Kasey McCall-Smith

Mind the Gaps: The ILC Guide to Practice and Reservations to Human Rights Treaties

At the best of times the rules on reservations to treaties baffle many international law practitioners and the states that must navigate them. The persisting confusion from the application of the default reservations regime codified by the 1969 Vienna Convention on the Law of Treaties (Vienna Convention) is exacerbated when these rules are used to interpret reservations to human rights treaties. Great hope for clarity in the reservations rules was focused on the outcome of the eighteen year study on reservations to treaties conducted by the International Law Commission (ILC). However, following the 2011 publication of the ILC Guide to Practice on Reservations to Treaties (Guide to Practice or Guide) it is apparent that despite several progressive guidelines, little has changed in the context of reservations to human rights treaties. This article examines the practice of making reservations to human rights treaties in light of the historical attitude of states to these treaties as well evolving state practice and forward-thinking efforts on the part of the ILC and others. It is based on case study of reservations to the core UN human rights treaties and a doctrinal study of the general law of reservations in relation to treaties. While the enduring problems of applying the Vienna Convention regime to reservations to human rights treaties will be outlined, this article forgoes a repeat of the historical development of the reservations rules that have been set forth on many occasions. Instead, it will focus on the reservations practice particular to human rights and examine the different types of reservations that plague human rights treaties. Specifically it will address the problems perpetuated by the object and purpose test, the lack of clarity of the legal effect and consequence of invalid reservations as well as the question of who decides invalidity and how this decision is impacted by the non-reciprocal nature of human rights treaties. Finally, the pertinent features of the Guide to Practice will be introduced and examined in light of the practical application of the guidelines in response to the problems most prevalent when analysing reservations to human rights treaties.

Introductory note to the United Nations revised minimum rules for the treatment of prisoners (Nelson Mandela rules)

Cognizant of Article 45(1) (c) of the African Charter, which mandates the Commission to cooperate with other African and international Institutions concerned with the promotion and protection of human and peoples’ rights; and the ‘Addis Ababa Road Map’ agreement between the special procedures of the United Nations Human Rights Council and the special mechanisms of the Commission,aimed at fostering cooperation between the two entities with the common objective to protect and promote human rights;

Transparency in International Law-Making

In 1919 President Woodrow Wilson famously called for a system of “open covenants..... openly arrived at.” He may not quite have lived up to his own aspirations, but the idea that international law-making should be an open and transparent process has proved a very sturdy implant. This chapter is particularly concerned with transparency as it affects international law-making. More specifically, we will consider transparency mainly from the stand-point of multilateral treaty negotiation but the points made here are equally relevant to other forms, including soft-law declarations and resolutions. At the outset it is worth asking why we should examine the principle of transparency in international law-making. At the domestic level there exists an obvious need to justify and legitimise the laws, policies, and decisions of public bodies in a democratic state accountable to the electorate. Modern legislatures are transparent insofar as they normally allow some degree of public access, and their proceedings are televised and reported by the press. One writer suggests that transparency has ‘attained quasi-religious significance in debate over governance and institutional design.’ In this context the role of transparency is to contribute to democratic accountability and public participation in governance, while facilitating free speech and freedom of information about law-making and public affairs. On the international level where the interchange is primarily between States and the law-making institutions are not meaningfully democratic, it might be thought that transparency is less necessary; indeed it may even be seen as counter-productive in what is essentially a negotiating process. No negotiator would wish to reveal their position ahead of any dialogue. Some may feel it necessary to conceal their true position even after negotiations have concluded, if only to sustain illusions on both sides. Plainly, there are limits to the utility of transparency and its virtues must be balanced against other potential drawbacks. In politics, as in life, complete openness is rarely beneficial or desirable.