Fundamentals of IHRL. Oxford Summer 2017

Transcription

1 Fundamentals of IHRL Oxford Summer 2017

2 FUNDAMENTALS IN IHRL IHRL in the 21 st Century What is international law? What is IHRL? What do we know about human rights in the 21 st century?.. 1 What are human rights?... 1 Why do we need human rights?.. 2 Giving effect to human rights... 2 Political action or legal action? Sources of IHRL What is a source of law?... 4 Formal sources of law Treaties Customary international law General principles of law Judicial decisions Writing of jurists Other sources The Nature of Human Rights Obligations... 8 The special character of human rights obligations... 8 Implementation of human rights obligations Limiting obligations: reservations Limiting and derogations Withdrawal Remedies for violations of human rights obligations UN Charter Based System Human Rights Council Office of the UN High Commissioner for Human Rights Human rights activities in other parts of the UN UN Treaty Based Systems. 16 Treaty based bodies State reporting Complaints procedure The Four Freedoms. 20 The four freedoms Freedom of thought, conscience and religion Freedom of opinion and expression Freedom of association Freedom of assembly The Inter-American System.. 25 Organisation of American States (OAS). 25 Historical overview American Convention on Human Rights 25 Inter-American Commission on Human Rights. 25 Inter-American Court of Human Rights Challenges to the Inter-American System. 27 1

3 African Human Rights System Historical overview Core instruments.. 28 African Charter and other relevant treaties.. 28 The African Commission The compaints procedure The African Court on Human and People s Rights 30 Emerging regional human rights systems.. 32 International Law in Statutory Interpretation.. 33 OSCE European human rights system (EHRS) The Council of Europe The European Convention on Human Rights Complaints procedures Supervisions of the execution of judgements European Court of Human Rights. 38 The European Union.. 39 Court of Justice of the EU Charter of Fundamental Rights. 40 Humanitarian Law and Intervention. 41 Jus in Bello: Law of War The Rome Statute Paquette Habana Case Humanitarian Intervention. 42 Kosovo authority The future of humanitarian intervention.. 43 Rights of Refugees.. 44 Definition of Refugee Historical background of refugee law Definition of persecution Article 9 Qualification Directive 46 Complementary protection in international refugee law. 46 Hirsi Jamaa and others v Italy (the Boat People) International Criminal Law.. 50 Background to international criminal law. 50 What is international criminal law? Sources of international criminal law Genocide Crimes against humanity Nuremberg Principles International judicial bodies. 53 Non-prosecutorial options International criminal law and human rights law International criminal law and humanitarian law 54 2

4 International criminal law and state responsibility 54 A body of criminal law. 54 Aims, objectives and justifications of international criminal law 55 Sexual orientation and gender identity.. 58 Forms of vulnerability to human rights attack 58 Review of law and jurisprudence: what protection do minorities have under IHRL?.. 58 Yogyakarta Principles Women s Human Rights Recognition of women s human rights. 61 History of women s human rights recogntion CEDAW ICCPR & ICESCR Commission on the status of women. 63 Mainstreaming women s human rights Accountability of non-state actors. 65 What is a non-state actor?.. 65 Why do non-state actors need accountability?.. 65 Why are non-state actor excluded from IHRL How can non-state actors be held to account? 65 Protection of non-state actors Armed opposition groups Russia: Foreign Agent Law 67 Relevant legislation: ICCPR. 67 Group rights and collective rights.. 69 Group rights The right of self-determination The application of the right to self-determination Limitations on the exercise of the right of self-determination. 71 Indigenous Peoples Sandra Lovelace v Canada Poverty and human rights Human rights and poverty.. 77 Defining poverty Ending or decreasing poverty Social justice movement Globalisation The right to development Overview of guiding principles on extreme poverty and human rights

5 IHRL IN THE 21 ST CENTURY IHRL What is international law? International law was a law created by, between and for states with its main concept as sovereignty. International law is about protecting state sovereignty while human rights law is concerned with proclaiming and enforcing certain fundamental guarantees for individuals against the state. IHRL outlines minimum rights with a strong principles component and its focus is on the beneficiaries of obligations. IHRL and international law have converged to the extent that human rights obligations are typically given their binding character by being recognised in international sources such as custom or treaty. What is international human rights law (IHRL)? International human rights law sets forth the core obligations of governments toward their people, prescribing the basic freedoms that governments must respect and the steps they must take to uphold public welfare. International human rights law should be seen as a backdrop; a law of last resort when domestic rights legislation fails. International human rights law is a specialist regime within general public international law. What do we know about human rights in the 21 st century? Know 2 things: It is constantly evolving; it has become one of the most popular and powerful ideas of the 21 st century in law, philosophy, politics and activism. It is also one of the most contested discourses in politics and philosophy since WWII and more so in the 21 st century. All human rights were recognised as inherent and inalienable entitlements of all people rather than privileges bestowed upon them or denied to them by the powerful. What are human rights? A way of thinking, claim making and protest. An appeal to humanity: rights humans have by virtue of their humanity in organised societies. An appeal to universality: all individuals have a claim to them. An appeal to equality: all individuals must enjoy them equally. An appeal to non-legal rights: individuals have a claim to them regardless of domestic legal recognition of these rights. What human rights do we have in IHRL? Civil, economic, social, political and cultural (UDHR, ICCPR, ICESCR, ACHPR) Emphasis on non-discrimination and elimination of non-discrimination (CERD, CEDAW, CRPD) Focus on everyone having rights (CRC, CRPD, MWC) Concern for excesses of sovereignty (CAT, CED) Emphasis on democratic regimes as guardians of IHRL (ECHR) Universal Declaration of Human Rights (UDHR) Article 1: All human beings are born free and equal in dignity and rights. Article 1 is a pre-social statement it assumes that you come into the community with rights. Rights are given to us through social connection; rights are socially constructed and they will be negotiated through social connections. How do we reach a list of human rights? Will based theories: everyone has a will to pursue their life. Dignity based theories Overlapping consensus based theories: look at what everyone agrees on and derive human right from those issues they agree on. Practice-based theories: only have human rights that are to legitimately criticize other countries. Look at universal interests and create rights out of these core human interests. 1

6 Why do we need human rights? The power of rights made it possible for people to claim freedom, equality, justice and well-being. Human rights makes manifest the relationship between fundamental freedoms and social justice and peace and security. Human rights underpin the aspiration to a world in which every man, woman and child lives free from hunger and protected from oppression, violence and discrimination, with benefits of housing, healthcare, education and opportunity. Human rights framework also provides the standard that must be reached in order for rights to be realised through the combined medium of state responsibility and the rule of law. Individuals can then have the same expectations from the law, national institutions, state policy and methods of government at domestic and international level. To clarify goals/protect goals of the human beings (knowledge, family, movement, education etc). To protect human beings. If there are no human rights there is no social justice. As a way to draw the line between universality and legitimate cultural difference and customs. To ensure justice and equality. To support and protect the rule of law. Defence of liberal freedom and social rights. Defence of civil political rights (1 st generation) and social, cultural and economic rights (2 nd generation) As a way to interpret the law. Human rights defenders Support for human rights is essential to create the environment in which to exercise the freedoms necessary to carry out activities for advocacy, monitory and report on respect for human rights. Victims of human rights violations For victims of violations, the human rights framework provides the essential components for effective remedies in the form of redress, compensation and reparation through institutions that are independent and impartial and adhere to the basic principles of human dignity, equality and non-discrimination. When are human rights necessary? Necessary when there is: Existence of a human interest; Existence of menace/threat to that human interest; Sufficient reason to recognise and respect and a duty to protect that interest; Some possibility of that protection working. Giving effect to human rights Challenge for all states is how to implement human rights and ensure that they are given effect without ranking them. Human Rights Council (HRC) 2005, at their summit world leaders created the UN Human Rights Council (UNHRC) which is an intergovernmental body to replace the UN Human Rights Commission. UNHRC aims to promote universal respect for the protection of all human rights and fundamental freedoms for all. UN Human Rights Council and the UN Office of the High Commissioner for Human Rights (UNHCR) are the custodians and monitors of human rights and promote and protect these rights. In the final instance it is the duty of states to promote and protect all human rights and fundamental freedoms. The UNHCR & Council s duty is to assist states to fulfil their obligations and to hold them to account when they do not. Courts Countries with the rule of law can usually rely on courts to enforce legislation. 2

7 In other countries, the judges are often corrupt, intimidates or compromised so may not dare hold the government to account, or the government may succeed in ignoring whatever efforts the judge makes to make them accountable. Pressure techniques Pressure techniques for governments have been developed by the human rights movement to pressure them into implementing or upholding human rights. One method of pressure is the process of investigation and reporting. The key to this enforcement is exposure and shame the resulting publicity of an investigation can undermine a government s standing and credibility. Public morality plays an important role in this kind of enforcement as there can be no shame is the public approves of the conduct in question. Political action or legal action? Consider what is the best way to link the fear for justice and the result achieved to respect for human rights. Also consider how to maximise public consciousness about the interconnectedness o a public debate and the persons who suffer the consequences of human rights violations give the problem a human face s Pakistan bonded labour Human rights community began a public campaign to raise awareness of the issue and put public opinion against the practice. It took time but it did put pressure on the government to take action. 3

8 SOURCES OF IHRL IHRL What is a source of law? A source of law identifies what constitutes law, that is, how decision-makers can determine what instruments, practices or policies constitute legally binding obligations as opposed to moral, political or other social commitments. Sources of law provide us with the basis of legal obligation. Sources of law tell us how new rules are made and existing rules are replaced or abrogated. Sources are set out in Article 38(1) of the Statue of the ICJ: International conventions, whether general or particular, establishing rules expressly recognised by the contesting states; International custom, as evidence of a general practice accepted as law; The general principles of law recognised by civilised nations; Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Formal sources of law UN Charter adopted in 1945, but the underlying ideas are much older, they were simply legalised in Formal sources of international human rights law derive from state consent: states negotiate and enter into treaties; custom is draw from state behaviour and intent. Treaties What is a treaty? An agreement between states may be termed a treaty, convention, charter, covenant or pact. States are bound to treaties to which they have given formal consent generally through ratification or accession. This is done by the constitutionally appropriate state organ depositing an instrument of ratification with the body so designated within the treaty (usually the UN Secretary General for human rights treaties). IHRL treaties are unlike most other treaties in that they do not provide for reciprocal exchange of rights and duties between state parties. Instead, by accepting the terms of such treaties, states accept legal constraints upon their treatment of individuals within their territory and subject to their jurisdiction. Signification, ratification and reservations Signing a treaty indicates an agreement not to do anything to undermine the treaty but it does not create much of an obligation to do anything else. There may be an expectation to ratify the treaty but this can often not follow so States may not be bound by the provisions. Once the treaty is ratified the state can usually not withdraw unless the treaty provides a withdrawal provision. Reservation: allows a state to be a party to the treaty but exclude the legal effect of a particular provision means states don t fully commit and people in those countries are not afforded the same full protection people in other countries will receive but does allow for negotiation and concessions to get as many states as possible to be part of the majority of the treaty. Unless a treaty prohibits reservations, they are permissible and only if they are not contrary to the object and purpose of the treaty. However, a reservation is supposed to change the obligations a state accepts so it will make the purpose of the treaty more narrow. The principal treaties UN Charter provides the first guarantees of human rights and fundamental freedoms within a global treaty. The immediate follow up to the Charter was the adoption by the General Assembly (GA) of the non-binding Universal Declaration of Human Rights (UDHR) in In 1966 there was the adoption of 2 UN Covenants: the International Covenant on Civil and Political Rights (ICCPR) and its First Optional Protocol, and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These three instruments are often referred to as the International Bill of Rights: UDHR, ICCPR & ICESCR. 4

9 There has since been a number of multilateral treaties that complement the International Bill of Rights that identify specific groups vulnerable to violations of rights (non-exhaustive): International Convention on the Elimination of All Forms of Racial Discrimination (1965); International Convention on the Rights of the Child (1989); International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families (1990). All treaties comprising the UN human right system is the establishment of specialist committees (treaty bodies). Human rights obligations for states may also derive from Peace agreements, for example the Dayton Peace Accords which terminated the armed conflict in Bosnia-Herzogovina, : gives the European Convention on Human Rights (ECHR) priority over all other domestic law; incorporates certain specific rights under the Convention; and requires the state to become or to remain a party to listed UN and regional human rights instruments. Advantages and disadvantages of treaties Advantages of treaty law: A large number of states can become a party, thereby accepting its provisions as binding legal obligation; Widespread treaty adherence provides for a degree of uniformity between states in their understanding of the requirements of international human rights law; Allows for certainty in identifying states parties and written texts set out the obligations accepted; The UDHR and Conventions have been around for a long time (i.e 1945) so they have gained significant authority. Disadvantages: Treaty as a source of law lies in state s consent to be bound; Some treaties may not be widely accepted; Treaty language is open to differing interpretations; States may also make reservations to their acceptance of a treaty; The early conventions were negotiates in 1945 and 1966 so risk being outdated. However, making reservations recognises the many interests of over 190 states and that concessions have to be made during the negotiating process. How to ensure treaties remain relevant Vienna Convention on the Law of Treaties Arts 39-41: procedures for amending a treaty. Other techniques have been sought for ensuring human rights retain their relevance: The articulation of new rights as society demands them; The refinement and extension of existing rights through treaty interpretation; and The enhancement and implementation of mechanisms. Can adopt additional protocols to an existing treaty which may provide for new rights or methods of enforcement: For example, the ICCPR-OP2 aimed at the abolition of the death penalty, which is still recognised in article 16 of the ICCPR, but the OP2 allows each state to choose its legal stance. Treaty bodies can adopt general comments or recommendations their status in law is unclear but they can be relied upon by decision makers. In General Recommendation 19, the CEDAW Committee asserted that the Convention did indeed prohibit such violence as a form of discrimination against women within the terms of Article 1. The Committee required the states to include the measures they had taken to combat violence against women in their reports. States responded positively to the above and it appears that they have consented to an interpretation that includes violence against women. General comments may be treated as sources of law where they are treated by states as coming within the terms of the treaty. Customary international law Custom is binding upon all states with limited exceptions. One exception is the persistent objector rule. Don t have to have unanimity for custom but do need broad acceptance, probably at least some acceptance from each region of the world. 5

10 A treaty may codify customary international law or come to be accepted as customary international law it is then binding on all states as custom. ICJ has affirmed that customary international law comprises two components (See, eg, North Sea Continental Shelf Cases (FRG v Denmark) (FRG v Netherlands) [1969] ICJ Rep 3): An extensive and virtually uniform and consistent state practice; and The belief that the practice is required by law. Where to find customary international law Places where one may look to discover evidence of custom include diplomatic correspondence, government policy statements, press releases, official manuals, government comments on international drafting processes, Human Rights Council Universal Periodic Review. Filartiga v Pena-Irala (1980) 630 F2d 876: A US judge had to decide whether torture is contrary to customary international law. The case was before the adoption of UNCAT. The judge sought to find international consensus on the prohibition of torture. He looked to GA resolutions (including the UDHR), numerous international treaties and accords, and their reiteration in municipal law, including the constitutions in over 55 states. In the end he found evidence of state practice the usage of nations judicial opinions and the work of judges. R v Jones [2007] 1 AC 136: HL determined the crime of aggression to be established under customary international law. The Court looked to a mix of treaties and statements including a draft treaty of Mutual Assistance in 1923 (which never came into force), descriptions by the League of Nations Assembly, a resolution by the Pan-American Conference (1928) and more. The practice of state parties to treaties is not evidence of state practice for the purpose of establishing custom because it is assumed that states are acting in accordance with their treaty they therefore lack the required opino juris. Jus cogens Vienna Convention on the Law of Treaties Article 53: A jus cogens norm is a peremptory norm of general international law accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only be a subsequent norm of general international law having the same character. Jus cogens norm are at the top of the hierarchy of sources of international law. They limit both states freedom to enter into treaties by reference to fundamental values of the international community and bind all states regardless of whether they have ratified treaties that contain them. Many of these norms also have the status of human rights, for example the prohibition on genocide. States are bound by jus cogen norms whether or not they have expressly consented to them. Which human rights norms qualify as peremptory norms? International Criminal Tribunal for the Former Yugoslavia stated in Prosecutor v. Furundžija that there is a jus cogens for the prohibition against torture. Commentary to Draft Article 26 in which the Commission, in fairly unequivocal terms, states that those peremptory norms that are clearly accepted and recognised include the prohibition of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the aright to self-determination. Article 5 UDHR: No one shall be subjected to torture Article 4 UDHR: No one shall be subjected to slavery. General principles of law One view is that the expression general principles of law is principles found in most, if not all, national legal systems such as notions of procedural fairness or equity. Another view is that it includes general principles applicable directly to international legal relations, for example the principle that treaties are binding upon state parties. General principles may be found in statement of consensus such as those expressed in global summits and in the resolutions of UN organs. Judicial decisions No one international human rights court. 6

11 Judicial bodies have developed which determine questions of human rights, for example the European Court of Human Rights (ECtHR). Article 38(1) does refer to Article 59 which rejects any doctrine of precedent before the ICJ and the decision is only binding between the parties in respect of that particular case. Formal position is that international courts do not make law and that their decisions are only binding on the parties to that particular case. Judicial decisions develop international law anyway through the interpretation and application of treaties and custom. International level ICJ is the only international court with jurisdiction over all questions of international law. ICJ has asserted the applicability of human rights law in armed conflict and in occupied territories. Decisions of the ICJ may also contribute to state practice where its decisions are followed by national courts. Decisions of international criminal tribunals may be turned to by human rights courts as a subsidiary source of human rights law. National courts Judges in different jurisdictions may look to each other decisions when interpreting a treaty provision. When there is consistency, it can be used as evidence of uniform state practice. Writing of jurists Bodies, such as the UN Human Rights Council and other expert bodies, produce important reports and commentaries on a wide range of human rights issues. They may also consciously seek to develop human rights law by bringing together example of state practice and opino juris and arguing that this grounds a new rule of customary law. Other sources Work of treaty bodies Treaty bodies elucidate states obligations under the various treaties through the adoption of general comments and concluding observations in response to states reports. May be described as secondary treaty law in that state consent can be implied from their acceptance of he treaties and authority of expert committees. Some bodies have quasi-judicial competence have a complaint or communication procedure which concludes with view or recommendation by the relevant committee. Decisions are not binding but cannot be easily disregarded as the complaint procedure allows the monitoring body to develop jurisprudence on the interpretation and application of the convention. Ahmadou Sadio Diallo [2010] ICJ Rep para 66: The opinion of the Human Rights Committee as an independent body established specifically to supervise the application of that treaty should be given great weight. Resolutions of international institutions (soft law) Security Council (SC) resolutions adopted under UN Charter Chapter VII are binding on state parties. By specifying the human rights obligations of non-state actors the Council has contributed to the expanding applicability of human rights law. GA & Human Rights Council resolutions have widened the scope of human rights, set standards or states and nonstate actors and provided aspirations and goals more important that SC resolutions. Other forms of soft law Multiple other forms of soft law including: Human Rights Council guidelines; Codes of conduct; Standards of behaviour; and Final instruments of global summit meetings held under UN auspices. Treaties may be considered as only imposing soft obligations where the language lacks clear legal contents and instead uses phrases such as take steps or appropriate means. Often little practical difference between treaties and soft law in terms of compliance. 7

12 THE NATURE OF HUMAN RIGHTS OBLIGATIIONS IHRL The special character of human rights obligations Human rights obligations are typically given their binding character by being recognised in international sources such as custom or treaty. Fundamental idea is that international human rights obligations differ from normal international law obligations in that they deal with the obligations of states towards individuals (who are not normally the subject of international law) rather than between states. States are not so much bargaining between each other in IHRL treaties but committing themselves to a certain supranational standard of behaviour. Goal is not only equality between states and stability, but also the wellbeing of human beings. Possibility to interfere in the otherwise internal affairs of a state. Main reasons for protection of human rights with special techniques: To protect against injustice, inequality, arbitrariness; Guarantee of the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family. Implementation of human rights obligations Typically in international law, the manner in which an obligation is supposed to be discharged is not specified. ICCPR, Art 2: In IHRL typically states are supposed to respect and ensure rights to all individuals. UN treaty bodies have adopted typology of how human rights obligations should be secured, states must: Respect: States have a negative obligation not to take any measures that result in a violation of a given right through their organs (i.e parliament) or their agents (i.e police). Protect; States need to proactively ensure that persons within its jurisdiction do not suffer from human rights violations at the hands of third parties.the state is not liable for every violation of a right by an actor, only those which can be traced to its own shortcomings in protecting individuals from other individuals Fulfil: Primarily a negative obligation not to actively violate human rights. States should take positive steps to ensure greater enjoyment of rights. Obligation is on states to adopt appropriate laws that implement their international undertakings: Velasquez Rodriguez v Honduras (Merits), IACtHR Series C No 4 (29 July 1988) paras 172 & 176: The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. Margin of appreciation There will likely be no uniform implementation so instead a certain minimum standard should be achieved, while respecting the cultural, legal and political specificity of each state. Rationale for the margin of appreciation: States and domestic courts are better suited to assess local peculiarities and that there is simply too much uncertainty about how human rights are to be implemented in practice for international supervision to exercise more than relatively minimal control. The margin involves an assessment of the degree of consensus about a certain practice across member states. Limiting obligations: reservations States may modify their obligations under treaties by entering reservations. Vienna Convention on the Law of Treaties (VCLT) Reservation definition: A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a Treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the Treaty in their application to that State. Aim of a reservation is to limit a state s obligations under a particular treaty. A typical reservation is one whereby a state purports to interpret an internationally protected right only in accordance with its domestic law. Another example, Libya s reservation to the Convention on the Elimination of Discrimination against Women (CEDAW): CEDAW is subject to the general reservation that such accession cannot conflict with the laws on personal status derived from Islamic Sharia. 8

13 According to the HRC in General Comment 24, States may not reserve the right to: Engage in slavery (art 7); Engage in torture or subject persons to cruel, inhuman or degrading treatment or punishment (art 7); Arbitrarily deprive persons of their lives (art 6); Arbitrarily arrest and detain persons (art 8); Deny freedom of thought, conscience and religion (art 18); Presume a person guilty unless he proves his innocence (art 14(2)); Execute women or children (art 6(5); Permit the advocacy of national, racial or religious hatred (art 20); Deny persons of marriageable age to marry (art 23(2)); Deny minorities the right to enjoy their own culture, profess their own religion and use their own language (art 27). Permissibility of reservations General regime under Article 19 VCLT is that states may formulate reservations to a treaty, unless a reservation is prohibited by a treaty or is incompatible with its object and purpose. States may not make reservations relating to certain basic guarantees associated with the rights protected, such as the right to an effective remedy. General comment 24 para 11 of the Human Rights Committee: These are known as supportive guarantees seen to provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. States cannot make reservations to institutional arrangements designed to supervise the implementation of treaties. Human Rights Committee gave example of acceptable reservations: A reservation saying that communications can be heard by the Committee only after the entry into force of the ICCPR for the state party; or That communications cannot be examined if they are already being examined by a comparable international procedure. (Note that these are procedural rather than substantive in nature). Responsibility for assessment of reservations A new rule has emerged in the human rights context, whereby a purely consensual approach to reservations had been replaced by one where reservations are VALID or not when it used to be ACCEPTED or not. States are asked to act as guardians of the integrity of human rights treaties instead of only looking at their own national interests. Typically the invalidity of reservations will be raised by other state parties. Consequences of reservations There is a tension between the desire to have as many states as possible ratify a treaty and the risk of a treaty s integrity being compromised by too many reservations. VCLT Art 20: Only where it appears from the limited number of negotiating states and the object and purpose of the treaty that the application of the treaty in its entirety between al the parties is an essential condition of the consent of each one to be bound by the treaty do all states parties to a treaty need to accept a reservation. Reservations do not have to be accepted by all states for human rights treaties to enter into force. VCLT Art 20(4)(c): General position is that the reserving state becomes bound by the treaty if at least one other state accepts the reservation. Reservations on the Genocide Convention para 24, ICJ: For human rights treaties, states can become a party to a treaty even if other state parties object to its reservation. Problem with the approach is that actual validity of reservations will not be examined until a later date which can create issues of retroactive application if it turns out to be invalid. VCLT Art 20(4)(b): A state that agrees to another state s reservation is bound in its relations with the other state by that reservation. Limitations and derogations Limitations: where a treaty explicitly provides circumstances in which the enjoyment of a right may be limited. 9