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The ILC’s Clever Compromise on the Validity of Reservations to Treaties: A Rejoinder to Marko Milanovic and Linos-Alexandre Sicilianos

Published on April 11, 2014        Author: 

In ‘The ILC’s Clever Compromise on the Validity of Reservations to Treaties’, Marko Milanovic and Linos-Alexandre Sicilianos say the ILC Guide to Practice on Reservations to Treaties strikes a clever compromise by holding on to a general regime on reservations to treaties and, at the same time, making human rights lawyers happy.  They also characterise the ILC Guide as a ‘Vienna Plus’ regime – indicating that the ILC Guidelines go beyond the rules of the VCTL and, in many respects, adapt the VCTL to present day conditions.

We agree that the new regime proposed is indeed a ‘Vienna-plus regime’. We also agree that the ILC special rapporteur on reservations, Alain Pellet, changed his views on objections to reservations within the context of international human rights law between when the study started in 1993 (Report of the ILC on the work of its forty-fifth session, para. 430) and ended in 2011 (Report of the ILC, sixty-third session). We, however, wish to highlight one point of reminder and one point of query with regard to the clever compromise.

First, the solution offered by the ILC report suggesting that an objective validity test under Article 19 comes prior to the subjective objections of states under Article 20 was originally proposed by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1999, pursuant to the Sub-Commission decision 1998/113 entitled “Reservations to human rights treaties”. Second, the ILC report goes further than current UN human rights law practice when it comes to the assessments of the human rights treaty bodies with regard to the invalidity of reservations. It takes a more radical step than current practice.

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