New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights

Abstract

This article deals with the legal effect of reservations to human rights treaties with particular reference to the International Covenant on Civil and Political Rights. In treaty practice, two conflicting views may be identified. On the one hand, it is maintained that, as consent remains the governing principle of the existing regime of reservations, states parties to human rights treaties have the discretionary power to determine the admissibility and validity of reservations to treaties. On the other hand, it is argued that, because of the special features of human rights treaties, a different regime of reservations should be applicable to these treaties: treaty supervisory organs should be competent to decide on the admissibility of reservations and to determine the consequences of inadmissible reservations. The fundamental question raised in this controversy is whether human rights treaties are sufficiently different from other treaties to apply to them distinct rules for determining the admissibility of reservations and the consequences of inadmissible reservations. On the basis of General Comment No. 24(52) of the Human Rights Committee and its recent practice, the article examines the persuasiveness of arguments advanced by both sides. In the light of the controversial views on the legal effect of invalid reservations, some conclusions are drawn on how best to deal with reservations to human rights treaties with particular reference on the role of treaty supervisory organs to reservations.