Prof. Eastman asks: "Is it your view, in light of the invalidation of the
U.S. Reservation by the U.N. Human Rights Committee, that the Convention
Against Torture is not binding on the U.S. because its partial (or
conditional) ratification was not accepted? Or is it (as I suspect) that
the Convention is nevertheless binding in areas that we explicitly refused
to ratify?"
Hi John! In examining the issue of whether an invalid reservation to the
Genocide Convention could nullify the state-party's consent to the
Convention, the ICJ opined that the invalidity of the reservation would.
However, the European Court of Human Rights later in Belilos v. Switzerland
and Loizidou v. Turkey held that their respective invalid reservations did
not nullify their consent to the ECHR because it appeared that both state
parties still intended to be bound by the ECHR. The answer is not clear --
especially in light of the fact that the norms in these treaties probably
already represented customary international legal norms binding on those
states. See, e.g., Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, [1951] I.C.J. Rep.
15 at 23 ("principles underlying the [Genocide] Convention are principles
which are recognized by civilized nations as binding on States, even
without any conventional obligation"). Therefore, the issue is somewhat
effectively moot.
Some jurists have suggested that an invalid reservation to a constitutive
treaty (such as the ICCPR or the ECHR) only has the effect of disabling the
constitutive organ (UN Human Rights Committee, Eur. Ct. H.R.) from
interpreting the particular reserved treaty provision in regard to the
reserving state. See dissenting opinions in Belilos v. Switzerland and
Kennedy v. Trinidad & Tobago.
Francisco Forrest Martin
