The validity and effect of reservations and declarations

Although reservations and declarations are permitted in the international treaty regime, international law stipulates that certain derogations are impermissible in law and in certain situations. The validity and effect of reservations and declarations can be discussed in the following ways.

(A) The object and purpose test

The landmark advisory opinion of the International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, laid down that reservations are impermissible if they are against the object and purpose of the treaty. The court, highlighting the importance of compatibility of the reservation or declaration with the object of the treaty, stated, “the character of the multilateral convention, its purpose […] and adoption are factors which must be considered in determining the […] possibility of reservation”.

(B) The Vienna Convention test

Article 21 of the Vienna Convention deals with the legal effects of reservations on the obligations between State parties. Article 21 is as follows:

1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3. 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 requires the acceptance of and objection to reservations to be made in a particular way, while Article 23 specifies particular procedures to be followed while making reservations. The important provision is Article 19 that requires all reservations to be compatible with the object and purpose of the treaty to which such reservations are made.

(C) The human rights treaties test

The Human Rights Committee, in its General Comment 24 dated 2 November 1994, has indicated the special position of human rights conventions when it stated,

“Although treaties that are mere exchanges of obligations between states allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction”.

The Human Rights Committee, discussing the consequences of impermissible declarations and reservations, stated that the special and often universal nature of human rights conventions implies that the normal consequence of an unacceptable reservation is not that the convention is not in effect at all for the reserving party.

(D) Breach of peremptory norms of international law test

The Human Rights Committee has indicated that provisions in international conventions that represent customary international law, when they have the character of being peremptory norms of international law, may not be subject to reservations.

India and Core Human right conventions

India gained Independence in 1947 and the framing of constitution started in 1948 so the drafters of the Indian constitution were also inspired by the aspirational goals sets out in the Universal Declaration of Human Rights1948 (UDHR). The preamble of the Constitution of India underlines the need to secure to all citizens justice, liberty, equality and also dignity of the individuals as important values. India is a signatory of almost all the core Human right treaties. India is a State party to the International Convent on Civil and Political Rights (ICCPR), 1966 , the International Covenant on Social, Economic and cultural Rights (ICESCR), 1966 , the Convention on the Elimination of All forms of Racial Discrimination (CERD), 1965, the International Convention on the Suppression and Punishment of Crime of Apartheid (ICSPCA), 1973, the Convention on the Elimination of Discrimination Against Women (CEDAW), 1979 , the Convention on the Rights of the Child(CRC), 1989 , the Convention on the prevention and Punishment of the Crimes of Genocide, 1948, the Geneva Convention 1, 2, 3, and 4, 1949, the Convention Relating to the status of Refugees and Protocol Relating to the Status of Refugees, 1951, the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984, the International Convention on the protection of all persons from Enforced Disappearances, 2006, and the Convention on the Rights of Person with Disability (CPD), 2007. It has signed but not ratified the Torture Convention i.e. CAT and International Convention on the protection of all persons from Enforced Disappearances. Also India is yet to sign and Ratify the International convention on Protection of Rights of All Migrant worker and Members of their Family (MWC), 1990 and Rome State of the International Criminal Court, 1998. It has not ratified any of the Optional Protocols to these instruments except the Optional Protocol to the CRC (Child prostitution and child pornography) and Second Optional protocol to the CRC (Involvement of children in armed conflict), Also not accepted any of the individual complaints procedures under those conventions it has ratified.

While ratifying the Core human right treaties India has entered substantive reservations and declaration to the ICCPR, ICESCR, CRC, CERD and the CEDAW Convention. This section will analyze the reservation and declarations made by India under these aforesaid human right treaties.