1
If the reservation to multilateral Covenant is the most controversial topic about the
Law of Treaties,
2 then the reservation to human rights treaty, especially the role of the treaty supervisory organ in the reservation question can be regarded as the most disputable topic in the international law scope.
3
The guiding principle of the Vienna
Covenant on the Law of Treaties is to encourage the general participation of the states in treaties when the reservation system maintains the integrality of treaties.
4
On the question of the reservation to human rights treaties, there are many discrepancies between the opinion of the Human Rights Committee and the traditional opinion held by the International Law Commission. It is quite interesting to make a comparison between the two.
5
At the same time, since the Chinese government signs the
International Covenant on Civil and Political Rights on October 5, 1998, six years have passed and the approval and implementation of the Covenant have been put on agenda. This can be seen from the establishment of the Task Force on ICCPR.
According to the Covenant, comparing the Chinese law in operation with the practical considerations, the reservation and explanatory statement of the Covenant should also be one of the essential questions. This article tries to briefly compare the similarities and differences between the Human Rights Committee and the International Law
Commission on the question of the reservation to human rights treaties; and briefly reviews the reservation of the Covenant and the reserved viewpoints about the
Covenant by Chinese scholars.
1 Professor, Law Department, Harbin Institute of Technology
2 Malcolm D. Evans (editor), International Law, Oxford University Press, 2003, p.191.
3 Kontantin Korkelia, New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, EJIL(2002), vol. 13 No.2, 437-438.
4 Malcolm D. Evans (editor) ， p192.
5 At the same time, the UN Sub-Commission on the Promotion and Protection of Human Rights attaches importance to the matter of reservations to human rights treaties and issues a report. See also ‘Reservations to human rights treaties’, Working paper submitted by Ms. Françoise Hampson pursuant to Sub-Commission decision 1988/113, E/CN.4/sub2/1999/28(1999).
1

Reservation: as defined in Article 2 of Vienna Covenant on the Law of Treaties in
1969
6
, "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.
7
The possibility of reservation enables a non-state party to approve a treaty; thereby the universality of the treaty is strengthened.
Explanatory statement: when states signs, ratifies, accedes to, accepts and approves a treaty, they usually make a statement of their understanding of some matters or a certain provision.” Such a statement is simply the clarification of the state's position and may be a reservation. That depends on whether it modifies or excludes the legal effects of the provision."
8
The reservation is limited. According to Article 19 of Vienna Covenant on the Law of
Treaties ： A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
1. The reservation is prohibited by the treaty;
2. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
3. In cases not falling under sub-paragraphs 1 and 2, the reservation is incompatible with the object and purpose of the treaty.
Case 3 is often applied and discussed, though its diction about "the object and purpose" is kind of ambiguous. It's generally considered that reservations to the treaty of general character are against the object and purpose of the treaty.
Objections to the reservations: In the event that an international treaty itself does not involve any reservation, other parties may consent to accept the treaty within 12 months upon receipt of the reservation notice or oppose it before the effective date of
6 Vienna Covenant on the Law of Treaties, quoted from Yu Mincai, Cheng Xiaoxia, A Teaching
Reference Book on the Law of Treaties, China Renmin University Press, June 2002, pp.369
－
388.
7 Li Haopei, An Introduction to the Law of Treaties, Second Edition, Law Press, Jan. 2003, p125.
8 UN Doc. A/5209 。 Quoted from Wan E’xiang, Shi Lei, Yang Chengming, etc., International Law of
Treaties, Wuhan University Press, Oct, 1998, Page 120
2

the treaty. However, 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; 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(Article 20, 21,
Vienna Covenant on the Law of Treaties). That means, whether a reservation is acceptable shall be a matter between states parties unless the treaty otherwise provides:
9
Hereinafter we will mainly discuss the discrepancy between the Human Rights
Committee and the International Law Commission on the reservation to human rights treaties. There are two opinions about whether a special system shall apply to the reservation to human rights treaties. One opinion has it that as the approving principle is still the crucial principle of the existing reservation system, the parties to human rights treaties still have the discretionary power in deciding the acceptability and validity of the reservation to treaties. This is an extensively applied traditional opinion, which is similar to that of the International Law Commission. The other opinion maintains that due to the inherent characteristics of human rights treaties, different systems shall apply to the reservation to these treaties; and holds that the system of Vienna Covenant on the Law of Treaties is outdated. The Treaty
Monitoring Body shall be entitled to decide the acceptability of the reservation and come to a resolution on the effects of the unacceptable reservation. The General
Comment No.24 of the Human Rights Committee and its recent practice embody the opinion. The controversial point is whether human rights treaties are totally different from other treaties, so totally different rules shall apply to the determination of acceptability of the reservation and unacceptable reservation effects.
10
The 18-member Human Rights Committee was established according to the UN
International Covenant on Civil and Political Rights of 1966(hereinafter referred to as the Covenant). Its purpose is to supervise the states parties to the Covenant to perform their obligations. According to the provisions of the Covenant and its optional
9 Malcolm N. Shaw, International Law, 5th Edition, Cambridge University Press, 2003, p.828.
10 Kontantin Korkelia, New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, EJIL(2002), vol. 13 No.2, 437-438.
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protocol ， the Human Rights Committee is in charge of various functions, including acceptance and examination of communications in which individuals claim to be the aggrieved party because any of their rights stipulated by the Covenant has been violated. The Human Rights Committee is not a UN agency, but a relatively autonomous institution based on the Covenant. Considering its characteristic as an expert institution which is independent of the United Nations and the states parties to a large extent and its decision-making power in the communications from individuals and states as well as its operation ways in practice, some scholars regard it as a
"quasi-judicial body". Because its resolutions lack the binding force under international law and its member's term is short(4 years) and it is named by
"Committee", strictly speaking, it shall not be regarded as a law court.
11
As stipulated in Article 40, Clause 4 of the Covenant, the Committee may give general comments on the obligation of submitting reports under Article 40, the guarantee of the implementation of rights and obligations prescribed by the Covenant, the application and content of various articles of the Covenant, the proposals of cooperation for the application and development of the provisions of the Covenant, and so on.
As the Covenant itself does not have any provisions about the reservation question, on
Nov. 2, 1994, the Human Rights Committee gives the "general comment on issues relating to reservations made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under article 41 of the
Covenant". 12 In this most controversial General Comment No. 24, the Human Rights
Committee expresses its opinion on the matter of reservations to the Covenant in detail. It acknowledges that the states may make a reservation to the Covenant provided it is not incompatible with the object and purpose of the Covenant. It also specifies to which clauses reservations shall not be made, the requirement of the reservations, and especially the status of states parties and the Human Rights
Committee itself in the decision of the validity and effects of the reservations.
13
11 Manfred Nowark, translated by Bi Xiaoqing and Sun Shiyan, proofread by Xia Yong (U.N.
Covenant on Civil and Political Rights, CCPR Commentary), Life, Reading and New Knowledge
Press
，
Oct. 2003, Page 501and following pages.
12 Human Rights Committee, General Comment No 24 (52ed Session, 1994) on issues relating to
Reservation made upon ratification or accession to the Covenant or Optional Protocols thereto, or in relation to declarations under article 42 of the Covenant. For the Chinese edition, see the translation by the International Human Rights Law Course Book Project Team ： A Course Book on International
Human Rights Law, First Edition, China University of Political Science and Law Press, Volume 1, Dec,
2002. p579 and following pages. This translation edition has many problems though.
13 Edel Hughes, The Implementation, Restriction and Derogation of International Covenant on Civil and Political Rights, prepared for Hague Central Europe Human Rights Dialogue Forum, p3 and following pages.
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1. Prohibited reservations
According to the opinion, although there is no specific provision on the matter of reservations in the Covenant, the general international law shall apply to it in practice, especially so with the obligation not to defeat the object and purpose of a treaty stipulated in the Vienna Covenant on the Law of Treaties. At the same time ， provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms, or jus cogens) may not be the subject of reservations. The Human Rights Committee also explicitly alleges that the following behaviors constitute a violation of the customary international law: 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.
14
While there is no automatic correlation between reservations to non-derogatable provisions, and reservations which offend against the object and purpose of the
Covenant, a State has a heavy onus to justify such a reservation.
2. The Characteristics of the Reservations the Human Rights Treaties
The Human Rights Committee holds that the human rights treaties in nature are not contractual and no rights and obligations shall be set up based on the traditional mutual beneficial foundation between states. They are aimed at the relations between states and their peoples, with the view of requiring the states parties to undertake the obligation of respecting the human rights of any individual within their jurisdiction.
Therefore, the mutual beneficial system between states as an important characteristic of the traditional multilateral international treaties is not important for the conclusion and implementation of human rights treaties. And this will lead to such problems as the scope of reservations and whether other states parties oppose the reservations.
14 General Comment No. 24, Paragraph 8.
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As to the objection to reservations, the rules of objection stipulated in the Vienna
Covenant on the Law of Treaties shall not exert obvious effect on the Covenant. As there is no interest of legal benefits and demand, even if other states think that the reservations of a state defeat the object and purpose of the Covenant, they will simply sit by because they think objections to the reservations do not make any sense.
3. Who shall decide the acceptance of the reservation of the Covenant?
After laying emphasis on the differences between human rights treaties and general multilateral international treaties, the Human Rights Committee points out that the
Vienna Covenant on the Law of Treaties has not been proper to resolve the problem of reservation to human rights treaties. Because of limitation of objection to reservation between state parties, the Human Rights Committee itself is the only institution that can decide whether a reservation accords with the object and purpose of the Covenant or not. The Committee considers that it has the right to decide whether a reservation is in line with the object and purpose of the Covenant, when it is exercising its functions, for example, when it is handling personal communications.
The Human Rights Committee not only brings forward the above-mentioned daring opinions in its general comments, it also applies it in the specific practice afterward.
Recently, in the case of Rawle Kennedy vs.Trinidad and Tobago, the Committee has referred to the reservation of Protocol I to the Covenant (Communication No.
8451999, decision on acceptability in Nov., 1999).
15
The Committee reiterated in this case that the effect of reservation to the Covenant and its protocol shall be interpreted and decided by the Committee.
In the regional extent, the European Court of Human Rights confirmed its own right of decision of the effect of reservation in its judgment.
16
4. Effect of non-acceptable reservation
On the problem of reservation, a new trend is to consider that the non-acceptable reservation shall be divided. That is to regard the non-acceptable reservation as divided, and the related provisions still apply to the state parties. This modus operandi
15 For details about the case, see above-mentioned A Course Book on International Human Rights Law, p570.
16
See also the “ Louzidou v. Turkey Case ” judged by the court, A, No. 310, 1995. For details about the case, see the same book above, p570.
6

stems from some cases in the European Court of Human Rights.
17
The Human Rights
Committee tries hard to apply it in the global scope. It considers that it not only has the right to decide whether a reservation is in line with the object and purpose of the
Covenant, and once it finds that the related reservation is not acceptable, the reserving state usually will not be unconstrained of the Covenant accordingly, and shall still continue to act as a state party of the Covenant. The Human Rights Committee will declare invalidation of the non-acceptable reservation. The Covenant will continue to apply to the reserving state, and the reserving party will not get any profit in the
Covenant that shall be obtained from reservation. 18
What needs to be explained is that, though the general comments of the Human
Rights Committee lacks the status as a authoritative explanation of the Covenant, it still plays an important role in the comprehension of the provisions of the Covenant.
19
The Human Rights Committee’s comment on whether a reservation is in accordance with the object and purpose of the Covenant has no legal binding force, which is different from the binding interpretation that is made on the Covenant by the court established by the related Covenant. Because the status of the comment of the Human
Rights Committee is not provided in the international law, or authorized by the state parties. However, its comment still has its value. At least, it will provide a possible referenced scale for state parties, and they can have a reference when deciding to bring forward or accept or oppose a reservation. As it is reflection of national practice and experts’ opinions, it shall be helpful to the formation of customary law. 20
The U.S., the U.K. and France express their objections on these fearless and radical general comments of the Human Rights Committee.
In 1950, the United Nations General Assembly handed the mission of research on reservation of multilateral treaties to the International Law Commission for the first
17 Malcolm N. Shaw, International Law, 5th Edition, Cambridge University Press, 2003, p.829
。
18 Kontantin Korkelia, New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, EJIL(2002), vol. 13 No.2, 462.
19 Ibid, at 457.
20 Edited by Chen Guangzhong, subedited by Cheng Weiqiu and Yang Cheng, A Study on the
Approval and Implementation of International Covenant on Civil and Political Rights, First Edition,
China Legal Publishing House, April, 2002, pp18-19
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time( refer to Decision No. 475 (V) of the General Assembly on Nov. 16 th
, 1950). In
1994, the International Law Commission appoints professor Alain Pellet as special reporter, to make an overall research on the laws and practice related with treaties. Up till now, he has released eight (8) reports on this issue. The research work still continues now.
21
The International Law Commission has discussed the issue on reservation to treaties for many times, and adopted the Draft of Guidelines on
Reservation to treaties in 2001.
22
Different from the viewpoint of the Human Rights Committee, the International Law
Commission reconfirmed the applicability of the Vienna Covenant on the Law of
Treaties to all kinds of treaties, including human rights treaties, in the Preliminary
Conclusions of the International Law Commission on Reservations to Human Rights
Treaties adopted in 1997.
23
The International Law Commission affirms that the
Monitoring Bodies of Human Rights Treaties (including the Human Rights
Committee) have the right to comment and express recommendations on acceptability of reservation. However, it will not influence the traditional supervision exercised by state parties according to the two Vienna Covenants in 1969 & 1986, and it doesn’t mean that the monitoring bodies of the Human Rights Treaties can exceed the power granted to them as a general supervisor.
24
The International Law Commission suggests that, if the state parties of the Human Rights Treaties agree to grant to the
Treaty monitoring Body the right to comment or decide on the acceptability of reservation, it shall be authorized through adding terms in the treaties or formulating additional protocols.
An important conclusion made by the International Law Commission is that, in case of the finding of non-acceptable reservation, the state that brought forward reservation has the responsibility to take measures, and it shall modify or cancel its reservation, or withdraw from the treaty.
25
21 International Human Rights Law Course Book Project Team
：
A Course Book on International
Human Rights Law, First Edition, China University of Political Science and Law Press, Volume 1, Dec,
2002. p567
22 Draft Guidelines on Reservations to Treaties, provisionally adopted by the International Law
Commission at its fifty-third session, 2001, Available at http://www.un.org/law/ilc/reports/2001/english/chp6.pdf
23 Preliminary Conclusions of the International Law Commission on reservations to human rights treaties. In ‘Report of the International Law Commission on the Work of its Forty-Ninth Session’,
Official Records of the General Assembly, Fifty-Second Session, Supplement No.10, UN Doc.A/52/10, at 126-127.
24 Ibid, at 149.
25 Report of the ILC on its 49 th Session, A/52/10, pp.126-7; Malcolm N. Shaw, International Law, 5th
Edition, Cambridge University Press, 2003, p.830.
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From the foregoing paragraphs, we can find that, there is a big difference between a series of viewpoints related with substantial issues brought forward by the
International Law Commission in its Preliminary Conclusions and the viewpoints of the Human Rights Committee. Unlike the Human Rights Committee itself as a
Monitoring Body of the Human Rights Treaties, the International Law Commission doesn’t attach much importance to the effect of the Treaty Monitoring Bodies on the reservation issue.
As an authoritative institution responsible for codification and gradual development of international law in the United Nations,
26 the International Law Commission (consist of thirty-four (34) members) was established in 1947. Although the drafts of articles formulated by the commission and the reports and resolutions prepared by the commission have not been formed into binding international Covenants, they still have a quite effect on the development of international law.Similar to teachings of supreme of publicists of each country, they shall be the accessory instruments for determining legal regulations alleged in the Statute of the International Court of
Justice , and become basis of the international law.
28
We considers that, difference of viewpoints between the Human Rights Committee and the International Law Commission reflects the difference of viewpoints between representatives of traditional international law and those of the developing and rising international human right law. Some people say that it is a conflict of ideas between supporters of the interests of traditional sovereign states and supporters of the interests of international society.
29
It is still necessary to make a careful research on the composing persons of the Human Rights Committee when adopting the General
Comment No. 24 in 1994. According to related materials, representatives from western countries took up a stronger status in the Committee at that time.
30
26 International Law, edited by Wang Tieya, Law Press, Aug, 1995, pp.23-24.
27 Ditto, p26.
28 Ian Brownlie(UK), translated by Zeng Lingliang, Yu Minyou, etc., Principles of Pubic International
Law, Fifth Edition, 1998
， pp.17-18,Law Press, August, 2003. See also: Malcolm N. Shaw,
International Law, 5th Edition, Cambridge University Press, 2003, p.113
－ 114 。
29 Kontantin Korkelia, New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, EJIL(2002), vol. 13 No.2, p438.
30 See also Manfred Nowark, translated by Bi Xiaoqing and Sun Shiyan, proofread by Xia Yong, U.N.
Covenant on Civil and Political Rights, CCPR Commentary, Life, Reading and New Knowledge Press,
Oct, 2003.
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After a simple comparison of difference of viewpoints on reservation to the Human
Rights Treaties between the Human Rights Committee and International Law
Commission, it is necessary to get a brief sight of the situation of reservation to the
Covenant in every country and researches in China.
1. Situation of reservation to the Covenant in every country
According to the statistics, till Aug. 15 th , 2004, in the one hundred and ninety-one
(191) state members of the United Nations, one hundred and fifty-two (152) states have ratified, acceded to, or succeeded the Covenant, eight (8) states (including China) have signed the Covenant and are waiting for ratification of the Covenant. In the above-mentioned one hundred and sixty (160) states that have ratified, acceded to, succeeded or signed the Covenant, fifty-seven (57) states have made reservations, explanative declarations or political declarations.
31
Investigation shows that, upon the practice of reservation or explanative declaration to the two Human Rights Treaties, whether to make a reservation and what to be reserved is not in proportion to whether it is a developed country. According to a statistics quoted by Professor Mo Jihong from the Human Rights Center of Ireland, up till now, in the one hundred and fifty-eight (158) reservations made to the Covenant, one hundred and twenty (120) reservations are made by developed countries (forty
(40) state parties are developed countries), and thirty-eight (38) reservations are made by developing countries (one hundred (100) state parties are developing countries).
32
The Netherlands made eight (8) reservations when ratifying the Covenant.
33
2. Chinese scholars’ researches on reservation to the Covenant
After China’s signature of the Covenant, researches on the issue of China’s ratification of the Covenant are carried out in different ways. As for the procedure matters provided in the Covenant, some scholar considers that, we do generally not admit other monitor systems established by the Covenant itself except reporting system, according to the practice that our country ratified other international human rights Covenants before. Therefore, the personal communications procedures
31 Zhao Jianwen, Reserved and Political Statement of International Covenant on Civil and Political
Rights, Jurisprudential Study, Volume 5, 2004, p144
32 See also: Mo Jihong, The Relationship between International Covenant on Civil and Political Rights and China from a New Perspective, quoted from: Edited by Wang Yizhou, Construction in
Contradiction : A Multiple-Insight in Relationship between China and Key International Organizations,
China Development Press, March, 2003, p234
33 Zhao Jianwen, Reserved and Political Statement of International Covenant on Civil and Political
Rights, Jurisprudential Study, Volume 5, 2004, p144
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provided in the Optional Protocol I of the Covenant and the unconditional abolishment of death penalty provided in the Optional Protocol II are not seasoned with China’s current internal law system on protection of human rights, and shall temporarily not be ratified. Procedures of appeal between countries provided in
Section 1 of Article 41 shall temporarily be reserved.
34
There are different viewpoints in the theoretical field on how to make a reservation to substantive rights provided in the Covenant. The study group led by Prof. Chen
Guangzhong expresses an idea that, in the Recommendation on ratification and implementation of the Covenant on Civil and Political Rights, generally, most of the clauses of the Covenant do not need to be reserved. However, as for freedom of expression and freedom of association, we consider that they need to be made an explanative declaration within the scope that is admitted by the Constitutional Law,
Trade Union Law and other related laws.
35
This viewpoint alleges not to make a reservation when ratifying the Covenant.
However, some author considers that, after an all-round research on the situation of reservation of every country, China is necessary to make an explanative declaration to the provision of right of self-determination of the peoples in Article 1 of the Covenant, and make a reservation or an explanative declaration to the provision of freedom of migration in Article 12, provision of freedom of expression in Article 19, provision of freedom of assembly in Article 21 and provision of freedom of association in Article
22, when ratifying the Covenant.
36
Some expert considers that, if the internal laws conflict with the provisions of the
Covenant, (for example, the doctrine of the presumption of innocence) the internal law shall be modified to meet the demand of the Covenant. As for religious freedom, and no detention or arrest without judicial procedures provided in Section 3 of Article
9, because there is a relative great difference between some legal regulations and practice of China and the Covenant, they shall be reserved through reservation. The issue on death penalty, freedom of migration, freedom of residence and domiciliary system, right to silence and right against self-incrimination, freedom of expression
34 See also: Mo Jihong, The Relationship between International Covenant on Civil and Political Rights and China from a New Perspective, same source as above
， p523.
36 Zhao Jianwen, Reserved and Political Statement of International Covenant on Civil and Political
Rights, Jurisprudential Study, Volume 5, 2004, p144
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and freedom of association, shall be illustrated through making an explanatory statement.
37
Conclusion: The Human Rights Committee put forward in its General Comment No.
24 that it has the right to decide the acceptability and invalidation of the reservation.
However, it lacks legal probative force, as the Human Rights Committee has no right to make a binding verdict. On this point, the Human Rights Committee cannot be compared with the European Court of Human Rights. However, the Human Rights
Committee needs to make a comment on whether the reservation is in line with the object and purpose of the Covenant, but shall not exceed its own extent of competence, when exercising duties. At present, the viewpoints of the Human Rights
Committee are different from those of the International Law Commission, which is a instable situation. We can find that some Chinese scholars’ viewpoints are closer to the viewpoints of the International Law Commission, in their discourses. In consideration of ratification of the Covenant, we shall not only make a research on the practice of reservations to the Covenant of every country, but also shall we have an overall understanding of the mechanism and development of the Covenant, so that we can not only respect for and protect human rights according to the provisions of the
Constitutional law, and also can develop and perfect the constitutionality of our country.
37 See also: Mo Jihong, The Relationship between International Covenant on Civil and Political Rights and China from a New Perspective, same source as above, pp239-245.
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