Reservations to the International Covenant on Civil and Political Rights and Its
Optional Protocols – Reflections on State Practice
Martin Scheinin, Professor of Constitutional and International Law at Åbo Akademi
University, Member of the Human Rights Committee
Introduction
In 1994 the Human Rights Committee, the treaty body acting under the International
Covenant on Civil and Political Rights (ICCPR),1 adopted its General Comment No.
24 (52)2 on issues related to reservations made to the Covenant or its two Optional
Protocols.3 The General Comment did not break new ground as to the regime on
reservations under human rights treaties but it certainly made explicit some of the
tensions that existed between a state-centred reading of the Vienna Convention of the
Law of Treaties4 and the approach taken to reservations under human rights treaties.
The General Comment triggered off critical comments by certain states,5 and still ten
years later it figures as an important background factor for the ongoing work of the
International Law Commission under the theme of reservations to multilateral
treaties.6
General Comment No. 24 includes two fundamental elements of a human rights
approach to reservations that are at least seemingly in tension with the Vienna
Convention regime: (a) A human rights treaty body, established for the purpose of
interpreting the treaty and monitoring the compliance by states with its provisions has
the competence to address the permissibility of reservations made under the treaty in
question.7 (b) The usual (but not automatic) consequence of an impermissible
reservation will be its severability, i.e. the state in question is considered bound by the
treaty but without the benefit of its reservation.8 Neither one of the two central
dimensions of a human rights approach to reservations is an innovation by the Human
Rights Committee. Reference can be made to the Belilos9 and Loizidou10 cases before
the European Court of Human Rights. These cases also express the two central
elements of a human rights approach to reservations. Further, as will be shown below,
prior to the adoption of General Comment No. 24 in 1994, there existed state practice
under the ICCPR, in the form of objections by other states, that reflected the
severability approach, namely the position that a reserving state may be held bound by
the ICCPR without the benefit of its reservation if the reservation in question is
contrary to the object and purpose of the treaty. As has been documented by Professor
1
UNTS, vol. 999, p. 171.
UN doc. HRI/GEN/1/Rev.7 p. 161.
3
UNTS, vol. 999, p. 171; UN doc. A/RES/44/128.
4
UNTS, vol. 1155, p. 331.
5
See, Annual Report 1995 of the Human Rights Committee, A/50/40 vol. I pp. 126-134 (the United
States and the United Kingdom) Annual Report 1996 of the Human Rights Committee, A/51/40 vol. I
pp. 104-106 (France).
6
Report of the International Law Commission, Fifty-fifth session (5 May-6 June and 7 July-8 August
2003), A/58/10, Chapter VIII.
7
See, paragraph 18 of General Comment No. 24 (supra, note 2).
8
Idem.
9
Belilos v. Switzerland., European Court of Human Rights, Judgment of 29 April 1988, in particular
paragraphs 49-51 and 58-60.
10
Loizidou v. Turkey, European Court of Human Rights, Judgment on preliminary objections, 23
February 1995, in particular paragraphs 76-79 and 93-98.
2
Françoise Hampson in her recent report to the Sub-Commission on the Promotion and
Protection of Human Rights, similar state practice existed prior to the entry into force
of the ICCPR within the framework of the 1949 Geneva Conventions on humanitarian
law.11
This short paper is not a commentary of General Comment No. 24 or an overview of
the approach of the Human Rights Committee in respect of reservations by states.12
Rather, and as was implied above, this paper aims at an account of state practice in
respect of reservations to the ICCPR. First, a brief overview of state practice in the
form of entering reservations will be presented. Thereafter focus will be on objections
by other states as another form of state practice.
Overview of State Practice in the Form of Reservations to the ICCPR
As of 1 October 2004, there are 153 States Parties to the ICCPR.13 The quantitative
overview presented in this section of our paper reflects the situation in 2002, as it is
based on the very helpful chart presented by Professor Françoise Hampson at an
earlier phase of her project mentioned above.14 The chart allows us to summarize
what substantive provisions of the ICCPR have been subject to reservations by states
and to what extent other states have reacted to those reservations by objecting to
them. Setting aside five instances of what Hampson classifies as “general
reservations” because they do not relate to a specific provision of the ICCPR, as well
as six reservations related to articles 47-50 that are outside Parts I-III that contain the
substantive human rights provisions in the ICCPR, the following observations can be
made of the remaining 162 reservations covered by the Hampson chart.
1. Only 37 states had made one or more reservations, i.e. 25 % of the 149 States
Parties to the ICCPR in 2002. A clear majority of the reservings states (21 states)
belong to the group of Western European and Other states, 7 were Latin American or
Caribbean states, 4 Asian15 and 3 African countries. One Eastern European country
(Romania) and also Israel had reservations.
2. There is much variation as to how many reservations a reservings state enters. Nine
(24 %) of the 37 states had only one reservation. At the other end of the scale was the
11
Reservations to human rights treaties; Final working paper submitted by Françoise Hampson, SubCommission on the Promotion and Protection of Human Rights (2004), E/CN.4/Sub.2/2004/42, paras
16-17. In the light of the leading role of the United Kingdom in developing under the Geneva
Conventions what is called the severability approach, it is surprising that in its comments on HRC
General Comment No. 24 (footnote no. 5, supra, p. 133-134) the United Kingdom denies the
possibility of severability and takes the position that a state that enters an impermissible reservation to
the ICCPR is not a State Party at all, unless its withdraws its reservation.
12
For such a discussion, see Martin Scheinin, “Reservations by States under the International Covenant
on Civil and Political Rights and Its Optional Protocols, and the Practice of the Human Rights
Committee”, pp. 41-58 in Ineta Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna
Convention Regime: Conflict, Harmony or Reconciliation. The Netherlands 2004: Martinus Nijhoff
13
http://www.ohchr.org/english/bodies/docs/RatificationStatus.pdf
14
Reservations to human rights treaties; Working paper preparatory to the submission of the expanded
working paper by Françoise Hampson submitted in accordance with the Sub-Commission decision
2002/17, Sub-Commission on the Promotion and Protection of Human Rights (2002),
E/CN.4/Sub.2/2002/34.
15
India, Republic of Korea, Thailand and in the Middle East also Kuwait.
2
United States with 11 reservations, then the United Kingdom with 10 reservations,
followed by Austria, France and Monaco (9 reservations each), and Australia,
Belgium and Trinidad and Tobago (7).16 Of the three African states that had any
reservations, Congo and Gambia had one reservation each, whereas Botswana had
two.
3. The provision subject to the greatest number of reservations is, not unexpectedly,
the complex and detailed provision on the right to a fair trial in article 14. The
reservations, 28 in number, relate to various paragraphs and sub-paragraphs of the
provision, reflecting the problems confronted by different legal systems in adopting
the internationally accepted standard of fair trial guarantees. Only one of the 28
reservations, entered by the Republic of Korea, has been objected to by other states.
4. There are very few reservations to the non-derogable provisions of articles 6 (right
to life) and 7 (prohibition against torture or any other inhuman treatment). Only
Thailand and the United States have made reservations in respect of article 6, and in
both cases other states have objected to the reservation. The same is true for article 7
where only Botswana and the United States have a reservation. Article 8 (prohibition
against slavery and forced labour) belongs to the same category as it is partly nonderogable and there is only one reservation, by Kuwait. Again, other states have
objected to the reservation.
5. There is an intermediary number of reservations related to articles 9 and 10 that
both regulate deprivations of liberty – the former in respect of procedures and the
latter what comes to conditions of detention. These reservations, 8 and 15 in number,
respectively, are often quite precise in their formulation, and there are only very few
objections (one each). The pattern is very similar in respect of article 12 (freedom of
movement) and article 13 (procedural safeguards against deportation): 8 and 6
reservations, one and zero objections, respectively.
6. Article 26 on equality and non-discrimination is subject to 6 reservations, two of
which have been objected to by other states. There is only one reservation (by France)
to the minority rights provision in article 27, and even that reservation has been
contested by way of an objection. Three hereditary monarchies have entered a
reservation in respect of article 3 (equal rights of men and women) in the issue of
succession to the throne. Kuwait’s much more general reservation to article 3 has
been subject to objections by other states.
7. As to political rights (articles 19-22 and 25), there are 12 reservations to article 19
(freedom of expression) and another 17 reservations to article 20 that mandates
certain restrictions to freedom of expression. None of these reservations has been
objected to by other states. There are 5 reservations to article 21 (freedom of
assembly) and 7 reservations to article 22 (freedom of association), one in the latter
category, by the Republic of Korea, being subject to objections by other states.
16
In these figures, several reservations by the same state to one and the same provision of the ICCPR
are counted as one reservation, so the figures actually refer to treaty provisions subject to reservations.
Typically, article 14 on the right to a fair trial may be subject to several reservations by one and the
same state.
3
Overview of State Practice in the Form of Objections to Reservations
While the preceding section of our paper was primarily addressing, on the basis of the
chart prepared in 2002 by Professor Françoise Hampson, quantitative data related to
reservations by states, this section will look at a different form of state practice and
apply a different methodology. Here, focus will be on objections by other states to the
reservations made, and the discussion aims at a legal (qualitative) assessment of those
objections on the basis of their actual text.
1. The main point to be made is that the doctrine of severability, i.e. of holding a state
bound by the ICCPR without the benefit of its impermissible reservation, was not
invented by the Human Rights Committee in its General Comment No. 24 (1994).
State practice subsequent to the publication of the General Comment has,
nevertheless, been more explicit than earlier objections in the articulation of
severability as the consequence of an impermissible reservation.
2. Objections by states to reservations by other states under the ICCPR have been
classified here to represent the severability approach in two situations. Firstly, an
objection is classified as representing the severability approach if the objection
includes a clear pronouncement that a reservation is impermissible under international
law17 and an equally unambiguous statement that the ICCPR will in spite of the
objection enter into force between the reserving state and the objecting state. A
second application of the severability approach is represented by objections that
clearly state the actual conclusion, namely that the ICCPR will enter into force
between the objecting and the reserving state, the latter not benefitting from the
reservation. While the first-mentioned form of the severability approach was applied
by states also prior to 1994, the latter one appears only in state practice subsequent to
the adoption of General Comment No. 24.
3. Most of the pre-1994 objections that according to above criteria represent the
severability approach were triggered off by the ratification of the ICCPR by the
United States in 1992. An unusually high number of Western states (Belgium,
Denmark, Finland, France, Italy, the Netherlands, Norway and Spain) objected to at
least some of the reservations as being incompatible with the object and purpose of
the ICCPR but stating that the objection did not preclude the entry into force of the
ICCPR between the reserving and the objecting state. The objections that in the
clearest way spelled out the idea of severability were those by France and Italy:
France: “this United States reservation [to article 6, paragraph 5] is not valid,
inasmuch as it is incompatible with the object and purpose of the Convention. Such
objection does not constitute an obstacle to the entry into force of the Covenant
between France and the United States.”18
Ambiguous formulations, such as that the objecting state has “doubts” as to the permissibility of a
reservation and therefore makes an objection, have not been included in the findings below, because
such formulations may represent an understanding that the reservation perhaps is a permissible one and
the treaty therefore enters into force, despite the objection, between the two states as modified by the
reservation.
18
4 October 1993 (epmhasis added). In the light of this objection it is surprising, that France, in its
comments to HRC General Comment No. 24 (see note 5, supra, p. 106) contests the consequence of
severability of an impermissible reservation as being “incompatible with the law of treaties”.
17
4
Italy: “… this reservation is null and void since it is incompatible with the object and
the purpose of art. 6 of the Covenant… These objections do not constitute an obstacle
to the entry into force of the Covenant between Italy and the United States."19
4. However, already prior to the US reservations there was one instance where a
state’s reservations to the ICCPR were followed by objections that meet the above
criteria for representing the severability approach. This was the ratification by the
Republic of Korea in 1991, where three states objected, and two of them (the
Netherlands and the Czech and Slovak Federal Republic) with a formulation that
pronounced severability:
The Czech and Slovak Federal Republic: “… does not recognize these reservations
[to articles 14 and 22] as valid. Nevertheless the present declaration will not be
deemed to be an obstacle to the entry into force of the Covenant between the Czech
and Slovak Federal Republic and the Republic of Korea."20
5. Some of the objections made subsequent to the adoption of the severability doctrine
by the Human Rights Committee in its General Comment No. 24 in 1994, have been
even more explicit. Such objections have been made in respect of reservations by
Botswana, Kuwait, Thailand and Turkey. Objections to these reservations,
representing the severability approach were made by Denmark, Finland, Greece, the
Netherlands, Norway, Portugal and Sweden. As an example, an objection in respect of
reservations by Turkey can be quoted:
Sweden: “This objection shall not preclude the entry into force of the Covenant
between the Republic of Turkey and Sweden. The Covenant enters into force in its
entirety between the two States, without the Republic of Turkey benefiting from its
reservations.”
6. The same approach is visible in recent objections to so-called procedural
reservations where a State Party to the (first) Optional Protocol to the ICCPR,
allowing for individual complaints to the Human Rights Committee is making its
acceptance of the complaint mechanism subject to restrictions made through a
reservation. Most of the reservations to the Optional Protocol have not given rise to
objections as they are related to the issue of “the same matter” addressed in article 5,
paragraph 2 (a) of the Optional Protocol, striving to prevent the duplication of
international procedures in the same case. Notably, however, the reservations entered
by Guyana and Trinidad Tobago that purport to restrict the right of complaint by
excluding persons sentenced to death from its scope, gave rise to a number of
objections by other states. At least the objections by Denmark, Finland, the
Netherlands and Poland were based on the severability approach, later applied also
by the Human Rights Committee in the case of Rawle Kennedy v. Trinidad and
Tobago.21 Again, an example of the objections in questions will be quoted:
19
5 October 1993 (emphasis added)
7 June 1991 (emphasis added); see also objection by the Netherlands, 10 June 1991.
21
Communication No 845/1999, admissibility decision of 2 November 1999, CCPR/C/67/D/845/1999.
In its final views, adopted on 26 March 2002, CCPR/C/74/D/845/1998, the Committee found violations
of articles 6, paragraph 1, 7, 9, paragraph 3, 10, paragraph 1, 14, paragraphs 3(c) and 5, and 14,
paragraphs 1 and 3(d), the latter in conjunction with article 2, paragraph 3, of the Covenant.
20
5
Finland: “This objection does not preclude the entry into force of the Optional
Protocol between Guyana and Finland. The Optional Protocol will thus become
operative between the two states without Guyana benefitting from the reservation.”22
7. The severability approach has been applied in state practice also in respect of the
Second Optional protocol to the ICCPR, aiming at the abolition of the death penalty.
The Protocol itself explicitly narrows down the scope of permissible reservations, and
hence a reservation by Azerbaijan gave rise to objections. The objections by Finland
and Sweden represent what has above been called the severability approach, both
explicitly taking the position that the Protocol enters into force between the reserving
and objecting state, the former not benefitting from the reservation.23 Subsequently,
on 28 September 2000, the Government of Azerbaijan communicated to the
Secretary-General a modification to its reservation made upon accession. The newly
formulated reservation no longer gave rise to objections. The willingness of
Azerbaijan to adjust its reservation can be taken as a specific form of state practice,
recognising the severability of impermissible reservations.
Conclusions
1. At least two different forms of state practice emerge under the ICCPR: the practice
of reserving states in entering, modifying and withdrawing their reservations; and the
practice of other states in objecting to the reservations by reserving states. A third
form of state practice could be said to emerge through states’ action or inaction in
respect of the pronouncements made by the Human Rights Committee in relation to
reservations by states. This paper focuses on the two first-mentioned forms of state
practice, and even then on the entering of reservations and objections. This said, the
material presented above indicates that there is close interaction between the various
forms of “subsequent practice”, for instance so that state practice related to the
entering of reservations and objections takes into account the pronouncements made
by the Human Rights Committee.
2. Reservations are not a regular element in the ratification practice of states in respect
of the ICCPR. Three out of four States Parties have ratified the ICCPR without a
single reservation. Western European and other Western states have entered far more
reservations than any other group of states. Out of 162 reservations in total, more than
half (86) were entered by a group of eleven Western states.24 Only two other states
entered a comprable number of reservations.25 The same pattern is visible as to the
other form of state practice, objections. Only 14 states – less than 10 % of all States
Parties - have so far made objections to reservations entered by other states in
relation to the substantive provisions of the ICCPR.26 All except one – the Czech and
Slovak Federation which today is represented as two separate states as members of
22
17 March 2000 (emphasis added)
Finland (17 March 2000); Sweden (27 April 2000)
24
United States 11, United Kingdom 10, Austria 9, France 9, Monaco 9, Australia 7, Belgium 7,
Germany 6, the Netherlands 6, Liechtenstein 6, and Switzerland 6 reservations.
25
Trinidad and Tobago 7 and Kuwait 6 reservations.
26
This means that objections to reservations to the two Optional Protocols are not included in the
numbers. However, the pattern of objections would be very similar.
23
6
the European Union – are Western European states. Finland, the Netherlands and
Sweden have made at least 10 objections each, representing almost 50 % of the total
of 73 objections.
3. The doctrine of the potential severability of impermissible reservations, i.e., the
possibility to consider a state as a party to the ICCPR without the benefit of its
impermissible reservation, is absent from the text of the Vienna Convention on the
Law of Treaties. However this silence can be attributed to the fact that the Vienna
Convention only regulates the consequences of permissible reservations and
objections to them. Indeed, the Vienna Convention is silent in the issue of the
consequences of impermissible reservations – it neither denies nor supports the
severability doctrine. The severability approach taken in 1994 by the Human Rights
Committee in its General Comment No. 24 on reservations had prior to that point
been expressed in certain objections by States Parties to reservations by the Republic
of Korea and the United States. Subsequent to the adoption of the General Comment,
objections by states have become even more explicit in treating a state that enters a
reservation that is incompatible with the object and purpose of the ICCPR as a State
Party but without the benefit of its impermissible reservation.
7