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Essay Public International Law (RR314) | Cijfer: 7
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An essay for the academic year concerning reservations
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Samenvatting Boom Jurisprudentie en documentatie - Cases and Materials Public International Law, ISBN: 9789462907423 Public International Law
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1 Treaties are concluded on behalf of States and will affect, either directly or indirectly, theindividuals residing within the territory of the concluding State. One of the tools States have under
international law is modifying the content of multilateral treaties, also known as reservations.
According to article 2(1)(d) VCLT, reservations can be defined as unilateral statements made by a
State when signing, ratifying, accepting, approving or acceding to a treaty. In that way, States
alter the effect of multilateral treaties within their territory in order to protect its national interests.
However, three situations in which reservations are not allowed have been listed article 19 VCLT.
In addition, the International Court of Justice (ICJ) has considered that reservations are not
allowed when going against the object and purpose of the treaty involved. 1
This first tool may affect the integrity of human rights treaties negatively. The possibility for States
to pick and choose the provisions applicable within their territory will lead to a confusing whole of
bilateral relationships within multilateral treaties. Moreover, there is a possibility that individuals
will move to a State with rules they consider to be the most favourable for them.
Another tool States have under international law are declarations. Whereas reservations offer
States the possibility to modify the content of treaties, declarations aim to provide a clarification of
the scope of its content. A distinction can be drawn between interpretative declarations and
qualified interpretative declarations. Qualified interpretative declarations appear to be similar to
reservations since the declaring State sets conditions before it considers itself to be bound by the
treaty. Interpretative declarations do not affect the legal effects of treaties. It simply aims to clarify
the meaning of the content.
In order to determine the effect on the integrity of human rights treaties, one has to question itself
what goal a declaring State attempts to achieve. An interpretative declaration can as well fall under
the regime of a reservation meaning the effect on the integrity of human rights treaties is the
same.
2 Reservations can appear in various forms. A State can choose whether it wants to add,
remove or modify provisions within a treaty before expressing its consent to be bound by it. This
tool of flexibility makes participation in human rights treaties appealing to States. A second
argument in support of flexibility is that reservations allow States to enforce provisions within their
territories without having to change is domestic laws. I believe this can lead to a faster and
perhaps more efficient effect of international treaties in States.
Another consequence of allowing reservations refers to the notion of universality. 2 Human rights
treaties usually encompass a number of obligations for States and may therefore also lead to their
unwillingness to participate in a treaty. The expectation is that these strong and precise obligations
will enhance the likelihood of reservations and thus a consistent participation of States. 3 In my
opinion, an argument in support of the safeguarding of integrity can be defended against the
unwillingness of States to participate. Because States are given the opportunity to modify the
content of human rights treaties to their liking, assumed can be that they are willing to comply.
This can lead to a reversal of violations and the number of disputes. Finally, the delineated legal
framework anchored in article 19 VCLT also benefits the integrity. It educates States on situations
in which reservations are allowed and in which they are not.
_____
1
ICJ, Reservations to the Genocide Convention, Advisory Opinion of 28 May 1951, ICJ Reports
1951.
2
Z. Cheema & S. Ismail, ‘Law on Reservations to Human Rights Treaties: Historical Development
and Its Prospects’, Academic Journal of Interdisciplinary Studies 2021, p. 141-149.
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