Uppsatsmall doc

5.3 A Special Reservations Rule for Human
Rights Treaties?
In the case of human rights treaties there may be weighty political reasons why a
state is reluctant to object to the entry into force of the treaty between it and the
reserving state, even when it has objected to a reservation on the ground that it
fails the compatibility test. It is understandable that most objecting states are
reluctant to take the position that the treaty will not be in force between them and
the reserving state unless and/or until the reservation is withdrawn. Particularly for
human rights treaties, this creates not only a network of bilateral undertakings for
the parties, but also norms of behaviour for the parties in their treatment of
persons for whom they are responsible, including aliens.
103
The basic question
concerning human rights treaties is whether or not they are to be considered as a
category separate from other multilateral treaties, and in particular, whether the
rules on reservations apply to them with equal force. State practice does not seem
to differentiate, from the legal point of view, human rights treaties from other
multilateral treaties.
104
There is reference throughout the Human Rights Committee’s General
Comment
105
to the special character of the human rights norms, where obligations
99
ICJ Rep. 1951, para. 23.
100
Higgins, R., 
Derogations under human rights treaties
, BYIL, 1976/77, pp. 281-282.
101
Imbert, P. H., 
Reservations and Human Rights Conventions
, HRR, Vol. 5-6, 1980/81, p. 28.
102
The discussion about core and non-core rights and obligations is very interesting, but
there is a risk that this alternative approach leads to problems, even if not the same as the
object and purpose debate encounters. Being aware of this, one can easier take in these new
ideas.
103
Aust, p. 120.
104
Coccia, p. 16.
105
General Comment on issues relating to reservations made upon ratification or
accession to the Covenant or the Optional Protocol thereto, or in relation to declarations
under article 41 of the Covenant
, CCPR/C/21/rev.1/Add.6. adopted by the Committee at its
52
nd
session on 2 November 1994. Hereinafter called G.C. No.24(52).

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are by and large not owed reciprocally between states but, rather, by states to
their populations in respect of the observance of human rights standards. The
Committee views the VCLT regime as “inappropriate” in respect of objections to
reservations to human rights treaties, partly because the Vienna regime is said to
permit states freely to accept or reject reservations.
106
The Committee’s criticism
of the VCLT seems to be valid.
Others have also expressed their dissatisfaction with the reservations regime in the
VCLT. In a statement on behalf of the Swedish Government in the Sixth
Committee in November 1997, the Swedish representative laid down the
Swedish position that there exists one unitary reservation regime only, namely the
Vienna regime. This regime is, in principle, applicable in all situations, i.e. also to
normative multilateral treaties such as human rights treaties. However, this regime,
the spokesman continued, is residual in character, meaning that it has lacunae, and
that it is not without complications with regard to the normative treaties, such as
human rights treaties. The solution suggested by the Swedish Government at this
point was to keep the Vienna regime applicable as a general rule, but subject to
exceptions through agreements in particular treaties. This is, the spokesman
explained, an arrangement sometimes found in regional treaties, and may well, in
the future, be included in global instruments of a binding nature.
107
Whether this is
going to be the future development of the human rights treaties or not is difficult to
predict, but it seems everyone is agreeing that a change of some kind is needed.
According to Redgwell, the two-tier test is not working as it should, since states
can accept inadmissible reservations, as well as object to admissible ones.
Moreover, when the objecting state does find a reservation to be inadmissible, it
often still does not preclude the entry into force of the treaty relations between the
reserving state and itself. There may be many good reasons for this, but it shows
that the Vienna regime is not working like it was thought to function. The
approach advocated by the Human Rights Committee is the method used by the
European Court of Human Rights in the