CDL-UD(2005)014rep-e

Strasbourg, 8 September 2005

Restricted

CDL-UD(2005)014rep

Or. Engl.

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION

)

in the framework of

THE ACTIVITIES OF THE PORTUGUESE CHAIRMANSHIP

OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE

in co-operation with

THE UNIVERSITY OF COIMBRA

IUS GENTIUM CONIMBRIGAE CENTRE,

THE FACULTY OF LAW

THE INTERNATIONAL ASSOCIATION OF CONSTITUTIONAL LAW - IACL

REPORT

“HUMAN RIGHTS TREATIES AND THE VIENNA CONVENTION

ON THE LAW OF TREATIES – CONFLICTS OR HARMONY”

Mr Martin SCHEININ

Professor, Director of the Institute for Human Rights, Finland

Member of IACL

UNIDEM Seminar

“THE STATUS

OF INTERNATIONAL TREATIES

ON HUMAN RIGHTS”

Coimbra (Portugal), 7-8 October 2005

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1. Introduction

This report discusses the relationship between the Vienna Convention on the Law of Treaties

and human rights treaties. Rather than being an in-depth scholarly study in the matter, the

paper identifies alternative approaches in the issue and discusses their relative strengths and

weaknesses. The paper is structured on the basis of five different approaches to the

relationship in question. A brief concluding discussion follows their presentation.

2. A Textual (Positivist) Approach to the Vienna Convention as a Treaty Regulating the

Law of Treaties

An extreme positivist position in relation to the Vienna Convention would be to take it

literally as a treaty that regulates treaty relationships between states in accordance with its

own provisions – nothing less and nothing more. The application of such an approach would,

somewhat surprisingly, result in a situation where the role of the VCLT is quite marginal and

at the same time destructive in respect of the functioning of human rights treaties. This is,

firstly, because the total number of states parties to the VCLT (101) is smaller than the

number of states parties to any one of the six major UN human rights treaties, the latter

ranging from 139 (CAT) to 192 (CRC).

The VCLT would be applicable only in treaty

relationships between states that also are parties to this convention. Hence, under a textual

reading, the VCLT would not at all apply in respect of a fairly large number of states that are

parties to human rights treaties. And in respect of states that are parties to the VCLT, the

VCLT would not govern their treaty relationships with states that are not parties to the VCLT.

Secondly, article 4 of the VCLT contains a non-retroactivity clause according to which the

convention applies only to treaties which are concluded by states after the entry into force of

the VCLT with regard to such states. Consequently, the VCLT would not apply in respect of

many treaty relationships under human rights treaties between states that as such are parties to

the VCLT but ratified it later than their human rights treaties.

To illustrate the consequences of these observations, let’s as an example take a look at the 11

states that in the English alphabet start with the letter “A”.

Due to the different ratification

records of these states, there are currently 274 bilateral treaty relationships between these

states under the six major human rights treaties. As four of the 11 states in question are not

Adopted, 23 May 1969, enterd into force 27 January 1980, 1155 United Nations Treaty Series 331. Parties (17

August 2005): 101.

The six treaties referred to are the International Covenant on Economic, Social and Cultural Rights (CESCR;

16 December 1966, entered into force 3 January 1976, 993 UNTS 3), the International Covenant on Civil and

Political Rights, (CCPR; 16 December 1966, entered into force 23 March 1976, 999 UNTS 171), the

International Convention on the Elimination of All Forms of Racial Discrimination (CERD; adopted 21

December 1965, entered into force: 4 January 1969, 660 UNTS 195), the Convention on the Elimination of All

Forms of Discrimination against Women (CEDAW; 18 December 1979, entered into force 3 September 1981,

1249 UNTS 13), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT, 10 December 1984, entered into force 26 June 1987, 1465 UNTS 85), and the Convention on

the Rights of the Child (CRC; 20 November 1989, entered into force 2 September 1990. 1577 UNTS 3).The

recent addition to the family, the International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families (CMW; General Assembly resolution 45/158 of 18 December 1990,

entered into force 1 July 2003) or Optional Protocols to various treaties are not taken into account here.

Afghanistan, Algeria, Albania, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Australia, Austria

and Azerbaijan.

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parties to the VCLT, and as many of the remaining seven states ratified the VCLT later than

most of their human rights treaties, the VCLT is applicable in respect of less than 10 per cent

of the total number of bilateral treaty relationship between the 11 states, to be exact in 22

relationships.

Even in respect of the CRC which internationally entered into force in 1990,

i.e. almost ten years later than the VCLT, the Vienna Convention is applicable only in respect

of six bilateral treaty relationships although all of the 11 states in question are parties to the

CRC and the total number of bilateral relationships is therefore 55.

These consequences of the textual positivist approach demonstrate that it would be destructive

not only for the coherence of human rights law but for public international law in general

mechanically to apply the VCLT, in accordance with its own terms, in some but not all treaty

relationships between states. This outcome demonstrates that a sensible relationship between

human rights treaties and the VCLT only can be found by understanding the VCLT as

something more – or less – than a set of rules to be applied mechanically within the formal

scope of application of the VCLT.

3. A Dogmatic Approach to the Vienna Convention as a Complete Codification of the

Customary Norms on the Law of Treaties

The non-retroactivity clause in article 4 of the VCLT was central in the discussion above.

However, that provision is more complex than was implied in its mechanical application

above. The clause reads as follows:

“Without prejudice to the application of any rules set forth in the present Convention to which

treaties would be subject under international law independently of the Convention, the

Convention applies only to treaties which are concluded by States after the entry into force of

the present Convention with regard to such States.”

The clause itself speaks against a mechanical positivist application of the VCLT, by referring

to rules that would be applicable independently of the VCLT. The formulation reflects a more

general understanding of the VCLT as a codification, approximation or illustration of valid

norms of customary international law in the field of the law of treaties. But if there is a close

connection between the provisions of the VCLT and norms of customary law, what exactly is

the nature of that connection? Are we speaking of a codification, approximation or

illustration?

One possible answer is to take the view that the International Law Commission managed to

codify, in a comprehensive and exhaustive way the customary norms on the law of treaties

into the provisions of the VCLT which therefore are for their substance applicable in respect

of all treaties between states, irrespective of whether a particular state is a party to VCLT, or

in which order it happened to ratify its international treaties.

Hence, the rules of the VCLT

The number of bilateral relationships in respect of which the VCLT is applicable under each of the six treaties

is as follows: CESCR 1, CCPR 3, CERD 0, CEDAW 6, CAT 6 and CRC 6.

Afghanistan, Angola, Antigua and Barbuda, and Azerbaijan are not parties to the VCLT. Albania, Andorra and

Armenia ratified the VCLT later than the CRC. Consequently, the VCLT would be applicable in respect of the

CRC in the relationships between Algeria, Argentina, Australia and Austria.

For a pragmatic, rather than dogmatic approach leading to the same outcome, see, e.g. Anthony Aust, Modern

Treaty Law and Practice, Cambridge University Press 2000, p. 10: “To what extent does the Convention

express rules of customary international law? A detailed consideration of this question is beyond the scope of

this book, but it is, with certain exceptions, not of great concern to the foreign ministry lawyer in his day-to-day

work. When questions of treaty law arise during negotiations, whether for a new treaty or about one concluded

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would be applicable in respect of any multilateral treaty, irrespective of the special

characteristics of the treaty. The provisions of the VCLT which were formulated on the basis

of a rich variety of practices, would form a straightjacket in relation to treaty law. Such a

dogmatic approach to the VCLT as a complete codification of customary law might lead to

the denial of any need to adjust the applicable norms of the law of treaties to the nature of

each treaty. For instance, as articles 31-33 of the VCLT are silent of the relevance of any

institutionalized practices of interpretation developed by an international monitoring body

established through the treaty, such practices could be said to have no relevance for the

interpretation of the treaty. And as articles 19-21 are silent on the legal effect of

impermissible reservations, there might be a temptation to apply the provisions of article 21

which textually could be understood as referring only to permissible reservations,

in respect

of any reservation.

These expansive inferences rest upon the assumption that the VCLT would be a true

codification of very firm rules of customary international law and that even textual lacunae

could be filled by applying the provisions of the VCLT beyond their prescribed scope of

application. Such an approach, which is here classified as dogmatic, represents a distorted

view of international law and does not hold critical analysis. For instance, on the basis of the

preparatory works of the VCLT it is quite clear that the adopted provisions on reservations

and objections to reservations were never intended to govern the consequences of

impermissible reservations,

and that the rules of customary law in respect of reservations to

multilateral treaties were unclear at the time the VCLT was drafted. What came to be

reflected in the VCLT is the majority view of the International Court of Justice in its Advisory

Opinion in the Reservations to the Genocide Convention case. That majority view, in turn,

departed with reference to the “special characteristics” of the Genocide Convention from what

was referred to as the “traditional concept”, namely the requirement of consent by all parties

for the permissibility of any reservation to a multilateral treaty.

4. Human Rights Treaties as One Special Regime: Fragmentation of International Law

There are obvious reasons for why human rights lawyers are uncomfortable with a dogmatic

application of the VCLT and call for a modified application of the VCLT rules in respect of

human rights treaties, with due account of their special characteristics. Although the VCLT is

written as a general treaty applicable in any treaty relationships between states under

multilateral treaties, it contains many hidden assumptions that are not justified in respect of

human rights treaties. Among the most relevant of such hidden assumptions are the following:

(a) The VCLT is written as if only states and state interests mattered: it deals with reciprocal

treaty relationships between states where every right by one state has as its correlate a duty of

another state. There are no third parties involved – except perhaps third states

– and

before the entry into force of the Convention, the rules set forth in the Convention are invariably relied upon

even when the states are not parties to it.”

Textually, article 21 refers to reservations established “in accordance with articles 19, 20 and 23”, i.e., to

reservations that under article 19 are permissible and are not, for instance, contrary to the object and purpose

of the treaty.

Yearbook of the International Law Commission 1966, Volume II (A/CN.4/SER.A/1966/Add.1 p. 209).

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International

Court of Justice, Advisory Opinion of 28 May 1951. ICJ Reports 1951 p. 15. For the “traditional concept”

based on the integrity of the treaty, see p. 22, and for the “special characteristics” of the Genocide Convention

calling for a more flexible approach, se p. 23.

See, VCLT article 36.

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therefore states can legitimately for instance modify a multilateral treaty in their bilateral

relationship through an agreement that represents a practice that is contrary to the wording of

the treaty.

(b) The VCLT is written as if states would have the sole responsibility to monitor each others’

compliance with the treaty. There are no courts or other monitoring bodies involved in the

interpretation, monitoring or enforcement of a treaty. The VCLT regulates how states may

react to each others’ performance under a treaty but is silent on the role of any other actors.

Basing themselves on the fact that human rights treaties, although technically treaties between

states, provide rights for third parties as beneficiaries, as well as on the existence of courts or

expert bodies established under human rights treaties to monitor compliance, human rights

lawyers call for a modified application of the VCLT rules in respect of human rights treaties.

For instance, it may be proposed that monitoring bodies should have a say in assessing the

permissibility and consequences of reservations. Or that the institutionalized practices of

interpretation developed by a monitoring body established through a treaty should affect the

rules of interpretation under that treaty. Or that states should not be allowed to modify the

treaty, with consequences to individuals as affected third parties, without following the

amendment procedure prescribed by the treaty.

One conclusion drawn from this uneasiness with the dogmatic application of the VCLT is to

emphasize the sui generis nature of human rights treaties, describing them as a semi-

autonomous or self-contained regime that operates according to rules that reflect its own

characteristics and that as lex specialis deviate from (valid) rules of public international law as

embodied in the VCLT. Similar conclusions may be drawn in relation to treaties on other

branches of international law – such as environmental law or trade law, and what results is an

erosion of the unity of public international law, also called as fragmentation of international

law.

Under the fragmentation approach, the call for stronger normativity under human rights

treaties would, paradoxically, contribute to the weakening of international law in general.

5. Human Rights Treaties as Global Constitution: Constitutionalization of International

Law

By and large the same arguments may, however, also lead to the opposite conclusion, namely

a call for a more coherent and rigid structure of public international law. This approach would

put forward the argument that human rights law is something more than just one branch of

international law, namely a constitutional dimension of international law, representing

objectively binding rules that are binding upon states irrespective of their continuing will to

be bound. The European Court of Human Rights often refers to the constitutional nature of

the ECHR,

and on the universal level one could speak of human rights treaties as an

See, VCLT article 41.

The International Law Commission is currently working on the theme under the title “Fragmentation of

international law: difficulties arising from the diversification and expansion of international law”, see

International Law Commission, Report on the work of its fifty-sixth session (2004, A/59/10), Chapter X.

See, for instance, Bankovic and Others against Belgium and Others, European Court of Human Rights, Grand

Chamber inadmissibility decision of 12 December 2001: ”The Court’s obligation, in this respect, is to have

regard to the special character of the Convention as a constitutional instrument of European public order for the

protection of individual human beings and its role, as set out in Article 19 of the Convention, is to ensure the

observance of the engagements undertaken by the Contracting Parties” (§ 80).

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embryonic form of a global constitution. The VCLT may remain applicable according to its

own terms in respect of those multilateral treaties that merely govern reciprocal relationships

between states, with no third parties affected. But its provisions are insufficient and

inadequate

for capturing the operation of human rights treaties that are more than just

treaties between states, namely elements of an emerging global constitutional order.

This approach may build its articulation partly with reference to the category of jus cogens,

also the recognized in the VCLT itself.

However, ultimately the argument rests on the

special nature of human rights law itself, calling for supremacy of human rights law in respect

of “merely” contractual treaties between states. Consequently, a state may find itself in a

situation where its reservation is declared impermissible

and treated as severable

from the

state’s acceptance to be bound by the treaty, while the acceptance itself is understood to be

irreversible.

Consent by an individual state would no longer be an absolute limit to state

obligations under human rights treaties but would be pushed aside by an objectively binding

“constitution”.

6. Reconciling the Vienna Convention and Human Rights Treaties

The author of this paper is attracted by the “constitutional” approach just described, at least as

a critical tool for addressing the shortcomings of a state-centred conception of evolving

international law. As this approach will result in “more law”, rather than the erosion of

international legal order that is the consequence of the fragmentation approach, the

“Inappropriate” and “inadequate” were the words used by the Human Rights Committee in its General

Comment No. 24 on reservations: “17. As indicated above, it is the Vienna Convention on the Law of Treaties

that provides the definition of reservations and also the application of the object and purpose test in the absence

of other specific provisions. But the Committee believes that its provisions on the role of State objections in

relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such

treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They

concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save

perhaps in the limited context of reservations to declarations on the Committee's competence under article 41.

And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have

often not seen any legal interest in or need to object to reservations…”

VCLT article 53.

Human Rights Committee, General Comment No. 24: “18. It necessarily falls to the Committee to determine

whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part

because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties,

and in part because it is a task that the Committee cannot avoid in the performance of its functions. In order to

know the scope of its duty to examine a State's compliance under article 40 or a communication under the first

Optional Protocol, the Committee has necessarily to take a view on the compatibility of a reservation with the

object and purpose of the Covenant and with general international law. Because of the special character of a

human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be

established objectively, by reference to legal principles, and the Committee is particularly well placed to

perform this task…”

Human Rights Committee, General Comment No. 24, paragraph 18 in fine:

“

The normal consequence of an

unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a

reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party

without benefit of the reservation

.”

Human Rights Committee, General Comment No. 26: “5. The Committee is therefore firmly of the view that

international law does not permit a State which has ratified or acceded or succeeded to the Covenant to

denounce it or withdraw from it.” Although the general comment includes references to the VCLT, it includes no

mention of article 54 (b), providing for the right of a state to withdraw from a multilateral treaty with the

consent of the other parties to the treaty.

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constitutional approach is much more appealing from a substantive human rights perspective

than the preceding one.

Nevertheless, the author is at the same time mindful of the fact that the constitutional

approach may be too radical for many scholars of public international law, not to mention

international or domestic judges or governments. Therefore its proponents run a risk of being

marginalised in a broader discourse about the place of human rights in world order. In order

to avoid this risk, human rights lawyers need to strive for an approach that reconciles the rules

of the VCLT with the special characteristics of human rights treaties. Parallel to the

elaboration of such a reconciliation approach, they may also resort to the critical nature of the

constitutional approach as a justification for the need for a modified, instead of textual or

dogmatic, application of the VCLT rules.

In short, the reconciliation approach is based on the acceptance of the VCLT as a reflection of

norms of customary law, through positive treaty provisions the wording of which was

formulated with one ideal type of treaties in mind. The drafters of the VCLT focused on inter-

state relationships under a multilateral treaty that establishes no organ for its monitoring or

enforcement and that merely regulates reciprocal relationships between states as rights-

holders and obligation-bearers, with no affected third parties. Human rights lawyers can

accept the full applicability of the provisions of the VCLT in respect of treaties that represent

this ideal type of a multilateral treaty.

However, when a treaty does not conform to all the described features of the ideal type, the

rules of the VCLT do not represent a complete codification of rules of customary law but,

rather, approximations of the applicable rules, subject to modified application whenever the

specific characteristics of the treaty so require.

There are elements in the VCLT itself that appear to recognize that not all treaties conform to

the ideal type of a multilateral treaty that was the starting-point in formulating the provisions.

The clearest examples are constituting treaties of international organizations. Article 5

provides a rule, according to which the VCLT “applies to any treaty which is the constituent

instrument of an international organization and to any treaty adopted within an international

organization without prejudice to any relevant rules of the organization”. And article 20 on

acceptance of and objections to reservations includes paragraph 3 according to which a

reservation to a treaty that is a constituent instrument of an international organization

“requires the acceptance of the competent organ of that organization”.

Choosing a positivist mood, human rights lawyers could argue that at least some human rights

treaties fall under VCLT articles 5 and 20 (3) as “international organizations”. For instance,

the International Covenant on Civil and Political Rights has its own membership

and

establishes its own organs with defined competences.

Hence, any reservation would require

the acceptance by the Human Rights Committee which under the terms of the treaty appears

to be the competent organ in respect of all functions that pertain to substantive interpretation

of the human rights provisions in the treaty.

Alternatively, and still in the positivist mood, human rights lawyers could argue that most

human rights treaties are treaties “adopted within an international organization” under the

terms of VCLT article 5. As a consequence, one would turn to “relevant rules of the

ICCPR article 48.

ICCPR article 30 (3) (meeting of states parties), article 28 (Human Rights Committee).

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organization” as basis for a modified application of the provisions of the VCLT in issues such

as reservations, interpretation and termination.

Instead of these fairly straightforward answers the reconciliation approach under discussion in

this section of the paper would take VCLT articles 5 and 20 (3) as reflecting a more general

principle, the recognition to adapt the application of the VCLT to the specific features of a

treaty. One would ask why the VCLT includes these two provisions in respect of constituting

instruments of an international organization and whether the same justification applies in

respect of some other category of treaties. According to literature, the justification for VCLT

article 20 (3) lies in the essential need to preserve the integrity of an international

organization.

Judging by the preparatory works of the VCLT, the justification for article 20

(3) was primarily addressed through the existence of a common monitoring organ established

through the treaty, rather than the notion of “international organization” as such.

The same

arguments can very well be made in respect of human rights treaties that establish their own

international monitoring organs and procedures, without a need to declare human rights

treaties as falling, stricto sensu, under the notion of international organizations.

Another example of the reconciliation approach can be identified in respect of VCLT articles

57 and 58 that relate to the suspension of treaties. For instance in relation to the ICCPR these

provisions should be read together with article 4 of the ICCPR, defining derogation as the

specific form of suspension that is allowed under the treaty and prescribing both substantive

limits and procedural requirements for states that wish to resort to derogation. VCLT article

57 (a) and article 58 (1) (a) explicitly refer to the provisions of the treaty as regulating

suspension, and article 58 which allows for suspension by agreement of certain but not all

parties to a multilateral treaty, includes in article 58 (1) (b) (ii) a safeguard clause according to

which such suspension must not be contrary to the object and purpose of the treaty.

Further, although VCLT article 31 which contains the general rule of treaty interpretation

makes no mention of the relevance of institutionalized practices of interpretation developed

through treaty monitoring organs in the exercise of their functions, it includes in article 31 (3)

(b) a reference to “any subsequent practice in the application of the treaty which establishes

the agreement of the parties regarding its interpretation”. On the basis of the preparatory

works, it appears clear that this clause does not merely refer to explicit acceptance by all

states parties to a multilateral treaty but covers also the tacit approval of a practice engaging

only a part of the parties.

Hence, it would be legitimate to treat the outcomes of treaty

monitoring procedures, such as final views on individual complaints, concluding observations

on state party reports, and general comments as codifications of earlier practice, as various

forms of “subsequent practice” in the meaning of VCLT article 31 (3) (b) – at least in the vast

majority of instances where no formal objection is made by states parties.

7. Concluding Discussion

In the preceding sections of this paper, the positivist approach, the dogmatic approach and the

fragmentation approach to the relationship between the VCLT and human rights treaties were

rejected. Instead, the author expressed sympathy for the two remaining approaches, namely

Aust, op. cit. (footnote No. 6) p. 113.

See, Yearbook of the International Law Commission 1966, Volume II (A/CN.4/SER.A/1966/Add.1), p. 207

where the argument is made that for the category of treaties in question the integrity of the instrument outweighs

other considerations and it must be for the members of the organization, acting through its competent organ, to

determine how far any relaxation of the integrity of the instrument is acceptable.

Yearbook of the International Law Commission 1966, Volume II (A/CN.4/SER.A/1966/Add.1), p. 221-222.

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the constitutional and the reconciliation approach. In the author’s view the reconciliation

approach has a strong basis in international law, including in a systematic reading and the

drafting of the VCLT itself. The reconciliation approach is also more likely than the

constitutional approach to meet acceptance beyond the circle of human rights scholars and

human rights bodies, i.e. also within a broader discourse on public international law.

However, it is the view of the author that the constitutional approach has, in comparison to the

reconciliation approach, two merits that justify its further consideration and elaboration.

Firstly, this approach represents a critical potential in respect of a state-centred doctrine of

international law. Secondly, there may be areas where reconciliation does not suffice, i.e.

where human rights treaties under their own terms and read in the light of their object and

purpose call for the application of such norms in the field of the law of treaties that cannot be

reconciled with the provisions of the VCLT but where one must accept that a choice between

the rules derived from human rights treaties and the provisions of the VCLT must be made.

One such area may be the potential severability of impermissible reservations. The

reconciliation approach may very well allow such an interpretation of the VCLT, including in

the light of its article 20 (3), that recognizes the competence of monitoring organs established

under human rights treaties to address and determine, at least for the purpose of their own

functions, the permissibility of reservations by states. However, the next step, declaring an

impermissible reservation severable, and holding the state bound by the treaty without the

benefit of the reservation, might prove more difficult to reconcile with the VCLT regime, also

taking into account the majority view in the ICJ Advisory Opinion in the Reservations to the

Genocide Convention case.

That said, it needs to be pointed out that the conclusion of severability has not been made

merely by human rights scholars and human rights treaty bodies. Instead, it gets support also

from the practice of at least certain states that, when objecting to reservations by other states,

have concluded that the reserving state is to be considered a party to the treaty in question,

without the benefit of the reservation. Before the adoption of General Comment No. 24 by the

Human Rights Committee in 1994, objections pronouncing the severability of the reservation

had under the ICCPR been made by a number of states in respect of reservations by the

Republic of Korea (1991)

and the United States (1992).

And much earlier, the United

Kingdom applied what is here called severability in its objections to certain reservations

entered under the 1949 Geneva Conventions on humanitarian law.

See footnote No. 9, above. In its advisory opinion (p. 29), the ICJ stated by seven votes to five that a state that

has entered a reservation which has been objected to by one or more of the parties of the convention can be

regarded as a party to the Genocide Convention if the reservation is compatible with the object and purpose of

the convention; “otherwise, that State cannot be regarded as being a party to the Convention”.

Objection by the Czech and Slovak Federal Republic 7 June 1991: “… does not recognize these reservations

[to articles 14 and 22] as valid. Nevertheless the present declaration will not be deemed to be an obstacle to the

entry into force of the Covenant between the Czech and Slovak Federal Republic and the Republic of Korea.”

See, also, the objection by the Netherlands. Status of Multilateral Treaties Deposited with the Secretary-General,

http://untreaty.un.org/English/access.asp

The clearest examples of objections declaring severability are those by France and Italy. France: France 4

October 1993: “this United States reservation [to article 6, paragraph 5] is not valid, inasmuch as it is

incompatible with the object and purpose of the Convention. Such objection does not constitute an obstacle to

the entry into force of the Covenant between France and the United States.” Italy 5 October 1993: “… this

reservation is null and void since it is incompatible with the object and the purpose of art. 6 of the Covenant…

These objections do not constitute an obstacle to the entry into force of the Covenant between Italy and the

United States.”

See, Reservations to human rights treaties; Final working paper submitted by Françoise Hampson, Sub-

Commission on the Promotion and Protection of Human Rights (2004), E/CN.4/Sub.2/2004/42, paras 16-17.

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In respect of the practical relevance of the various competing approaches described in this

paper it is interesting to note that two (France and the UK) of the three states (France, the UK

and the USA)

that reacted to the Human Rights Committee’s General Comment No. 24 by

formally expressing their disagreement, had themselves on other occasions expressed the

consequence of severability in their objections to reservations by other states. And many other

states have, since the adoption of General Comment No. 24, supported the consequence of

severability in their objections to reservations by some states. Such objections have been

made in respect of reservations to the ICCPR or its Optional Protocols by at least Azerbaijan,

Botswana, Guyana, Kuwait, Thailand, Trinidad and Tobago, and Turkey. Objections to these

reservations, pronouncing severability as the consequence, were made by at least Denmark,

Finland, Greece, the Netherlands, Norway, Poland, Portugal and Sweden.

If severability represents the constitutional approach in addressing the relationship between

human rights treaties and the VCLT, then there is considerable state practice supporting the

constitutional approach.

See, Annual Report 1995 of the Human Rights Committee, A/50/40 vol. I pp. 126-134 (the United States and

the United Kingdom) Annual Report 1996 of the Human Rights Committee, A/51/40 vol. I pp. 104-106 (France).