Who decides on whether reservations are compatible or not?

Cassese submits that for the legal regime established by the Vienna Convention to be workable for multilateral treaties, there must be an “international body to monitor and assess the admissibility of reservations, and rule on the matter”(17).

In the European Court of Human Rights (“ECtHR”)case of Belilos v. Switzerland(18), the interpretive declaration entered by Switzerland was held to be an invalid reservation despite the lack of objections by other State parties.

However, Korkelia submits that using the decisions of the ECtHR as a precedent that a treaty monitoring body should have the competence to determine the validity of a reservation is not convincing due to the special feature of the ECHR which is “regarded as a constitutional instrument of European Public Order”(19). Korkelia further noted that the UN Human Rights Committee (“HRC”), unlike the ECtHR, lacked the power to make any binding decisions.

Nevertheless, in the Rawle Kennedy case(20), the HRC have taken the initiative to decide if a reservation is compatible with the object and purpose of the ICCPR.

Further, the HRC in its General Comment No. 24(52)(21) have found that it necessarily falls on them to decide if a reservation to the ICCPR is compatible with the objects and purpose of the said treaty. This is due partly to lack of reciprocity in human treaties, and partly “it is a task that the Committee cannot avoid in the performance of its functions”.

Redgwell observed that “General Comment No. 24 takes a bold step towards the articulation of a new and separate reservations regime in respect of human rights treaties, explicitly departing from what has been characterised as the unsatisfactory operation in relation to such treaties of the classical provisions on reservations embodied in Articles 19 – 23 of the 1969 Vienna Convention”(22).

Hampson submitted that the competence of a treaty monitoring body to take a view of the validity of a reservation “necessarily flows from their functions”(23).

While many States have raised objections to reservations made in human rights treaties, these objections may not mean anything to the citizens and people living in the reserving State. Even the HRC questions the value of inter-state objections with regards to human rights treaties like the ICCPR(24).

As such, it falls – and it is submitted rightly so – on the treaty monitoring body of a human rights treaty to determine if a reservation is compatible with the object and purpose of the said treaty.

Schabas submits that “the Committee on the Rights of the Child, in fact, is required by the Children's Convention to address the issue of the legality of reservations. Reservations limit the obligations of a state party. The Committee's mandate is to examine ‘the progress made by States Parties in achieving the realization of the obligations undertaken in the present Convention’(25). It can only do so if it can determine the extent of such obligations, and this necessarily involves an assessment of the scope as well as the legality of reservations”(26).


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(17) See note 11 above, at page 130
(18) Publications of the European Court of Human Rights, Series A (1988) Vol. 132
(19) See note 14 above
(200 Communication No. 845/1999 (CCPR/C/67/D/845/1999)
(21) General Comment No. 24: 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 : . 04/11/94. CCPR/C/21/Rev.1/Add.6, General Comment No. 24. (General Comments), at para 18
(22) Catherine J. Redgwell – Reservations to treaties and HRC General Comment No. 24(52) 46 ICLQ 390 at 399
(23) See note 15 above, at para 13
(24) See note 21 above, at para 17.
(25) Article 43(1) of the CRC
(26) William A. Schabas Reservations to the Convention on the Rights of the Child Human Rights Quarterly 18.2 (1996) 472-491, when Schabas was considering Iran’s reservations to the CRC