Comment No. 24, see UN Doc. CCPR/C/21/Rev.l/Add. 6 (1994), available at <http://www.unhchr.ch/tbs/doc.nsf>.

5 Report of the International Law Commission on the Work of Its Forty-ninth Session, UN GAOR, 52d Sess., Supp. No. 10, at 107, paras. 83, 142, UN Doc. A/52/10 (1997). 6 Kennedy v. Trinidad and Tobago, Communication No. 845/1999, app., UN Doc. CCPR/C/67/D/845/1999 (dissenting opinion).

7 See, e.g., Baratta, Roberto, Should Invalid Reservations to Human Rights Treaties Be Disregarded’? 11 Eur. J. Int’l L. 413 (2000)CrossRefGoogle Scholar; Curtis, A. Bradley & Jack, L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 Pa. L. Rev. 399, 438 (2000)Google Scholar; cf. Ghandhi, P. R., The Human Rights Committee and the Right of Individual Communication 376 (1998)Google Scholar.

8 See, e.g., U.S. Observations, supra note 4, at 269; Bradley & Goldsmith, supra note 7, at 438.

9 Bradley & Goldsmith, supra note 7, at 438.

10 See, e.g., France Observations, supra note 4, at 8; UK Observations, supra note 4, at 264-65; U.S. Observations, supra note 4, at 269; GHANDHI, supra note 7, at 376; Baratta, supra note 7, at 419,420; Bradley & Goldsmith, supra note 7, at 436-37.

11 See, e.g., Elena, A. Baylis, General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties, Berkeley J. Int’l L. 277,303,326 (1999)Google Scholar ; Henry, J. Bourguignon, The Belilos Case: New Light an Reservations to Multilateral Treaties, 29 Va. J. Int’l L. 347, 380, 382 (1989)Google Scholar; Richard, W. Edwards, Jr., Reservations to Treaties, 10 Mich. J. Int’l L. 362, 373 (1989)Google Scholar.

12 See, e.g., Cameron & Horn, supra note 2, at 116; William, A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party? 21 Brook.J. Int’l L. 277, 317 (1995)Google Scholar; cf AUST, supra note 1, at 118-19 (not even entertaining this remedy as an option). 13 U.S. Observations, supra note 4, at 268-69.

14 E.g., Bradley & Goldsmith, supra note 7, at 438.

15 Vienna Convention, supra note 1; Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15 (May 28) [hereinafter Reservations].

16 Jean, Kyongun Koh, Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, 23 Harv. Int’l L J. 71, 80–84 (1982)Google Scholar (describing different approach followed in Latin American regional agreements).

17 Sinclair, Ian, The Vienna Convention on The Law of Treaties 54–56 (2d rev. ed. 1984)Google Scholar; Fitzmaurice, G. G. , Reservations to Multilateral Conventions, 2 Int’l & Comp. L.Q. 1 (1953)Google Scholar.

18 Vienna Convention, supra note 1, Arts. 19-21; Reservations, 1951 ICJ Rep. at 26-27.

19 Clark, Belinda, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AJIL 281,306 (1991)Google Scholar.

20 Reservations, 1951 ICJ REP. at 21.

21 Id. at 24. The majority view among legal scholars is that, under the modern system, individual states cannot “accept” state R’s incompatible reservation, unless all state parties consent to such a fundamental change. See, e.g., AUST, supra note 1, at 117 (describing contrary view as “most unlikely”); HORN, supra note 2, at 121; Bowett, D.W. , Reservations to Non-Restricted Multilateral Treaties, 1976-77 Brit. Y.B. Int’l L. 67, 83 Google Scholar; Clark, supra note 19, at 304; Redgwell, Catherine, Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties, 1993 Brit. Y.B. Int’l L. 245, 257 Google Scholar; cf. Sinclair, supra note 17, at 81 n.78. But see José, M. Ruda, Reservations to Treaties, 146 Recueil Des Cours 95, 111, 190 (1975 III)Google Scholar.

22 Reservations, 1951 ICJ Rep. at 26-27, 24.

23 Bradley & Goldsmith, supra note 7, at 438.

24 Id. (emphasis added).

25 A severability regime will also be able to capture benefits of the second remedial option because the system would have the decision between severance and voiding the state’s membership determined by an evaluation of state consent in the given circumstance.

26 See infra text at notes 39-65 & 83-100.

27 See infra text at notes 39-65.

28 Providing a catalogue of these types of reservations is beyond the scope of this article. Depending on the interpretive material used to evaluate whether a reservation is essential, such a catalogue would probably require analyzing the legislative history of a country’s ratification and could not be discerned from the face of the reservation alone. Representative examples of inessential reservations might include the Swiss reservation in Belilos, Turkey’s reservation in Loizidou, and the types of “phase out” reservations described below. Some states’ reservations on rights to a fair trial—for example, Russia’s reservations to the European Convention on Human Rights—might also fit this category. In short, for a significant set of reservations a third-party institution could potentially (even mistakenly) find the condition incompatible with the object and purpose of the treaty, but the state would not have predicated joining the regime on that condition.

29 This approach resembles approaches taken in American contracts law and statutory construction. See Champlin Ref. Co. v. Corp. Comm’n of Okla., 286 U.S. 210, 234 (1932) (“Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”); Restatement (Second) of Contracts §184(1) (1981) (“If less than all of an agreement is unenforceable . . . , a court may nevertheless enforce the rest of the agreement in favor of a party . . . if the performance as to which the agreement is unenforceable is not an essential part of the agreed exchange.”).

30 Interhandel (Switz. v. U.S.), Preliminary Objections, 1959 ICJ Rep. 6, 94 (Mar. 21) (Armand-Ugon, J., dissenting).Google Scholar

31 Vienna Convention, supra note 1, Art. 21(3).

32 Vienna Convention, supra note 1, Art. 21(1); SINCLAIR, supra note 17, at 76-77 (“Most commentators accordingly believe that, even in the case of a ‘modifying’ reservation, the legal effects of an objection to and acceptance of the reservation are identical, when the treaty remains in force between the objecting and reserving States.”).

33 SINCLAIR, supra note 17, at 63 (explaining that this phenomenon results “if only for the reason that many administrations are simply not equipped to keep under constant review reservations to multilateral conventions formulated by other States”); see also AUST, supra note 1, at 115-16 (“Even in the best managed ministries reservations are not always given the attention they deserve If one studies any list of reservations it is surprising how few states object even though a clearly objectionable reservation has been made.”).

34 See Goodman, Ryan, Norms and National Security: The WTO as a Catalyst for Inquiry, 2 Chi. J. Int’l L. 101 (2001)Google Scholar.

35 See, e.g., Clark, supra note 19, at 281.

36 Magnuson, Lars, Elements of Nordic Practice 1997: The Nordic Countries in Coordination, 67 Nordic J. Int’l.L. 345, 350 (1998)Google Scholar (reproducing text of Swedish statement on behalf of Nordic countries before Sixth Committee, Nov. 4, 1997).

37 Another problem in giving a state the decisional choice is that it does not appropriately address issues of justice in the instant case (e.g., the interest of die defendant in a juvenile death penalty case). With regard to the case at hand, is the state bound to the treaty with the reservation voided or was the state’s accession never truly valid? The answer to these questions may affect not only the remedy for the case at hand, but also retrospective relief for cases that proceeded under the treaty when it was considered to be in force.

38 Cassese, Antonio, A New Reservations Clause, in Recueil d’ études de droit International en Hommage Á Guggenheim, Paul 266, 280 (1986)Google Scholar (suggesting the same problem might arise in a collegiate system in which the collection of state parties decides that state R’s reservation is invalid, but state R chooses neither to remove the reservation nor to withdraw from the treaty).

39 Moravcsik, Andrew, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int’l Org. 217, 219 (2000)Google Scholar.

40 Id. at 220.

41 Buergenthal, Thomas, Modern Constitutions and Human Rights Treaties, 36 Colum. J. Transnat’l L. 211, 214 (1997)Google Scholar.

42 See, e.g., ARM. CONST. Art. 6, cl. 5; BULG. CONST. Art. 5, §4; CZECH REP. CONST. Art. 10; EST. CONST. Art. 123, §2; GEOR. CONST. Art. 6, §2; KAZ. CONST. Art. 4, §3; MOLD. CONST. Art. 4, §2; POL. CONST. Art. 91, §2; ROM. CONST. Art. 20, §2; RUSS. CONST. Art. 15, §4; SLOV. CONST. Art. 11; TAJ. CONST. Art. 10, cls. 3-4. For English translations of the above Constitutions, see Constitutions of The Countries of The World (Albert, P. Blaustein & Gisbert, H. Flantzeds., 1971-)Google Scholar.

43 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 [hereinafter ICESCR]; International Covenant on Civil and Political Rights, Dec. 16,1966,999 UNTS 331 [hereinafter ICCPR]; First Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16,1966, 999 UNTS 171. Between 1990 and 1999, the following states ratified the ICESCR, the ICCPR, and the Optional Protocol to the ICCPR, respectively: Armenia (1993,1993,1993); Bosnia and Herzegovina (1992,1993,1995); Croatia (1991,1992,1995); the Czech Republic (1993,1993,1993); Estonia (1991,1991,1991); Georgia (1994,1994,1994); Kyrgystan (1994, 1994, 1995); Latvia (1992, 1992, 1994); Lithuania (1991, 1991, 1991); Macedonia (1994, 1994, 1994); Slovakia (1993,1993,1993);Slovenia (1992,1992,1992);Tajikistan (1999,1999,1999);Turkmenistan (1997,1997,1997); Uzbekistan (1995,1995,1995). Office of the UN High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties (May 13, 2002), at <http://www.unhchr.ch/pdf/report.pdf>.

44 See, e.g., Law on International Treaties, Oct. 16, 1997 (Geor.), translated in 4 SUDEBNIK 389 (1999); Law on International Treaties, July 21, 1999 (Kyrg.), translated in id. at 410; Edict of the President of the Republic of Kazakhstan Having the Force of a Law on the Procedure for the Conclusion, Performance, and Denunciation of International Treaties, Dec. 12,1995, translated in Iid. at 405 (1996); Federal Law on International Treaties of the Russian Federation, June 16, 1995, translated in id. at 456; Law on International Treaties, Dec. 22, 1995 (Uzb.), translated in id. at 487.

45 Teitel, Ruti, Transitional Justice 20-21, 33-34 (2000)Google Scholar.

46 See, e.g., infra text at notes 50-53.

47 Vladlen, S. Vereshchetin, New Constitutions and the Old Problem of the Relationship Between International Law and National Law, 7 Eur. J. Int’l L. 29 (1996)Google Scholar (describing recent constitutional court cases in Hungary, Poland, and Russia).

48 Gennady, M. Danilenko, International Law in theRussian Legal System, 91 ASIL PRoc. 295, 295 (1997)Google Scholar.

49 Gennady, M. Danilenko, The New Russian Constitution and International Law, 88 AJIL 451, 459 (1994)Google Scholar.

50 Ahdieh, Robert, Russia’s Constitutional Revolution 13,18–19 (1997)Google Scholar; Alexander, N. Domrin, Issuse and Options in the Soviet Transition to the Rule of Law, Coexistence: A Review of East-West and Development Issues, Mar. 1993, at 1,5 Google Scholar.

51 Quoted in Gennady, M. Danilenko & Burnham, William, Law and Legal System of the Russian Federation 34 (2d ed. 2000)Google Scholar.

52 Danilenko, supra note 49, at 461.

53 Danilenko, supra note 48, at 296; cf. Lori Fisler, Damrosch, International Human Rights Law in Soviet and American Courts, 100 Yale L.J. 2315,2324 (1991)Google Scholar (“Viewing the linkage from the other direction, Soviet jurists have also emphasized that establishing the primacy of international human rights law could help consolidate the domestic rule of law within the Soviet Union.”).

54 The Labor Code Case, Vestnik Konstitutsionnogo Suda RF [Vestn. Konst. Suda RF], 1993, No. 1, at 29, reprinted in DANILENKO & BURNHAM, supra note 51, at 30, 32.

55 DANILENKO & BURNHAM, supra note 51, at 33. Danilenko and Burnham also explain that “this broad clause [Article 28 of the 1978 Constitution] was never interpreted as a general incorporation of international law into the Soviet or Soviet Russian law.” Id.

56 Id. at 34.

57 CONST. Art. 15, §4.

58 Id. Art. 46.

59 Henderson, Jane, Reference to International Law in Decided Cases of the First Russian Constitutional Court, Constitutional Reform and International Law in Central and Eastern Europe 59, 66–70 (Rein, Mullerson et al. eds., 1998)Google Scholar (collecting early cases); see also AHDIEH, supra note 50, at 154 (describing importance of Court’s reliance on international norms in “raising Russia’s constitutional standards”); DANILENKO & BURNHAM, supra note 51, at 30.

60 Danilenko, supra note 48, at 300.

61 Id. at 298 (“‘Guiding explanations’ are abstract opinions that are binding on all lower courts.”).

62 Ruling of the Plenary Session of the Supreme Court of the Russian Federation, On the Judicial Practice Concerning Verification of the Legality and Justification of Arrests or the Extension of Periods of Detention, Biulleten’ Verkhovnogo Suda RF [Biull. Verkh. Suda RF], 1995, No. 1, at 3, translated in DANILENKO & BURNHAM, supra note 51, at 43.

63 Id.

64 Ruling of the Plenary Session of the Supreme Court of the Russian Federation, On Some Questions Concerning the Application of the Constitution of the Russian Federation by Courts, Biull. Verkh. Suda RF, 1996, No. 1, at 3, translated in DANILENKO & BURNHAM, supra note 51, at 41.

65 DANILENKO & BURNHAM, supra note 51, at 43; see also In re Belichenko and Others, Vestn. Konst. Suda RF, 1998, No. 1, at 47, translated in DANILENKO & BURNHAM, supra, at 44-45 (Moscow Regional Court opinion holding ICCPR prohibition against double jeopardy trumps Russian Criminal Procedure Code).

66 Moravcsik, supra note 39, at 242.

67 Id. at 244.

68 Id. at 229; see also id. at 243.

69 Goldsmith, Jack, International Human Rights and the United States Double Standard, 1 Green Bag (n.s.) 365 (1998)Google Scholar.

70 Jack, L. Goldsmith & Eric, A. Posner, A Theory of Customary International Law, 66 U. Chi. L. Rev. 1113, 1175 (1999)Google Scholar.

71 But see infra text at note 83 (disagreeing with the empirical accuracy of Moravcsik’s model for Nordic states, Belgium, the Netherlands, and others). It should be noted that the United Kingdom appears to be moving from this category of state behavior to one more accepting of international human rights obligations. The enactment of the Human Rights Act in 1998 may make it necessary to cabin my account of UK practice as apre-1998 representation of this modality.

72 International Covenant on Civil and Political Rights: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong. 16 (1992) (statement of Schifter, Richard, assistant secretary of state for human rights and humanitarian affairs)Google Scholar (quoting letters from Pres. George Bush to Sen. Claiborne Pell and Sen. Jesse Helms, Aug. 8, 1991)).

73 M a t 17.

74 Id.

75 Id.

76 Id.

77 Id. at 18.

78 Id.

79 Id.

80 Natalie, Hevener Kaufman, Human Rights Treaties and The Senate 173(1990)Google Scholar; see also id. at 159,161,174.

81 Mat 151.

82 Cf. Sloss, David, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999)Google Scholar (arguing that executive branch and Senate have had different interpretations of self-executing declarations across different treaties).

83 Moravcsik, supra note 39, at 229; see supra text at notes 66—68.

84 Klabbers, Jan, Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, 69 Nordic J. Int’l L. 179 (2000)CrossRefGoogle Scholar; see also Mikaelsen, Laurids, Elements of Nordic and International Practice in the Year of 1996: Denmark, 66 Nordic J. Int’l L. 319, 322 (1997)Google Scholar.

85 Klabbers, supra note 84, at 185-86.

86 Päivi, Kaukoranta & Lehto, Manta, Elements of Nordic Practice 1998: The Nordic Countries in Coordination, 68 Nordic J. Int’l L. 205, 209–10 (1999)Google Scholar (reproducing text of Swedish statement on behalf of Nordic countries before Sixth Committee, Oct. 29, 1998); see also Magnuson, supra note 36, at 350 (reproducing text of Swedish statement on behalf of Nordic countries before Sixth Committee, Nov. 4, 1997).

87 Henry, G. Schermers, Netherlands, in 7 The Effect of Treaties in Domestic Law 109,112 (Francis, G. Jacobs & Roberts, Shelley eds„ 1987)Google Scholar.

88 CONST. Art. 94; see also Schermers, supra note 87, at 113; Sondaal, M. H. H., Some Features of Dutch Treaty Practice, 1988 Neth.Y.B. Int’l L. 179, 240 Google Scholar.

89 Const. Art. 120 (“The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.”).

90 Henry, G. Schermers, Some Recent Cases Delaying the Direct Effect of International Treaties in Dutch Law, 10 Mich. J. Int’l L. 266, 268 (1989)Google Scholar.

91 See, e.g., John, H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 AJIL 310, 320 (1992)Google Scholar.

92 The degree to which the Dutch system is an outlier is questionable. The constitutional provision empowering courts to invalidate domestic law states only that “[s]tatutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties.” CONST. Art. 94 (emphasis added). Under Article 91(3), treaties that conflict with the Constitution must receive supermajority approval at the same level as required to amend the Constitution itself. Alkema, E. A. , Foreign Relations in the Netherlands Constitution of 1983, 31 Neth. Int’l L. Rev. 307, 320 (1984)Google Scholar (“Article 91, paragraph 3, requires a qualified majority for the approval of treaties containing provisions which conflict with the Constitution. The two-thirds majority is the same as that required for a constitutional amendment.”).

93 See, e.g., Aalt, Willem Heringa, Judicial Enforcement of Article 26 of the International Covenant on Civil and Political Rights in the Netherlands, 1993 Neth. Y.B. Int’l L. 139,178 Google Scholar (describing cases by the Centrale Raad van Beroep, the highest court in public service and social security matters, striking down legislation in violation of ICCPR); id. At 174-75 (describing Supreme Court cases holding legislation violated Article 26 of the ICCPR but allowing Parliament to choose remedy); see also id. at 145 n.18 (“On a yearly basis hundreds of cases, dealing mainly with human rights treaties, such as the European Convention and the ICCPR, are decided.”); cf Schermers, supra note 87, at 113-14 (collecting cases invalidating legislation under human rights and other treaties).

94 Cf. Erades, L. , Interactions Between International and Municipal Law: A Comparative Case Law Study 627–34 (Fitzmaurice, Malgosia & Flinterman, Cees eds., 1993)Google Scholar (collecting cases).

95 See, e.g., T.S.M. Compagnie d’Assurance Transports A.G. v. Geisseler Transport, 1993 Neth. Y.B. Int’l L. 395 (Sup. Ct. Nov. 16, 1990). The Court held:

The Dutch legislature has not so far complied with this obligation. It follows that the Dutch courts, which are obliged to interpret and apply Dutch law as far as possible in such a way that the State complies with its treaty obligations, must fill this “gap in the legislation” . . . in a manner that is in keeping with the system of the law and consistent with the cases regulated by law.

Id. at 397 (citation omitted).

96 Bremi B.V. and Elart-Gunneman B.V. v. Amcor Ltd., 1982 Neth.Y.B. Int’l L. 371,374 (Ct. App. Arnhem Oct. 1, 1979) (emphasis added); see also Schermers, supra note 87, at 117 (referring to this case as demonstrating that “[a] reservation should be restrictively interpreted”). Compare K. M. v. Netherlands, 1989 Neth.Y.B. Int’l L. 322, 324 (allowing extradition based on narrow interpretation of Dutch reservation to European Convention on Extradition).

97 X. v. Raad voor de Kinderbescherming te s-Gravenhage [The Hague Child Care and Protection Board], 1989 Neth. Y.B. Int’l L. 341 (Sup. Ct. Jan. 29,1988) (holding a child maintenance order enforceable despite its having been issued at a time when the reservation—which barred enforcement of such orders—was still in effect).

98 See, e.g., Heringa, supra note 93, at 170.

99 Another indication of prevailing political sentiments is the Dutch minister for foreign affairs’ response to interrogatories from Parliament on reservations to the Biological Weapons Convention. The minister stated: “Reservations which are incompatible with the object and purpose of a treaty are not void in international law, though a state which makes such reservations can never invoke them successfully.” Reservations to the Biological Weapons Convention, 1982 Neth. Y.B. Int’l L. 216,216-17. Although a premise of his explanation appears flawed, the minister’s statement suggests acceptance of treaty practice in which a reservation may not be available to a state well after ratification because of its incompatibility with the object and purpose of the agreement.

100 Sondaal, supra note 88, at 240.

101 Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A) (1987).

102 Id. at 28; Edwards, supra note 11, at 376—77 (“[Presumably motivated by a desire to remain a party to the treaty, Switzerland argued against this solution [of nullifying its status as a state party] . . . “ ).

103 Eur. Ct. H.R. Doc. Cour/Misc (87) 237, supra note 2, at 45.

104 Id.

105 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, Art. 4, 660 UNTS 195. 106 International Convention on the Elimination of All Forms of Racial Discrimination, Declarations and Reservations (Feb. 5, 2002), at <http://www.unhchr.ch/html/menu3/bZtreaty2_asp.htm>.

107 During a periodic report to the Committee on Racial Discrimination, Australia explained that it had recently introduced civil penalties (and some criminal sanctions) in accordance with Article 4(a). UN Doc. CERD/C/335/Add.2 (1999). Australia acknowledged that because Article 4 envisions criminal sanctions against racial vilification, “[t] he Government... is not in a position to remove the reservation.” Id., para. 416. Admittedly, one might take this to mean that Australia’s reservation is still important to the state’s relationship to the treaty. Whether it is, or ever was, critically important is the type of question that this article suggests is the relevant one to ask.

108 Notably, the Italian government adopted a position similar to Australia’s, in discussing its reservations to Article 4(a). UN Doc. CERD/C/SR.1077, para. 11 (1995).

109 Fisheries Jurisdiction (Spain v. Can.), 1998 ICJ Rep. 432 (Dec. 4). The case involved a dispute over Canada’s alleged seizure of a Spanish vessel in international waters. The Court held that it did not have jurisdiction because Canada’s declaration of acceptance of the Court’s compulsory jurisdiction included a reservation barring adjudication of matters relating to conservation and management measures.

110 Id. at 457, para. 59.

111 Id. at 457, para. 60 (quoting Canadian minister for foreign affairs, May 12, 1994).

112 I should note at the outset of this section that the following discussion involves a more detailed theoretical analysis of the practice of nondemocratic states than is needed for the descriptive argument. However, I delve into that aspect because the normative questions raised cannot be answered without an appreciation of the theoretical framework.

113 Risse, Thomas, “Let’s Argue!”: Communicative Action in World Politics, 54 Int’l Org. 1 (2000)Google Scholar; Risse, Thomas & Stephen, C. Ropp, International Human Rights Norms and Domestic Change, in The Power of Human Rights 234 (Risse, Thomas, Stephen, C. Ropp, & Sikkink, Kathryn eds., 1999)CrossRefGoogle Scholar; Risse, Thomas & Sikkink, Kathryn, The Socialization of International Human Rights Norms into Domestic Practices: Introduction , in id. at 1, 11 Google Scholar.

114 Risse & Sikkink, supra note 113, at 25.

115 Id. at 29.

116 M a t 25.

117 M a t 31.

118 Risse, Ropp, and Sikkink sometimes write in teams of two and sometimes alone. All three are the editors of The Power of Human Rights, supra note 113.

119 See, e.g., Risse & Ropp, supra note 113, at 248.

120 Stephen, C. Ropp & Sikkink, Kathryn, International Norms and Domestic Politics in Chile and Guatemala, in The Power of Human Rights, supra note 113, at 172 Google Scholar.

121 Id. at 184.

122 Id. at 190.

123 Augusta, Pinochet Ugarte, President of the Republic, to the Honourable Junta de Gobierno, Communication BOL 913–10 (Nov. 11, 1987)Google Scholar, at <http://www.remember-chile.org.uk/news/pintctsl.htm> [hereinafter Pinochet Comm. 913-10].

124 Id. The communication stated:

From the point of view of Chile’s international position, the aspiration to become a party to the Convention, reflects its actual decision to recognise in practice the existence of fundamental human rights. In this way, it will be possible to disprove the accusations which have been put forward systematically against our country in international forums on human rights.

125 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, Art. 2, 1465 UNTS 85.

126 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Declarations and Reservations, atn.16 (Feb. 5, 2001), at <http://www.unhchr.ch/html/menu3/b/treatyl2_asp.htm> [hereinafter Torture Declarations and Reservations].

127 Report of the Committee Against Torture, UN GAOR, 45th Sess., Supp. No. 44, at 64, para. 349, UN Doc.A/45/44 (1990).

128 Torture Declarations and Reservations, supra note 126, at n.16.

129 E.g., id., Objections by Australia, Austria, Bulgaria, and Sweden.

130 Report of the Committee Against Torture, supra note 127, at 67, para. 366.

131 Id., para. 364.

132 Pinochet Comm. 913-10, supra note 123.

133 Id.

134 Republic of Chile, Ministry of Foreign Affairs, Technical Report (n.d. [1987]), at <http://www.rememberchile.org.uk/news/pintcts2.htm> (visited June 5, 2002).

135 Torture Declarations and Reservations, supra note 126, at n.16.

136 Compare supra part III, “The Modalities of Conditional Consent” (discussing aspects of this choice in terms of a time 1 (point of ratification) versus a time 2 (point of case or controversy at hand)).

137 Risse, supra note 113, at 28-29. A government’s interactions with international and domestic audiences can be conceived as a two-level game. See Double-Edged Diplomacy: International Bargaining and Domestic Politics (Peter, B. Evans, Harold, K. Jacobson, & Robert, D. Putnam eds., 1993)Google Scholar. In the context of nondemocratic states, this dynamic can help produce democratic change because the internal and external audiences share common, mutually reinforcing, liberal democratic objectives. The same may not be true, however, for treaty practices of democratic states. In those cases, a government’s actions at the international level may be used to lock out, or constrain, future democratic choices. In that respect, a severability system may appear to work against democratic norms; but a critical point is that for these states, at time 1, ratification with severable reservations is a legitimate exercise of democratic expression. In terms of implications for time 2, one might view these practices as a form of constitutionalism or self-binding behavior in which democratic polities often engage.

138 See infra text at note 139.

139 Although the presumption concerns a factual determination and severance is a legal conclusion, for the sake of simplicity I will call the presumption a “severance presumption.” Logically, a “nonseverance presumption” would have the adjudicator presume a reservation to be an essential condition of a state’s consent to ratification unless contrary proof is provided.

140 Domestic legal scholars may be familiar with this type of presumption, as it arises in jurisprudential questions regarding the severability of invalid provisions of statutes. In the domestic context, American legal scholars have sharpened an analogous doctrinal question to determining which presumption—one favoring severance or one against it—best fits drafters’ intent and dynamics of the legislative process. See, e.g., Sherwin, Emily, Rules and Judicial Review, 6 Legal Theory 299 (2000); Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945 (1997)Google Scholar.

141 Craswell, Richard, Contract Law: General Theories, in 3 Encyclopedia of Law and Economics 1 (Bouckaert, Boudewijn & Gerrit, de Geest eds., 2000)Google Scholar; Ayres, Ian & Gertner, Robert, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 91 (1989)Google Scholar.

142 See Craswell, supra note 141, at 4-5 (describing difficulties in adopting majoritarian default rules in highly heterogeneous contexts).

143 See, e.g., Cass, R. Sunstein, Must Formalism Be Defended Empirically? 66 U. Chi. L. Rev. 636, 647 (1999)Google Scholar.

144 Ayres & Gertner, supra note 141, at 91; see also id. at 129-30.

145 See, e.g., Jack, L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Col. L. Rev. 1395, 1430–36 (1999)Google Scholar (applying these default rules as analogs for evaluating strong presumptions and formalist rules in U.S. foreign relations law); Sunstein, supra note 143, at 645-50.

146 Stephen, D. Krasner, Sovereignty: Organized Hypocrisy (1999)Google Scholar.

147 See, e.g., Chayes, Abram & Antonia, Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements (1995)Google Scholar; Raustiala, Kal, Sovereignty and Multilateralism, 1 Chi.J. Int’l L. 401, 417–18 (2000)Google Scholar; Anne-Marie, Slaughter, The Real New World Order, Foreign Aff., Sept.-Oct. 1997, at 183 Google Scholar.