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

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.

The special human rights law regime v. general public international law regime of reservations

Alain Pellet has famously dubbed human rights lawyers as willing to bend the rules of public international law to advance the cause of human rights. According to Pellet, there is a group that one may call ‘droit de l’homists’ in the ranks of public international law.  Reservations to human rights treaties have also often been analysed from this angle. It has been echoed in the literature that human rights lawyers want a ‘special regime’ for human rights treaties under the VCLT.

This broad characterisation of human rights lawyers as a homogenous group asking for special rules is often misleading (cf. Çalı, ‘Specialized Rules of Treaty Interpretation: Human Rights’ in Hollis ed., The Oxford Guide to Treaties, Oxford University Press, 2012, pp. 525-548). The original proposal that Article 19 of the Vienna Convention on the Law of the Treaties must be interpreted as a prior and stand alone test for all treaties was first systematically proposed by Françoise Hampson, a member of the (former) UN Sub-Commission on the Protection of Human Rights and Minorities in 1999. In her study on ‘Reservations to human rights treaties’, Hampson clearly indicated that public international lawyers as well as human rights lawyers should read Article 19 more carefully rather than looking for special solutions for human rights treaties. (Working paper submitted by Ms. Françoise Hampson pursuant to Sub-Commission decision 1998/113, paras. 8 (c), 16). As she forcefully explained in the 1999 report, the problem of reservations has never been a special problem of human rights treaties. Rather, it is a general problem of international law with treaties that had monitoring organs. The reservations problem came up more in the context of human rights treaties precisely because these very treaties invariably had monitoring organs. (paras. 5(d) and (e), 11, 20, 21, 22). The ILC Guide fully endorses this view.

Going beyond existing UN human rights law practice : Guideline 4.5.3.4

The Vienna-plus regime put forward by the ILC work renders those reservations not in conformity with Article 19 of the VCLT as invalid ab initio – regardless of whether other states object to them or not. One important issue here is the role of UN human rights treaty monitoring bodies in assessing whether a reservation is valid, and the silence of the reserving state as to the invalidity pronouncement. The ILC Guide proposes that the treaty body is to assess the invalidity of the reservation and the silence of the state to that assessment of invalidity amounts to a presumption that the reserving state consents to the severance of that reservation. According to Guideline 4.5.3.4:

“If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State or international organization intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment.”

Guideline 4.5.3.4 clearly goes beyond existing human rights treaty practice and offers a more radical solution than the current modus operandi. The current practice of the treaty bodies is to politely ask the withdrawal of the reservations which the treaty body believes to be against the object and the purpose of the treaty. Treaty bodies use cautious words in their concluding recommendations such as ‘recommends’, ‘welcomes’ when they ask for lifting of reservations they view as impermissible. They then ‘urge a state party to implement the previous recommendations that have not yet been implemented.’ The view of the Committees on the incompatibility of reservations, therefore, has the same status with all other concluding observations and are subject to the same follow up procedures. (See various examples from different Committees at Annex 1 of “The Practice of Human Rights Treaty Bodies with Respect to Reservations to International Human Rights Treaties”).

This is not to suggest that treaty bodies are shying away from assessing whether certain reservations are incompatible with the object and the purpose of the treaties. They do not, however, indicate any specific time frame with regard to the consequences of their concluding observations on reservations. This communicative approach has delivered some success, in particular with regard to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. In follow up to the concluding observations of the Committee on the Elimination of All Forms of Discrimination against Women concerning reservations states such as Morocco, Malaysia and Turkey withdrew their reservations (Marsha A. Freeman, Reservations to Convention on the Elimination of All Forms of Discrimination against Women, an analysis for UNICEF, p. 3 et seq.).

Turkey, for example, withdrew reservations to the Convention nine years after the 1990 CEDAW Report, where “members noted that the reservations expressed by Turkey in respect of articles 15 and 16 reflected the extent to which discrimination still existed in those areas” (para. 304). Qatar is another example. After CRC referred to the “broad and imprecise nature of the State party’s general reservation”, which “potentially negates many of the Convention’s provisions, as well as the overall implementation of the Convention” and welcomed that Qatar was re-examining its reservation to the Convention in its 2001 Concluding Observations, Qatar withdrew its reservations to CRC as well as its additional protocol on child prostitution and child pornography in 2007, six years after CRC’s Concluding Observations (CRC, Consideration of Report Submitted by States under Article 44 of the Convention, Second periodic report, Qatar, paras. 8, 9, 10).

Whilst six years or longer may be regarded as unreasonable delays for human rights monitoring bodies, policy recommendation in favour of the presumption of severance after twelve months silence may also be too short and counterproductive, in particular, in the case of human rights treaties. In addition, if the reservation is not officially lifted following necessary domestic procedures, the silence to the treaty body assessment of incompatibility after 12 months may not be enough to domestically apply a human rights treaty without the benefit of the reservation. In most states decisions to enter reservations are not given by a single organ and there is a domestic procedure to  lift reservations. Decisions to lift reservations most likely will need co-ordination and negotiation amongst relevant domestic constituents, including different ministries. In some states there are inter-ministerial committees for treaty ratification and review of reservations, which need to be officially convened to review a states’ reservations policy. What is more, reservations are often part of sensitive domestic political and legal compromises between domestic various forces to ratify human rights treaties. Given the domestic complexity of entering and lifting reservations the recommended twelve-month timeframe may simply be unreasonable and unhelpful, and may unnecessarily force the hands of the states to fully withdraw from a human rights treaty.

The twelve-month rule may also lead to unnecessary backlash against the human rights treaty monitoring organs. First, states may declare that the Committee’s assessments, including the compatibility of reservations with the object and the purpose of the treaty, are not legally binding. This kind of open confrontation (as took place after General Comment 24 led by the UK, US and France) would take the patient and long-term work of the committees back to square one. Second, states may indeed remain silent for twelve months or longer, but then denounce a treaty body’s assessment after the time limit. For a state openly taking the view that views of the committees are not legally binding, the introduction of a twelve-month period would be of no practical consequence. It may simply encourage (or add to) confrontational discourses against human rights treaty bodies.

 The Commentaries to the ILC Guide suggests that Guideline 4.5.3 ‘largely corresponds to the progressive development of international law’ (p. 542). It is also contended that the guideline regarding the twelve-month period constitutes merely a policy recommendation, and aims to strike a balance between ‘respecting the will of states, and ensuring the integrity of certain multilateral conventions’ (Michael Wood, “Institutional aspects of the Guide to Practice on Reservations”, Jean Monnet Working Paper 17/12, p. 11). Still, the application of Guideline 4.5.3.4 is a move away from the ‘constructive dialogue’ paradigm that has accounted for most of the patient, but uncompromising human rights treaty body subsequent practice.

In sum, the ILC Guide’s interpretation of Article 19 is a welcome and long awaited step from public international law. It plays an important role in offsetting the stereotyping of human rights law as ‘demanding special treatment’.  Guideline 4.5.3.4, on the other hand, shows that bold suggestions do not always come from human rights lawyers.