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States to reservations made by other States. Essentially, a reservation
precludes the operation, as between the reserving and other States, of the
provision reserved; and an objection thereto leads to the reservation being in
operation as between the reserving and objecting State only to the extent that
it has not been objected to.
17.
As indicated above, it is the Vienna Convention on the Law of Treaties
that provides the definition of reservations and also the application of the
object and purpose test in the absence of other specific provisions. But the
Committee believes that its provisions on the role of State objections in
relation to reservations are inappropriate to address the problem of
reservations to human rights treaties. Such treaties, and the Covenant
specifically, are not a web of inter-State exchanges of mutual obligations.
They concern the endowment of individuals with rights. The principle of
inter-State reciprocity has no place, save perhaps in the limited context of
reservations to declarations on the Committee’s competence under article 41.
And because the operation of the classic rules on reservations is so
inadequate for the Covenant, States have often not seen any legal interest in
or need to object to reservations. The absence of protest by States cannot
imply that a reservation is either compatible or incompatible with the object
and purpose of the Covenant. Objections have been occasional, made by some
States but not others, and on grounds not always specified; when an objection
is made, it often does not specify a legal consequence, or sometimes even
indicates that the objecting party none the less does not regard the Covenant
as not in effect as between the parties concerned. In short, the pattern is
so unclear that it is not safe to assume that a non-objecting State thinks
that a particular reservation is acceptable. In the view of the Committee,
because of the special characteristics of the Covenant as a human rights
treaty, it is open to question what effect objections have between States
inter se. However, an objection to a reservation made by States may provide
some guidance to the Committee in its interpretation as to its compatibility
with the object and purpose of the Covenant.
18.
It necessarily falls to the Committee to determine whether a specific
reservation is compatible with the object and purpose of the Covenant. This
is in part because, as indicated above, it is an inappropriate task for
States parties in relation to human rights treaties, and in part because it is
a task that the Committee cannot avoid in the performance of its functions.
In order to know the scope of its duty to examine a State’s compliance under
article 40 or a communication under the first Optional Protocol, the Committee
has necessarily to take a view on the compatibility of a reservation with the
object and purpose of the Covenant and with general international law.
Because of the special character of a human rights treaty, the compatibility
of a reservation with the object and purpose of the Covenant must be
established objectively, by reference to legal principles, and the Committee
is particularly well placed to perform this task. The normal consequence of
an unacceptable reservation is not that the Covenant will not be in effect at
all for a reserving party. Rather, such a reservation will generally be
severable, in the sense that the Covenant will be operative for the reserving
party without benefit of the reservation.
19.
Reservations must be specific and transparent, so that the Committee,
those under the jurisdiction of the reserving State and other States parties