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International Human Rights Law in Theory: What should we do about reservations and persistent object
"While international human rights law is established by treaties and custom, the rules on reservations found in the Vienna Convention on the Law of Treaties 1969 and the concept of the persistent objector in relation to customary international law are not straightforward to apply in this context. Discuss”
Article 38 (1) of the Statute of the International Court of Justice identifies both treaties and customary international law as important sources of International Law. International Human Rights Law being a part of International Law, means that treaties and customary international law are sources of it too.
Treaties
Treaties are by far the most developed type of International Law, and arguably the most simple. Seeing as International Law is built on a bedrock of State consent, it is unsurprising that treaties are agreements between at least two states, on a specific issue, which is binding on all parties, must be followed with good faith, and is governed by International Law.
Customary international law
Unlike treaties, customary international law is not written, nor is it necessarily explicitly agreed upon by States in such terms. Customary international law is, by nature, malleable, fragile and often evolving. It is made up of two vital components: State practice and opinio juris, or the belief of a State that it must act this way. One could see it from the viewpoint that it is based on the idea that: ‘the way things have always been done becomes the way things must be done' (Kurukulasuriya and Robinson). This may fix some of the problems of needing State consent for International Law, as McDougal and colleagues stated: ‘a concept of customary international law is precisely to eliminate any requirement of specific consent as a basis of international obligation.’
It can be seen that International Law and its sources are already complicated, yet this is made even more complicated by the existence of reservations and persistent objectors.
Reservations
According to Kurukulasuriya and Robinson, ‘[a] reservation is a statement by which a state indicates its nonacceptance or interpretation of an article in a multilateral treaty.’ This is unlike an understanding because it is an attempt by a State to opt out or amend parts of a treaty. This may seem to be counter-productive to the aim of creating universal human rights standards; however, reservations do not have to be accepted by other States. Most importantly, if a particular reservation is deemed to be contrary to the object and purpose of the treaty (or to the principles of the UN, in some circumstances), then it will not be accepted.
Reservations arguably cause the most problems with regard to Human Rights treaties, since Human Rights should be universal, and so these treaties should be as inclusive as possible. Take, for instance, the first International Human Rights treaty - the Genocide Convention (1948). The ICJ, in its review of the reservations to this treaty, held that a reservation could be accepted, even if a few States objected to it, only if it ‘is compatible with the object and purpose of the Convention.’[4] This acts somewhat as a safeguard to the goal of total universality of Human Rights, but does it go far enough? Should we allow reservations to Human Rights treaties at all? It is argued here that some reservations should be permitted, but that their impact on individual, vulnerable people - the people at whom the treaty is aimed at protecting - should be more rigorously considered. A reservation could be in line with the object and purpose of a treaty, but still have a disastrous effect on a large amount of people. This should be more closely scrutinised.
The action to be taken with regards to an invalid reservation is also potentially problematic. This is not straightforward at all. Goodman identifies three options:
‘Option 1: The state remains bound to the treaty except for the provision(s) to which the reservation related.
Option 2: The invalidity of a reservation nullifies the instrument of ratification as a whole and thus the state is no longer a party to the agreement.
Option 3: An invalid reservation can be severed from the instrument of ratification such that the state remains bound to the treaty including the provision(s) to which the reservation related.’
Despite International Law having its basis in State consent, it is argued here that the third option is the most appropriate course of action, at least in the context of International Human Rights Law. This is because Human Rights, and indeed human dignity, should trump State sovereignty. Unfortunately, not everyone takes this view, and thus the law and practice in this area is rather muddied.
It should be remembered that if and when the contents of a treaty become customary international law it becomes legally binding on all States, regardless of ratification (or lack of), and reservations can no longer be added. Despite this, there is still a way that States can circumvent their obligations under these treaties, and indeed and customary international law: by being a persistent objector.
Persistent objectors
With regard to persistent objectors, what is far from straightforward is the answer to the question of whether customary international law binds States through consent. Before this question can be adequately answered, a definition of a persistent objector must be given. The basic, general rule of customary international law is that it binds all States; however, a State can become a persistent objector to a matter of law if it objects to the law or practice at the initial stages of it becoming customary international law, and continues to object, without deviation. Alternatively, a State could ‘adopt a contrary practice at the initial stages of the formation of customary law and continue to do so in a sustained manner’ and be a persistent objector (Ruwanthika Gunaratne).
Clearly, this is also a significant barrier to achieving attainable, effective and universal Human Rights for all. So, should we allow POs? They endanger the universality of human rights, or, more aptly, they hinder the achievement of true universality, thus putting those most in need of protection in an even more vulnerable position. Allowing persistent objectors to opt out of customary international law pertaining to International Human Rights, in effect, places State sovereignty on a higher level than Human Rights. Should we not bring it down off this State-made shelf and place it alongside, if not below, the shelf containing vital Human Rights provisions for real and living individuals? Customary international law, at least in the area of Human Rights, should not be based on State consent.
However, perhaps we should not worry about whether persistent objectors complicate matters or not. Bradley and Gulati quote Stein, saying that the latter’s research ‘failed to turn up any case where an author provided even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector principle – excepting of course the Asylum and Fisheries cases themselves’, (if you even believe that the States in these cases were in fact persistent objectors…). As Ruwanthika Gunaratne points out, ‘In reality, there have not been cases before the international court of justice of this nature where a state claims that it is exempted from customary international law after the rule had formed.’
Alternatives
Is there a better alternative? Those who wave the flag for upholding State sovereignty at any cost would no doubt argue that there is not. However, with a little humanity and deep thinking, perhaps we could come up with a better solution; for example, it may un-muddy the waters a little if, as previously stated, closer scrutiny were given to State reservations that do not sit contrary to the object and purpose of the treaty or the United Nations, but, nevertheless, stand in opposition to effective Human Rights protection. With regard to the problem of persistent objection, perhaps only declarations should be taken as signifying the will of a State to become a persistent objector - not actions. If this were the case then perhaps reasons could be given, and if those reasons do not justify a deviation from potentially life or livelihood saving laws and practices, then the State will be held nevertheless to be subject to the obligations created by the customary international law in question, or would be held to be in breach of that law if they already acted contrary to it.
In conclusion, it is clear to see that the rules on reservations found in the Vienna Convention on the Law of Treaties 1969 and the concept of the persistent objector in relation to customary international law are not straightforward to apply in the context of International Human Rights Law - be it treaties or international customary law. As it stands, the rules surrounding these concepts are too complex and do not sufficiently take into account the effects they will have on real, human individuals, rather than on State-built interests. Subsequently, these rules ought to be reviewed and rethought, with alternative solutions in mind.