When are reservations not compatible with the treaty?
The following list is not exhaustive and certain situations are not taken into account(27).
1. When it is too general in character
Article 64 of the ECHR provides that reservations “of a general character shall not be permitted”. It however does not mention about compatibility with the object and purpose of the treaty.
Having said that, it is submitted that any reservations which is of a general character cannot be compatible with the object and purpose of the treaty as they are either comprehensive/too far-reaching or too vague:-
(a) Too comprehensive/far-reaching
These are reservations which subordinates a treaty in its entirety to the limits and, in some cases, also to the domestic law of the reserving state. They are regarded as “general subordination reservations”. D. Shelton observes that such reservations are “the most questionable because they deny the very reason for adoption of human rights treaties: the establishment of minimum standards with which domestic laws should be brought into conformity”(28).
Schabas was of the view that such far-reaching reservations can be considered as a “total absence of ratification”(29) and in such a situation, it is not even necessary to consider if such reservation is compatible with the treaty or not.
(b) Too vague
Schabas noted that “A reservation which is too vague may deprive all concerned parties… of an accurate picture of the rights and obligations of the state”(30).
Some reservations are too vague that it is difficult to know the actual extent of the reservation. As such, the effect will be that individuals would not know for sure if their rights are protected and respected. It is submitted that this outcome of uncertainty is certainly incompatible with the object and purpose of any human rights treaty which seek to guarantee protection of a right.
With regards specifically to the said reservations to Article 14 of the CRC, many States have lodged objections to reservations on the grounds that it is not compatible with the treaty due to its far-reaching and vague terms(31).
While these objections have no binding authority, the HRC have recognised that such objections may help them determine if the reservations are compatible with the object and purpose of the treaty(32).
Based on the aforesaid, it is submitted as follows:-
(a) The said reservations which are the kind that can be described as the “general subordination reservations” are clearly incompatible with the object and purpose of the CRC and therefore violates Article 51 of the CRC as these reservations are too comprehensive and/or far-reaching in scope;
(b) As for the said reservations which refer specifically to Article 14 of CRC, it may be argued that they nevertheless still violate Article 51 of the CRC as they are too vague in nature. This argument will however hinge on what is meant by “Islamic Law” or “Shar’ia Law” which will be discussed in detail below.
2. When it offends peremptory norms
The HRC state(33) that reservations which offends peremptory norms are not compatible with ICCPR. The Committee went on by listing the rights in the ICCPR which are considered to be peremptory norms and therefore may not be subject to reservations. This includes the freedom of thought, conscience and religion(34).
As such, the right protected in Article 14 of the CRC is a peremptory norm and it is submitted that the said reservations which offend it are incompatible with the object and purpose of the CRC and violates Article 51 therein.
3. When it runs counter to some of the basic principles embodied in the treaty
The HRC in the Rawle Kennedy Case(35) was of the view that the reservation entered by Trinidad and Tobago “…constitutes a discrimination which runs counter to some of the basic principles embodied in the [ICCPR] and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol”.
It is submitted that one of the basic principles embodied in the CRC is that the child should enjoy the same rights as an adult. Gone are the paternalistic notions of the child as being dependent on their parents and need to be protected as they are weak. Instead, the child is viewed as a human being, their views given due weight(36), and they possess the right to participatory rights as enunciated in Articles 12 – 16 of the CRC.
Adam Lopatka was of the view that the right of a child to freedom of religion is “a remarkable step towards general respect of a child’s personality”(37).
Therefore, by placing limitations to their rights in Article 14, it is submitted that the said reservations do not view the child as having the same rights as an adult, being able to make his or her own decisions – albeit subject to their evolving capacities(38). It is submitted that this amounts to restriction which runs counter to some of the basic principles in the CRC.
4. When the reservation is made against the substance of a right
In the concurring opinion of Judge De Meyer in Belilos v Switzerland(39), it was held as follows:-
“The object and purpose of the European Convention on Human Rights is … to recognise rights which must be respected and protected even in the absence of any instrument of positive law.
It is difficult to see how reservations can be accepted in respect of provisions recognising rights of this kind. It may even be thought that such reservations, and the provisions permitting them, are incompatible with the ius cogens and therefore null and void, unless they relate only to arrangements for implementation, without impairing the actual substance of the rights in question.”
It is submitted that this view may seem a little extreme. It would seem that only reservations which relate to “arrangements for implementation” are allowed. Having said that, the logic of the view is tempting. The objects and purposes of generally, any human rights treaty, and specifically, the CRC is to recognise human rights. A reservation made against the substance any of the rights contained therein – in this case, the freedom of religion in Article 14 of the CRC - would therefore not be compatible with the object and purpose of the treaty.
Granted, reservations are still useful when it concerns the “arrangements for implementation”. Redgwell finds that reservations “permit States to accept the generality of an instrument while entering reservation in respect of those rights which may be difficult initially to guarantee”(40).
These reservations are the kind that allows States to progressively achieve the objects and purpose of a human rights treaty as it is recognised that certain States may need time to make the necessary amendments and changes to its domestic law. These reservations, by their very nature, are temporal. The same however cannot be said with the said reservations by the relevant Muslim States.
The probable response by the relevant Muslim States is that the said reservations are not a reflection of a simple refusal to recognise the right of the child to freedom of religion. The issue is about their freedom of religion – their freedom to manifest and practice their religion. Cultures may evolve and traditions can die away but the basis of religion – and in this case, of the Islam religion – is the same throughout its history.
What if the beliefs of a religion – in this case, the Islam faith – are contrary to the substance of a right that is sought to be recognised and protected in a human rights treaty – in this case, the right of a child to freedom of religion?
It may perhaps be better to answer another question first i.e. does the Islam faith in any way restrict the child’s right of freedom of religion in the CRC? Perhaps it is a good time now to investigate what the Islamic Law provides regarding freedom of religion generally, and freedom of religion in the context of a child. This will assist in deciding if the said reservations run counter to the basic principles of the CRC and if it is indeed against the substance of the right recognised in Article 14 of the CRC. This exercise can also help reveal if the said reservations are indeed too vague or otherwise.
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(27) For instance, the HRC raised the issue whether non-derogable rights can be made the subject of a reservation – para 10 of General Comment No. 24. However, since there are no non-derogable rights in the CRC, it will not be considered in this essay.
(28) State Practice on reservations to Human Rights Treaties (1983) Can Human Rights Y.B. 205 at 227
(29) See note 26 above
(30) See note 26 above
(31) See inter alia the objections of the Denmark against Brunei’s reservation, the objections of Norway against Malaysia’s reservations and the objections Italy against Syria’s reservations. View the website http://www.ohchr.org/english/countries/ratification/11.htm#reservations for the complete list
(32) See note 21 above
(33) See note 21 above at para 7
(34) Ibid, at para 8
(35) See note 20 above
(36) In accordance with their age and maturity – Article 12 of the CRC
(37) In his article, Appropriate Direction and Guidance in the Exercise by a Child of the Rights to Freedom of Expression, Thought, Conscience and Religion found in Monitoring Children’s Rights E Verhellen (Ed) Martinus Nijhoff Publishers 1996 at pages 287 - 292
(38) See Article 5 CRC
(39) See note 18 above
(40) See note 22 above
1. When it is too general in character
Article 64 of the ECHR provides that reservations “of a general character shall not be permitted”. It however does not mention about compatibility with the object and purpose of the treaty.
Having said that, it is submitted that any reservations which is of a general character cannot be compatible with the object and purpose of the treaty as they are either comprehensive/too far-reaching or too vague:-
(a) Too comprehensive/far-reaching
These are reservations which subordinates a treaty in its entirety to the limits and, in some cases, also to the domestic law of the reserving state. They are regarded as “general subordination reservations”. D. Shelton observes that such reservations are “the most questionable because they deny the very reason for adoption of human rights treaties: the establishment of minimum standards with which domestic laws should be brought into conformity”(28).
Schabas was of the view that such far-reaching reservations can be considered as a “total absence of ratification”(29) and in such a situation, it is not even necessary to consider if such reservation is compatible with the treaty or not.
(b) Too vague
Schabas noted that “A reservation which is too vague may deprive all concerned parties… of an accurate picture of the rights and obligations of the state”(30).
Some reservations are too vague that it is difficult to know the actual extent of the reservation. As such, the effect will be that individuals would not know for sure if their rights are protected and respected. It is submitted that this outcome of uncertainty is certainly incompatible with the object and purpose of any human rights treaty which seek to guarantee protection of a right.
With regards specifically to the said reservations to Article 14 of the CRC, many States have lodged objections to reservations on the grounds that it is not compatible with the treaty due to its far-reaching and vague terms(31).
While these objections have no binding authority, the HRC have recognised that such objections may help them determine if the reservations are compatible with the object and purpose of the treaty(32).
Based on the aforesaid, it is submitted as follows:-
(a) The said reservations which are the kind that can be described as the “general subordination reservations” are clearly incompatible with the object and purpose of the CRC and therefore violates Article 51 of the CRC as these reservations are too comprehensive and/or far-reaching in scope;
(b) As for the said reservations which refer specifically to Article 14 of CRC, it may be argued that they nevertheless still violate Article 51 of the CRC as they are too vague in nature. This argument will however hinge on what is meant by “Islamic Law” or “Shar’ia Law” which will be discussed in detail below.
2. When it offends peremptory norms
The HRC state(33) that reservations which offends peremptory norms are not compatible with ICCPR. The Committee went on by listing the rights in the ICCPR which are considered to be peremptory norms and therefore may not be subject to reservations. This includes the freedom of thought, conscience and religion(34).
As such, the right protected in Article 14 of the CRC is a peremptory norm and it is submitted that the said reservations which offend it are incompatible with the object and purpose of the CRC and violates Article 51 therein.
3. When it runs counter to some of the basic principles embodied in the treaty
The HRC in the Rawle Kennedy Case(35) was of the view that the reservation entered by Trinidad and Tobago “…constitutes a discrimination which runs counter to some of the basic principles embodied in the [ICCPR] and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol”.
It is submitted that one of the basic principles embodied in the CRC is that the child should enjoy the same rights as an adult. Gone are the paternalistic notions of the child as being dependent on their parents and need to be protected as they are weak. Instead, the child is viewed as a human being, their views given due weight(36), and they possess the right to participatory rights as enunciated in Articles 12 – 16 of the CRC.
Adam Lopatka was of the view that the right of a child to freedom of religion is “a remarkable step towards general respect of a child’s personality”(37).
Therefore, by placing limitations to their rights in Article 14, it is submitted that the said reservations do not view the child as having the same rights as an adult, being able to make his or her own decisions – albeit subject to their evolving capacities(38). It is submitted that this amounts to restriction which runs counter to some of the basic principles in the CRC.
4. When the reservation is made against the substance of a right
In the concurring opinion of Judge De Meyer in Belilos v Switzerland(39), it was held as follows:-
“The object and purpose of the European Convention on Human Rights is … to recognise rights which must be respected and protected even in the absence of any instrument of positive law.
It is difficult to see how reservations can be accepted in respect of provisions recognising rights of this kind. It may even be thought that such reservations, and the provisions permitting them, are incompatible with the ius cogens and therefore null and void, unless they relate only to arrangements for implementation, without impairing the actual substance of the rights in question.”
It is submitted that this view may seem a little extreme. It would seem that only reservations which relate to “arrangements for implementation” are allowed. Having said that, the logic of the view is tempting. The objects and purposes of generally, any human rights treaty, and specifically, the CRC is to recognise human rights. A reservation made against the substance any of the rights contained therein – in this case, the freedom of religion in Article 14 of the CRC - would therefore not be compatible with the object and purpose of the treaty.
Granted, reservations are still useful when it concerns the “arrangements for implementation”. Redgwell finds that reservations “permit States to accept the generality of an instrument while entering reservation in respect of those rights which may be difficult initially to guarantee”(40).
These reservations are the kind that allows States to progressively achieve the objects and purpose of a human rights treaty as it is recognised that certain States may need time to make the necessary amendments and changes to its domestic law. These reservations, by their very nature, are temporal. The same however cannot be said with the said reservations by the relevant Muslim States.
The probable response by the relevant Muslim States is that the said reservations are not a reflection of a simple refusal to recognise the right of the child to freedom of religion. The issue is about their freedom of religion – their freedom to manifest and practice their religion. Cultures may evolve and traditions can die away but the basis of religion – and in this case, of the Islam religion – is the same throughout its history.
What if the beliefs of a religion – in this case, the Islam faith – are contrary to the substance of a right that is sought to be recognised and protected in a human rights treaty – in this case, the right of a child to freedom of religion?
It may perhaps be better to answer another question first i.e. does the Islam faith in any way restrict the child’s right of freedom of religion in the CRC? Perhaps it is a good time now to investigate what the Islamic Law provides regarding freedom of religion generally, and freedom of religion in the context of a child. This will assist in deciding if the said reservations run counter to the basic principles of the CRC and if it is indeed against the substance of the right recognised in Article 14 of the CRC. This exercise can also help reveal if the said reservations are indeed too vague or otherwise.
__________________________________
(27) For instance, the HRC raised the issue whether non-derogable rights can be made the subject of a reservation – para 10 of General Comment No. 24. However, since there are no non-derogable rights in the CRC, it will not be considered in this essay.
(28) State Practice on reservations to Human Rights Treaties (1983) Can Human Rights Y.B. 205 at 227
(29) See note 26 above
(30) See note 26 above
(31) See inter alia the objections of the Denmark against Brunei’s reservation, the objections of Norway against Malaysia’s reservations and the objections Italy against Syria’s reservations. View the website http://www.ohchr.org/english/countries/ratification/11.htm#reservations for the complete list
(32) See note 21 above
(33) See note 21 above at para 7
(34) Ibid, at para 8
(35) See note 20 above
(36) In accordance with their age and maturity – Article 12 of the CRC
(37) In his article, Appropriate Direction and Guidance in the Exercise by a Child of the Rights to Freedom of Expression, Thought, Conscience and Religion found in Monitoring Children’s Rights E Verhellen (Ed) Martinus Nijhoff Publishers 1996 at pages 287 - 292
(38) See Article 5 CRC
(39) See note 18 above
(40) See note 22 above
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