Reservations to Human Rights Treaties:           From Draft Guideline 3.1.12 to Guideline

This article addresses the issue of reservations to human rights treaties in the light of the work done by the International Law Commission and its Special Rapporteur, Mr Alain Pellet. Part 1 gives a short historical background for the topic. Part 2 provides a concise overview of the variety of arguments that have been raised in the debate on the character of human rights treaties and the permissibility of reservations to these treaties, as well as their relationship with the reservations regime established under the Vienna Convention on the Law of Treaties. Part 3 gives a number of specific examples of reservations permitted under the human rights treaties and describes the approach taken by some human rights treaty bodies in that respect. It also depicts the manner in which some of these bodies have dealt with the intricate issue of the consequences of impermissible reservations. Part 4 analyses the guidelines adopted by the ILC and offers some reflection on their contribution to the development of international treaty law on this topic. It is observed that the ILC has provided an answer to a long standing question concerning impermissibility of reservations and in particular it has stated that there is no such thing as ab initio impermissibility of reservations with human rights treaties by virtue of their special character unless, of course, states decide otherwise. Part 5 concludes with a few general remarks on the Guide to Practice noting its emphasis on engaging states in on-going dialogue as concerns reservations and the rights of individuals.


*Please note: This paper was published in the European Journal of International Law, Volume 24, issue 4. It can be found on the EJIL website.