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HUMAN RIGHTS DIALOGUE BETWEEN THE EUROPEAN UNION AND CHINA
SEMINAR OF 8 AND 9 NOVEMBER, THE HAGUE
Questions of validity in the light of objections by States parties
Olivier de Frouville
Senior Lecturer at the University of Paris X
This study
1
has been developed from an analysis of the "objections" raised by States in their approach to the six main treaties on human rights. Its aim is to determine the legal basis on which
States raise objections, and the consequences they associate with the finding that a reservation or declaration is invalid. The study also examines the conditions in which a State can "confirm" a reservation, that is to say, regularise it when one or more States have objected to it.
But first of all a clear definition must be given, for the purposes of the study, of what is meant by
"reservations", "declarations" and "objections". a) Reservations
Article 2 § 1 d) of the Vienna Convention on the Law of Treaties (1969) gives the following definition for this term:
" 'Reservation' means a unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." b) Declarations i ) Interpretative declarations
There is a conflict between reservations and "interpretative declarations" that have not been defined as such in the Vienna Convention. The Rapporteur of the International Law Commission
1 Some of the points dealt with here are developed more fully in the author's work: L’intangibilité des droits de l’Homme en droit international public. Régime des droits de l’Homme et droit des traités, [The intangible nature of human rights in public international law. Human rights regime and law of treaties] Paris, Pedone, 2004.

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(henceforth ILC), on the question of reservations in treaties, has nevertheless produced this definition as part of the draft Commission's Guide to practice :
"The expression "interpretative declaration" means a unilateral statement, regardless of the wording or designation thereof, made by a State or an international organisation, whereby that State or organisation purports to explain or clarify the meaning or the import which the declarant attributes to a treaty or to certain terms thereof." 2
In other words, interpretative declarations are not an alternative procedure to reservations: their aim is not to exclude or modify the application of a treaty provision to the State that makes the reservation. However, care must be taken not to fall into abstract nominalism: some declarations described as "interpretative declarations" are really reservations in disguise. ii) Conditional interpretative declarations
In the draft Guide to practice , the ILC distinguishes simple "interpretative declarations" from
"conditional interpretative declarations", a concept which it defines as follows:
"A unilateral statement formulated by a State or an international organisation when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, or by a State when making a notification of succession to a treaty, whereby the State or international organisation subjects its consent to be bound by the treaty to a specific interpretation of the treaty or of certain provisions thereof, shall constitute a conditional interpretative declaration".
In fact, since this type of declaration tends to render the State's consent to be bound by the treaty
"conditional", it could just as well be termed simply a reservation. Moreover, the CDI recognises that the regime governing conditional interpretative declarations is very similar, if not identical, to the regime governing reservations. So ultimately the import of the distinction between them is merely technical. iii) Conditions for recognising the competence of a monitoring body
The category into which reservations fall often encompasses, for linguistic convenience, those restrictions and conditions imposed by States in their statement acknowledging the competence of a monitoring or dispute-settlement body. In reality, these are not reservations, within the meaning given to this term by the Law of Treaties, since the purpose of these declarations is not to modify the State's consent to be bound by the treaty, but to modify the State's acceptance of the obligatory competence of a monitoring body. There is no doubt that the regime covering these

3 conditions is not quite analogous to that of reservations, not least because they do not formally come under the intersubjective regime set up in articles 20 to 22 of the Vienna Convention.
Nonetheless, the fact remains that they are conditions, set down in an act of consent to be bound, which are at the same time reservations. iv) Other treaty-related unilateral declarations
Other kinds of "declarations" are encountered which, in some cases, can have effects equivalent to reservations or interpretative declarations, although they could not be described as such.
This the case with the alternative procedures to reservations that take the form of special contractual opting out
3
or opting in
4
clauses, clauses allowing the State to cherry-pick among different obligations listed in the treaty
5
.
It is also the case with non-recognition statements and even general policy statements, which
States sometimes insist on adding to their instrument of ratification, but which have no real effect on the import of their consent. c) Objections
The term "objection" is not defined by the Vienna Convention on the Law of Treaties. An apposite definition is currently under discussion by the ILC. At its last meeting, the special
Rapporteur, Alain Pellet, proposed a new version of his draft directive 2.6.1. taking account of the remarks made by members of the ILC. This draft offers a definition we consider satisfactory for the purposes of the present study:
"The expression "objection" means a unilateral statement, regardless of the wording or designation thereof, made by a State or international organisation, [in response to][opposing] a reservation to a treaty [made][formulated] by another State or international organisation, whereby the State or organisation that made the objection purports to exclude or modify the effects that the reservation will have on the relations between the author of the reservation and the objecting party."
2 Directive 1.2., contained in "Text of draft directives on reservations to treaties adopted provisionally by the
Commission to date", International Law Commission Report , A/59/10 (2004), p. 252. For comments on this draft, cf.
Commission Report A/54/10, pp. 180-194.
3 Art. 28 § 1 and art. 30 § 2 CPT ; art. 29 § 2 ECRW ; art. 10 § 1 of the optional protocol to the ECRW.
4 This category covers all optional clauses for accepting the obligatory competence of a monitoring body: interstate application procedure under the ICCPR (art. 41); individual application procedure under the CERD (art. 14); individual and interstate application procedures under the CPT (art. 21 and 22).
5 Art. A of the Revised European Social Charter.

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China expressed several reservations regarding the International Covenant on Economic, Social and Cultural Rights (henceforth ICESCR) and the Convention on the Rights of the Child
(henceforth CRC). Norway, Sweden and the Netherlands raised objections to China's reservations concerning article 8 of the ICESCR. From the perspective of the ratification of the International
Covenant on Civil and Political Rights (ICCPR), it seems important that China should be aware of the basis on which some States might contest the validity of the reservations it would wish to express (I), and what types of legal consequences these States would attach to such an objection
(II). It is of interest to enquire into the degree to which a State can modify, with a view to regularising, a reservation to which one or more States have objected (III).
Article 19 of the Vienna Convention on the Law of Treaties states:
"A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty."
Reservations are prohibited by some treaties
6
. When this is not the case, the right to put forward reservations is usually framed in a special clause: thus, at a universal level, there is the
Convention for the Elimination of Racial Discrimination (henceforth CERD)
7
, the CRC
8
, the
Convention for the Elimination of Discrimination against Women (henceforth CEDW)
9
and the
Second Optional Protocol to the ICCPR
10
; and at a regional level, the European Convention of
6 Cf. Protocol N° 6 to the ECHR on the Abolition of the Death Penalty, article 4; European Convention for the
Prevention of Torture, article 21.
7 Article 20 § 2 of the CERD : "No reservation incompatible with the object and purpose of the present Convention will be authorised non plus que any reservation that would have the effect of paralysing the functioning of any of the organs created by the Convention."
8 Article 51 § 2 of the CRC : "No reservation incompatible with the object and purpose of the present Convention is authorised."
9 Article 28 § 2 of the CEDW : "No reservation incompatible with the object and purpose of the present Convention will be authorised."
10 Article 2 of the second optional Protocol referring to the ICCPR: "No reservation to the present Protocol will be accepted, apart from a reservation formulated on ratification or accession and providing for the application of the

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Human Rights (henceforth ECHR) 11 and the Inter-American Convention on Human Rights
(henceforth IACHR) 12 . But some conventions are silent on the issue of reservations: this is the case with the ICCPR, the ICESCR and the African Charter on Human and People's Rights
(henceforth ACHPR)
In the latter case, the criterion for compatibility with the object and purpose of the treaty is the additional default criterion, applicable when there is no explicit contractual stipulation.
But from this additional criterion, gradually the criterion for compatibility has metamorphosed into "common law". A large number of convention clauses refer to it
13
, whilst the absence of a clause often signifies an implicit reference. Moreover States, when objecting to a reservation, frequently refer to it. But this convergence is misleading: one cannot help noting that the criterion is now used nominally, and that behind it lie concealed a wide variety of grounds and motives. In other words, the reference to the criterion is often a mere formality
14
. In reality, by
"decryphering" the objections and validity criteria selected for reservation clauses, we can in fact distinguish the substantial notion of "compatibility with the object and purpose of the treaty" (A) from the interdiction of potestative reservations (B).
A – CRITERIA OF COMPATIBILITY WITH THE OBJECT AND PURPOSE OF THE
TREATY
Most of these conventions contain two types of provisions: substantive provisions, generally stating rights or prohibitions (1), and procedural provisions establishing the competence of a body to "monitor" or "control" compliance by States with their obligations. However, some treaties are exclusively devoted to the implementation of guarantees, such as the Optional
Protocol to the ICCPR (2). death penalty in times of war following a conviction for a crime of a military nature, of extreme gravity, committed in a time of war."
11 Article 57 ECHR : "1. Any State may, when signing the present Convention or lodging its instrument of ratification, formulate a reservation on a particular provision of the Convention, if a law currently in force in its territory does not comply with this term. Reservations of a general nature are not permitted under the terms of the present article. 2. All reservations issued in accordance with the present article shall include a brief account of the relevant law."
12 Article 75 of the ICHR.: "Reservations may only be made in respect of the present Convention in accordance with the terms of the Vienna Convention on the Law of Treaties signed on 23 May 1969."
13 Cf. article 75 ICHR, which refers to article 19 of the Vienna Convention of 1969. And articles 51 § 2 CRC and 28
§ 2 ECRW, which makes incompatibility with the object and purpose of the treaty the criteria of validity for reservations formulated in relation to these instruments."

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1°) Reservations to substantive provisions a) Incompatibility based on the "fundamental" character of a right
In conventions with an overriding clause, States readily rely on the non-derogable character of a right to emphasise its fundamental nature. The Congo (Brazzaville) made a reservation to article
11 of the ICCPR which states:
"No one may be imprisoned for the sole reason of being unable to perform a contractual obligation"
This article is included in the list of non-derogable rights in article 4 § 2 of the Covenant. The reservation by the Congo was worded as follows:
"The Government of the People's Republic of the Congo declares that it does not feel bound by the terms of article 11. (…)
Article 11 of the International Covenant on Civil and Political Rights diverges significantly from articles 386 and following of the Congolese Code of Civil,
Commercial, Administrative and Financial Procedure, resulting from Law 51- 83 of 21
April 1983 under the terms of which, in private law, the execution of decisions or conciliation proceedings may be pursued through personal arrest when all other measures of execution have been exhausted, provided that the principal amount of the order exceeds 20,000 francs CFA and that the debtor, aged over 18 years and less than
60 years, has become insolvent as a result of bad faith."
15
Belgium raised an objection to this reservation "as a protective measure", emphasising the nonderogable character of the right contemplated. Even though, according to Belgium, the Congolese reservation was in reality superfluous, given the fact that there was no contradiction between the legislation mentioned and article 11, the sole act of making a reservation to a non-derogable right was liable to "constitute, in principle, a precedent the international effects of which could be considerable":
"Under the terms of paragraph 2 of article 4 of the aforementioned Covenant, article 11 is excluded from the scope of application of the regulation which provides that, in the
14 J. SZTUCKI, "Some Questions Arising from Reservations to the Vienna Convention on the Law of Treaties",
G.Y.I.L.
, vol. 20, 1977, pp. 277-305, p. 299.
15 The text and the statute of universal instruments in human rights appears on the web site of the United
Nations High Commissioner for Human Rights : http://www.unhchr.ch/french/html/intlinst_fr.htm
. It is updated regularly. Likewise, for European instruments: http://conventions.coe.int/DefaultF.asp
. And for interamerican instruments : http://www.oas.org/ . The texts of the reservations and objections quoted in this study have been taken basically from these web sites. Henceforth we shall refrain from referring to them. If the text quoted comes from another source, this will be stated.

7 event of exceptional danger to the public, States parties to the Covenant may, in certain circumstances, take measures derogating the obligations provided in the Covenant.
Article 11 is one of those that contain a provision whereby it may not be derogated in any circumstance. Any reservation concerning this article would make it ineffective and therefore would not be in keeping with the letter and spirit of the Covenant ."
16
Some objections are comparable to reservations by a State to a non-derogable right to permanent derogations: from the prohibition of all derogations to the article in question, it would be possible to deduce that all reservations to the same article are prohibited. The objection by Denmark to two reservations of the United States of America in the context of the ICCPR is, among other things, significant in this regard. Moreover it explicitly associates non-derogability and fundamentality:
"In the opinion of Denmark, reservation 2) of the United States concerning the death penalty for crimes committed by persons under 18 years of age
17
, and reservation 3) relative to article 7
18
, constitute derogations of a general nature to articles 6 and 7, when under the terms of paragraph 2 of article 4 of the Covenant, such derogations are not permitted.
For this reason, and given the fact that articles 6 and 7 protect two of the most fundamental rights stated in the Covenant, the Danish Government considers the said reservations to be incompatible with the object and purpose of the Covenant (...)"
19
When the convention considered contains no overriding clause, then non-derogability cannot provide an explanation for fundamentality. The argument of fundamentality is therefore put forward as such, as if it were a quality intrinsic to the right in question. Thus, the objection by
Finland against the Yemeni reservations to the CERD :
"In the first place, the reservations have to do with questions of fundamental importance in the Convention. The first paragraph of article 5 is very explicit on this subject, stipulating that the parties undertake to guarantee the rights listed in the said article "in accordance with the fundamental obligations stated in article 2 of the Convention."
There is no doubt that provisions barring racial discrimination in granting political rights and civil liberties as fundamental as the right to take part in public affairs, the right to marry and choose a spouse, the right to inherit, and the right to freedom of opinion, conscience and religion, are essential in a convention against racial discrimination.
Consequently, these reservations are incompatible with the object and purpose of the
16 Objection of 6 November 1984. My italics.
17 For the text of this reservation, see below.
18 This reservation is as follows: "3) The United States considers itself bound by article 7 inasmuch as the expression
“punishment or cruel, inhumane or degrading treatment” is taken to mean cruel and unaccustomed treatment or punishment as prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United
States."
19 Objection of 1st October 1993.

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Convention, in terms of paragraph 2 of article 20 of the said convention and subparagraph c) of article 19 of the Vienna Convention on the Law of Treaties."
20
The objections by Norway, Sweden and the Netherlands to the reservations formulated by China to article 8 of the ICESCR are more or less on the same lines.
In an objection to a reservation by Kuwait to the ECRW, Finland notes the need to avoid distorting the treaty by circumventing an obligation of essential importance for compliance with the object and purpose of the Convention
21
. The qualifier "essential" refers here not to the fundamental nature "per se" of the right in question, but to its relative importance, in the context of the Convention, to the object and purpose of this Convention.
However, it is possible to switch from one to the other, as is shown in this objection by Finland to the reservations by the United States to the ICCPR :
"Interpretative declaration 1), concerning articles 2, 4 and 26 of the Covenant, is considered in substance to be a reservation that concerns some of the most essential provisions of the Covenant, i.e. those that prohibit discrimination. For the Finnish
Government, a reservation of this type is contrary to the object and purpose of the
Covenant, under sub-paragraph c) of article 19 of the Vienna Convention on the Law of
Treaties." 22
From relative, the essentiality all of a sudden seems to become intrinsic: the principle is not only essential, in the context of the convention, to its object and purpose; it is essential per se . b) Incompatibility and intangibility of human rights
Apart from the fundamental nature of a right or the particular gravity of a breach, objections by
States display a reluctance to accept the possibility for a State to formulate a reservation that actually results in the total exclusion of a right, its destruction pure and simple, its negation. Any
20 Objection of 7 July 1989. My italics.
21 See also the objections of Spain (13 December 1999) and France (30 September 1999) to the reservation formulated by Bangladesh to the CPT. This reservation is worded as follows: "The Government of the People's
Republic of Bangladesh will apply paragraph 1 of article 14 in accordance with its legislation." Article 14 § 1 of the
CPT states: "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.
In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation." The French objection is worded as follows: "The Government of France considers the reservation by
Bangladesh incompatible with the object and purpose of the Treaty, in regard to which the provisions relative to preparation and compensation of victims of acts of torture, which give effect to and ensure the material realisation of the contractual obligations, are essential, and therefore formulates an objection against the reservation to article 14 paragraph 1 by Bangladesh."
22 Objection of 28 September 1993.

9 reservation that tends to deny the existence of a right is inadmissible, because it contradicts the principle of intangibility inherent in human rights. But what do we mean by "denial of the existence" of a right ? To clarify this expression, we must refer to the classic distinction between the essence and the exercise of a right. A right can be regulated in its exercise, but this regulation must never undermine its substance. In the context of monitoring in concreto an individual case, determining whether the substance has been undermined consists of finding out if there has been a violation of the right, generally by resorting to substantiating criteria enabling the case in question to be assessed in the light of appropriate concepts (legality, legitimate purpose,
"necessity in a democratic society"). Here, it is not a matter of asking if the reservation is intended to cover an event or act that would constitute per se the negation of a right. In other words, it is a matter of asking, in abstracto , regardless of the circumstances, regardless of the motives put forward or the interests involved, whether the act or event covered by the reservation constitutes a violation of a right.
So a reservation is incompatible with the object and purpose of a human rights treaty when it covers an act or event that erodes the substance of a right, and when such erosion can never be justified. One can now see how these principles have been used by States in their objections. i) Chile formulated the following reservation when it ratified the CPT: a) To paragraph 3 of article 2, wherein it is contrary to the principle of "considerate obedience" enshrined in the domestic legislation of Chile. In this regard the Chilean
Government will apply the provisions of the said article to personnel subject to the Code of Military Justice, as it applies to subalterns, provided that the superior who has given an order manifestly tending to cause the acts defined in the first article to be committed does not demand the execution thereof despite representations from the subaltern; b) To article 3, due to the discretionary and subjective nature of the wording of its provisions;
Paragraph 3 of article 2 of the Convention states:
"An order from a superior officer or a public authority may not be invoked as a justification of torture."
And article 3:
"1. No State Party shall deport, expel or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

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These reservations have given rise to objections from a large number of States 23 . Most of these objections are confined to stressing that the reservation is incompatible with the object and purpose of the treaty. Some are more explicit. Thus the Czechoslovak objection which, apropos of the reservation to article 2, clearly contemplates the absolute character of the prohibition of torture:
"There can be no exception to the obligation put upon each State to prevent acts of torture in all territory placed under its jurisdiction. Each States is obliged to ensure that all acts of torture constitute a breach of its criminal law, an obligation which is confirmed notably by paragraph 3 of article 2 of the aforesaid Convention."
On 7 September 1990, the Chilean Government notified the Secretary General that it was withdrawing its reservation. ii) Kuwait formulated two reservations to article 25 b) of the ICCPR:
"The Kuwaiti Government expresses reservations concerning sub-paragraph b) of article
25, the provisions of which contradict the Kuwaiti Electoral Law which grants the right to vote and to be elected only to males.
Moreover, the Kuwaiti Government declares that the provisions of the abovementioned sub-paragraph shall not apply to members of the armed forces and the police."
24
In reality, this reservation affects the right to vote and be elected (art. 25 b) as much as the right to equality (art. 2 § 1 and 26). The distinction made here is manifestly discriminatory, that is to say that it is a manifest violation of the relatively intangible right of equality. As such, it manifestly undermines the substance of that right as well as the substance of the right to vote and be elected.
This is the case a fortiori for all reservations that aim purely and simply to exclude the application of a provision recognising a relatively intangible right. One can quote in this regard all reservations of a discriminatory character, and notably "European" reservations, that aim to reincorporate in universal instruments exclusions based on derogatory regimes included in the
ECHR, as well as these regimes themselves. The latter case is illustrated by reservations referring to article 16 of the ECHR on the "political activity of foreigners"
25
; while the former case refers
23 Italy, Denmark, France, Czechoslovakia, Luxembourg, Sweden, Spain, Norway, Portugal, Greece, Finland,
Canada, Turkey, Australia, Netherlands, United Kingdom, Switzerland, Austria, New Zealand, People's Republic de
Bulgaria.
24 Refer also to the reservations by Kuwait to the ECRW
25 Cf. for example the French reservation to the ICCPR : "6) The Government of the Republic declares that articles
19, 21 and 22 of the Pact will be applied in accordance with articles 10, 11 and 16 of the European Convention for the Protection of Human Rights and Fundamental Liberties dated 4 November 1950."

11 to "colonial" reservations on exclusions that, in the context of the ECHR, are covered by the reference to "local needs" in article 56 (formerly article 63) 26 . iii) Reservations affecting the death penalty regime
The United States formulated a reservation to article 6 of the ICCPR, worded as follows :
"The United States reserves the right, subject to the limitations imposed by its
Constitution, to impose the death penalty on any person (other than a pregnant woman) duly found guilty under present or future laws in force permitting the death penalty to be imposed, even for crimes committed by persons under 18 years of age."
The Federal Republic of Germany formulated the following objection to this reservation:
"The Government of the Federal Republic of Germany formulates objections to the reservations made by the United States of America in regard to paragraph 5 of article 6 of the Covenant which prohibits the imposition of capital punishment for crimes committed by persons under 18 years of age. The reservation concerning this provision is incompatible with both the terms and the spirit and intention of article 6 which, as clearly indicated in paragraph 2 of article 4, sets out minimum standards for protection of the right to life." 27
Note that capital punishment is treated in the ICCPR as a violation of the right to life accepted by derogation, while awaiting the forthcoming abolition of this penalty. Given the derogatory character of this regime, one may well ask if all reservations affecting these provisions are not contrary to the object and purpose of the Covenant. Here we must mention the reasoning of
Professor Pocar on the relationship between articles 6 and 7 of the Covenant. According to
Professor Pocar, any execution of capital punishment that cannot be justified under article 6 automatically falls under article 7 (prohibition of torture and cruel, inhumane or degrading punishment or treatment). This is due to the fact that capital punishment is considered by the
Covenant as a cruel and inhumane punishment which is accepted only by virtue of a derogatory rule. An execution that does not meet the requirements of this rule is not covered by the derogation and therefore must be assessed at the same time under "common law", that is to say
26 Cf. UK reservation to article 10 of the ICCPR : "… the Government of the United Kingdom reserves the right (…) not to apply in Gibraltar, Montserrat and Turks and Caicos Islands, the sub-paragraph of paragraph 2, article 10, which provides that persons on remand must be separated from those convicted."
27 Likewise: objections by the Netherlands and Portugal. See also resolution 1999/61 of the United Nations Human
Rights Commission, adopted on the initiative of the European Union, in which the Commission entreats States that maintain the death penalty: "Not to formulate, in respect of article 6 of the International Pact on Civil and Political
Rights, any new reservations that may be incompatible with the object and purpose of the Pact, and to withdraw all

12 under the other laws recognised by the Covenant (including the law recognised in article 7), and also under the common law of limitations regime (for the right to life: no one may be arbitrarily deprived of life). This means therefore that compliance with the terms of article 6 is the condition sine qua non fixed by the Covenant for not characterising an execution as a cruel and inhumane punishment or a manifest violation of the right to life. Consequently, when a non-abolitionist
State uses a reservation to circumvent one of these conditions, it effectively gives itself the authority to inflict a cruel and inhumane punishment and to commit a manifest violation of the right to life. So it does seem, from this point of view, that the reservation by the United States is incompatible with the object and purpose of the ICCPR.
2°) Reservations to procedural provisions
The procedural provisions of an instrument on human rights — or the provisions contained in an optional protocol referring to that instrument for the purpose of introducing a monitoring procedure — have the object and purpose of "sanctioning" the rights recognised by that instrument, that is to say to ensure control or supervision of the compliance therewith by the
States parties. It is therefore on the basis of this object and purpose that reservations must be assessed. Consequently any reservation that can have the effect of seriously inhibiting — or even paralysing — the work of a monitoring body, must be considered incompatible with the object and purpose of the treaty. Judge Guerrero expressed this concern apropos of the French
"automatic" reservation in the Case of certain Norwegian loans :
"Without entering into the details of the questions posed by the French reservation, I must nevertheless point out that it inhibits the exercise of the legal function attributed to the Court and that it seriously affects the efficacy of the optional provision."
28
So one can say that the second criteria of paragraph 2 of article 20 of the Convention for the
Elimination of Racial Discrimination of 1965 constitutes a particular interpretation of the criteria of compatibility with the object and purpose of the treaty, being a matter of procedural provisions, and is therefore largely redundant: reservations of this type that may exist, given that article 6 of the Pact establishes minimum rules for the protection of the right to life and generally accepted standards in this area" (§ 3.c).
28 Op. diss., Rec. C.I.J.
1957, p. 69.

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"No reservation incompatible with the object and purpose of the present Convention will be permitted nor will any reservation that would have the effect of paralysing the operation of any of the bodies set up by Convention."
This association between paralysis of the operation of a treaty supervising body and the criteria of compatibility with the object and purpose of the treaty was clearly brought out on the formulation by the GDR, in 1987, of a "declaration" when it ratified the CPT
29
. The latter set up an unprecedented system of finance, responsibility for which was laid entirely on the parties to the treaty, ruling out any participation from the general budget of the United Nations
30
.
Moreover, it gave the Committee responsibility for several procedures: a procedure for examining the regular reports, compulsory for all States parties (article 19); two optional procedures for examining complaints by States (art. 21) and individuals (art. 22), a declaration that must be formulated by the States parties accepting the competence of the Committee to hear them; a survey procedure (art 20), compulsory but containing an opt-out clause
31
. The
"declaration" by the GDR was worded as follows:
"The German Democratic Republic declares that it will not participate in paying the costs provided for in paragraph 7, article 17 and paragraph 5, article 18 of the
Convention inasmuch as they result from activities that fall within the competence which the German Democratic Republic recognises lies with the Committee."
Several Western States would relabel this declaration as a "reservation" and would object to it, on a variety of grounds. Most simply regarded this reservation as incompatible with the object and purpose of the treaty, without explaining their position further
32
. Other objections are more explicit, such as the one by Luxembourg:
"The Grand-Duchy of Luxembourg objects to [this declaration] which it regards as a reservation the effect of which would be to inhibit the activities of the Committee in a manner incompatible with the object and purpose of the Convention."
And also that of Canada:
29 Cf. the “debate” on this reservation between Mr. COCCIA, representing the Western point of view and Mr.
MOHR, for the point of view of the GDR, in E.J.I.L
., vol. 1, N° 1/2, 1990, pp. 314-327 and 328-337 respectively.
30 Art. 17 § 7 : "The States parties meet the costs of Committee members for the period during which they discharge their duties on the Committee". Art. 18 § 5: "The States parties meet the costs incurred in holding meetings of the
States parties and the Committee, including reimbursement to the United Nations Organisation of all expenses, such as the costs of staff and equipment, that the Organisation shall have incurred under paragraph 3 of the present article." V. A. BYRNES, "The Committee Against Torture", in P. ALSTON (ed.), The United Nations and Human
Rights. A Critical Appraisal , Oxford, Clarendon Press, 1992, pp. 509-546, and pp. 521-523.
31 Article 28 § 1 states: "Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20."
32 Cf. objections by France, Sweden, Portugal, Australia, New Zealand.

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"The Government of Canada is of the opinion that the said declaration is incompatible with the object and purpose of the Convention against Torture, and therefore inadmissible under article 19 (C) of the Vienna Convention on the Law of Treaties. The
Committee against Torture, by its functions and its activities, plays an essential role as to the execution of the obligations of the States parties to the Convention against Torture.
Accordingly, any restriction having the effect of inhibiting the activities of the
Committee would be incompatible with the object and purpose of the Convention."
And finally that of Switzerland:
"This reservation is contrary to the object and purpose of the Convention, which are, through the activities of the Committee, to encourage respect of a human right of fundamental importance and to increase the effectiveness of the prevention of torture throughout the world."
In actual fact, this reservation would not necessarily bring about ipso facto the paralysis of the
Committee. But it would oblige other States parties — and in all cases the non-objecting States
— to meet the costs not paid by the GDR Here was an attack on the principle of equality that naturally seemed intolerable in a full-blown treaty
33
.
Accepting the validity of such a reservation would also be creating a dangerous precedent that, if followed by States intending to ratify the Convention, could eventually lead to a deadlock. The
East German reservation was eventually withdrawn by notification to the Secretary General, on
13 September 1990.
B – THE PROHIBITION OF POTESTATIVE RESERVATIONS
The notion of a "potestative condition" comes from private law of contract. The French Civil
Code, in particular, in article 1170, defines a potestative condition as one "that makes the execution of the agreement dependant on an event over which one or other of the contracting parties has discretionary power to bring about or prevent." Article 1174 states that an agreement contracted under a potestative condition dependant "on the party who is bound" is null and void.
This solution is explained by the fact that a potestative condition leaves the outcome of the
33 The objection by the Netherlands expresses this preoccupation well: "This declaration, which clearly constitutes a reservation in terms of sub-paragraph d), paragraph 1 of article 2 of the Vienna Convention on the Law of Treaties, not only "aims to exclude or modify the legal effect" of paragraph 7, article 17 and paragraph 5, article 18 of the
Convention in their application to the German Democratic Republic itself, but would also affect the obligations of the other States parties, which would have to meet the additional charges required to ensure that Committee against
Torture functions properly. For this reason, this reservation is not acceptable to the Government of the Kingdom of the Netherlands."

15 obligation at the discretion of the party which is bound: so there is really no obligation and therefore no agreement.
Fortunately, genuine potestative reservations are quite rare in the context of human rights treaties.
A potestative reservation can affect a right as a whole: a right, which is intangible, must be granted by the State, dependant on its will alone. These potestative reservations are, at the same time, incompatible with the object and purpose of a declarative treaty of human rights , because they amount to a denial of the intangible character of the right in question. Thus, the following reservation by Great Britain to the ICCPR:
"The Government of the United Kingdom reserves the right to apply to members and staff of the armed forces of the Crown and to persons lawfully held in institutions of detention whatever the nature thereof, such laws and procedures as it may from time to time consider necessary to maintain military and prison discipline and it accepts the provisions of the Covenant subject to such restrictions as may from time to time be authorised by law for these purposes." (My italics)
34
But potestativity may also focus on one aspect of a right, on a detail of how it is exercised. Thus, a reservation by Ireland to article 19 § 2 of the ICCPR:
"Ireland reserves the right to grant a monopoly to certain radio and television broadcasting companies or to require a licence to operate in these areas."
The most typical manner of formulating a potestative condition is to claim the power to interpret a notion of variable content that determines the scope of the contractual obligation. But potestativity can also result from a general reservation, although the generality per se thereof may not be a cause of potestativity.
The first process is the "automatic reservation": the State makes acceptance of the jurisdiction of the Court conditional upon its own interpretation of the variable-content notion "national competence". One finds this process every time a State formulates a reservation permitting it to decide not only the scope of its obligation but also its very existence, for example by making its execution subject to its own assessment of the "need" to implement it:
"The Government of the Commonwealth of the Bahamas wishes firstly to state how it interprets article 4 of the International Convention on the Elimination of All Forms of
Racial Discrimination. It interprets this article as making it an obligation of a State party to the Convention to adopt new legislative provisions in the areas contemplated by subparagraphs a), b) and c) of this article only to the extent that this State , with due regard to the principles formulated in the universal Declaration and stated in article 5 of the
Convention (notably the right to freedom of opinion and expression and the right to
34 See also the reservation by the same State to article 24 § 3 of the same Pact.

16 freedom of peaceful public meeting and association), deems necessary to add to or derogate from, through the legislature, the law and practice existing in these fields in order to achieve the objectives defined in article 4." (My italics)
One finds the same phenomenon when the reservation makes the contractual obligation subject to national law "as interpreted" by the State itself. Thus, the reservation by the USA to the
Convention on Genocide:
"No provision of the Convention requires or justifies the adoption by the United States of legislative or other measures prohibited by the Constitution of the United States, as interpreted by the United States ."
Several States, moreover, objected to this reservation by pointing out that it creates "an uncertainty as to the scope of the obligations that the Government of the United States of
America is prepared to assume with regard to the Convention."
35
In its Advisory Opinion of 1951 on the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide , the International Court of Justice declared:
" The object and purpose of the Convention thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation. Such is the rule of conduct which must guide every State in the appraisal which it must make, individually and from its own standpoint, of the admissibility of any reservation.
Any other view would lead either to the acceptance of reservations which frustrate the purposes which the General Assembly and the contracting parties had in mind, or to recognition that the parties to the Convention have the power of excluding from it the author of a reservation, even a minor one, which may be quite compatible with those purposes.."
36
The Court draws the following conclusion, some pages further on, by seven votes to five:
"(…) a State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and
35 Objections by Italy, Mexico, the Netherlands and Estonia.
36 Opinion of 28 May 1951, Reservations to the Convention for the Prevention and Punishment of the Crime of
Genocide , C.I.J. Rec.
1951, p. 24.

17 purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention."
37
In other words, the invalidity of a reservation due to incompatibility with the object and purpose of the treaty normally must result in the treaty being ineffective for the State making the reservation. Choosing this criteria avoids a situation in which any type of invalidity prevents a
State from becoming a party to the treaty. Only an invalidity as significant as incompatibility can bring about such an effect.
The Vienna Convention of 1969 refined the principles applicable, but made their application more complicated.
Article 20 § 4 of the Convention states, in its first two sub-paragraphs:
(a) acceptance by another contracting State of a reservation constitutes the reserving
State a party to the treaty in relation to that other State if or when the treaty is in force for those States;
(b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;
And article 21 § 3 states:
"When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation."
The hypothesis of the treaty not entering into effect for the State making the reservation was that identified by the Court, as is apparent from an objection to a reservation incompatible with the object and purpose of the treaty. Article 20 § 4 makes it an exception, while the Court presents it as the rule. By this hypothesis, the Vienna Convention adds a new one, which establishes the divisibility of the treaty: in the case in which the objecting State accepts the entry into force of the treaty between it and the State making the reservation, the treaty is severed from the provisions to which the reservation applies, "to the extent of the reservation".
One of the difficulties posed by this system is that it completely dissociates the effects of the invalidity from the cause of the invalidity. Whilst the Court quite clearly allowed the on-entry into force of the treaty for the reserving State on the incompatibility of the reservation with the object and purpose of the treaty — to stop minor reservations being able to prevent the State from becoming a party to the treaty — the Vienna Convention leaves States free to choose the type of reaction they intend to adopt, and this regardless of any reference to the type of invalidity. In
37 Id ., p. 29.

18 doing so, it tends to cloud the issue, by suggesting that the effects of a reservation are left to the arbitrary opinion of each State, while the International Court of Justice clearly places a personal assessment of the effects "within the limits of the criteria of the object and purpose" 38 .
To these two hypotheses, the practice of States in their objections, and the jurisprudence of monitoring and dispute settlement bodies, a third has been added: that of "dissociation". An invalid reservation is dissociated from the expression of consent to be bound. The State remains party to the treaty and is still bound by the provision to which the reservation refers, but without benefiting from the effect of this reservation.
As will be established, in human rights this latter solution is widely adopted in practice while the other two hypotheses are rejected.
1°)
Non-entry into force was in fact only envisaged, in the context of the 1948 Convention on
Genocide, by two States (People's Republic of China and the Netherlands), at a time when the system of unanimity was still widespread
39
. So this exception must be revitalised. In the context of all the other conventions on human rights, States systematically state that the objection will not prevent the treaty from entering into force between the objecting State and the State making the reservation
40
. This systematic behaviour is all the more striking since, as we have seen, article 20
§ 4 of the Vienna Convention provides that non-entry into effect is the exception and not the rule, an exception that requires an explicit declaration by the State to be implemented.
2°) The hypothesis of division that deprives the treaty of the clause affected by the reservation in the relations between the objecting State and the State making the reservation is never used by
States.
3°) Conversely, the hypothesis of dissociation is quite common: the reservation is declared null and void and/or ineffective under the law of contract of the State making the reservation.
In the context of the ICCPR, several objections in this sense have been made in respect of the reservations of the United States to articles 6 and 7 of the Covenant. Thus, Italy, considering that
38 Ibid ., p. 26.
39 Note however that the Netherlands continues to apply this doctrine to this convention: see the objections of 23
February 1996 in regard to the reservations by Singapore and Malaysia.
40 See for example the objections of Germany, Finland, Italy, Norway and Sweden to a reservation by Kuwait to the
ICESCR Likewise the objections of Austria, Denmark, Finland, Germany, Ireland, Italy, the Netherlands, Norway,
Portugal and Sweden to reservations formulated by several countries to the CRC.

19 the reservations to the provisions of article 6 were not authorised, declared the reservation by the
United States to paragraph 5 of article 6 "null and void as it is incompatible with the object and purpose of article 6 of the Covenant." The Netherlands, for its part, considered that "the interpretative declarations and statements of the United States do not annul or modify the legal effect of the provisions of the Covenant in their application to the United States, and do not limit in any way the competence of the Human Rights Committee acting to interpret these provisions in their application to the United States."
One finds the same type of objections by Germany, the Netherlands and Sweden apropos of similar reservations by the United States to the CPT
41
The reservation by Chile to the same convention, formulated on ratifying it on 30 September
1988 and subsequently withdrawn, caused a general outcry among the States parties, with reactions from Germany, the Netherlands and Sweden similar to those to that gave rise the US reservations. Thus, for Sweden:
"... the abovementioned reservations would be incapable of altering or modifying in any way the obligations arising from the Convention."
In the context of the ECRW, one notes the objection by Austria to the reservations formulated by the Maldives:
"Austria declares (...) that this reservation would not in any way alter or modify the obligations incumbent on any State party under the Convention"
In regard to the reservations by Pakistan, Austria also notes:
"This position of Austria [on the invalidity of the reservations] does not obstruct the entry into force of the Convention in its entirety between Pakistan and Austria." (My italics)
Likewise, for Finland, the reservations formulated by Kuwait and Malaysia are "devoid of any legal effect".
In the context of the CRC, Belgium regards some declarations and reservations by Singapore as
"contrary to the object and purposes of the Convention and consequently without effect in international law."
41 Thus, for Sweden : "For the Swedish Government, the interpretative declarations made by the United States do not release the United States of America from its obligation, as a party to the Convention, from executing the obligations which the latter imposes on it." Of course, one could interpret such words as meaning that Sweden considers the US declarations as simple interpretative declarations which, as such, cannot affect the obligations of the United States. But it is not so, because this declaration applies effectively to "declarations" that are in reality reservations and, moreover, Sweden itself describes it as part of an "objection".

20
An objection by Denmark is made in the same sense regarding the reservations formulated by
Djibouti, Iran, Pakistan and Syria:
"Given their unlimited scope and lack of precision, these reservations are incompatible with the object and purpose of the Convention and are therefore inadmissible and ineffective in international law. Consequently, the Danish Government raises objections to these reservations and will consider that the Convention remains in full force between
Denmark, as one party, and Djibouti, the Islamic Republic of Iran, Pakistan and the
Arabic Republic of Syria as the other party."
42
Sweden for its part considers that its objection to the reservations of Oman "does not prevent the
Convention from entering into force with Oman" and that the Convention "will therefore apply between the two States with Oman being unable to invoke this reservation."
43
Finally, the two objections made by Sweden and Norway to the reservation formulated by China to article 8 of the ICESCR provide that "[t]his objection shall not preclude the entry into force of the Covenant between China and [Sweden][Norway]" and that "[t]he Covenant enters into force without China benefiting from the reservation".
Can a reservation to which one or more States have objected be confirmed subsequently by a supplementary declaration by the State making the reservation? The latter, faced with objections, may in effect wish either to clarify its reservation — if it is encumbered by a presumption of potestativity by reason of its generality — or correct it — if it is judged invalid by some States because it is illegal or incompatible with the object and purpose of the treaty. In domestic law, the judge has admitted, exceptionally, the confirmation of a potestative condition which caused no prejudice by its introduction. In international law, it appears that this solution is also envisaged by
States. An objection formulated by Austria — and described by this State as "preliminary" — against reservations formulated by several States to the CRC establishes a presumption of invalidity until confirmation by the State making the reservation. Thus, for the reservations of
Iran:
42 Objection of 16 October 1995. Same objection against the reservations formulated by Brunei and Saudi Arabia on
10 February 1997; and against the reservations formulated by Malaysia, Botswana and Qatar on 27 September 1996.
43 Objection of 9 February 1998, in Reservations, declarations and objections concerning the Convention on the
Rights of the Child , doc. CRC/C/2/Rev.8, 7 December 1999. Likewise for the reservations by Brunei, Kiribati and
Singapore, cf. objection of 13 August 1997.

21
"The Austrian Government has examined the reservation formulated by the Islamic
Republic of Iran in connection with the Convention on the Rights of the Child. As this reservation is of a general nature, its admissibility in international law cannot be assessed without additional clarification.
Until the Islamic Republic of Iran provides a more accurate definition of the scope of the legal effects of its reservation, the Republic of Austria considers that it does not affect any provision the application whereof is essential to the realisation of the object and purpose of the Convention on the Rights of the Child.
However, Austria is opposed to this reservation being judged admissible if its application should lead to non-compliance by the Islamic Republic of Iran with the obligations it has entered into under the Convention on the Rights of the Child that are essential to achieving the object and purpose of the said Convention.
Austria can only consider admissible under article 51 of the Convention on the Rights of the Child and under article 19 of the Convention on the Law of Treaties, the reservation formulated by the Islamic Republic of Iran if it demonstrates, by supplementary declarations or in the practices subsequently to be adopted by it, that its reservation is compatible with those provisions essential for achieving the object and purpose of the
Convention on the Rights of the Child."
44
An objection such as this obviously poses a time-limit problem, if one considers article 20 § 5 of the Vienna Convention on the Law of Treaties which states:
"For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later."
In formulating a "preliminary objection", does the objecting State not risk losing the right to formulate a final objection, if the 12-month time limit expires without the State that made the reservation having provided a statement?
According to Mr. Imbert, this difficulty is resolved if care is taken to interpret article 20 § 5 of the
Vienna Convention in the light of subsequent practice by States:
"… the time limit provided by the Vienna Convention has probably changed in character. It defines a period after which it is no longer possible to challenge the status of a State making a reservation. However, this does not prevent the other States from objecting to the reservation once the time limit has expired, as shown in practice, notably in the case of the United Nations Convention on the Law of the Sea, on the
44 Objection of 6 September 1995, in Reservations, declarations and objections concerning the Convention on the
Rights of the Child . Note of the Secretary General, doc. CRC/C/2/Rev.8, 7 December 1999. The same objection was formulated by Austria against the reservations of Malaysia, Brunei, Saudi Arabia, Qatar... This type of "preliminary objection” was included in the list of "model response clauses to reservations" appended to Recommendation
N° R(99) 13 of the Committee of Ministers of the Council of Europe on Responses to inadmissible reservations to international treaties (18 May 1999).

22 subject of the continental shelf. One can therefore say that something has changed in the
Vienna Convention and that, although a reserving State cannot be prevented from becoming a party to a treaty after expiry of the 12-month time limit, an official response to this reservation can still be given."
45
Several States also consider that the time limit of 12 months does not apply to reservations that are incompatible with the object and purpose of the treaty
46
. However, this interpretation has not been confirmed by the Secretary General of the United Nations who treats these "objections" as simple "communications" that are placed in a footnote and not in the body of the document summing up the reservations, declarations and objections of the States parties to a convention.
It seems that a State can always modify its reservation with a view to putting the other parties in a position to appreciate the scope on its obligations. If the clarifications are sufficient or the corrections satisfactory, the cause of the invalidity disappears. Several States have tried to make such a confirmation. This was so, for example, for Syria regarding a reservation formulated to the
CRC. This reservation was formulated as follows:
"The Arabic Republic of Syria formulates reservations to the provisions of the
Convention that do not comply with the legislation of the Arabic Republic of Syria and the principles of Sharia, in particular those of article 14 establishing the right of the child to freedom of religion, and of articles 20 and 21 concerning adoption." 47
Several States, notably the Federal Republic of Germany, objected to this, taking issue with it as being too general
48
. A Syrian declaration of 15 July 1996 provided some clarification — which was still clearly insufficient with regard to the requirement of legal security 49 .
45 Intervention during the second meeting of the Group of Specialists on reservations to international treaties of the ad hoc Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe, doc. DI-S-RIT
(98) 10 Rev, 10 March 1999, § 112.
46 Cf. for example the Italian and Danish objections of 5 February 2001 and 21 February 2001 respectively to the reservation by Qatar to the CPT. I quote here the Italian objection : "The reservation in question does not fall under scope of application of the provision appearing in paragraph 5 of article 20, as objections on the subject thereof may be formulated at any time."
47 In Note of the Secretary General , op. cit .
48 Cf. the objection by the Federal Republic of Germany of 21 September 1994, in Note of the Secretary General , op. cit . : "Given its lack of clarity, this reservation does not satisfy the prescriptions of international law. The
Government of the Federal Republic of Germany therefore objects to the reservation formulated by the Arabic
Republic of Syria."
And that of Denmark of 16 October 1995, in Note of the Secretary General , op. cit . : "Given their unlimited scope and their lack of clarity, these reservations are incompatible with the object and purpose of the Convention and accordingly are inadmissible and ineffective in international law. Consequently, the Danish Government withdraws the objections to these reservations and will regard the Convention as remaining in full force between Denmark, as one party, and Djibouti, the Islamic Republic of Iran, Pakistan and the Arabic Republic of Syria as the other party."
See also the objections by Norway, the Netherlands and Sweden in the same document.
49 Id . : "The law in force in the Arabic Republic of Syria does not recognise the system of adoption but provides that any child who, for one reason or another, is temporarily or permanently deprived of its home environment, has the right to protection and special assistance. This replacement protection may in particular take the form of placement

23
The "preliminary" Austrian objection also led Malaysia to "clarify" its general reservation of
1995 to the ECRW, which was formulated as follows :
"The Malaysian Government declares that accession by Malaysia is subject to the condition that the provisions of the Convention shall not contradict Islamic law (Sharia) and the Federal Constitution of Malaysia. In this regard, the Malaysian Government further considers that it is not bound by the provisions of articles 2 f), 5 a), 7 b), 9 and 16 of the aforesaid Convention. In regard to article 11, Malaysia interprets its provisions as referring to the prohibition of all discrimination in the name of equality between men and women."
On 6 February 1998, Malaysia informed the Secretary General that it wished to "modify" its reservation. The text provides clarifications on several points
50
. The Secretary General indicated that, in keeping with the practice adopted previously in similar cases, he proposed to accept the modification in question in the absence of an objection from a State party, either in regard to the procedure itself, or in regard to the modification, and this within a time limit of 90 days following the date of notification
51
. in a family, of kafalah under Islamic law, of placement in a specialised institution or even in a replacement family, the name of which, however, the child does not take, in accordance with the principles of Sharia. The reservations formulated by the Arabic Republic of Syria in regard to articles 20 and 21 are explained by the fact that, for Syria, ratification of the Convention may not be interpreted as recognition of the institution of adoption or its lawful character, as suggested by the two articles in question. The reservations formulated in regard to article 14 of the
Convention only apply to religion, with the exclusion of freedom of thought and conscience, insofar as this freedom is not in contradiction with the right of parents and lawful guardians to provide religious education to their children, stated in paragraph 4, article 18 of the International Pact on Civil and Political Rights, which has been adopted by the
General Assembly of the United Nations. This freedom must no longer contravene the laws in force in the Arabic
Republic of Syria relative to the right of a child to adopt the religion of its choice when the time comes, in the context of particular provisions, or in certain cases, at a given age, if it is considered that he or she is sufficiently mature to do so. Furthermore, this freedom must not contradict the requirements of public order and the pertinent principles of Sharia which are applied in all cases in the Arabic Republic of Syria."
50 The text of the "modification" is as follows: "With regard to sub-paragraph a) of article 5 of the Convention, the
Malaysian Government declares that this provision is subject to the provisions of Islamic Sharia on inheritance.
In regard to sub-paragraph b) of article 7 of the Convention, the Malaysian Government declares that its application shall not affect the appointment to certain public offices such as that of Mufti, Judge of the Court of Sharia and
Imam, which will be made in accordance with the provisions of Islamic Sharia.
In respect of paragraph 2, article 9 of the Convention, the Malaysian Government declares that it will re-examine its reservation if the Government amends the pertinent law. In regard to sub-paragraph a) of paragraph 1 and paragraph
2 of article 16, the Malaysian Government declares that according to Islamic Sharia and the Malaysian laws, the minimum age for marriage is 16 years for females and 18 years for males.
In regard to sub-paragraph a) of paragraph 1 and paragraph 2 of article 16, the Malaysian Government declares that according to Islamic Sharia and the laws of Malaysia, the minimum age for marriage is 16 years for women and 18 years for males."
51 This procedure was the subject of fierce debate during the 2 nd meeting of the Group of Experts on reservations to international treaties (DI-E-RIT) of the ad hoc Committee of Legal Advisors on Public International Law (CAHDI) of the Council of Europe. See doc. DI-E-RIT (99) 9, §§ 46-52. Later, the Secretary General decided to extend the time limit to twelve months. Cf. application of the procedure in the case of an "amendment" of the reservation of
Azerbaïdjan to the second optional protocol referring to the ICCPR

24
In this case, the modification provoked negative responses from France — which judged the reservation as amended incompatible with the object and purpose of the treaty — and the
Netherlands which, while noting the amendment, encouraged Malaysia to meet its obligations and to make the necessary amendments with a view to withdrawing its reservations.
The same procedure was followed by the Maldives
52
in 1999. Here too, the responses were less than favourable. Finland produced a declaration comparable to that of the Netherlands on the
Malaysian reservation. Germany adopted a harder tone, considering that the so-called
"modification" constituted in reality a new reservation that effectively "reinforced" and extended the initial reservation. It said on this subject:
"The Government of the Federal Republic of Germany notes that a State may only issue reservations to a treaty on signing, ratifying, accepting or approving the treaty or on acceding to the treaty (article 19 of the Vienna Convention on the Law of Treaties).
Once a State becomes bound by a treaty under international law, it may not submit any new reservations or extend previous reservations or add to them. It may only withdraw all or part of the initial reservations, which the Government of the Republic of the
Maldives unfortunately has not done through its amendment."
However, all of these objections had no effect on admission of the modifications in question, because they had been formulated by their authors beyond the time limit of 90 days set by the
Secretary General.
Although these examples are, for the time being, inconclusive, it does not seem that a State can be prevented from confirming a reservation, at least while this reservation has not been declared invalid by a monitoring body with authority to make a final decision.
The requirement of legal security that was also evident through the prohibition of potestative reservations, particularly where the rights of individuals were concerned — no doubt also prohibited the confirmation of a reservation occurring during proceedings before a judicial body, opposing a State and an individual. In this case, the potestativity of the reservation did not permit the individual to adjust his or her behaviour with regard to the obligations actually assumed by the State: the uncertainty prevailing could suggest that he or she was benefiting from the protection of a provision of the convention in question, which the State sought to circumvent at the last moment by clarifying the scope of its reservation.
52 The initial reservation was formulated as follows : "The Government of the Republic of the Maldives will comply with the provisions of the Convention, with the exception of those that the Government may deem to contradict the principles of Islamic Sharia, on which the laws and traditions of the Maldives are based. Furthermore, the Republic of the Maldives does not regard itself bound by any provision of the Convention that would oblige it to amend its constitution and its laws in any way whatsoever."

25