I realized that I never answered Prof. Eastman's question as to what was MY
view. I just stated the law and some opinions from others. My view
regarding the RUDs for the ICCPR is the following: If the reservations are
invalid (i.e., illegal), the reserved treaty provisions are still legally
binding on the U.S. -- even as interpreted by the UN Human Rights Committee
because by the time that the U.S. ratified the ICCPR, the ICCPR's rights
provisions had already emerged as customary international legal obligations
for the U.S. It was too late for the U.S. to object to these obligations.
Another reason is that an illegal act (i.e., invalid reservations) cannot
vitiate the ICCPR's status as U.S. treaty law. To use an analogy . . . .
If Congress passes an amended bill in which one of its amendments is later
found to be unconstitutional by the Supreme Court, this finding of
unconstitutionality does not void the consent of those members of Congress
that voted for the amended bill, and the remaining constitutional
provisions of the legislation remain federal law.
Francisco Forrest Martin
> [Original Message]
> From: Francisco Martin <[EMAIL PROTECTED]>
> To: <[EMAIL PROTECTED]>
> Date: 9/26/2003 6:01:48 PM
> Subject: Re: Question about Treaty/Constitution Interaction
>
> Prof. Eastman asks: "Is it your view, in light of the invalidation of the
> U.S. Reservation by the U.N. Human Rights Committee, that the Convention
> Against Torture is not binding on the U.S. because its partial (or
> conditional) ratification was not accepted? Or is it (as I suspect) that
> the Convention is nevertheless binding in areas that we explicitly refused
> to ratify?"
>
> Hi John! In examining the issue of whether an invalid reservation to the
> Genocide Convention could nullify the state-party's consent to the
> Convention, the ICJ opined that the invalidity of the reservation would.
> However, the European Court of Human Rights later in Belilos v.
Switzerland
> and Loizidou v. Turkey held that their respective invalid reservations did
> not nullify their consent to the ECHR because it appeared that both state
> parties still intended to be bound by the ECHR. The answer is not clear
--
> especially in light of the fact that the norms in these treaties probably
> already represented customary international legal norms binding on those
> states. See, e.g., Reservations to the Convention on the Prevention and
> Punishment of the Crime of Genocide, Advisory Opinion, [1951] I.C.J. Rep.
> 15 at 23 ("principles underlying the [Genocide] Convention are principles
> which are recognized by civilized nations as binding on States, even
> without any conventional obligation"). Therefore, the issue is somewhat
> effectively moot.
>
> Some jurists have suggested that an invalid reservation to a constitutive
> treaty (such as the ICCPR or the ECHR) only has the effect of disabling
the
> constitutive organ (UN Human Rights Committee, Eur. Ct. H.R.) from
> interpreting the particular reserved treaty provision in regard to the
> reserving state. See dissenting opinions in Belilos v. Switzerland and
> Kennedy v. Trinidad & Tobago.
>
> Francisco Forrest Martin
