Mind the Gaps: The ILC Guide to Practice and Reservations to Human Rights Treaties

At the best of times the rules on reservations to treaties baffle many international law practitioners and the states that must navigate them. The persisting confusion from the application of the default reservations regime codified by the 1969 Vienna Convention is exacerbated when these rules are used to interpret reservations to human rights treaties. Great hope for clarity in the reservations rules was focused on the outcome of the ILC's Guide to Practice on Reservations. However, following the 2011 publication of the Guide it is apparent that despite several progressive guidelines, little has changed in the context of reservations to human rights treaties. This article examines the practice of making reservations to human rights treaties. Specifically it will address the problems perpetuated by the object and purpose test, the lack of clarity of the legal effect and consequence of invalid reservations as well as the question of who decides invalidity.