What will happen to a reservation which is found to be incompatible?
1. The reservation should be disregarded
In the decision of the Rawle Kennedy’s case(96), UN HRC held that reservations which are found not to be compatible with the object and purpose of the relevant treaty are to be null and void. The reservation in that case was disregarded(97). Cassese submits that this view which “is in keeping with the object and purpose of human rights law” and which “commends itself as appropriate” and should be extended to other treaties(98).
2. The reserving State should take appropriate steps
The individual, dissenting, opinion of Committee members in the Rawle Kennedy case acknowledge that a position such as that taken by the majority “has met with serious criticism... If a reservation is incompatible with the object and purpose of a treaty, the critics argue, the reserving state does not become a party to the treaty unless it withdraws that reservation”.(99)
It is submitted that solution of treating such incompatible reservations as null and void may not be useful in certain situations, the most obvious being the situation of the CRC where there is no avenue for individual complaints. The act of disregarding the reservation may be disregarded by the reserving State!
Korkelia is of the view that if the reservation is found not to be compatible, it will be for the reserving State itself to decide on whether to withdraw the reservation, modify it or – in the extreme case – withdraw from the treaty(100).
3. Obtain an advisory opinion from the International Court of Justice
What will happen if the reserving State refuses to take any action even after the determination by a treaty monitoring body that the reservation is incompatible with the object and purpose of the treaty?
In a meeting of the chairpersons of the human rights treaty bodies(101) in 1992, the chairpersons agreed that in such a case, “that treaty body should consider requesting the Economic and Social Council or the General Assembly, as appropriate, to request an advisory opinion on the issue from the International Court of Justice(102)”.
In the same manner, Fottrell – in the context of the Committee on the Rights of the Child – proposes that what could be done is to “refer the matter to the Secretary General suggesting that he seek an advisory opinion from the International Court of Justice”(103). Any judgment would potential shed light on the effect or status of reservations found to be incompatible with the object and purpose of a human rights treaty.
It is submitted that suggestion by the learned chairpersons and Fottrell has merit and should be taken up sooner rather than later.
Until then, we remain “in the dark”. For the 4 UN human rights treaty bodies(104) which may consider individual complaints or communications from individual, it is submitted that they will have to disregard any reservations which are incompatible with the treaty – following the example of the HRC in Rawle Kennedy’s Case(105).
For the other treaty bodies, there does not seem to be much that can be done save for the constant reminder and exhortation to State members to withdraw their reservations. The chairpersons of the treaty bodies agreed on the following:-
“…the States parties concerned should be urged to withdraw the reservations ... The treaty bodies should systematically review reservations made when considering a report and include in the list of questions to be addressed to reporting Governments a question as to whether a given reservation was still necessary and whether a State party would consider withdrawing a reservation that might be considered by the treaty body concerned as being incompatible with the object and purpose of the treaty”(106).
________________________________
(96) See note 20 above
(97) See also para 18 of General Comment No. 24
(98) See note 11 above, at page 131
(99) See note 20 above, at para 15
(100) See note 14 above
(101 Report of the Fourth Meeting of Persons Chairing the Human Rights Treaty Bodies A/47/628 10 November 1992
(102) Ibid, para 61
(103) In her article Children’s Rights found in Human Rights: An Agenda for the 21st Century Heganty & Leonard (Eds), Canvendish 1999, pg 167
(104) The HRC, the Committee on the Elimination of Racial Discrimination, the Committee Against Torture and the Committee on the Elimination of Discrimination Against Women
(105) See note 20 above
(106) See note 101 above at para 36
In the decision of the Rawle Kennedy’s case(96), UN HRC held that reservations which are found not to be compatible with the object and purpose of the relevant treaty are to be null and void. The reservation in that case was disregarded(97). Cassese submits that this view which “is in keeping with the object and purpose of human rights law” and which “commends itself as appropriate” and should be extended to other treaties(98).
2. The reserving State should take appropriate steps
The individual, dissenting, opinion of Committee members in the Rawle Kennedy case acknowledge that a position such as that taken by the majority “has met with serious criticism... If a reservation is incompatible with the object and purpose of a treaty, the critics argue, the reserving state does not become a party to the treaty unless it withdraws that reservation”.(99)
It is submitted that solution of treating such incompatible reservations as null and void may not be useful in certain situations, the most obvious being the situation of the CRC where there is no avenue for individual complaints. The act of disregarding the reservation may be disregarded by the reserving State!
Korkelia is of the view that if the reservation is found not to be compatible, it will be for the reserving State itself to decide on whether to withdraw the reservation, modify it or – in the extreme case – withdraw from the treaty(100).
3. Obtain an advisory opinion from the International Court of Justice
What will happen if the reserving State refuses to take any action even after the determination by a treaty monitoring body that the reservation is incompatible with the object and purpose of the treaty?
In a meeting of the chairpersons of the human rights treaty bodies(101) in 1992, the chairpersons agreed that in such a case, “that treaty body should consider requesting the Economic and Social Council or the General Assembly, as appropriate, to request an advisory opinion on the issue from the International Court of Justice(102)”.
In the same manner, Fottrell – in the context of the Committee on the Rights of the Child – proposes that what could be done is to “refer the matter to the Secretary General suggesting that he seek an advisory opinion from the International Court of Justice”(103). Any judgment would potential shed light on the effect or status of reservations found to be incompatible with the object and purpose of a human rights treaty.
It is submitted that suggestion by the learned chairpersons and Fottrell has merit and should be taken up sooner rather than later.
Until then, we remain “in the dark”. For the 4 UN human rights treaty bodies(104) which may consider individual complaints or communications from individual, it is submitted that they will have to disregard any reservations which are incompatible with the treaty – following the example of the HRC in Rawle Kennedy’s Case(105).
For the other treaty bodies, there does not seem to be much that can be done save for the constant reminder and exhortation to State members to withdraw their reservations. The chairpersons of the treaty bodies agreed on the following:-
“…the States parties concerned should be urged to withdraw the reservations ... The treaty bodies should systematically review reservations made when considering a report and include in the list of questions to be addressed to reporting Governments a question as to whether a given reservation was still necessary and whether a State party would consider withdrawing a reservation that might be considered by the treaty body concerned as being incompatible with the object and purpose of the treaty”(106).
________________________________
(96) See note 20 above
(97) See also para 18 of General Comment No. 24
(98) See note 11 above, at page 131
(99) See note 20 above, at para 15
(100) See note 14 above
(101 Report of the Fourth Meeting of Persons Chairing the Human Rights Treaty Bodies A/47/628 10 November 1992
(102) Ibid, para 61
(103) In her article Children’s Rights found in Human Rights: An Agenda for the 21st Century Heganty & Leonard (Eds), Canvendish 1999, pg 167
(104) The HRC, the Committee on the Elimination of Racial Discrimination, the Committee Against Torture and the Committee on the Elimination of Discrimination Against Women
(105) See note 20 above
(106) See note 101 above at para 36
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