Virginia Merino Carretero

INTERNATIONAL HUMAN RIGHTS LAW

INTERNATIONAL RELATIONS’ DEGREE

Prof. Pilar Trinidad Núñez

EXERCISE: RESERVATIONS TO HUMAN RIGHTS TREATIES

I. Texts:

1. Reservation formulated by the United States of America in 1992, upon ratification to

the International Covenant on Civil and Political Rights (New York, 16 December
1966):

“The United States reserves the right, subject to its Constitutional constraints, to
impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital
punishment, including such punishment for crimes committed by persons below
eighteen years of age.” (See article 6.5 of the ICCPR)

2. Reservations and objections to the Convention on the Elimination of All Forms of

Discrimination against Women (New York, 18 December 1979):

Reservations formulated by Oman upon accession to the CEDAW in 7 Feb 2006:

“1. All provisions of the Convention not in accordance with the provisions of the
Islamic Sharia and legislation in force in the Sultanate of Oman;
2. Article 9, paragraph 2, which provides that States Parties shall grant women
equal rights with men with respect to the nationality of their children;
3. Article 15, paragraph 4, which provides that States Parties shall accord to men
and women the same rights with regard to the law relating to the movement of persons
and the freedom to choose their residence and domicile;
4. Article 16, regarding the equality of men and women, and in particular
subparagraphs (a), (c), and (f) (regarding adoption).”

Objection formulated by Spain (23 February 2007)

“With regard to the reservations made by Oman upon accession:

The Government of the Kingdom of Spain has examined the reservations made by the
Sultanate of Oman upon accession to the Convention on the Elimination of All Forms
of Discrimination against Women regarding all the provisions of the Convention
which are incompatible with Islamic law and with the legislation in force in Oman and
to articles 9 (2), 15 (4) and 16 of the Convention.
The Government of the Kingdom of Spain considers that the first part of the
reservation which subordinates all the provisions of the Convention to conform to
Islamic law and the legislation in force in Oman, to which it makes general reference,

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 without specifying its content, does not permit clear determination as to the extent to
which Oman has accepted the obligations derived under the Convention and,
consequently, such reservation sheds doubt as to the extent to which the Sultanate of
Oman is committed to the object and purpose of the Convention.
Furthermore, the reservations to articles 9 (2), 15 (4) and 16 are incompatible with the
object and purpose of the Convention, which aim at exempting Oman from its
commitment essential obligations of the Convention.
The Government of the Kingdom of Spain recalls that according to article 28 (2) of the
Convention, reservations that are incompatible with the object and purpose of the
Convention shall not be permitted.
Therefore, the Government of the Kingdom of Spain objects to the reservations made
by the Sultanate of Oman to all the provisions of the Convention on the Elimination of
All Forms of Discrimination against Women which are incompatible with Islamic law
and with the legislation in force in Oman and to articles 9 (2), 15 (4) and 16 of the
Convention.
This objection shall not preclude the entry into force of the Convention between the
Kingdom of Spain and the Sultanate of Oman.”

3. Declaration and Reservations and objections to the Convention on the Rights of

Persons with Disabilities

Declaration and Reservation formulated by Malaysia (19 Jul 2010)

Declaration:
“Malaysia acknowledges that the principles of non-discrimination and equality of
opportunity as provided in articles 3 (b), 3 (e) and 5 (2) of the said Convention are vital in
ensuring full and equal enjoyment of all human rights and fundamental freedoms by all
persons with disabilities, and to promote respect for their inherent dignity, which shall be
applied and interpreted on the basis of disability and on equal basis with others. Malaysia
declares that its application and interpretation of the Federal Constitution of Malaysia
pertaining to the principles of non-discrimination and equality of opportunity shall not be
treated as contravening articles 3 (b), 3 (e) and 5 (2) of the said Convention.
Malaysia recognizes the participation of persons with disabilities in cultural life, recreation
and leisure as provided in article 30 of the said Convention and interprets that the recognition
is a matter for national legislation.”

Reservation:
“The Government of Malaysia ratifies the said Convention subject to the reservation that it
does not consider itself bound by articles 15 and 18 of the said Convention.”

Objection formulated by Belgium (28 June 2011)

with regard to the reservation made by Malaysia upon ratification:

Belgium has carefully examined the reservation made by Malaysia upon accession to the
Convention on the Rights of Persons with Disabilities on 19 July 2010.
The vagueness and general nature of the reservation made by Malaysia -which does not
consider itself bound by Articles 15 and 18 of the Convention- may contribute to undermining
the bases of international human rights treaties.
Belgium further notes that the reservation made in respect of Article 15 -concerning the
prohibition against torture, which is an absolute protection- and Article 18 concerns

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fundamental provisions of the Convention and is incompatible with the object and purpose of
that instrument.
Belgium notes that under Article 46 (1) of the Convention, reservations incompatible with the
object and purpose of the Convention are not permitted. Furthermore, under customary
international law, as codified in the Vienna Convention on the Law of Treaties, a reservation
incompatible with the object and purpose of a treaty is not permitted (article 19 (c)).
Consequently, Belgium objects to the reservation formulated by Malaysia with respect to
Articles 15 and 18 of the Convention on the Rights of Persons with Disabilities.
This objection shall not preclude the entry into force of the Convention between the Kingdom
of Belgium and Malaysia.

4. Reservations made by Spain in January 1974 upon accession to the Convention on the
Political Rights of Women (New York, 31 March 1953):

“Articles I and III of the Convention shall be interpreted with out prejudice to the
provisions which in current Spanish legislation define the status of head of family.
Articles II and III shall be interpreted without prejudice to the norms relating to the
office of Head of State contained in the Spanish Fundamental Laws.
Article III shall be interpreted without prejudice to the fact that certain functions,
which by their nature can be exercised satisfactorily only by men or only by women,
shall be exercised exclusively by men or by women, as appropriate, in accordance
with Spanish legislation.”

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II. Questions:

1. What is a reservation? How can a reservation be distinguished from a declaration?

When can a State formulate a reservation to a certain Treaty?

A reservation is a unilateral statement made by a State when signing, ratifying, accepting, or

approving a treaty or when acceding to it, in order to exclude or modify the legal effects of
certain provisions of the treaty as applied to that State.
The difference between reservations and declarations are many: regarding the form,
reservations must be formulated in a written form, while declarations do not. Regarding the
moment of its formulation, declarations can be formulated at any time and reservations only
at the moment of manifestation to be bound. Regarding the objective, reservations are
intended to exclude or modify the legal effect that certain provisions of the treaty have for the
State subjects, while declarations seek to clarify and specify the meaning and scope, they
attribute to the treaty or some of its provisions.

2. Are reservations to human Rights treaties generally accepted?

Are all permitted?
What would be the advantages and disadvantages of permitting reservations to human
Rights treaties?
In your opinion, should they be allowed?

May times, reservations to Human Rights treaties are generally accepted, as it is a right by
itself. Here the dilemma emerges, as it is a right the formulation of reservations regarding any
type of HHRR Treaty, but at the same time, if those reservations go against the purpose of the
Treaty, there is a problem.
The advantages of permitting reservations are the demonstration of freedom of expression and
the right to object and declare regarding treaties. However, a big disadvantage is that no
country fulfills the complete list of purposes of the Convention, as they can make reservations
and decide which part of the Treaty they want to accomplish.
In my opinion, reservations should not be allowed, because it is absurd to sign a Treaty of a
Convention if you are not going to accomplish in a full way. I believe that if a country decides
to be part of a Convention, it has to promote its principles and not being against them.

3 Are reservations to the ICCPR permitted?

As to the US reservation to the ICCPR, what is your consideration of the expression
“under existing or future laws permitting the imposition of capital punishment”? How
could States react to that reservation?

That statement seems really dangerous, as the US is not only affirming that currently there are
laws permitting the imposition of capital punishment, but also that in the future it is possible
that those laws will still exist.
It would be logical that States react to that reservation in a rejection way, as one of the main
universal principle that the UN is trying to promote around the whole world is the
abolishment of death penalty. In addition, death penalty is still nowadays existing but in
countries of the Middle East where the culture is different and where things change slower,
but the US is supposed to be an example of democracy and liberty, it is supposed to be the
example and representation of the West!

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4. Are reservations to the CEDAW allowed by the Convention?
Are the reservations formulated by Oman compatible with the object and purpose of a
treaty?
Do you agree with the reaction of Spain to those reservations?

Yes, reservations to the CEDAW are allowed by the Convention, but we can consider that the
reservations formulated by Oman are not compatible with the object of the Treaty, as the
Convention promotes equality between women and men, and Islam does not allow to develop
this right in its full manner.
Yes, I agree with the objection of Spain to those reservations, as it is true what Spain says
about the poor specification of the content, this not allowing a clear determination as to the
extent to which Oman has accepted the obligations derived under the Convention. What´s
more, I also agree with the idea that reservations made by Oman are incompatible with the
purpose of the Convention, and consequently, shall not be permitted. Because the Islamic law
is not compatible with the object of the Convention. And it is true, Islamic religion many
times goes against principles of equality between men and woman.

5. Is, in your opinion, Belgium’s objection to Malaysia’s Declaration and Reservation to

CRPD correct?

Yes, I think that it is correct, as Belgium demonstrates that for example, reservations by
Malaysia concerning Articles 15 and 18 are incompatible with the purpose of the Convention,
as they concern fundamental provisions of the Convention, such as prohibition against torture.
What´s more, Belgium is correct when saying that the character of the reservation made by
Malaysia is excessively general and thus should not be allowed.

6. What’s your consideration of the Reservations formulated by Spain to the Convention

on the Political Rights of Women? Are they permissible in International law? Are they
consistent with the Spanish legislation? How could States react to those reservations?

Even if it is true that the statement concerning the idea that ``there are some functions that can
only be exercised by men or by women´´ were consistent (at least at that moment) with the
Spanish legislation. However, they should not be permissible in International Law. That
statement goes against principles of equality between men and women, and it should be
considered logical and natural if states act by rejecting these reservations and punish those
statements against equality.

7. What could be the consequences of formulating a reservation incompatible with the

object and purpose of a treaty?
What legal remedy should follow the determination of the invalidity of a reservation?

The consequence of formulating a reservation incompatible with the purpose of a treaty is

really controversial and may be a little bit absurd. Why do countries sign up treaties and
conventions regarding human rights if they are then going to make a huge list of reservations
to declare that their country is going to do whatever they want?

The legal remedy to invalidate a reservation is the formulation of objections made by the rest
of the countries.