Preproceedings 2006 - Austrian Ludwig Wittgenstein Society

eciprocity. Hence, a state which excludes or weakens a
duty arising from a treaty by formulating a reservation must
be well aware that the other states might react analogically
and thus deprive it of the advantage it would have
obtained from their compliance with the duty. Therefore,
the sanction mechanism inherent to the principle of
reciprocity can motivate states to opt for a general
adherence to treaty obligations, for egotistic reasons
mainly.
However, this logic is primarily valid for contractual
treaties which are based on the competing interests of the
parties involved, while in case of so-called law-making
treaties which pursue a common goal, it can trigger
detrimental dynamics. There, reciprocity does not lead to
stabilization of mutual obligations, but rather to “normative
dumping” as the stepping back of one state and the
corresponding reaction of the other do not so much harm
themselves, but the common goal. With respect to human
rights conventions which belong to the second group, this
means, paradoxically enough, that a state’s objection to
the reservation of another (lowering the human rights
standard as set out in the respective treaty) results in the
non-applicability of the whole provision between the states
concerned and thus in a reduction of the international
protection standard in both states to the detriment of the
individuals for whose sake the treaty was established.
It was this problem that led the International Court of
Justice in its 1951 Advisory Opinion on Reservations to the
Convention on the Prevention and Punishment of the
Crime of Genocide to the conclusion that reservations
might potentially endanger a treaty as such and thus, that
reservations incompatible with its “object and purpose”
could not be considered admissible. However, it held that it
is up to every state “individually and from its own
standpoint” to qualify a reservation in the light of this
criterion. The rule of inadmissibility of reservations
incompatible with a treaty’s object and purpose, enjoying
universal recognition nowadays, was codified in art. 19 VC.
The question of how to apply the criterion concretely is still
subject of a passionate debate, though. Some insist on the
privileged role of each state as iudex in sua causa, while
others call for a uniform decision binding on all state
parties, which either recognizes a reservation as valid or,
in the opposite case, declares it null and void.
The CRC as an example
The 1989 Convention on the Rights of the Child (CRC)
seems to be a particularly promising example for the
purposes of this paper, for two reasons: On the one hand,
as many as 190 states have ratified or acceded to it, thus
making it the globally most widely accepted human rights
convention (with the striking exception of the US though).
On the other hand, and a major reason for this broad
consensus, the issue of children’s rights is – from a
cultural/religious background – not so controversial as the
rights of women or homosexuals, for instance, and thus
permits a “de-emotionalized” approach to the question of
reservations. Due to the limited space available, we will
content ourselves with an examination of the Shari’ainspired
reservations as they are the most prominent and
relevant ones in this context.
When joining the CRC, several Muslim states opted
for non-specific reservations globally subjecting the
convention’s provisions to the exigencies, and limitations,
of Islamic Shari’a (see e.g. the reservations of Afghanistan,
Brunei Darussalam, Iran, Qatar and Saudi Arabia). Other
states made an effort to specify the CRC articles they
Reservations to Human Rights Treaties – Tribute to… - Andreas Th. Müller
intended to deviate from – duly taking into account
abovementioned art. 2 CV which speaks of reservations to
“certain provisions”. In this context, Algeria, Indonesia,
Iraq, Morocco, Syria and the UAE made, inter alia, explicit
reservations to art. 14 (1) CRC stating that “State Parties
shall respect the right of the child to freedom of thought,
conscience and religion”, particularly insofar this right was
not compatible with Islamic law’s rules on change of
religion.
A whole series of European countries, namely
Austria, Denmark, Finland, Germany, Ireland, Italy, the
Netherlands, Norway, Portugal, Slovakia and Sweden,
deposited similarly phrased objections to some
reservations (mainly those of Brunei Darussalam, Iran,
Malaysia, Qatar and Saudi Arabia) primarily criticizing their
“unlimited scope and undefined character”. Above all, they
expressed the fear that “reservations of such
comprehensive nature may contribute to undermining the
basis of international human rights treaties”. Hence, they
considered those reservations to be incompatible with the
object and purpose of the convention (according to art. 19
VC and art. 51 CRC) and thus inadmissible and without
effect under international law.
Strikingly, hardly any objection was placed in view of
the numerous reservations to art. 14 (1) CRC.
Furthermore, the reservations to art. 21 CRC which
establishes human rights guarantees with regard to
adoption were not objected to at all, even though almost
ten states (Brunei Darussalam, Indonesia, Jordan, Kuwait,
Maldives, Oman, Syria, United Arab Emirates) explicitly
denied the applicability of this provision. This is mainly due
to the fact that the CRC itself provides for the possibility of
a so-called opting out (“State Parties that recognize and/or
permit the system of adoption shall ensure …”) which
permits a state not accepting the legal institution of
adoption (see e.g. Qur’an, al-Ahzab [33:4f.]) to exempt
itself of the respective provisions of the treaty.
Handling reservations to human rights
treaties as forum of intercultural dialog
The example given is symptomatic of the broadly felt
tension between the universal claim of human rights and
the concurring pretensions of religious and cultural
traditions (exemplified here by the tradition of Islamic law).
Depending on which side of the alternative one might
favor, the need to “pay tribute” to religious/cultural diversity
is experienced ambiguously. While some (in the phrase’s
literal meaning) primarily identify the factual necessity to
arrange themselves with particularist normative traditions,
i.e. to buy themselves off in order to obtain (part of) the
liberties they strive for, others call for particular
cultural/religious traditions to be genuinely honored and
taken into account in their richness and wisdom.
At the same time, it may indicate ways out of this
normative dichotomy by offering a more differentiated
approach towards particular traditions’ “right to exist” in the
cosmos of human rights and, vice versa, the legitimate
claim of universal rights beyond and, if necessary, against
particularist normative reasoning. The doctrine of
international law, and in particular the handling of
reservations to human rights treaties, can teach important
lessons on how to appropriately bring together the
concurring interests at stake. If a state relies on its
religious/cultural traditions to justify the limited or diluted
accession to a human rights instrument, its individual
concerns have to be counterbalanced with the bonum
commune materialized in the convention. This is what the
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