Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?

Bruno Simma, Gleider Hernández

    Research output: Chapter in Book/Report/Conference proceedingChapterAcademicpeer-review

    Abstract

    The Vienna Convention's regime on reservations is particularly unfit to cope with the specific characteristics of human rights treaties due to the very limited and particular role played by reciprocity and the ‘inward-targeted’ nature of the obligations stipulated in such instruments. Regional human rights courts and UN human rights treaty bodies have developed certain methods of monitoring the reservations practice of states parties to the respective instruments, but a central question has hitherto remained very controversial, namely that of the legal consequences of a reservation to a human rights treaty which is considered incompatible with that treaty's object and purpose and therefore impermissible. After many years of dealing with the topic of reservations, the UN International Law Commission has finally addressed this issue: Special Rapporteur Alain Pellet has proposed a solution which finds itself essentially in accord with the ‘severability’ doctrine advocated by the human rights community, reconciling this approach and the principle of treaty consent through the introduction of a presumption of severability of an invalid reservation from the body of a human rights treaty, to which the State making such a reservation will then remain bound in full. This chapter supports the Special Rapporteur's proposal, traces its development, and discusses both the advantages and the specific challenges posed by a presumption of severability.
    Original languageUndefined
    Title of host publicationThe Law of Treaties beyond the Vienna Convention.
    EditorsEnzo. Cannizzaro
    Place of PublicationOxford
    PublisherOxford University Press
    Pages60-85
    Number of pages26
    ISBN (Print)9780199588916
    DOIs
    Publication statusPublished - Sep 2011

    Keywords

    • reservations to treaties
    • human rights treaty obligations
    • reservations regime
    • mpermissible reservations
    • objections
    • presumption of severability
    • invalid reservations

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