COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION DISCUSSES RESERVATIONS BY STATES PARTIES TO HUMAN RIGHTS TREATIES

3 August 2004
AFTERNOON






The Committee on the Elimination of Racial Discrimination this afternoon discussed the issue of reservations by States parties to human rights treaties in preparation for its discussion on the subject with the International Law Commission.

Committee Expert Linos-Alexandre Sicilianos, referring to the working paper prepared by the Committee Secretariat in preparation for the discussion between the Committee and the International Law Commission which will take place tomorrow, said it was divided into three main elements: Article 20 of the Convention; reservations and declarations in general; and the practice of the Committee. More specifically, article 20 stated, among other things, that “a reservation incompatible with the object and purpose of the Convention shall not be permitted. Moreover, a reservation shall be considered incompatible or inhibitive if at least two thirds of the States parties of the Convention objected to it”. The article was consistent with the Vienna Convention on the Law of Treaties.

Mr. Siclianos said States parties in general did not try to hide behind their reservations, rather they opted to discuss them. The Committee often asked for additional information on subjects which fell under reservations and had made recommendations on subjects coming out of reservations by State parties. Generally speaking, reservations raised major obstacles to the operation of the Committee. Moreover, the research carried out thus far had indicated that the Committee had taken a flexible yet bold approach in terms of reservations.

Mr. Sicilianos said the objective of the exercise was to respond to the invitation sent to the Committee by the International Law Commission, which had also been sent to all United Nations human rights treaty bodies. The International Law Commission was currently reviewing provisions in light of the human rights instruments and would then submit its conclusions based on its discussions to the Sixth Committee of the United Nations General Assembly. Moreover, the issue of reservations of treaties had been raised both at the Vienna International Conference on Human Rights in 1993 and more recently at the Durban Conference on Racism in 2001.

Other Committee Experts said human rights treaties were not the same as general treaties and were subject to the general rules established by the afore-mentioned Vienna Convention. The Committee should continue its efforts to bring to the attention of States parties the reservations which they deemed incompatible with the Convention.

Committee Expert Patrick Thornberry expressed the need to promote common principles in human rights, saying “human rights cannot be exported, they must be imported”. The Committee should not hold back on making critical comments aimed at improving national human rights standards.

Other Committee Experts referred to the report prepared by the Special Rapporteur on Reservations to Treaties, Alain Pellet, in which he stated that the International Convention provided a “specific mechanism for determining the compatibility of a reservation with the object and purpose of the Convention but that this reservation had proved inoperative”. As pointed out by Committee Experts, this had been the case since there had never been a two-thirds majority expressed by States parties in this regard.

Several Experts said they were in favour of a flexible approach and that a change of the Committee’s current practices was not needed. An Expert said reservations had always existed in national laws and States had the right to impose such reservations and/or declarations to the Convention. Several examples of such reservations were cited in the course of the afternoon discussion.

Committee Expert Régis de Gouttes said there had always been room for dialogue and consultation on the subject of reservations and the Committee reserved the right to cooperate with States parties by exchanging views and suggestions if there was a reservation which was raised in the course of considering a periodic report or when reviewing communications. The Expert added that the Committee should continue on this path to pursue the primary objective to promote through persuasion, rather than through condemnation, the application of the Convention by States parties. The approach put forth in 2003 by the Committee was approved by the Special Rapporteur Pellet, he added.

During the afternoon session the Committee briefly discussed the possibility of holding a discussion on multiculturalism at its next session.

The Committee also discussed the question of a possible general recommendation on the issue of racial discrimination in the administration of criminal justice. Briefing the Committee on the subject was Mr. de Gouttes who said the non-governmental organization the International Commission of Jurists had previously indicated that the International Convention on the Elimination of all Forms of Racial Discrimination could provide the best foundation for developing and drafting guidelines for racial discrimination and the administration of justice. Several Committee Experts supported the proposal to pursue the drafting of a general recommendation and assigned Mr. de Gouttes to carry out the task.