5
Definitively, human rights treaties, turned to the relations between States and
human beings under their jurisdiction, do not bear a system of reservations which
approaches them as from an essentially contractual and voluntarist perspective,
undermining their integrity, allowing their fragmentation, leaving at the discretion of
the Parties themselves the final determination of the extent of their conventional
obligations.
16.
As the two Vienna Conventions of 1969 and 1986 do not provide any
indication for an objective application of the criterion of the compatibility or
otherwise of a reservation with the object and purpose of a treaty, they leave it, on
the contrary, to be applied individually and subjectively by the Contracting Parties
themselves, in such a way that, at the end, only the reserving State knows for sure
the extent of the implications of its reservation. The results of this indefinition7 could
not be other than the uncertainties and ambiguitities which surround the matter to
date. It calls the attention, for example, the extensive list of reservations, numerous
and at times long, and often incongruous, of the States Parties to the Covenant on
Civil and Political Rights of the United Nations8; and the practical problems generated
by many of the reservations (also numerous and not always consistent) of the States
Parties to the Convention on the Elimination of All Forms of Discrimination against
Women are well-known, - to what one can add the reservations to the United
Nations Convention against Torture and the Convention on the Elimination of All
Forms of Racial Discrimination9.
17.
With the persistence of the inadequacy and the insufficiencies of the present
system of reservations, it is not at all surprising that, firstly, the criticisms and
manifestations of dissatisfaction in this respect are multiplied in contemporary
doctrine10, and secondly, the human rights international supervisory organs begin to
7.
Despite the efforts in the sense of systematizing the practice of States on the matter (cf., e.g.,
J.M. Ruda, "Reservations to Treaties", 146 Recueil des Cours de l'Académie de Droit International de La
Haye (1975) pp. 95-218; D.W. Bowett, "Reservations to Non-Restricted Multilateral Treaties", 48 British
Year Book of International Law (1976-1977) pp. 67-92; P.-H. Imbert, Les réserves aux traités
multilatéraux, Paris, Pédone, 1979, pp. 9-464; K. Holloway, Les réserves dans les traités internationaux,
Paris, LGDJ, 1958, pp. 1-358; K. Zemanek, "Some Unresolved Questions Concerning Reservations in the
Vienna Convention on the Law of Treaties", Essays in International Law in Honour of Judge Manfred Lachs
(ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 323-336; Ch. Tomuschat, "Admissibility and Legal
Effects of Reservations to Multilateral Treaties", 27 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht (1967) pp. 463-482; F. Horn, Reservations and Interpretative Declarations to Multilateral
Treaties, Uppsala, Swedish Institute of International Law, 1988, pp. 184-222), it is difficult to escape from
the finding that such practice has shown itself to be inconclusive until now, and at times confusing (which
becomes even more serious when dealing with reservations to human rights treaties). This being so, the
International Law Commission of the United Nations has deemed it fit to adopt, in 1998, a project of a
Practical Guide on Reservations to Treaties: 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").
8.
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).
9.
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.
10.
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. (9), pp. 3-424; M.
Coccia, "Reservations to Multilateral Treaties on Human Rights", 15 California Western International Law