Reservations to the ICCPR and Customary
International Law
by William A. Schabas*
For presentation at the EU-China Dialogue Seminar, The Hague, 8 November 2004
–Do not cite without author’s permission
T
he issue of reservations provides a marvellous canvas in which to explore the
interplay between these two distinct but complementary primary sources of
public international law, with particular reference to international human rights law
and, specifically, the International Covenant on Civil and Political Rights.1
As
unilateral acts that constitute State practice and inform opinio juris, reservations are
necessarily relevant evidence of custom.
Objections to reservations are equally
interesting, for the same reasons. Moreover, there is the controversial proposition that
the ‘object and purpose test’ for the acceptability of reservations may be determined
with regard to norms of customary international law. The interrelationship between
reservations and customary law is useful in clarifying both concepts.
It is often forgotten that much of the treaty practice with respect to
reservations to human rights treaties is apparently rooted in the provisions of
customary international law. Although the debate usually focuses upon the applicable
provisions of the Vienna Convention on the Law of Treaties,2 its main claim to
relevance with respect to the International Covenant on Civil and Political Rights
must be its oft-claimed status as a codification of customary international law.3 This
is indeed what the Human Rights Committee stated in General Comment 24:
‘Although the Vienna Convention on the Law of Treaties was concluded in 1969 and
entered into force in 1980 - i.e. after the entry into force of the Covenant - its terms
*
1
2
3
Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish
Centre for Human Rights.
International Covenant on Civil and Political Rights, (1976) 999 UNTS 17.
Vienna Convention on the Law of Treaties, (1979) 1155 UNTS 331.
See, e.g., ‘Report of the International Law Commission on the work of its forty-ninth session
12 May-18 July 1997’, UN Doc. A/52/10, Chapter V, para. 58(a), 94. In its most recent
decision, the International Court of Justice recalled that article 32 of the Vienna Convention
corresponded to a rule of customary international law: Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004,
para. 94.
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reflect the general international law on this matter as had already been affirmed by the
International Court of Justice in The Reservations to the Genocide Convention Case
of 1951.’4
As the Human Rights Committee noted, however, the final text of the
Convention had not been established when the Covenant was adopted, in 1966.
Although subsequent ratification of the Vienna Convention may justify the assertion
that it applies with respect to the Covenant to those States parties to both instruments,
it cannot be operative, as a matter of treaty law, to those that have not. In this respect,
it seems relevant to point out the when the Convention on the Rights of the Child was
being drafted, it was deemed necessary to include an explicit reference to the ‘object
and purpose test’ with respect to reservations precisely because some States had not
yet accepted the Vienna Convention on the Law of Treaties.5 The Special Rapporteur
of the International Law Commission has indicated that he is alive to this possible
tension between the Vienna Convention system and customary international law. For
example, in the 1996 report, Professor Pellet wrote: ‘In this regard, the Special
Rapporteur emphasized that this chapter, (item I of the general outline proposed in
chapter I of his report) sought to determine whether the rules applicable in respect of
reservations to treaties (whether codified by the 1969 or 1986 Conventions or
customary in character) were applicable to all treaties, regardless of their object, and
particularly to human rights treaties.’6 In another report, he noted that one of the
provisions of the Vienna Convention, article 22(1), ‘had become a customary rule’,
which seems to imply that it did not enjoy this status when it was adopted.7
Most evidently some aspects of the Advisory Opinion on the Genocide
Convention8 are of relevance, and there is a clear and direct correspondence between
the pronouncements of the International Court of Justice in 1951 and certain
provisions of the Vienna Convention. The significance of the Advisory Opinion with
respect to the Covenant is enhanced by the fact that the International Court of Justice
4
General Comment 24(52), UN Doc. CCPR/C/21/Rev.1/Add.6, para. 2.
UN Doc. E/CN.4/1989/48 at §§678-682.
6
‘Report of the International Law Commission on the work of its forty-eighth session, UN Doc.
A/51/332, para. 116.
7
‘Report of the International Law Commission on the work of its fifty-fourth session, UN Doc.
A/57/10, para. 55.
8
Reservations to the Convention on the Prevention of Genocide (Advisory Opinion), [1951] ICJ
Rep. 16. See also: G.A. Res. 598(VI).
5
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was dealing with a human rights treaty that, like the Covenant, lacked any provision
on reservations, as the British observations on General Comment 24 recall.9 Yet the
Advisory Opinion was far from unanimous – the ruling was seven judges to five – and
it was really only some general principles concerning reservations, such as a
presumption of implicit acceptance flowing from an absence of objection, that were
addressed by the Court and then incorporated in the Vienna Convention. There is
certainly no difficulty tracing the origin of the uncontroversial proposition that where
a treaty is silent about the permissibility of reservations, these are allowed to the
extent that they do not offend the object and purpose of the instrument. And this is
indeed what the Human Rights Committee acknowledged, in the rather gingerlyworded paragraph 6 of General Comment 24: ‘Article 19 (3) of the Vienna
Convention on the Law of Treaties provides relevant guidance.’10
The only other consideration of the Vienna Convention system in General
Comment 24 dealt with the practice of objections, and here the Committee quite
clearly dismissed its relevance:
As indicated above, it is the Vienna Convention on the
Law of Treaties that provides the definition of
reservations and also the application of the object and
purpose test in the absence of other specific provisions.
But the Committee believes that its provisions on the
role of State objections in relation to reservations are
inappropriate to address the problem of reservations to
human rights treaties.11
Indeed, in its discussion it referred to the practice of States with respect to objections,
a concept that seems to direct us back to customary international law:
And because the operation of the classic rules on
reservations is so inadequate for the Covenant, States
have often not seen any legal interest in or need to
object to reservations. The absence of protest by States
cannot imply that a reservation is either compatible or
incompatible with the object and purpose of the
9
10
11
‘Observations by the United Kingdom on General Comment No. 24’, (1995) 16 H.R.L.J. 424,
para. 7.
‘General Comment 24’, supra note 4, para. 6.
Ibid., para. 17.
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Covenant. Objections have been occasional, made by
some States but not others, and on grounds not always
specified; when an objection is made, it often does not
specify a legal consequence, or sometimes even
indicates that the objecting party nonetheless does not
regard the Covenant as not in effect as between the
parties concerned. In short, the pattern is so unclear that
it is not safe to assume that a non-objecting State thinks
that a particular reservation is acceptable.12
Articles 19 to 22 of the Vienna Convention may codify the findings of the
International Court of Justice, but they are actually a combination of codification and
progressive development. It is not enough to argue that these provisions are entirely
rooted in the Advisory Opinion and that they are therefore a codification of customary
law, and this is the point the Human Rights Committee makes in General Comment
24.
The role of custom in determining the permissibility of reservations
As article 19(c) of the Vienna Convention states, codifying a customary law
principle declared by the International Court of Justice in the Advisory Opinion on the
Genocide Convention, where a treaty imposes no particular conditions with respect to
reservations, they are permissible to the extent that they are not contrary to the object
and purpose of the instrument. The concept of ‘object and purpose’ – which also
appears elsewhere in the Vienna Convention, e.g., art. 18, 31(1), 33(4), 41(1)(b)(ii),
58(1)(b)(ii) - has always seemed to be rather enigmatic. In General Comment 24, the
Human Rights Committee made the innovative claim that in the context of
reservations, the object and purpose of a human rights treaty could be assessed with
respect to customary international law. It even went so far as to propose a list of
customary norms:
8.
Reservations that offend peremptory norms
would not be compatible with the object and purpose of
the Covenant.
Although treaties that are mere
exchanges of obligations between States allow them to
12
Ibid.
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reserve inter se application of rules of general
international law, it is otherwise in human rights
treaties, which are for the benefit of persons within their
jurisdiction. Accordingly, provisions in the Covenant
that represent customary international law (and
a fortiori when they have the character of peremptory
norms) may not be the subject of reservations.
Accordingly, a State may not reserve the right to engage
in slavery, to torture, to subject persons to cruel,
inhuman or degrading treatment or punishment, to
arbitrarily deprive persons of their lives, to arbitrarily
arrest and detain persons, to deny freedom of thought,
conscience and religion, to presume a person guilty
unless he proves his innocence, to execute pregnant
women or children, to permit the advocacy of national,
racial or religious hatred, to deny to persons of
marriageable age the right to marry, or to deny to
minorities the right to enjoy their own culture, profess
their own religion, or use their own language. And
while reservations to particular clauses of article 14 may
be acceptable, a general reservation to the right to a fair
trial would not be.
9.
Applying more generally the object and purpose
test to the Covenant, the Committee notes that, for
example, reservation to article 1 denying peoples the
right to determine their own political status and to
pursue their economic, social and cultural development,
would be incompatible with the object and purpose of
the Covenant. Equally, a reservation to the obligation
to respect and ensure the rights, and to do so on a
non-discriminatory basis (art. 2 (1)) would not be
acceptable. Nor may a State reserve an entitlement not
to take the necessary steps at the domestic level to give
effect to the rights of the Covenant (art. 2 (2)).
The Committee did somewhat the same thing in General Comment 29, when it
declared that certain provisions of the Covenant that are not enumerated in article 4(2)
are nevertheless not subject to derogation, essentially because they are in a sense
protected by their customary law status as peremptory norms.13
13
‘General Comment 29’, UN Doc. CCPR/C/21/Rev.1/Add.11, paras. 11-13. See, generally:
Clémentine Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human
Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’,
(2004) 17 Leiden J. Int’l L.405.
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The Committee’s venture into the realm of customary law, for the purpose of
assessing the permissibility of specific reservations, was criticised in the reactions to
General Comment 24 by the United States, the United Kingdom and France. The
United States proposed its own description of the ‘object and purpose’ of the
Covenant: ‘The object and purpose was to protect human rights, with an
understanding that there need not be immediate, universal implementation of all terms
of the treaty.’ It added: ‘[A] primary object and purpose of the Covenant was to
secure the widest possible adherence, with the clear understanding that a relatively
liberal regime on the permissibility of reservations should therefore be required.’ The
United States's observations described the Committee's position as a ‘significant and
sweeping premise’ that is ‘wholly unsupported by and is in fact contrary to
international law’. Making reference to the Committee's suggestion that there is a
customary norm forbidding States ‘to permit the advocacy of national, racial or
religious hatred’, which is presumably codified by article 20(2) of the Covenant, the
United States argued that ‘[i]t cannot be established on the basis of practice or other
authority, for example, that the mere expression (albeit deplorable) of national, racial
or religious hatred (unaccompanied by any overt action or preparation) is prohibited
by customary international law’.
The United States also took issue with the
Committee's position that the prohibition of execution for crimes committed by
persons under the age of eighteen is a customary norm.14
The United Kingdom wrote:
The United Kingdom is however less convinced by the
argument that, because human rights treaties are for the
benefit of individuals, provisions in the Covenant that
represent customary international law may not be the
subject of reservations. It is doubtful whether such a
proposition represents existing customary international
law; it is not a view shared by most commentators, and
States have not expressly objected to reservations on
this ground. In the United Kingdom’s view, there is a
clear distinction between choosing not to enter into
treaty obligations and trying to opt out of customary
international law. Such a distinction is inherent in the
14
‘Observations by the United States of America on General Comment No. 24(52)’, (1995) 16
H.R.L.J. 422, at p. 423.
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Committee’s recognition that reservations to articles
that guarantee customary international law rights are
permitted provided that the right is not deprived of its
basic purpose.
If the views of the Human Rights Committee
with respect to the role of custom in defining the
permissibility of reservations is correct, one might
expect to find references to customary law in objections
by States to reservations. In other words, a State might
attempt to explain or justify its objection to a
reservation by declaring that the impugned reservation
is contrary to customary law. With respect to the major
human rights treaties in the United Nations system,
where the ‘object and purpose’ test for reservations
applies either because of the silence of the instrument or
because of an explicit provision incorporating the
concept, there do not appear to be any relevant
examples.15
France addressed the issue of custom most directly, with detailed comments
about paragraph 8:
International custom is proof that a general practice has
been accepted as law. It must be acknowledged that it
is difficult – however regrettable that may be – to
identify practices in the human rights are that fit this
definition exactly. It would be premature, to say the
least, to claim that all the examples cited in the report fit
the definition of international custom cited above.
Although it may be accepted that certain human
rights treaties formalize customary principles, this does
not mean that the State’s duty to observe a general
customary principle should be confused with its
agreement to be bound by the expression of that
principle in a treaty, especially with the developments
and clarifications that such formalization involves.
Finally, it goes without saying that the
customary rule concept can in no way be equated with a
peremptory norm of international law. The position of
France, which is not a party to the 1969 Vienna
Convention on the Law of Treaties, as regards ‘jus
cogens’ , is well known. The uncertainties associated
with this concept, which France indicated from the
15
‘Observations by the United Kingdom on General Comment No. 24’, (1995) 16 H.R.L.J. 424,
para. 7.
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outset, should not compound those surrounding the role
of custom in human rights matters.16
In conclusion, France observed: ‘By making compatibility between constitutional
norms and treaty norms possible and by allowing the adaptation of treaty norms and
certain domestic legislation to reflect the special characteristics of each State,
[reservations] foster wide acceptance by the international community of a number of
treaties that would never have obtained sufficient accessions otherwise.’ 17
The Human Rights Committee’s proposal about the relationship between
impermissible reservations and customary international law was also debated within
the International Law Commission:
106. With regard to the question of reservations to the
provisions of a treaty restating a rule of customary law,
the members who spoke agreed with the Special
Rapporteur that that type of reservation was permissible
in principle. Some considered that that was possible
even in the case of provisions reproducing rules of jus
cogens. In that case, however, the reservation could
relate only to the refusal of the State to agree that those
rules (of jus cogens) should be incorporated in a
conventional text. It was stated that the situation of the
objecting State might be more nuanced in the case of
customary rule. Often, in such cases, however, the
reservation would be impermissible because it would be
contrary to the object and purpose of the treaty. The
rules of jus cogens remained peremptory no matter what
States agreed among themselves. A reservation to such
rules would have no effect. In that connection, it was
stated that, regardless of whether States became parties
to a treaty, customary international law would continue
to govern the subject matter of such treaties. In that
context, some members again raised the basic question
of the definition of customary international law and the
existing differences of opinion about the interpretation
of that concept. They stated that reservations existed
only as a response to such uncertainty. The Special
Rapporteur pointed out that there could be reservations
both to peremptory rules (jus cogens) and to customary
16
17
‘Observations of States parties under article 40, paragraph 5, of the Covenant, France’, UN
Doc. A/51/40, p. 104.
Ibid., p. 106.
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rules. In the first case, a State could object only to the
inclusion of the rule in a treaty without dealing with the
substance of the law, while, in the second, the
reservation could relate to the very substance of the rule
because States could always derogate from customary
rules by agreement inter se.18
The best endorsement of the Committee’s theory on the relationship between
custom and the ‘object and purpose test’ would probably be, as the British
observations indicate, the presence of references to customary international law in
objections to reservations. While the practice of objecting to reservations to human
rights treaties has probably enjoyed a bit of a resurgence since General Comment 24,
there do not appear to be any references to customary norms which might be
interpreted as support for the views of the Human Rights Committee.
Nor can any reference to this be found in the rather limited case law of either
international or national tribunals on the subject.19 The Committee’s own leading
case on the subject of impermissible reservations, Kennedy v. Trinidad and Tobago,
does not directly address the matter. The central issue in Kennedy was resolved with
respect to another controversial proposition in General Comment 24, dealing
specifically with reservations to the Optional Protocol.20 In Domingues, the InterAmerican Commission on Human Rights concluded that the reservation by the United
States to article 6(5) of the Covenant was invalid because it was in conflict with a jus
cogens norm, but did not endorse or otherwise consider the more general proposition
about the relationship between customary international law and the ‘object and
purpose test’.21
18
19
20
21
‘Report of the International Law Commission on the work of its forty-ninth session 12 May18 July 1997’, UN Doc. A/52/10, para. 106.
See, e.g., Domingues v. Nevada, 114 Nev 783, 961 P2d 1279 (1998), cert. denied 526 US
1156, 120 S.Ct. 396, 145 LEd 2d 309 (1999).
Kennedy v. Trinidad and Tobago (No. 845/1999), UN Doc. CCPR/C/67/D/845/1999especially
paras. 6.6-6.7.
Domingues v. United States (Case no. 12.285), Report no. 62/02, 22 October 2002, paras. 8586.
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Reservations practice as evidence of custom
In a recent decision, the Inter-American Commission on Human Rights said
that ‘state practice generally comprises any acts or statements by a state from which
views about customary laws may be inferred’.22
Such acts or statements must
necessarily include reservations and declarations as well as objections.
Indeed,
Professor Alain Pellet, in one of his early reports to the International Law
Commission, commented that. ‘[a]ccording to some members attention should be paid
to the impact of reservations on treaties and to their possible role as a source of
customary rules’23. But this subject has not been developed in the work of the
International Law Commission on reservations.
Reservations practice is surely relevant in determining whether a conventional
norm of international human rights law is also customary. For example, it is often
stated that the Geneva Conventions dealing with the protection of victims of armed
conflict should be given the status of customary international law, by virtue of their
essentially universal ratification.24 A caveat is necessary, however, because of
significant reservations to specific provisions of the Conventions that, in effect, spoil
the argument.25 In other words, the existence of reservations to specific norms within
treaties of universal or near-universal ratification is a relevant factor in determining
whether such norms may be considered to be customary in nature.
In the Advisory Opinion on Nuclear Weapons, the International Court of
Justice considered the role of reservations in the interplay between conventional and
customary norms. Its mandate was assess the state of customary law, but in so doing
it examined whether recent treaties were by nature codifications. In this respect, it
22
23
24
25
Ibid., para. 47.
‘Report of the International Law Commission on the work of its forty-ninth session 12 May18 July 1997’, UN Doc. A/52/10, para. 104
Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford:
Clarendon Press, 1989, at pp. 66-68. Consider, for example, the statement of the International
Court of Justice that common article 3 to the four Geneva Conventions is a ‘minimum
yardstick’ expressing ‘elementary considerations of humanity’. Military and Paramilitary
Activities in and Against Nicaragua (Nicaragua v. United States), [1986] ICJ Reports 14,
§218. In the Nicaragua case, the International Court of Justice found a specific violation of
article 3(1)d), which deals with summary executions (at paras. 255, 292(9)).
On reservations to specific provisions of the Geneva Conventions, see: Claude Pilloud,
‘Reservations to the Geneva Conventions of 1949’, [1976] Int’l Review Red Cross 163.
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looked at the reservations to the additional protocols to the Geneva Conventions. It
referred to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the
declarations made in connection with the indefinite extension of the Treaty on the
Non-Proliferation of Nuclear Weapons, making the observation that ‘even within this
framework, the nuclear-weapon States have reserved the right to use nuclear weapons
in certain circumstances; and (c)these reservations met with no objection from the
parties to the Tlatelolco or Rarotonga Treaties or from the Security Council’.26
Specifically because of the existence of these reservations, coupled with the lack of
objections, it could not ‘reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake’.27 Judge Higgins, in her dissenting opinion,
noted ‘the silent acceptance [by anti-nuclear States] of reservations and declarations
by the nuclear powers to treaties prohibiting the use of nuclear weapons in certain
regions’.28
And Judge Guillaume build upon these conclusions with respect to the
absence of reservations in arguing that the Court should have gone further, and
explicitly acknowledged the legality of the use of nuclear weapons as a deterrent.29
Judge Fleischhauer said that ‘the practice which finds expression … in the
reservations to the security guarantees and in their toleration, must be regarded as
State practice in the legal sense’.30
Accordingly, in determining whether a prohibition of juvenile executions was
contrary to customary international law, the Inter-American Commission took note of
the fact that article 68(4) of the fourth Geneva Convention prohibited the execution of
juvenile civilians in an occupied territory. The States parties to the Convention
include ‘the United States, which ratified the Convention on August 2, 1955 absent
any reservation to paragraph 4 of Article 68’.31 The Inter-American Commission
made a similar observation with respect to the Convention on the Rights of the Child:
‘The treaty subsequently entered into force on September 2, 1990, and as of
26
27
28
29
30
31
Legality of the Threat or Use of Nuclear Weapons (Request by the United Nations General
Assembly for an Advisory Opinion), [1996] ICJ Reports 226, para. 62.
Ibid., para. 97.
Ibid., Dissenting Opinion of Judge Higgins, [1996] ICJ Reports 226, para. 33. Similarly, see
the declaration by Judge Oda, para. 32.
Ibid., Individual Opinion of Judge Guillaume, para. 9.
Ibid., Separate Opinion of Judge Fleischhauer.
Domingues v. United States, supra note 21, para. 67. Also, para. 73.
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September 2001 the Convention had 191 state parties with no explicit reservations
taken to Article 37(a)’.32 In conclusion, the Commission noted that ‘there has been
concordant and widespread development and ratification of treaties by which nearly
all of the world states have recognized, without reservation, a norm prohibiting the
execution of individuals who were under 18 years of age at the time of committing
their offense’.33
The United States has argued that even there is a customary norm prohibiting
execution for crimes committed by persons under the age of 18, it is not bound by
such a norm because of its status as a ‘persistent objector’. The ‘persistent objector’
rule has been recognised in international jurisprudence as an exception to the
application of customary international law:
Once established, a norm of international customary law
binds all states with the exception of only those states that
have persistently rejected the practice prior to its becoming
law. While a certain practice does not require universal
acceptance to become a norm of customary international
law, a norm which has been accepted by the majority of
States has no binding effect upon a State which has
persistently rejected the practice upon which the norm is
based.’34
One way in which States may manifest their objection to an evolving norm of
customary law is by objection, particularly at the time of adoption and subsequent
signature of an international instrument.
In Domingues, the Inter-American Commission examined United States
reservations practice for evidence that it was a persistent object to the prohibition of
juvenile executions.
The Commission noted that the United States had signed the
Convention on the Rights of the Child without reservation to article 37(a),35 which
prohibits executions of persons for crimes committed under the age of eighteen.
There is some evidence of a practice of making reservations at the time of signature,
32
33
34
35
Ibid., para. 57. Also, para. 105.
Ibid., para. 68 (my emphasis).
Ibid., supra note 21, para. 48. See: Asylum Case (Columbia v. Peru), [1950] ICJ Reports 266,
at pp. 277-278; Fisheries Case (United Kingdom v. Norway), 1951 ICJ Reports 116, at p. 131;
Jonathan I. Charney, ‘The Persistent Objector Rule and the Development of Customary
International Law’, (1975) 56 Brit. Y.B. Int’l L. 1.
Ibid., para. 105.
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although this is unusual, and most reservations at the time of ratification constitute the
initial challenge to the norm rather than the confirmation of a declaration made at the
time of signature.36 Still, it does not seem unreasonable to hold a State seeking to
block the emergence of a customary norm to a higher standard. To the claim that
signature is an act of legal or no significance may be answered not only the text of
article 18 of the Vienna Convention but also the recent practice of the United States.
In ‘unsigning’ the Rome Statute of the International Criminal Court,37 the United
States would seem to have confirmed the importance of signature. If it really objects
to article 37(a) of the Convention on the Rights of the Child, why has the Bush
administration not made a similar repudiation of the signature by the United States of
that instrument?
The Inter-American Commission also cited the absence of a reservation by the
United States to article 68(4) of the fourth Geneva Convention38 as evidence that it
was not a persistent objector: ‘Indeed, it may be said that the United States itself,
rather than persistently objecting to the standard, has in several significant respects
recognized the propriety of this norm by, for example, prescribing the age of 18 as the
federal standard for the application of capital punishment and by ratifying the Fourth
Geneva Convention without reservation to this standard.’39 The United States argued,
in response, that the fourth Convention prohibits juvenile executions of protected
persons in occupied territories, which is not necessarily the same thing as a norm
prohibiting juvenile executions within its own territory. It can certainly be argued that
the fourth Geneva Convention imposes a regime for occupied territories that is not
automatically transposed to a State’s own jurisdiction. To claim the opposite is to
36
37
38
39
See, for example: J. Brock McClane, ‘How Late in the Emergence of a Norm of Customary
International Law May a Persistent Objector Object?’, (1989) 13 ILSA J. Int’l L. 1.
Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9. On 6 May
2002, the United States of America filed the following communication with the United
Nations Secretary-General: ‘This is to inform you, in connection with the Rome Statute of the
International Criminal Court adopted on July 17, 1998, that the United States does not intend
to become a party to the treaty. Accordingly, the United States has no legal obligations arising
from its signature on December 31, 2000. The United States requests that its intention not to
become a party, as expressed in this letter, be reflected in the depositary’s status lists relating
to this treaty.’ Israel did much the same thing on 28 August 2002.
Geneva Convention of August 12, 1949 Relative to the Protection of Civilians, (1950) 75
UNTS 135. Article. 68(4) declares: ‘In any case, the death penalty may not be pronounced on
a protected person who was under eighteen years of age at the time of the offence.’
Domingues v. United States, supra note 21, para. 101.
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transform the fourth Geneva Convention into a body of human rights norms
applicable within a State’s own territory, and this was surely not what was intended
by the drafters in 1949. If that were in fact the case, we would probably not have such
near-universal ratification of the fourth Convention. But with specific reference to the
death penalty provision in the fourth Convention, the Inter-American Commission o
this argument the Commission noted that it could ‘identify no appropriate justification
for applying a more restrictive standard for the application of the death penalty to
juveniles in times of occupation than in times of peace, relating as this protection does
to the most basic and non-derogable protections for human life and dignity of
adolescents that are common to both regimes of international law’.40
Evidence of customary law may also be generated by the relatively infrequent
practice of making declarations to the effect that a particular treaty norm is
insufficient or inadequate. There are some recent examples with respect to the child
soldiers provision of the Convention on the Rights of the Child and the prohibited
weapons provisions of the Rome Statute of the International Criminal Court. With
respect to the influence such declarations might have on the evolution of customary
international law, Professor Pellet has had this to say:
It was hard to that a State could modify customary
international law to its benefit by making a reservation. It
seemed unreasonable to consider that a modifying
"reservation" could increase the rights of the reserving
State and the obligations of the other contracting States
under customary international law; moreover, the
designation of such practices as "reservations" would have
very serious consequences for small developing States
which, lacking highly organized legal services, would be
deemed to have accepted such reservations after a certain
period of time: they would also be bound by a sort of
‘legislation’ that would be imposed on them from outside.41
In ratifying the Convention on the Rights of the Child, several States have
indicated their unhappiness with article 38, which sets fifteen as the threshold for
participation in armed conflict. On signing the Convention, Colombia said ‘it would
40
41
Ibid., para. 67.
‘Report of the International Law Commission on the work of its fiftieth session, 20 April-12
June 1998, 27 July-14 August 1998’, U.N. Doc. A/53/10 and Corr.1, para. 525.
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have been preferable to fix that age at 18 years in accordance with the principles and
norms prevailing in various regions and countries.’ On ratification, the Netherlands
declared ‘that it is of the opinion that States would not be allowed to involve children
directly or indirectly in hostilities and that the minimum age for the recruitment or
incorporation of children in the armed forces should be above fifteen years’. But no
State has referred explicitly to customary law in challenging the norm, and this is
understandable, because it would seem logical to conclude that the failure to achieve
international consensus on a particular norm would be strong evidence that it is not
customary in nature.
But not all treaties purport to codify customary international law. Article 10
of the Rome Statute, for example, states that ‘[n]othing in this Part shall be interpreted
as limiting or prejudicing in any way existing or developing rules of international law
for purposes other than this Statute’. Article 10 applies to the definitions of crimes,
and it is clear that in this area there are discrepancies and divergences with customary
international law.42
The Rome Statute quite plainly provides an inadequate
codification of prohibited weapons, and in this respect fails to confirm the principles
enunciated by the International Court of Justice in the Nuclear Weapons Advisory
Opinion. Egypt, upon signing the Statute, made the following declaration: ‘The
provisions of the Statute with regard to the war crimes referred to in Article 8 in
general and Article 8, paragraph 2 (b) in particular shall apply irrespective of the
means by which they were perpetrated or the type of weapon used, including nuclear
weapons, which are indiscriminate in nature and cause unnecessary damage, in
42
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has, at
least implicitly, indicated significant differences between the formulation of crimes in the
Rome Statute and what it considers to be the state of customary international law. For
example, with respect to the policy requirement for crimes against humanity set out in article
7(2)(a) of the Rome Statute, the Appeals Chamber has said this is not an element of crimes
against humanity under customary international law: Prosecutor v. Kunarac et al. (Case no.
IT-96-23 & IT-96-23/1-A), Judgment, 12 June 2002, para. 98. Article 10 was cited by the
Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, in Prosecutor
v. Furundzija (Case no. IT-95-17/1-T), Judgment, 10 December 1998, para. 227:
‘Notwithstanding Article 10 of the Statute, the purpose of which is to ensure that existing or
developing law is not ‘limited’ or ‘prejudiced’ by the Statute’s provisions, resort may be had
com grano salis to these provisions to help elucidate customary international law. Depending
on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary
rules or crystallise them, whereas in some areas it creates new law or modifies existing law.
At any event, the Rome Statute by and large may be taken as constituting an authoritative
expression of the legal views of a great number of States.’
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New Zealand said something
similar, expressly citing the advisory opinion of the International Court of Justice in
the Nuclear Weapons Case to the effect that ‘that the conclusion that humanitarian
law did not apply to such weapons “would be incompatible with the intrinsically
humanitarian character of the legal principles in question which permeates the entire
law of armed conflict and applies to all forms of warfare and to all kinds of weapons,
those of the past, those of the present and those of the future”’. Similarly, Sweden
declared: ‘In connection with the deposit of its instrument of ratification of the Rome
Statute of the International Criminal Court and, with regard to the war crimes
specified in Article 8 of the Statute which relate to the methods of warfare, the
Government of the Kingdom of Sweden would like to recall the Advisory Opinion
given by the International Court of Justice on 8 July 1996 on the Legality of the
Threat or Use of Nuclear Weapons, and in particular paragraphs 85 to 87 thereof, in
which the Court finds that there can be no doubt as to the applicability of
humanitarian law to nuclear weapons.’ France, on the other hand, issued a declaration
on the same subject at the time of ratification: ‘The provisions of Article 8 of the
Statute, in particular paragraph 2 (b) thereof, relate solely to conventional weapons
and can neither regulate nor prohibit the possible use of nuclear weapons nor impair
the other rules of international law applicable to other weapons necessary to the
exercise by France of its inherent right of self-defence, unless nuclear weapons or the
other weapons referred to herein become subject in the future to a comprehensive ban
and are specified in an annex to the Statute by means of an amendment adopted in
accordance with the provisions of articles 121 and 123.’ The United Kingdom was
only slightly more circumspect, referring to statements that it had made at the time of
ratification of humanitarian treaties that, in effect, reserve the possibility of using
nuclear weapons. These declarations do not clarify the matter, but they most certainly
demonstrate that States are aware that signature and ratification of treaties has
implications with respect to the development of customary international law, and that
they make declarations accordingly.
Other examples come to mind where reservations practice would be relevant
to determining the existence or contributing to the formation of a norm of customary
international law. For example, while treaty bodies and international human rights
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courts have to date avoided pronouncing themselves directly on whether an unborn
child is protected by the ‘right to life’, it would surely be relevant in any
determination of this matter, as a question of customary international law, to consider
the declarations by several states to this effect at the time of ratification of the
Convention on the Rights of the Child.43 But consider the British declaration made at
the time of ratification of the Covenant: ‘The United Kingdom interprets the
Convention as applicable only following a live birth.’ As with nuclear weapons and
the Rome Statute, the effect may only be to muddy the waters, or at least to strengthen
the conclusion that there is no applicable norm of customary international law on the
subject.
*****
In conclusion, there is much authority for the involvement of customary
international law in the practice of reservations. States need to take into account the
existence of customary norms when they are formulating reservations. Although the
principle set out in paragraph 8 of General Comment is controversial, and
unsupported by significant subsequent authority, it seems likely that the Human
Rights Committee will declare that a reservation to be contrary to the object and
purpose of the Covenant that it also considers to be a norm of customary international
law. In this respect, useful guidance to its views can be found in paragraphs 8 and 9
of General Comment 24 and, more recently, its remarks in General Comment 29. The
list is growing and it may be more practical, in the future, for the Committee to list
those norms in the Covenant that are not customary in nature, as the enumeration may
be shorter!
Reservations practice is also important because of its indirect effects on the
determination of norms of customary international law. Even if States do not accept
the reasoning of the Human Rights Committee, by which reservations may not be
formulated to customary norms, it may be possible to reason in the opposite direction:
when States claim that a reservation is contrary to the object and purpose of the
Covenant, they may be implying that the norm in question is customary in nature,
43
e.g., Argentina, Ecuador, Guatemala, Holy See,
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even if they do not say as much. The absence of objections to reservations has
already been taken by the International Court of Justice as evidence for the claim that
a specific norm is not customary in nature. States that are concerned about the
evolution of customary international law must therefore pay attention to reservations,
declarations and objections filed by other States parties as this may ultimately prove
significant with respect to their own obligations under customary international law.
One problem with the approach of the International Court of Justice, in
considering the absence of objections to reservations as evidence against the
formation of a customary norm, is that it leaves no room for the participation of nonStates parties in this process. Perhaps, in specific circumstances, such States might
consider making unilateral declarations and submitting them to treaty depositaries, or
simply communicating them on their own initiative to States parties to a treaty. In
this way, for example, a non-State party to the Covenant might indicate their
opposition to the reservation by the United States to article 6(5) and its view that the
provision constitutes a codification of customary international law.