At the moment of signature, ratification or accession of the Convention, States and regional integration organizations may wish to adjust the application of the treaty by means of lodging a reservation. The Vienna Convention on the Law of Treaties (art. 2, para. 1 (d)) defines a reservation as follows:
SEARCH
a unilateral statement, however phrased or named, made by a State when sign-ing, ratifysign-ing, acceptsign-ing, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
States can also lodge declarations at the moment of signature, ratification or accession.
Declarations are statements of understanding of a matter contained in the Convention or an interpretation of a particular provision.
In some cases reservations and decla-rations could be the symptom of a State’s lack of will to implement the Convention fully, e.g., a State may mask its lack of will by invoking conflicting cultural principles. In other cases reservations and declarations could be the expression of a State’s legit-imate and serious concern related to the inadequacy of its national resources to cope with the obligations derived from the Con-vention. States may be tempted to lodge reservations to gain more time for imple-mentation. States may decide to modify or limit some of the tougher provisions to avoid being blamed by the international commu-nity for not implementing the Convention properly. If reservations are inevitable, it is important to limit their impact to the absolute minimum. Both vague and specific reserva-tions deserve attention when monitoring a treaty. For example, through its authoritative interpretations, the Committee on the Rights of Persons with Disabilities can circumscribe reservations of apparent general and inde-terminate scope.
In any case, reservations are not to be encouraged and the facilitator should find ways to make this clear when presenting this module, taking into account the audience.
Article 46 of the Convention allows parties to lodge reservations provided that these are not incompatible with its object and purpose. A State that objects may notify the United Nations Secretary-General. The Secretary-General circulates any objection received. Objections to declarations gener-ally focus on whether the statement is merely an interpretative declaration or is, in fact, a reservation that would modify the legal effects of the treaty. An objecting State some-times requests that the declaring State should clarify its intention. If the declaring State agrees that it has formulated a reservation instead of a declaration, it may withdraw its reservation or confirm that its statement is only a declaration.
After a reservation is circulated, other State parties have 12 months in which they can object to the reservation, beginning on the date the notification of reservation was deposited or the date on which the State or regional integration organization expressed its consent to be bound by the treaty, which-ever is later. When a State lodges an objec-tion to a reservaobjec-tion with the Secretary-Gen-eral after the end of the 12-month period, the Secretary-General circulates it as a “com-munication.” Lodging a complaint does not force a State to withdraw it. However, it does put political pressure on the State making the reservation and could lead to the voluntary withdrawal of the reservation either immedi-ately or over a period of time. Furthermore, as a result of objecting to a reservation, a State might regard a treaty as not being in effect between itself and the State making the reservation—or at least not in relation to the provision to which the reservation has been made.
Treaty-monitoring bodies have consis- tently sought to restrict the scope of
reserva-SEARCH
tions and encourage their withdrawal. The Human Rights Committee, for example, has set out its position in its general comment No.
24 (1994) on 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. Relying on the test that res-ervations incompatible with the object and purpose of the treaty are not permitted, the Committee indicates areas where it believes reservations are inadmissible. These include articles considered peremptory norms. The Committee queries whether reservations to non-derogable rights are permissible. Simi-larly, the Committee holds that reservations to measures that create the supportive machin-ery for the enjoyment of rights, such as the right to a remedy, are not acceptable. The Committee considers that it falls on itself to determine whether a reservation is incompat-ible with the object and purpose of the treaty, partly because the Committee indicates that the nature of a human rights treaty makes it inappropriate for States parties to make the decision and partly because the Committee cannot avoid making such an assessment in the performance of its functions.
Stakeholders involved in supporting treaty bodies, enhancing the universal peri-odic review (UPR) and/or interacting with national authorities that are embarking on or completing the ratification process should advocate ratification without reser-vations.
Finally, it is important to note that existing reservations may be modified. Such a mod-ification may result in a partial withdrawal or could create new exemptions from, or modifications to, the legal effects of certain provisions (resulting in a new reservation).
A State or regional integration organization
may withdraw any reservation it has made to the Convention or Optional Protocol at any time. The withdrawal must be in writing and signed by the Head of State, Head of Gov-ernment or minister for foreign affairs, or a person having full powers for that purpose issued by one of those authorities. As with reservations, it is possible to modify or with-draw declarations.
State parties to the Convention have lodged a range of reservations and decla-rations, some of which have attracted objec-tions from other State parties.
• With regard to the concept of “consent”
and its implications, Australia declared
“its understanding that the Convention allows for compulsory assistance or treatment of persons, including mea-sures taken for the treatment of mental disability, where such treatment is nec-essary, as a last resort and subject to safeguards”. Both France and the Neth-erlands declared their understanding of the term “consent” and its application:
(1) consent given by a person who is able to consent; and (2) in the case of persons who are not able to give their consent, permission given by their rep-resentative or an authority or body pro-vided for by law.
• Malta, Monaco and Poland made res-ervations and declarations stressing that the Convention shall not be interpreted in a way conferring an individual right to abortion.
• The Syrian Arab Republic “understands”
that being a signatory of the Convention
“does not in any way imply recognition of Israel or entry into relations with Israel, in any shape or form, in connection with the Convention.”
SEARCH
• Azerbaijan declared that “it is unable to guarantee the application of the provi-sions of the Convention in the territories occupied by the Republic of Armenia until these territories are liberated from occupation.”
• France and several other States objected to the declaration made by the Islamic Republic of Iran to exclude the applica-tion of those provisions of the Conven-tion that are deemed incompatible with Iranian laws. According to France, the Islamic Republic of Iran made a “res-ervation of general and indeterminate scope. This reservation is vague, fail-ing to specify the relevant provisions of the Convention or the domestic laws to which the Islamic Republic of Iran wishes to give preference. Consequently, it does not allow other States parties to know the extent of the commitment of the Islamic Republic of Iran and could render the Convention ineffective.”
• Austria, the Czech Republic, the Nether-lands, Portugal, Slovakia and Sweden objected to a reservation made by El Sal-vador to sign the Convention “to the extent that its provisions do not prejudice or vio-late the provisions of any of the precepts, principles and norms enshrined in the Con-stitution of the Republic of El Salvador, par-ticularly in its enumeration of principles.”
By not specifying the extent of the deroga-tion, the reservation was incompatible with the object and purpose of the Convention, according to these States.
• The Czech Republic, Portugal, Spain and Sweden objected to Thailand’s interpre-tative declaration subjecting article 18 of the Convention to conformity with Thai laws, regulations and practices.
The reservation makes it unclear to what
extent Thailand considers itself bound by the obligations of article 18, putting in question Thailand’s commitment to the object and purpose of the Convention as regards the rights associated with liberty of movement and nationality.
D. Incorporation into the legal system of the ratifying State
Once international ratification has taken place, the State has expressed its consent to be bound by the treaty and the Conven-tion has entered into force for it. However, it should not be assumed that the Convention has automatically become part of its national law.
There are two main approaches to incor-porating treaties within the domestic legal system, usually as a result of legal traditions and often reflected in national constitutions.
Monist countries assume that domestic law and international law form one system of law.
International law does not need to be trans-lated into national law. The act of ratifying an international agreement immediately incorpo-rates it into national law. International law can be directly applied by a national judge and directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules.
In some States, international law always has priority while others adopt the lex posteriori rule. In some State parties to the Convention, such as Argentina, Chile, Costa Rica, Croatia, Hungary, Mali, Niger, Qatar, Slovenia and Spain, the provisions of the Convention have direct legal effect on the national legal frame-work and are in principle directly applicable, including in courts of law. In relation to other human rights treaties, such as the International
SEARCH
Covenant on Economic, Social and Cultural Rights, individuals have gone to court with allegations of breaches of treaty rights and won compensation or reparation.
In dualist countries, the international and national legal systems are seen as separate.
The international human rights treaties to which these States are a party have no force, as such, within their domestic legal systems and domestic legislation must be adopted to incorporate the treaty into the domestic legal order. While some State parties have made amendments to their legislation to ensure com-pliance with the Convention, it appears that the steps taken so far fall short of giving direct effect to the Convention in the domestic sys-tem.
If a dualist country does not translate an international treaty into domestic law, for example, out of negligence or because the purpose of the ratification/accession was merely political, its implementation will remain uncertain. If the State does not trans-late the Convention into national law once it has ratified it, those in most need of having its provisions applied might not be protected by it. Examples of dualist countries are Aus-tralia, Canada, India, Kenya, Malawi, South Africa, United Kingdom and Zambia.
Human rights treaty bodies have often recommended incorporation of their treaties into the domestic legal order so as to realize their full potential. For example, in its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, the Human Rights Committee, while noting that the Interna-tional Covenant on Civil and Political Rights does not explicitly require States parties to incorporate the Covenant, expressed the view “that Covenant guarantees may receive
enhanced protection in those States where the Covenant is automatically or through spe-cific incorporation part of the domestic legal order” and invited States parties to proceed accordingly.
The Committee on Economic, Social and Cultural Rights expressed similar views in its general comment No. 9 (1998) on the domestic application of the Covenant:
“legally binding international human rights standards should operate directly and imme-diately within the domestic legal system”
and “while the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desir-able”.
Even in countries where it is necessary for legislation to refer to or reproduce the content of a treaty, judges have in some cases developed innovative ways of making use of international standards. For example, although South Africa is not a party to the International Covenant on Economic, Social and Cultural Rights, its Constitutional Court has used general comments of the Commit-tee on Economic, Social and Cultural Rights to interpret the context of economic, social and cultural rights in the South African Con-stitution.