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SEVERING RESERVATIONS

Published online by Cambridge University Press:  19 June 2014

Kasey L. McCall-Smith
Kasey L. McCall-Smith*
Affiliation:
Lecturer in Law, University of Edinburgh, kasey.mccall-smith@ed.ac.uk.
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Abstract

How to address invalid reservations has been an ongoing struggle for States, legal practitioners and academics. This article considers the evolution of severability and whether States intend the language of severance to serve as a signal of their view on legality to reserving States or simply use severability to bolster their own public reputation. Over the past decade, State practice toward invalid reservations to norm-creating treaties has shifted and both this shift and its impact on treaty law must be acknowledged. The arguments and assertions that follow rely heavily on contemporary practice relating to reservations made to the core UN human rights treaties which, admittedly, limits the application of the doctrine in many ways. Review of State practice, especially to human rights treaties, demonstrates that a broader number of States are slowly opting for severability when defining their treaty relations with States authoring invalid reservations. The doctrine of severability is gaining a slow but steady following by a growing number of States though there is tension about whether severing reservations is lex specialis, pertaining only to human rights treaties, or lex ferenda. This article examines the evolving practice and forecasts the role it will play in the future of treaty law.

Keywords

human rightsinvalid reservationopposabilitypermissibilityreservationsseverabilitytreaty lawVienna Convention on the Law of Treaties
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 3 , July 2014 , pp. 599 - 634
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (Vienna Convention).

2 ILC ‘Guide to Practice on Reservations to Treaties’ (2011) UN Doc A/66/10, para 75 (Guide to Practice).

3 (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention).

4 Both States made other interpretive declarations in addition to the reservations to the automatic referral to the ICJ in the event of a dispute among States. Bulgaria ultimately withdrew its reservation on 24 June 1992, see 78 UNTS 318. The Philippines continues to maintain the reservation.

5 See UN Treaty Section of the Office of Legal Affairs ‘Summary of the Practice of the Secretary-General as Depositary of Multilateral Treaties’ (1999) UN Doc ST/LEG/7/Rev.1, para 173; Swaine, ET, ‘Reserving’ (2006) 31 YaleJIntlL 307Google Scholar, 312–3; Schabas, WA, ‘Reservations to Human Rights Treaties: Time for Innovation and Reform’ (1994) 32 CanadianYBIL 39Google Scholar, 45; Redgwell, C, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 BYBIL 245Google Scholar, 248; Fitzmaurice, GG, ‘Reservations to Multilateral Conventions’ (1953) 2 ICLQ 1Google Scholar, 2.

6 T Lie, ‘Secretary-General of the UN to the President of the ICJ, Request for Advisory Opinion’ (Leg. 46/03 (6)) New York, 17 November 1950. Question III has been omitted as it is not relevant to the present discussion.

7 See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Advisory Opinion) [1951] ICJ Rep 15, Pleadings, Oral Arguments, Documents, 28 May 1951, Written Statement by The Organization of American States (14 December 1950) 15 (OAS Statement to the ICJ).

8 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 15 (Genocide Advisory Opinion).

9 Written statements were received by the Organization of American States, USSR, Jordan, United States of America, United Kingdom, Israel, the International Labour Organization, Poland, Czechoslovakia, the Netherlands, Romania, Ukraine, Bulgaria, Byelorussia and the Philippines and the Court heard oral Statements from the United Kingdom, France and Israel. Genocide Opinion, Pleadings, Oral Arguments, Documents, Minutes of the Sittings held 10–14 May 1951 and 28 May 1951, 301.

10 For a brief summary of the UN Secretary-General's practice prior to 1952 see UN Treaty Section (n 5) paras 168–172.

11 Lauterpacht, H, ‘Some Possible Solutions of the Problem of Reservations to Treaties’ (1953) 39 Transactions of the Grotius Society 97Google Scholar, 97.

12 OAS Statement to the ICJ (n 7) 19, referencing a memorandum from Uruguay to the Sixth Committee of the UNGA.

13 ‘Note: The Effect of Objections to Treaty Reservations’ (1951) 60 YaleLJ 728, 731.

14 Fitzmaurice (n 5) 10–11, fn 20, citing Report of the Secretary-General, UN Doc A/1372, para 20.

15 Genocide Advisory Opinion (n 8) Oral Arguments, Documents, Written Statement by the United Kingdom (January 1951), Pleadings, 53 (UK Statement to the ICJ); Liang, Y, ‘The Third Session of the International Law Commission: Review of Its Work by the General Assembly’ (1952) 46 AJIL 483CrossRefGoogle Scholar, 492, citing UNGA, 6th Sess, Official Records of the Sixth Committee, 273rd meeting, paras 34 and 36.

16 OAS Statement to the ICJ (n 7) 15.

17 ibid 18.

18 ibid 20.

19 Genocide Advisory Opinion (n 8) 25.

20 ibid 26; For a historical summary of the debate about integrity versus universality see Redgwell (n 5) 246–9; Fitzmaurice (n 5) 8.

21 Higgins, R, ‘Introduction’ in Gardner, JP (ed), Human Rights as General Norms and a State's Right to Opt Out: Reservations and Objections to Human Rights Conventions (BIICL 1997) xixGoogle Scholar.

22 The majority opinion was supported by Judges Basdevant, Winiarski, Zoričić, de Visscher, Klaestad, Badawi and Pasha. There were dissenting opinions by Judges Guerrero, McNair, Read, Mo and Alvarez. Alvarez filed a separate dissenting opinion.

23 Genocide Advisory Opinion (n 8) 29.

24 Genocide Advisory Opinion (n 8) 27.

25 ibid.

26 ibid 23, 29.

27 Vienna Convention (n 1) art 19: ‘A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.’

28 Aust, A, Modern Treaty Law and Practice (3d edn, CUP 2013) 125Google Scholar; Hathaway, O, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 YaleLJ 1935Google Scholar, 1952; MG Schmidt ‘Reservations to United Nations Human Rights Treaties—The Case of the Two Covenants’ in JP Gardner (ed), (n 21) 21; S Marks, ‘Three Regional Human Rights Treaties and Their Experience of Reservations’ in JP Gardner (ed) (n 21) 35–63, 61; Koh, JK, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’ (1982) 23 HarvIntlLJ 71Google Scholar, 73.

29 See ILC ‘Guide to Practice on Reservations to Treaties, with commentaries as provisionally adopted by the ILC at its 62nd session’ (2010) UN Doc A/65/10 (Draft Guide to Practice), 3.1.3 and accompanying commentary. Furthermore, findings of impermissibility are solely the realm of law of treaties and do not engage international State responsibility, concerns over which sparked much debate during the 18-year study on reservations to treaties by the ILC. Guide to Practice (n 2) 3.3.2. See also the ILC Yearbook 2002 (2002) UN Doc A/57/10, 114, para 7; ILC, ‘Tenth report on reservations’ (2005) UN Doc A/CN.4/558, Add.1 and Add.2, paras 1–9; Draft Guide to Practice (n 29) 1.6, commentary, para 2 and 2.1.8, commentary, para 7.

30 ILC, ‘Report of the International Law Commission on the Work of its 58th session’ (1 May–9 June and 3 July–11 August 2006) UN Doc A/61/10, 324, para (2) of the general introduction to Part 3 of the Draft Guidelines.

31 Swaine (n 5) 315; Bowett, DW, ‘Reservations to Non-Restricted Multilateral Treaties’ (1976–77) 48 BYBIL 67Google Scholar, 84.

32 For example, Convention on the Elimination of all forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195 (CERD) art 20(2); Convention on the Elimination of all forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW), art 28(2); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC), art 51(2).

33 (adopted 18 December 1979, entered into force 3 September 1981), 1249 UNTS 13 (CEDAW).

34 1726 UNTS 238 (1993).

35 CEDAW, art 4.

36 1830 UNTS 312 (1994).

37 ibid.

38 Swaine (n 5) 317.

39 Redgwell, C, ‘Reservations and General Comment No 24(52)’ (1997) 46 ICLQ 390Google Scholar, 405; see generally Bowett (n 31).

40 ILC, ‘Report of the International Law Commission on the work of its 47th session’ UN Doc A/50/10 (1995) para 457.

41 Though this was clearly a consideration of the UN Secretary-General and one of the reasons for referring the question regarding reservations to the Genocide Convention to the ICJ.

42 Including a sentence that the objection will not prevent entry into force of the treaty between the reserving and objecting State is technically unnecessary due to the automatic presumption established by Vienna Convention, art 21(3).

43 (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195 (CERD).

44 854 UNTS 223 (1973) 224.

45 Though Fiji is not a party of the Vienna Convention it is worth noting that Fiji's assertion of the opposability doctrine predates the entry into force of the Vienna Convention.

46 1903 UNTS 202 (1996).

47 2001 UNTS 436 (1998).

48 2105 UNTS 621 (2000).

49 1830 UNTS 13 (1994).

50 See Swaine (n 5) 315; Ruda, JM, ‘Reservations to Treaties’ (1975–III) 146 Recueil des Cours 95Google Scholar, 101.

51 Craven, M, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’ (2000) 11 EJIL 489Google Scholar, 508.

52 Effect of Reservations on the Entry Into Force of the American Convention on Human Rights, Advisory Opinion OC-2/82, Inter-American Court of Human Rights Series A No 2 (24 September 1982) para 29.

53 Craven (n 51) 497.

54 Under the opposability doctrine, objections to invalid reservations generate the same effect as objections to validly formulated reservations. See Swaine (n 5) 315.

55 Redgwell (n 39) 407.

56 Belilos v Switzerland [1988] 10 EHRR 466.

57 As amended by Protocol Nos 11 (ETS No 155) and 14 (CETS No 194) (adopted 4 November 1950, entered into force 1 June 2010) ETS No 005, 213 UNTS 221.

58 Belilos (n 56) para 60. For a discussion, see generally, Bourguignon, HJ, ‘The Belilos Case: New Light on Reservations to Multilateral Treaties’ (1989) 29 VaJIntlL 347Google Scholar; Macdonald, RSJ, ‘Reservations under the European Convention on Human Rights’ (1988) Revue Belge de Droit International 429Google Scholar.

59 The reservation was actually titled a declaration, however, as applied it created a reservation. See Marks, S, ‘Reservations Unhinged: The Belilos Case before the European Court of Human Rights’ (1990) 39 ICLQ 300CrossRefGoogle Scholar; Cameron, I and Horn, F, ‘Reservations to the European Convention on Human Rights: The Belilos Case’ (1990) 33 GermanYBIntlL 69Google Scholar. For an analysis of the distinctions, see McRae, DM, ‘The Legal Effect of Interpretative Declarations’ (1978) 49 BYBIL 155Google Scholar.

60 The Court referred to then art 64 as was in force in 1988. See Bourguignon (n 58) 362.

61 Belilos (n 56) para 47.

62 Bourguignon (n 58) 380.

63 Marks (n 28) 48–9.

64 Belilos (n 56) para 60.

65 Schabas (n 5) 73.

66 This exercise in reformulation of a reservation introduced a novel approach to rectifying impermissible reservations as will be discussed in section V.

67 Weber v Switzerland European Court of Human Rights Series A No 177 (22 May 1990).

68 ibid paras 37, 38.

69 ibid para 38.

70 Loizidou v Turkey, Preliminary Objections, European Court of Human Rights Series A No 310 (23 March 1995); [1995] 20 EHRR 99.

71 Severability is often referred to as the ‘Strasbourg approach’ as a result of the Court's stance on continued applicability of reserved articles of the ECHR when a reservation to the article is deemed invalid.

72 Loizidou (n 70) para 96.

73 ibid para 97.

74 Belilos (n 56) para 47: ‘The silence of the depositary and the Contracting States does not deprive the Convention institutions of the power to make their own assessment.’

75 Restrictions on the Death Penalty (arts 4(2) and (4) of the American Convention on Human Rights), Advisory Opinion OC-3/83, Inter-American Court of Human Rights Series A No 3 (8 September 1983) para 45ff.

76 Hilaire v Trinidad and Tobago (Preliminary Objections) Inter-American Court of Human Rights Series C No 80 (1 September 2001) para 49.

77 ibid para 53.

78 (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (ACHR).

79 Hilaire (n 76) para 67.

80 The Inter-American Court came to the same conclusion on invalidity of Trinidad and Tobago's reservation to the compulsory jurisdiction clause of the Court in a series of cases: Benjamin et al v Trinidad and Tobago (Preliminary Objections) Inter-American Court of Human Rights Series C No 81 (1 September 2001); Constantine et al v Trinidad and Tobago (Preliminary Objections) Inter-American Court of Human Rights Series C No 82 (1 September 2001).

81 (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

82 UN Human Rights Committee (HRC), ‘General Comment No 24 (52): Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant’ (2 November 1994) UN Doc CCPR/C/21/Rev.1/Add.6, para 18, reprinted in UNCHR ‘Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies’ (2008) UN Doc HRI/GEN/1/Rev.9 (Vol. I), 210 (General Comment No 24).

83 ibid para 1.

84 ibid para 8.

85 ibid. para 17; an opinion echoed by many, see Boerefijn, I, ‘Impact on the Law on Treaty Reservations’ in Kamminga, MT and Scheinin, M (eds), The Impact of Human Rights Law on General International Law (OUP 2009) 85Google Scholar; Baylis, EA, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’ (1999) 17 BerkeleyJIntlL 277Google Scholar.

86 Genocide Advisory Opinion (n 8) 21.

87 ‘Observations by the Governments of the United States and the United Kingdom on Human Rights Committee General Comment No 24 (52) relating to Reservations' (1995) UN Doc A/50/40; see also Korkelia, K, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’ (2002) 13 EJIL 437Google Scholar, 462ff; Baratta, R, ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?’ (2000) 11 EJIL 413Google Scholar, 417; Baylis (n 85) 318–22.

88 See, for example, the US, UK and France objections in 2011 to invalid reservations made by Pakistan to the ICCPR. Objections to Pakistan's reservation to the ICCPR have not yet been assigned a UNTS volume but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>; see also Comments by the US in ILC, ‘Reservations to Treaties, Comments and Observations Received from Governments’ (2011) UN Doc A/CN.4/639, paras 170–182.

89 Three of the reservations read as follows: ‘(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States. (2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. (3) That the United States considers itself bound by Article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.’

90 1725 UNTS 374 (1993), Objections to Reservations to the ICCPR, Declaration by the Government of Sweden with respect to reservations made by the United States of America to ICCPR. Many other States, including Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal and Spain also objected.

91 For example, objections to reservations by Syria, 2220 UNTS 353 (2003); Bahrain, 2199 UNTS 190 (2002).

92 Redgwell (n 39) 410.

93 Schabas (n 5) 72.

94 For example, those by Sweden to reservations made to CEDAW (n 91).

95 Macdonald (n 58) 449.

96 Bradley, CA and Goldsmith, JL, ‘Treaties, Human Rights, and Conditional Consent’ (2000) 149 UPaLRev 399Google Scholar, 436.

97 Goodman, R, ‘Human Rights Treaties, Invalid Reservations, and State Consent’ (2002) 96 AJIL 531Google Scholar; Macdonald (n 58) 449.

98 UK ratification of the 1949 Geneva Conventions, 75 UNTS 973 (1949), ratification at 278 UNTS 259 (1957) 266–8.

99 (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135.

100 1404 UNTS 337 (1985).

101 995 UNTS 394 (1976).

102 See discussion by F Hampson, Sub-Commission on the Promotion and Protection of Human Rights, ‘Specific Human Rights Issues, Reservations to Human Rights Treaties, Final Working Paper’ (2004) UN Doc E/CN.4/Sub.2/2004/42, paras 16–17.

103 (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95.

104 The Netherlands objected to reservations to Art 11(1) by Bulgaria, the German Democratic Republic, Mongolia, Ukraine, USSR, Byelorussia and Yemen; art 27(3) by Bahrain and Qatar; and art 37(2) by Egypt, Cambodia (then Khmer Republic), Malta, Morocco, Qatar, Yemen. It specified in all instances that the provisions would remain in effect between the parties ‘in accordance with customary international law’. See 1444 UNTS 397 (1986), objection to reservations by Qatar and Yemen. New Zealand also specified severance in its objections to reservations to art 11(1) by Bulgaria, Byelorussia, Mongolia, Ukraine and USSR and to arts 37(2), (3) and (4) by China. See, for example, 1033 UNTS 347 (1977), objection to reservations by China.

105 1444 UNTS 397 (1986).

106 1033 UNTS 347 (1977).

107 USSR objection to reservation to art 27(3) by Qatar. 1437 UNTS 332 (1986).

108 For example, objections to reservations by China to art 37(2), (3) and (4) by Hungary, 1102 UNTS 313 (1978) and Ireland, 1066 UNTS 330 (1978).

109 See Boyle, A and Chinkin, C, The Making of International Law (OUP 2007) 159Google Scholar.

110 (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS). See Boyle and Chinkin (n 109) on the different approaches to treaty-making.

111 ibid, art 309 provides: ‘No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.’ Art 310 further provides: ‘Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of the Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.

112 As indicated in the Vienna Convention (n 1) at 2(1)(d), a reservation is a ‘unilateral statement, however phrased or named … whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty’ (emphasis added). Australia's objection indicated that the Philippines interpretative declaration was a reservation, despite the title, and objected to the declaration as a violation of UNCLOS art 309. The ‘disguised’ reservation therefore fails, according to Australia. On disguised reservations, see McRae (n 59).

113 Vienna Convention (n 1) Article 19—Formulation of reservations—A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

114 1835 UNTS 149 (1994).

115 Bulgaria also ‘rejected as devoid of legal force the statement made by the Philippines’, 1835 UNTS 151 (1994). Russia indicated that it could not ‘recognize as lawful the statement of the Philippines and considers it to be without legal effect in the light of the provisions of the Convention’, see 1835 UNTS 170 (1994) 172.

116 See 1835 UNTS 164 (1994).

117 Further examples include Sweden's objection to reservations to the Vienna Convention by Peru, 2155 UNTS 150 (1998).

118 See below (nn 120, 121 and 126).

119 1830 UNTS 312 (1994).

120 1979 UNTS 439 (1997).

121 2005 UNTS 524 (1998).

122 2199 UNTS 190 (2002). The same statement was made mutatis mutandis in response to reservations made by Saudia Arabia, North Korea, Mauritania, Syria, Micronesia, United Arab Emirates, Oman, Brunei Darussalam and Qatar.

123 There is also a strong argument that political considerations play into the use of severance, and objections generally, but it is not a theme to be pursued in this article.

124 See for example 1566 UNTS 430 (1990) objection to reservations by Libya. The same phraseology is commonly used eg the objection by the Netherlands to reservations made by Bahrain, 2199 UNTS 188 (2002).

125 The same can be said generally of the other Nordic States. See Klabbers, J, ‘Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties’ (2000) 69 NordJIntlL 179Google Scholar; Magnusson, L, ‘Elements of Nordic Practice 1997: The Nordic Countries in Co-ordination’ (1998) NordJIntlL 350Google Scholar.

126 Since 2001 Sweden has indicated the severance of incompatible reservations made to the ICCPR by Botswana, Turkey, Mauritania, Maldives and Pakistan, see eg, 2155 UNTS 125 (1998) objection to reservations by Botswana, and also in response to incompatible reservations made to CEDAW by Micronesia, United Arab Emirates, Syrian Arab Republic, Bahrain, Mauritania, among others, see eg, 2199 UNTS 190 (2002) objection to reservations by Bahrain. Though Sweden did technically indicate severance of Kuwait's reservation to the ICCPR somewhat earlier than this, in 1997, it was in a less clear formulation than that subsequently used. See 1984 UNTS 435 (1997).

127 2163 UNTS 178 (2001).

128 2472 UNTS 128 (2007); Objections to Pakistan's reservation to the ICCPR have not yet been assigned a UNTS volume but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>.

129 2283 UNTS 242 (2004).

130 2346 UNTS 215 (2005). On objections to Pakistan's reservation to the ICCPR see (n 128).

131 2163 UNTS 185 (2001).

132 On objections to Pakistan's reservation to the ICCPR see (n 128).

133 Objections to reservations to the ICESCR by Denmark (to *Pakistan, 2005), Finland (to Bangladesh, 2095 UNTS 161(1999); to *Pakistan, 2005), Greece (to Turkey, 2283 UNTS 234 (2004)), Italy (to Kuwait, 1984 UNTS 424(1997)), Latvia (to *Pakistan, 2005), Netherlands (to *Pakistan, 2005), Norway (to China, 2180 UNTS 54 (2002); to *Pakistan, 2005), Pakistan (to India, 2514 UNTS 17 (2005)), Slovakia (to *Pakistan, 2009), and Sweden (to Bangladesh, 2095 UNTS 162 (1999); to China, 2180 UNTS 53 (2002); to Turkey, 2265 UNTS 207 (2004); to Kuwait, 1984 UNTS 435 (1997); to *Pakistan, 2005). *Objections to Pakistan's reservations to ICESCR have not been assigned a UNTS volume number but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>.

134 The objections to reservations to CEDAW are numerous thus the following is only a small sample and does not include those States noted for advocating severance in their objections to reservations to the ICESCR (n 133): Belgium (to Brunei Darussalam, 2427 UNTS 70 (2007); Oman, 2427 UNTS 71 (2007); to *Qatar, 2010); Canada (to Brunei Darussalam, 2444 UNTS 95 (2007)), Czech Republic (to Oman, 2411 UNTS 196 (2007); to Brunei Darussalam, 2427 UNTS 67 (2007); to Qatar, 2634 UNTS 32 (2009)) and Estonia (to Syria, 2253 UNTS 322 (2004); to *Qatar, 2010). *Objections to Qatar's reservations to CEDAW have not yet been assigned a UNTS volume number but can be viewed on the UN Treaty Collection website at: <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>.

135 (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT). Objections to reservations to the CAT by Czech Republic (to *Pakistan 2011), Denmark (to Botswana, 2163 UNTS 234 (2001)), Finland (to Bangladesh, 2095 UNTS 216 (1999); to Qatar, 2133 UNTS 247 (2001); to *Pakistan, 2011), Latvia (to *Pakistan, 2011), Norway (to Qatar, 2133 UNTS 248 (2001); to Botswana, 2163 UNTS 233 (2001); to *Pakistan, 2011), Slovakia (to *Pakistan, 2011), Sweden (to Qatar, 2105 UNTS 683 (2000); to Botswana, 2163 UNTS 230 (2001), to Thailand, 2542 UNTS 89 (2008); to *Pakistan, 2011). *Objections to Pakistan's reservations to CAT have not yet been assigned a UNTS volume number but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en>.

136 See specifically Sweden's objections to reservations to CERD by Saudia Arabia, 2001 UNTS 403 (1998); by Thailand, 2241 UNTS 247 (2004).

137 (n 2).

138 UNCHR, ‘2007 Report on Reservations’ (2007) UN Doc HRI/MC/2007/5 and Add.1, para 16(7).

139 ILC, ‘Report on the work of the 49th session’ (12 May–18 July 1997) UN Doc A/52/10, para 84. In the report Pellet suggested that the Strasbourg approach was a form of regional customary law that did not otherwise impact customary law on reservations.

140 Guide to Practice (n 2) 4.5.1.

141 ibid 4.5.2.

142 ibid 4.5.3 (emphasis added).

143 See Draft Guide to Practice (n 29) commentary to 4.5.2.

144 Particularly to HRC General Comment No. 24.

145 Draft Guide to Practice (n 29) 3.3, commentary para 6.

146 Comments by Germany and the United States in ILC, ‘Reservations to Treaties, Comments and Observations Received from Governments’ (2011) UN Doc A/CN.4/639, paras 149–150 and 170–182 and compare with, Comments by El Salvador and Finland, paras 135–136 and 138–145; UNCHR ‘Observations by the Governments of the United States and the United Kingdom on Human Rights Committee General Comment No 24 (52) Relating to Reservations' UN Doc A/50/40 (1995).

147 Pellet, A, ‘The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur’ (2013) 24 EJIL 1061Google Scholar, 1094

148 See, for example, comments by Australia, Austria, Bangladesh and Finland in ILC (n 146) paras 113–118, 131 and 133.

149 Draft Guide to Practice (n 29) 4.3.7, commentary paras 1–3.

150 UNCHR ‘Report on nineteenth meeting of the Chairpersons of the human rights treaty bodies: Report of the sixth inter-committee meeting of human rights treaty bodies’ (2007) UN Doc A/62/224, Annex, para 48(v), endorsing the recommendations of the working group recorded in Chairpersons of the HRTBs, 2007 Report on Reservations UNCHR (n 138) para 18.

151 UNCHR ‘Report of the Chairpersons of the human rights treaty bodies on Reservations’ (2006) UN Doc HRI/MC/2006/5, para 16 (emphasis added).

152 Pellet (n 147) 1094.

153 Though a favourable result for the international human rights regime in general, the author does not suggest that even without reservations all States fulfil their human rights treaty obligations.

154 For an examination of the determinative function see McCall-Smith, KL, ‘Reservations and the Determinative Function of the Human Rights Treaty Bodies’ (2011) 54 GermanYBIntlL 521Google Scholar.

155 Guide to Practice (n 2) 3.2.

156 This excludes objections not related to invalidity, such as political or diplomatic reasons.

157 H Golsong, ‘Les reserves aux instruments internationaux pour la protection des droits de l'homme’, cited in Imbert, PH, ‘Reservations and Human Rights Conventions’ (1981) 6 HumanRtsRev 28Google Scholar, 45; see also Macdonald (n 51) 448.

158 Withdrawal of reservations by Pakistan (21 September 2011) following objections to reservations to the ICCPR, for example, by Latvia and Slovakia, (which outlined severance as the consequence), Ireland, Italy, and the Netherlands, to name a few. Pakistan's withdrawal of reservations to the ICCPR and the objections to the reservations have not yet been assigned a UNTS volume but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>.

159 Bates, E, ‘Avoiding Legal Obligations Created by Human Rights Treaties’ (2008) 57 ICLQ 751Google Scholar, 775–8.

160 Guide to Practice (n 2) 4.5.3, para 4.

161 See (12 November 1997) UN Doc C.N.467.1997.TREATIES-10.

162 During its review under the Universal Periodic Review, many States urged North Korea to comply with its obligations under the ICCPR and file its delinquent report. UNHRC, ‘Report of the Working Group on the Periodic Universal Review, Democratic People's Republic of Korea’ (2010) UN Doc A/HRC/13/13.

163 ibid.

164 See Optional Protocol to the ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (OP-ICCPR). Trinidad and Tobago acceded to the OP on 14 November 1980 and denounced the OP on 26 May 1998 and at the same time re-acceded with a reservation taking effect on 26 August 1998, 2016 UNTS 54 (1998). Following the decision in Rawle Kennedy v Trinidad and Tobago, HRC decision on Communication No 845/1999 (31 December 1999) UN Doc CCPR/C/67/D/845/1999, Trinidad and Tobago again denounced the OP on 27 March 2000, 2102 UNTS 407 (2000).

165 Objections to reservations by Trinidad and Tobago to the OP-ICCPR by the Netherlands (2077 UNTS 304 (1999)) and Sweden (2077 UNTS 307 (1999)). Many have argued that denunciation with re-accession does not comply strictly with the Vienna Convention but that particular question is outside the parameters of the present research.

166 Rawle Kennedy (n 164).

167 Bates (n 159) 763.

168 Scheinen, M, ‘Reservations by States under the International Covenant on Civil and Political Rights and its Optional Protocols, and the Practice of the Human Rights Committee’ in Ziemele, I (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhoff 2004) 50–1Google Scholar.

169 HRC, ‘General Comment No 26: Continuity of obligations’ (1997) UN Doc CCPR.C/21/Rev.1/Add.8/Rev.1 (1997).

170 ibid para 3.

171 Reformulation was actually suggested by Swiss counsel during the course of the case and Switzerland did produce a revised declaration following the final judgment on the case. See (1988) 31 YBEurConvHumRts 5. It subsequently modified the reservation once again, see doc H/INF (89) 2, Information Sheet No 24, 7–8.

172 See Liechtenstein's reformulation of its reservation to ECHR, art 6(1), doc H/INF(92) 1, Information Sheet No 29, 1.

173 Bourguignon (n 58) 383.

174 Korkelia (n 87) 460–1; Schabas (n 5) 77–8.

175 Schabas (n 5) 77. This idea was supported by Judge Valticos of the ECtHR in his dissenting opinion to the Chorherr v Austria, European Court of Human Rights Series A No 266-B (25 August 1993) para 42.

176 Schabas (n 5) 78; see also Schmidt (n 28) 33.

177 UN Committee on the Elimination of Discrimination against Women, ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination against Women’ (1998) UN Doc A/53/38/Rev.1, 49, para 18.

178 UNCHR ‘Chairpersons of the human rights treaty bodies Report on Reservations’ (2009) UN Doc HRI/MC/2009/5, 4.

179 See, for example, the UK's objection (28 June 2011) to the reservations made to the ICCPR by Pakistan where it suggest that it would reconsider its objections if Pakistan modified its reservations. Objections to the reservations made by Pakistan to the ICCPR have not yet been assigned a UNTS volume but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>.

180 On 19 July 2010 Malaysia withdrew the reservations to arts 5(a), 7(b) and 16(2). The notification of withdrawal has not yet been assigned a UNTS volume but can be viewed on the UN Treaty Collection website <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en#36>.

181 ibid.

182 Guide to Practice (n 2) 2.5.10.

183 Draft Guide to Practice (n 28) 5.1 and commentary para 19. Specifically referring to the 1978 Vienna Convention. See also Pellet (n 147) 1083–4.

184 Kohona, PTB, ‘Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations’ (2005) 99 AJIL 433Google Scholar, 435; Polakiewicz, J, Treaty-Making in the Council of Europe (Council of Europe Publishing 1999) 96Google Scholar.

185 Objecting States included: Australia, Canada, Czech Republic, Estonia, Hungary, Ireland, Italy, Latvia, Mexico, Netherlands, Poland, Portugal, Slovakia, Sweden and the UK. Four of the objections were outside the 12-month period for filing objections though it is unclear that this would matter since in any event the attempted reservation did not comply with the Vienna Convention.

186 Boyle and Chinkin (n 109).