6
disclose their willingness to assert their competence to apply the criterion of the
compatibility (supra) and contribute to secure, in this way, the integrity of the
respective human rights treaties. At regional level, in its well-known judgment in the
Belilos versus Switzerland case (1988), 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).
In its turn, the Inter-American Court of Human Rights, in its second and third
Advisory Opinions11, 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.
18.
At global level, in the I. Gueye et alii versus France case (1989), e.g., the
Human Rights Committee (under the United Nations Covenant on Civil and Political
Rights), in spite of a reservation ratione temporis of the respondent State12,
understood that the question - pertaining to pension benefits of more than 700
retired Senegalese members of the French army - was justiciable under the
Covenant (as the effects of the French legislation on the matter lasted until then),
and concluded that there was a violation of Article 26 of the Covenant13. The same
Committee, in its general comment n. 24(52), of November 1994, warned that the
provisions of the two Vienna Conventions and the classic rules on reservations
(based upon reciprocity) were not appropriate to the human rights treaties; given
the special character of the Covenant as a human rights treaty, the question of the
compatibility of a reservation with its object and purpose, instead of being left at the
discretion of the manifestations of the States Parties inter se, should be objectively
determined, on the basis of juridical principles, by the Human Rights Committee
itself (paragraphs 17 and 20)14.
Journal (1985) pp. 1-49; G. Cohen-Jonathan, "Conclusions générales - La protection des droits de
l'homme et l'évolution du Droit international", Société Française pour le Droit International, Colloque de
Strasbourg - La protection des droits de l'homme et l'évolution du Droit international, Paris, Pédone, 1998,
pp. 322-326; P. van Dijk, "The Law of Human Rights in Europe - Instruments and Procedures for a
Uniform Implementation", VI-2 Collected Courses of the Academy of European Law / Recueil des Cours de
l'Académie de Droit Européen - Firenze (1995) pp. 58-60 and 64; 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; L. Sucharipa-Behrmann, "The Legal Effects of
Reservations to Multilateral Treaties", 1 Austrian Review of International and European Law (1996) pp. 6788; E.F. Sherman Jr., "The U.S. Death Penalty Reservation to the International Covenant on Civil and
Political Rights: Exposing the Limitations of the Flexible System Governing Treaty Formation", 29 Texas
International Law Journal (1994) pp. 69-93; 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.
11.
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).
12 .
To Article 1 of the [first] Optional Protocol to the Covenant on Civil and Political Rights.
13.
Communication n. 196/1985, decision of 03.04.1989 (and previous decision of admissibility of
05.11.1987).
14.
7.
Text in U.N./Human Rights Committee, document CCPR/C/21/Rev.1/Add.6, of 02.11.1994, pp. 6-