9
27.
The present system of reservations, reminiscent of the old Pan-American
practice, rescued by the International Court of Justice24 and the two Vienna
Conventions on the Law of Treaties, for having crystallised itself in the relations
between States, not surprisingly appears entirely inadequate to the treaties whose
ultimate beneficiaries are the human beings and not the Contracting Parties.
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.
28.
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. Despite the efforts in expert writing to the effect of
systematizing the practice of States on the matter25, it is difficult to avoid the
impression that such practice has been surrounded by uncertainties and ambiguities,
and has remained inconclusive to date. This indefinition is not at all reassuring for
human rights treaties, endowed as they are with mechanisms of international
supervision of their own. This general picture of indefinition has thus, not surprisingly,
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 Treaties26 (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 Rights27; 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
24
. The Advisory Opinion of the ICJ on the Reservations to the Convention against Genocide (1951) marked
the gradual passage, in the matter of reservations to treaties, from the rule of unanimity (of its approval by
the States Parties), to the test of its compatibility with the object and purpose of the treaty. In a general way,
the Vienna Convention incorporated the flexible Pan-American doctrine on reservations, in accordance with a
tendency to this effect of the international practice already formed in the epoch; I.M. Sinclair, "Vienna
Conference on the Law of Treaties", 19 International and Comparative Law Quarterly (1970) pp. 47-69; and
cf. Articles 19-20 of the Vienna Convention.
25
. 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.
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).
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