Preproceedings 2006 - Austrian Ludwig Wittgenstein Society

Reservations to Human Rights Treaties – Tribute to Religious and
Cultural Diversity or Undermining of Universality?
Andreas Th. Müller, University of Innsbruck, Austria
The question of reservations to human rights treaties is a
delicate issue in international law – in view of its
complexity as well as its implications. Far from intending to
elaborate on such highly juridical subject in a philosophical
context, this very issue affords, however, remarkable
lessons on the topic of intercultural dialog, its potential and
limits. It will be argued that the stance one takes on
reservations to human rights instruments, aiming at
preserving religious and cultural diversity, is symptomatic
of one’s approach to basic questions like the legitimate
claims of religious/cultural traditions as normative
fundament of human societies, the existence of supracultural,
universal values superposing them, as well as the
ways in which to identify or agree on them. Furthermore,
the setting in which this specific kind of intercultural dialog
takes place is representative in a double sense: On the
extensional level, the community of states virtually covers
all of humanity and, on the intensional one, the state is, if
not the only, still the most prominent collective entity in
bundling, articulating and representing the normative
attitudes of larger populations on a global level.
The rapid rise in the number of states in the 20 th
century posed a considerable problem to the exclusive
club of so-called “civilized nations” which had dominated
modern international law from its outset. In the wake of
World War II, the intensifying production of human rights
instruments found broad support within the international
community. However, the “old guard” was soon confronted
with increasingly self-confident “greenhorns” referring to,
and insisting on, their specific historical/cultural/religious
background, which often considerably differed from the
“western” normative heritage.
In order not to leave it with isolated protest and
insular proposals, certain groups of nations agreed on
articulating their genuine approach to human rights in an
explicit and consistent manner. Among the major results,
one must point at the Banjul Charter on Human and
Peoples’ Rights of 1981, stressing the “historical tradition
[of the African States] and the values of African civilization”
(preamble) which materialize in a particular emphasis on
human duties and peoples’ rights as a major complement,
and corrective, to classical individualistic human rights.
Furthermore, the privately sponsored Universal Islamic
Declaration of Human Rights of 1981, but especially the
1990 Cairo Declaration on Human Rights in Islam as
adopted by the Member States of the Organization of the
Islamic Conference deserve mention. The latter’s
preamble underlines “the civilizing and historical role of the
Islamic Ummah which God made the best nation that has
given mankind a universal and well-balanced civilization”
and that “fundamental rights and universal freedoms in
Islam are an integral part of the Islamic religion”, while
insisting that all those rights and freedoms “are subject to
the Islamic Shari’ah” which is “the only source of reference
for the explanation or clarification to any of the articles in
this Declaration” (art. 24f.).
The relationship between different concepts of
human rights as a primarily theoretical problem on the
level of general declarations was soon to become a real
conflict of interests in the concrete case: One of the well-
204
known examples here is the 1979 Convention on the
Elimination of All Forms of Discrimination against Women
which was ratified by some 180 states. When joining the
convention, many Muslim nations made material
reservations to it, most of them construed in very general
terms and globally referring to the “provisions of the
Islamic Shari’a law” and their constitutions (see e.g. the
pertinent reservations of Malaysia and Saudi Arabia). In
case of a collision between those norms and the
requirements of the convention, the former should prevail.
This approach was openly criticized by numerous Western
states, explicitly objecting to these types of reservations
and declaring them inadmissible, thus raising the question
what the applicable provisions of international law should
be, taking into account the concerned states’ incompatible
views on the matter.
The current legal regime of reservations to
international treaties
According to art. 2 (1) d of the 1969 Vienna Convention on
the Law of Treaties (VC), reservation “means a unilateral
statement, however phrased or named, made by a State
[…] whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application
to that State”. Reservations are a well proven instrument
for broadening the consensual basis of an international
treaty. The possibility for a state to articulate a “tailormade”
consent, in virtue of which it can dispose itself of
certain unwanted obligations, raises the chance that
wavering members of the international community
eventually support a draft, while they would boycott the
project as a whole if confronted with an “all-or-nothing”
alternative.
At the same time, however, the system of
reservations tends to create a high degree of complexity
with regard to the legal regime applicable to the parties to
a convention as each of them potentially takes part in its
peculiar way. This is further complicated by the fact that
the other parties may either (explicitly or tacitly) accept or
object to a reservation (art. 20-23 VC), as the consensus
principle (which is at the very heart of the institution of
reservations and which allows to subject a sovereign state
only to the norms it has agreed to beforehand) must
consistently also be applied to the states confronted with
another’s reservation. Depending on whether they approve
of it or not, the provisions affected by the reservation can
or cannot become effective between the states concerned.
Hence, the regime of reservations leads to a
bilateralization of the rights and duties among the parties
to an international treaty, thus transforming it into a bundle
of concurring bilateral relations within the framework of one
single legal instrument.
The challenge of reservations to human
rights treaties
Apart from the complexity just described, the regime of
reservations as established by the VC holds another, far
more serious risk. Its very logic is based on the principle of