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international human rights treaty. They might undermine the whole idea. But the data
show that consolidated democracies do otherwise. And even more surprisingly, the
reason to do so is that they are serious about human rights. They try to negotiate the
most favorable conditions and they fully respect the provisions of a treaty compatible
with existing practice in their countries, then. On the other hand, undemocratic
states do not even feel the need to adjust the merits of their obligations by making
a reservation (p. 30).
In general, the permissibility of reservations to human rights treaties is very
controversial. What I see as a threat is that, according to author of the third chapter, it is
not exceptional for a state to make a reservation in total contradiction with the purpose
of the treaty. Some states even demonstrate disrespect for the rules on reservations and
make reservations which essentially liberate them from all treaty obligations. The
problem is that the rules on reservations set in the Vienna Convention on the Law
of Treaties apply to
erga omnes
human rights treaties only to a limited extent. You
may be asking again:
“What is the point?”
Well, as the author of the third chapter
concedes, the point is political (p. 49). Too bad that it leads to “corrosion” of human
rights protection standards.
For example, I find it pretty troubling that the United States made quite substantial
reservations to the International Covenant on Civil and Political Rights.
2
Especially
the one on Article 7 of the ICCPR concerning cruel, inhuman and degrading
treatment, resulting in the preference for domestic interpretation of these terms, is
not a praiseworthy step to take. I have the same feelings towards Russia and the
new power given to the Russian Constitutional Court to “review compatibility” of
European Court of Human Rights judgments with the Russian Constitution.
3
Do
these two stances on international human rights differ in essence? Are they justified
by the sovereignty of the states? It is a general principle of international law that
a party to a treaty may not invoke the provisions of its internal law as justification for
its failure to perform a treaty.
4
To what extent does it truly apply, then?
Your answer to this rhetorical question depends a lot on your approach to
sovereignty, which is (along with principles of equality and non-intervention) still
a basic principle of international law. Its importance
vis-à-vis
international human
rights treaties is analyzed in the middle of the first part of the reviewed book.
Despite my preceding criticism, I must agree with the author of this part that the
“real power” rests with the sovereign states. And the bodies designated to interpret
obligations resulting from human rights instruments (namely the courts), should
2
Hereinafter “ICCPR”.
3
Russian Constitutional Court has already applied this new power. On 19 April 2016 it ruled that it was
“impossible to implement” the judgement of the European Court of Human Rights in the
Anchugov
and Gladkov v. Russia
case (nos. 11157/04 and 15162/05, 4. 7. 2013) concerning voting rights of
prisoners.
4
See Article 27 of the Vienna Convention on Law of Treaties.