Reservations and the determinative function of Human Rights Treaty bodies

Mccall-Smith, Kasey L. (2012). Reservations and the determinative function of Human Rights Treaty bodies. In: Giegerich, Thomas; Odendahl, Kerstin and Matz-Lück, Nele eds. German Yearbook of International Law, Volume 54. Berlin: Duncker & Humblot Gmbh, pp. 521–563.



A treaty body’s competence to determine the permissibility of a reservation elicits a wide spectrum of opinion. For years many States and observers opposed any suggestion that a treaty body might be competent to adjudge a reservation impermissible. At the same time, States have engaged in ngoing dialogues with treaty bodies over the nature of their reservations signifying some recognition that the topic in the treaty body forum is fair game. The necessity for recognising this competence stems from the passive approach historically taken by States on the issue of reservations to human rights treaties. This passivity has contributed to the general incoherence of the human rights treaty system as evidenced by the large number of seemingly invalid reservations which remain attached to the core human rights treaties. The recent endorsement of this competence by the ILC is clearly a boon to human rights yet it yields only cautious optimism in light of the non-binding nature of treaty body jurisprudence. This article outlines the increasingly dynamic role of human rights treaty bodies and argues that recognising the derminative function of these organs increases coherence in the international human rights system by providing definitive views on the permissibility of reservations.

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