The adoption of the text of a treaty normally takes place by the consent of the states participating in its drafting or by a majority at an international forum. A treaty only binds those states that have consented to be bound by it and for which the treaty has entered into force. There are several procedures whereby states may express their consent to be bound. They can do so by ratification, acceptance, approval, or accession,depending on what the treaty stipulates and on the relevant national practice. It has become increasingly common for states to sign a convention first, subsequently submit it to their legislature for approval and finally ratify it. Several years may pass from the time of adoption until the treaty is ratified.
A convention enters into force only after the minimum number of states specified has expressed consent to be bound by it. For instance, the ICCPR stipulates that it enters into force three months after the date of deposit of 35 instruments of ratification or accession (Article 49). The ICCPR was adopted by the UNGA on 16 December 1966; it was opened for signature, ratification and accession on 19 December 1966, and entered into force on 23 March 1976, i.e., almost ten years after its adoption.
States are bound by treaty provisions in different ways. Under some treaties a state party may be permitted to limit its legal obligations by entering reservations to some of the provisions of the treaty. A reservation renders the provision concerned non-binding or limits its effects. States may also in some instances enter a declaration concerning the extent to which they wish to be bound by a certain provision or how they interpret the provision. This chapter begins by dealing with the permissibility of reservations and declarations in international human rights treaties.
In addition, most human rights are not absolute; they can be limited in specific circumstances. Many human rights instruments permit the restriction of some rights for reasons of national security, public order (ordre public); public health; or public morality. Examples of rights which are not absolute include freedom of movement, freedom of religion, right to peaceful assembly and freedom of association. But any limits a state places on rights must comply with some requirements examined in this chapter. Finally, in a legitimate state of emergency that is publicly declared, some Human rights instruments allow a state party unilaterally to derogate temporarily from a part of its obligations. These situations are also examined in this chapter.
THE VIENNA CONVENTION ON THE LAW OF TREATIES (1969)
The Vienna Convention on the Law of Treaties (VCLT) is an international treaty adopted on 22 May 1969, which came into force on 27 January 1980. The VCLT codified the pre-existing international customary law on treaties, while filling some gaps and adding some clarifications. Most states are parties to it. Moreover, even states that are not bound by the Convention itself may be bound by those provisions which reflect customary international law. The VCLT regulates, inter alia, the following aspects of international treaties: a) conclusion and entry into force of treaties; b) reservations; c) observance, application and interpretation of treaties; d) amendment and modification of treaties; and e) invalidity, termination and suspension of the operation of treaties.
A. Reservations and declarations
When becoming party to a treaty, a state may formulate reservations, declarations and interpretative statements in order to limit its domestic application beyond what is permissible under the limitations referred to above. Although it is desirable that states become party to a convention unconditionally, this is often not the case.
In general terms, a reservation is a statement made by a state by which it purports to exclude or alter the legal effect of certain provisions of a treaty in their application to that state. A reservation may enable a state to participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in. Indeed, one of the primary reasons why reservations are allowed at all is to include the greatest number of states in multilateral treaties.
The International Court of Justice stated in its Advisory Opinion on the Genocide Convention (1951): ‘Object and purpose of the Convention limit both the freedom of making reservations and that of objecting to them.’ These words were later codified in Article 19 Vienna Convention on the Law of Treaties which sets out the general rule on reservations:
A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
(c) In cases not falling under subparagraphs (a) and (b), the reservation is in compatible with the object and purpose of the treaty.
Unless expressly permitted by a treaty, the effectiveness of a reservation is dependent on its acceptance by other states parties, and any other state party may object to it. As a rule, a reservation is considered accepted by another state party if that state party has raised no objection within twelve months after it has been notified of the reservation (Article 20(5) VCLT). Regrettably, silence on the part of other states parties seems to be the common response to reservations; and, unfortunately, this silence is rarely the result of conscious deliberation.
The former UN Commission on Human Rights (now the Human Rights Council) has stated that reservations should be formulated ‘as precisely and narrowly as possible’ (Resolution 1998/9). Reservations often reflect an admission that the country in question cannot, or will not, bring its conduct up to international standards, especially when the reservation relates to a perceived economic burden created by the treaty provision in question. General reservations may, moreover, encourage other states to follow suit, and thereby reduce the ability of the state making the reservation to complain when other states make similar reservations. Furthermore, extensive limitations may contravene established principles of international law contrary, for instance, to Article 27 VCLT that states: ‘A party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty.’
Regionally, Article 57(1) ECHR prohibits reservations ‘of a general character’. The European Court of Human Rights discussed the issue of general reservations in Belilos v. Switzerland (1988). Further, in Loizidou v. Turkey (1995), the Court held that:
[A] State may not make a reservation in relation to an article of the Convention that does not deal directly with substantive rights and freedoms, but instead with procedural or formal matters. If [?] substantive or territorial restrictions were permissible under these provisions, Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations [?]. Such a system [?] would not only seriously weaken the role of the [?] Court [?] but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public).’
The Inter-American Court has dealt with the issue of reservations in its Advisory Opinion No. 2 on the ‘Effect of Reservations on the Entry into Force of the American Convention on Human Rights’ and Advisory Opinion No. 4 on ‘Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica’, stating that reservations may not lead to a result that weakens the system of protection established by the Convention.
Certain instruments, such as CEDAW, have been subject to many reservations, some of them clearly incompatible with the object and purpose of the treaty. For example, when Iraq ratified CEDAW it registered a reservation that its ratification ‘shall not mean that the Republic of Iraq is bound by the provisions of article 2, paragraphs (f) and (g), of article 9, paragraphs 1 and 2, nor of article 16 of the Convention.’ Because Article 2 of CEDAW outlines the implementation measures of the treaty, many states objected to Iraq’s reservation as incompatible with the object and purpose of the treaty. The effect of invalid reservations to human rights treaties, and of objections to reservations, is a continuing debate in international law. In the face of this situation, the independent monitoring bodies, such as the CEDAW Committee and the Human Rights Committee, have taken a view on the validity of reservations, a practice not contemplated by the VCLT. Although the competence of these bodies in this regard has been debated, it seems logical to conclude that their competence derives from their functions. The Human Rights Committee has dealt with this issue in General Comment 24 on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols, where it stressed that ‘reservations must be specific and transparent [?]. Reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto.’
Some conventions allow or even require states parties to make declarations concerning the extent to which they are bound by a certain provision. Such statements may relate to the competence of a supervisory mechanism. For instance, Article 41 ICCPR stipulates that a state party may choose (not) to recognise the competence of the Human Rights Committee to receive state complaints regarding its human rights performance. This type of declaration, as provided by the instruments, does not pose major problems. However, a state party may also make interpretative declarations, otherwise known as understandings, whereby it does not intend to modify or limit the provisions of the treaty, but indicates merely how it interprets a particular article. Such interpretative declarations may raise certain problems in international law as to their differentiation with reservations.
The VCLT is silent on the question of interpretative declarations. However, the International Law Commission has studied the matter at length and several international human rights bodies have dealt with the issue. One of the major differences between a ‘reservation’ and an ‘interpretative declaration’ lies in the author’s purpose in making that declaration. While a reservation seeks to exclude or modify the legal effect of the treaty’s provisions in their application to the state author, the interpretative declaration seeks only to clarify the meaning or scope of the treaty provisions. Therefore, it is the intention of the state rather than the form or the name or title which matters. Thus, if a statement purports to exclude or modify the legal effect of a treaty in its application to the state, it constitutes a reservation. Conversely, if a so-called ‘reservation’ merely clarifies the state’s understanding of a provision, without excluding or modifying that provision, it is in reality not a reservation.
B. Restrictions or limitations
Conventions and other instruments may contain a number of restrictions or limitations to the rights they stipulate. It is generally accepted that only few rights and freedoms are ‘absolute’. At the same time, such restrictions must be used only to establish the proper limits of the protected right and not as an excuse for undermining the right itself or destroying it altogether. In general, there must be a proportionate relationship between the restriction of the right as such and the reason for the restriction.
Various international instruments contain provisions allowing restrictions (used interchangeably with the term ‘limitations’) on human rights. Such provisions may take the form of general limitations. Article 4 ICESCR, for instance, reads:
The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting general welfare in a democratic society.
Another illustration of a built-in limitation is provided by Article 32(2) ACHR: ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society’.
The African Charter on Human and Peoples’ Rights does not contain a specific provision on restrictions but Article 27(2) on ‘duties’ has come to play the role of a general limitation clause providing: ‘The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.’
In order to prevent abuse, conventions often contain a paragraph prohibiting the abuse of an international instrument to destroy another right. Article 5 ICCPR, for instance, stipulates:
Nothing in the present Convention may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.
However, apart from these general provisions most human rights treaties contain specific provisions in various individual articles, which specify the limitations and restrictions that are allowed on the particular right. Such specific limitation clauses include: ‘in a democratic society’, ‘public order (ordre public)’, ‘public health’, ‘public morals’, ‘national security’, ‘public safety’ and ‘rights and freedoms of others’. For a handful of rights, such as freedom from torture or slavery, no limitations have been formulated.
When a right is subject to a limitation, no other limitations are permitted and any limitation must comply with the following minimum requirements:
The limitation must not be interpreted so as to jeopardise the essence of the right concerned;
The limitation must be interpreted strictly in the light and context of the particular right;
The limitation must be prescribed by law and be compatible with the object and purpose of the instrument;
The restriction must be based on law;
The restriction must be necessary; there must be a pressing social need, assessed on a case-by-case basis. That the law would be useful is in itself not sufficient; it must be consistent with other protected rights. In some treaties, the condition that it be ‘necessary’ (in a democratic society) is added; and
The restriction must be justified by the protection of a strictly limited set of well defined public interests, which usually includes one or more of the following grounds: national security, public safety, public order (ordre public), the protection of health or morals and the protection of the rights and freedoms of others.
These requirements have been developed by academia and the jurisprudence of major human rights bodies. In this regard, the Siracusa Principles on the Limitation and Derogation Provision in the International Covenant on Civil and Political Rights (Annex, UN Doc E/CN.4/1984/4) are also important. The Principles, adopted by a group distinguished experts in international law, provide useful guidance on the interpretation of limitation and derogation provisions of human rights treaties.
The Inter-American Court has dealt with limitation and derogation in Advisory Opinion No. 5 on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism. There it analysed under what conditions limitations to the freedom of expression are compatible with the guarantee of this right as it is recognized by the ACHR. The Court stated that
limitations must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish.
The African Charter on Human and Peoples’ Rights contains a particular set of limitations. Several provisions confer rights upon individuals and peoples, but then limit them according to domestic law. As an example, Article 6 provides that: ‘No one may be deprived of his freedom except for reasons and conditions previously laid down by law.’ Article 8, on freedom of conscience and religion, stipulates that: ‘No-one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms’, and Article 9 (2) reads ‘Every individual shall have the right to express and disseminate his opinions within the law.’ (Emphasis added). These provisions, commonly known as ‘claw back clauses’, effectively limit the implementation of the rights conferred as the rights are simply tied to whatever domestic legislation is in force at any given time. These limitations are more extensive than those examined above as the principles of necessity and proportionality appear not to apply. The African Commission has, however, stated a general principle applying to all the rights and freedoms contained in the African Charter. In Media Rights Agenda and Constitutional Rights Project v. Nigeria the Court ruled that:
To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.
In sum, any restriction on the enjoyment of the rights enshrined in human rights instruments must be legally established, non-discriminatory, proportional, compatible with the nature of the rights and designed to further the general welfare. Finally, it is also important to stress that the burden falls upon states parties to prove that a limitation imposed upon the enjoyment of the rights is legitimate. This is, of course, a heavy burden of proof, but it is consistent with the object and purpose of human rights treaties to protect the individual.
Some human rights instruments allow states to take measures derogating temporarily from some of their obligations. Derogating measures must be of an exceptional and temporary nature. There are derogation clauses in, inter alia, Article 15 ECHR, Article 27 ACHR and Article 31 European Social Charter. Some human rights instruments, such as the Convention on the Rights of the Child, the ICESCR, and the African Charter on Human and Peoples’ Rights, do not contemplate any derogation clause.
The rationale for derogation provisions is to strike a balance between the sovereign right of a government to maintain peace and order during public emergencies, and the protection of the rights of the individual from abuse by the state. Thus, the state is allowed to suspend the exercise of some rights when necessary to deal with an emergency situation (e.g., derogation of the right to peaceful assembly), provided it complies with safeguards against any abuse of these derogation provisions.
When derogation measures are allowed, such derogations have to meet several criteria:
There must be a war or general state of emergency threatening the life of the nation;
The state of emergency must be officially proclaimed;
Measures may not go beyond the extent strictly required by the situation;
Measures may not be inconsistent with other obligations under international law;and
Measures may not be discriminatory solely on grounds of race, colour, sex, language, religion or social origin.
A state availing itself of the right of derogation must immediately provide justification for its decision to proclaim a state of emergency and also for any specific measure based on such a proclamation.
With regard to derogations and limitations, the Final Document of the 1991 Moscow meeting of the Conference on Security and Co-operation in Europe (CSCE), states:
The participating states reaffirm that a state of public emergency is justified only by the most exceptional and grave circumstances [...]. A state of public emergency may not be used to subvert the democratic constitutional order, nor aim at the destruction of internationally recognised human rights and fundamental freedoms. [...] The participating states confirm that any derogation from obligations relating to human rights and fundamental freedoms during a state of public emergency must remain strictly within the limits provided for by international law, in particular the relevant international instruments by which they are bound, especially with respect to rights from which there can be no derogation.
Limits, in the form of the criteria to be met, have thus been set out on the extent to which states can derogate from their human rights obligations. Moreover, as stipulated in a number of international conventions (e.g., Article 4(2) ICCPR, Article 15(2) ECHR and Article 27(2) ACHR), a number of rights can under no circumstances be limited or derogated from. Such rights are often called notstandsfest - a German term – and include the right to life, freedom from slavery, torture and imprisonment for debt, the principle of legality in the field of criminal law, freedom of thought, conscience and religion and the right to juridical personality. In its General Comment 29, the Human Rights Committee enumerates conditions that must be met in order to derogate from derogable rights enshrined in the ICCPR. The Committee also establishes that the rights contained in Article 4(2) ICCPR are not the sole non- derogable rights; there are elements of other rights not listed in Article 4(2) that cannot be subject to lawful derogation. These include elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances.