34
approach; that the reserving state remains bound by the treaty. If, however, the
reservation is at the heart of a state’s consent to be bound, then it has the option
to denounce the treaty, but that is hardly a pleasant option given the increasing
importance of being seen to adhere to human rights treaties. The severance
approach may be seen as a derogation from the
general and residual rule
embodied in the Vienna regime, and could be an alternative to the same.
Undoubtedly, severance as a general principle applicable to incompatible
reservations to all types of treaties poses considerable difficulties of application.
112
In the absence of a supervisory organ it adds yet another difficult stage to the
individual assessment by the states of reservations. Still, Redgwell concludes, and
the present writer agrees, this alternative approach should be welcomed as a
constructive response to the real problem of reservations to human rights treaties.
The present writer is aware of the difficulties with the severance approach, as for
instance the need for a
powerful supervisory mechanism, like the European Court
is for the European Convention. Nonetheless, the severance approach might be
useful in the quest for a good solution to the problem at hand.
Another participant in the debate on this subject is Klabbers, and he thinks that
the whole law of treaties may need an overhaul.
113
The contractual origins of the
law of treaties necessitate a rethinking of the law of treaties on those points where
a contractual approach leads to unjust or perverse results.
The Nordic initiative
114
to proclaim that reserving states shall not benefit from their reservations where
those are difficult to reconcile with the treaty’s object and purpose is, according
to him, “at best seen as a modest but highly interesting attempt to influence the
development of the law on reservations to treaties and indicate that the
contractual way of thinking has its limits.”
115
It seems as Klabbers is convinced
that a change is needed in the law of treaties, especially
concerning the reservation
regime. Yet, in his concluding remarks, he holds that a change in the law is a
secondary matter, and stresses that it very well may be that the honest debate on
the subject matter is of greater importance than the outcome thereof.
Lastly, a third scholar, Baratta
116
, holds that a special reservation regime for
invalid reservations to human rights treaties is a desirable prospect for the
progressive development of international law.
117
Any
closer remarks on how this
new and special regime should be designed for best result is not revealed. Baratta
concludes though, that the very existence of convention bodies make states more
willing to conform to the decisions of these supervisory bodies, whether the
112
Redgwell, p. 411.
113
Klabbers, p. 192.
114
For a presentation of the Nordic “No Benefit” Approach, see below in chapter 5.6.2.
115
Klabbers, p. 192.
116
Baratta, R.,
Should Invalid Reservations to Human Rights Treaties Be Disregarded?,
EJIL, Vol. 11, No.2, 2000.
117
The creation of a specific reservations regime applicable to human rights treaties is,
though, a development that many states are opposed to. Baratta, p.425, note 44, quoting the
Fourth
Report on Reservations, A/CN.4/499, at 10, para. 24, and at 15, para. 41.
35
decisions are binding or not.
118
If this is true, Baratta argues, the possibility
certainly exists that, regardless of the binding nature of the decision taken by the
supervisory body that an invalid reservation (invalid meaning incompatible with the
object and purpose test in article 19(c) VCLT) is to be considered as not
formulated, the interested states will conform to this decision.
119
This
approach
has similarities with the Nordic “No Benefit” Approach, where the reservation
deemed impermissible is simply overlooked, treaty relations are established
between the reserving and the objecting states and the reserving state ends up not
getting what it wanted.
120
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