9
led the U.N. International Law Commission (ILC) to engage itself, as from 1998, in the
preparation of a Draft Practical Guide on Reservations to Treaties 26 (cf. infra).
29.
It calls the attention, for example, to find one's extensive list of reservations,
numerous and at times long, and often incongruous, of States Parties to the U.N.
Covenant on Civil and Political Rights 27; and the practical problems generated by
many of the reservations (also numerous and not always consistent) of the States
Parties to the U.N. Convention on the Elimination of All Forms of Discrimination
against Women are well-known, - to what one may add the reservations to the U.N.
Convention against Torture and the Convention on the Elimination of All Forms of
Racial Discrimination 28.
30.
With the persistence of the inadequacy and the insufficiencies of the present
system of reservations, it is not at all surprising that, firstly, multiple expressions of
dissatisfaction in this respect in contemporary legal doctrine (both in general studies
on the matter 29 and in respect of specific human rights treaties30); and secondly, the
preparedness of human rights international supervisory organs to assert their
competence to apply by themselves the criterion of the compatibility (supra) and to
contribute thereby to secure the integrity of the respective human rights treaties.
31.
At regional level, in its well-known judgment in the Belilos versus Switzerland
case (1988) 31, locus classicus on the issue, the European Court of Human Rights
considered the declaration amounting to a reservation (of a general character) of
Switzerland to the European Convention on Human Rights incompatible with the
object and purpose of this latter (in the light of its Article 64). On its turn, the InterAmerican Court of Human Rights, in its second and third Advisory Opinions 32, pointed
out the difficulties of a pure and simple transposition from the system of reservations
of the Vienna Convention on the Law of Treaties of 1969 into the domain of the
international protection of human rights.
26
. Cf. U.N., Report of the International Law Commission on the Work of Its 50th Session (1998), General
Assembly Official Records - Supplement n. 10(A/53/10), pp. 195-214 ("Reservations to Treaties: Guide to
Practice").
27
. Compiled by the Secretary-General of the United Nations and collected in the document: U.N.,
CCPR/C/2/Rev.4, of 24.08.1994, pp. 1-139 (English version), and pp. 1-160 (Spanish version).
28
. For a study of the problems created by the reservations to these four human rights treaties of the United
Nations, cf. L. Lijnzaad, Reservations to U.N. Human Rights Treaties - Ratify and Ruin?, Dordrecht, Nijhoff,
1995, pp. 131-424.
29
. Cf. D. Shelton, "State Practice on Reservations to Human Rights Treaties", 1 Canadian Human Rights
Yearbook/Annuaire canadien des droits de la personne (1983) pp. 205-234; C. Redgwell, "Universality or
Integrity? Some Reflections on Reservations to General Multilateral Treaties", 64 British Year Book of
International Law (1993) pp. 245-282; L. Lijnzaad, op. cit. supra n. (28), pp. 3-424; M. Coccia,
"Reservations to Multilateral Treaties on Human Rights", 15 California Western International Law Journal
(1985) pp. 1-49; L. Sucharipa-Behrmann, "The Legal Effects of Reservations to Multilateral Treaties", 1
Austrian Review of International and European Law (1996) pp. 67-88.
30
. Cf. B. Clark, "The Vienna Convention Reservations Regime and the Convention on Discrimination against
Women", 85 American Journal of International Law (1991) pp. 281-321; W.A. Schabas, "Reservations to the
Convention on the Rights of the Child", 18 Human Rights Quarterly (1996) pp. 472-491; A. Sanchez Legido,
"Algunas Consideraciones sobre la Validez de las Reservas al Convenio Europeo de Derechos Humanos", 20
Revista Jurídica de Castilla-La Mancha (1994) pp. 207-230; C. Pilloud, "Reservations to the Geneva
Conventions of 1949", International Review of the Red Cross (March/April 1976) pp. 3-44.
31
. Followed by the Weber case (1990).
32
. In its third Advisory Opinion on Restrictions to the Death Penalty (1983) the Court warned that the
question of reciprocity as related to reservations did not fully apply vis-à-vis human rights treaties
(paragraphs 62-63 and 65). Earlier, in its second Advisory Opinion on the Effect of Reservations on the Entry
into Force of the American Convention (1982), the Court dismissed the postponement of the entry into force
of the American Convention by application of Article 20(4) of the 1969 Vienna Convention (paragraph 34).
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