Should Invalid Reservations to Human Rights Treaties Be Disregarded?

Roberto Baratta

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Abstract

The article deals with the effects of invalid reservations to human rights treaties on the position of the reserving state. Although some actions of monitoring bodies established by human rights treaties support the `Strasbourg approach', a deeper consideration of practice points in the opposite direction. Consequently, it is not easy to reconstruct a customary norm whereby an invalid reservation to human rights treaties should be considered as not being formulated at all. In addition, the `Strasbourg approach' needs to be reconciled with the consent principle, the bedrock of treaty obligations. On this basis, some possible solutions to the problem of the effects of invalid reservations to human rights treaties are suggested. Naturally, a special regime for invalid reservations to human rights treaties (and for treaties protecting other fundamental values) is a desirable prospect for the progressive development of international law. Finally, on a de iure condendo level of reasoning and among the possible new models of discipline that cannot be as stringent as the `Strasbourg approach', the author puts forward a proposal.

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