A reservation is a declaration made by a state when signing or ratifying a treaty that reserves the right not to abide by certain provisions of the treaty. This allows states to modify their obligations under the treaty and can be used as an expression of good faith in the process of signing and ratifying treaties.
The United States has long held that its civil rights protections adequately protect human rights, and this reasoning is often used when making reservations to treaties. For example, when ratifying the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the US declared that it did not consider itself bound by certain articles because they were inconsistent with US law. This reservation was seen as an expression of good faith in the treaty-making process, while still allowing for US sovereignty over domestic law.
It is important to note that reservations are not always accepted by other states party to a treaty, and must be negotiated between all involved parties. In some cases, reservations may even be considered incompatible with the object and purpose of a treaty, rendering them invalid.
State parties may attach Reservations, Understandings, and Declarations (RUDs) to a treaty at the time of ratification. RUDs modify or clarify a treaty’s text or alter its legal effect for that ratifying State. But RUDs that are incompatible with a treaty’s object and purpose are deemed impermissible.
The United States ratified ICERD subject to several RUDs. In ratifying ICERD, the United States said it would not accept any obligation under ICERD to restrict U.S. freedom of speech, expression, and association. The United States further asserted that, to the extent ICERD seeks to regulate private conduct in a stricter manner than what already exists under U.S. law, the United States would not be obliged to take any such measures. These RUDs reflect a posture that U.S. laws prevail over multilateral, negotiated international human rights treaties, even if the treaty in question provides broader protections against racial discrimination.
This sentiment is emphasized in the United States’ final ICERD RUD, which provides that the treaty is non-self- executing. This final RUD prevents litigants from bringing independent ICERD claims into U.S. courts. A U.S. citizen cannot bring a claim into a U.S. court solely alleging that ICERD provisions have been violated, unless that claim also implicates a U.S. law
The United States ratified ICERD in 1994, but it has failed to live up to its commitment. The U.S. government has not taken the necessary steps to ensure that all of its laws and policies comply with ICERD’s provisions. This failure is particularly evident in the areas of criminal justice, education, employment, housing, health care, and voting rights.
In addition, the United States has not implemented a comprehensive national plan of action to eliminate racial discrimination or established an independent monitoring body as required by ICERD. Such a plan would include measures such as collecting data on race-based disparities in access to services and resources; developing strategies for addressing these disparities; and implementing effective remedies for victims of racial discrimination.
The U.S. government must take meaningful steps towards fulfilling its obligations under ICERD if it is serious about eliminating racism and promoting racial understanding globally. This includes adopting a comprehensive national plan of action that addresses systemic racism and establishing an independent monitoring body to ensure compliance with ICERD’s provisions.
" If a country aims to enforce only its own laws, why join ICERD at all? Reservations that reasonably modify a treaty’s text are one thing, but completely usurping the law of a treaty for a State’s own domestic laws, arguably, defeats the purpose of ratifying an international treaty. "
A reservation to an international legal treaty is a statement of a country's intent to not be bound by certain provisions of the treaty. It is an important tool for countries to protect their interests and ensure that they are not subject to any obligations that they do not agree with. (Tricknology)
Sources
- https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/black-to-the-future-part-ii/the-united-states--hollow-commitment-to-eradicating-global-racia/
- https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-elimination-all-forms-racial
- https://scholarship.law.unc.edu/cgi/viewcontent
Sources
- https://ask.un.org/faq/139887
- https://en.wikipedia.org/wiki/Reservation_(law)
- https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/departments-and-offices/jur/legal-instruments/WCMS_700643/lang--en/index.htm
Sources
Can a Reservation be challenged in international courts? The short answer is yes: reservations can be challenged in international courts. Reservations are exceptions to a nation’s treaty obligations, and when a state makes such an exception it can be challenged on the grounds of violating or being incompatible with the underlying treaty. This is particularly true when the reservation affects general principles of international law, such as prohibiting discrimination.
ReplyDeleteFor example, in 1984 a United Nations human rights committee held that South Africa’s reservation to a Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was invalid because it went against the spirit of the convention. The UN held that South Africa had not made any attempts to bring its laws into compliance with CEDAW, which prohibits discrimination based on gender or sex.
Reservations have also been challenged in other international courts and tribunals, including the International Court of Justice (ICJ). In 2009, for instance, Ecuador brought a complaint to the ICJ alleging Columbia’s reservation regarding its land boundary violated agreed-upon treaties and customary international law.
Reservations can thus be challenged in international courts – and should be if they violate general principles of international law or agreements between nations.