[WCAR] CERD 65th session: Committee discusses reservations by state parties

UNITED NATIONS
Press Release

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



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