Few Reservations About Reservations

I. INTRODUCTION The United States practice of attaching a package of reservations, understandings, and declarations ("RUDs")1 to its ratification of international human rights conventions has been the subject of severe criticism by some human rights advocates. As Professor Henkin has said, United States adherence to human rights conventions, after decades of resistance, should please all who support the international human rights movement. In fact, many are not pleased. For the United States has attached to each of its ratifications a 11 package" of reservations, understandings and declarations (RUDs), which has evoked criticism abroad and dismayed supporters of ratification in the United States. As a result of those qualifications of its adherence, US ratification has been described as specious, meretricious, and hypocritical.2 Professor Goldsmith's paper3 lays out a cogent argument in defense of the American practice. The present essay will consider some of the implications of Professor Goldsmith's article beyond the specific questions of US law. In particular, this essay will argue that, far from representing a net loss for the cause of human rights, RUDs actually play an important role in fostering the advancement of those rights. The International Covenant on Civil and Political Rights ("ICCPR") will serve as an example.4 II. THE FLEXIBLE RESERVATIONS REGIME AS A HUMAN RIGHTS STRATEGY The ICCPR permits reservations. Permitting reservations reflects a strategy of garnering the greatest possible adherence to the precepts of the treaty by allowing states to undertake some of the treaty's provisions while rejecting others.5 The advantages of such a strategy are obvious. But there are alternative strategies for promoting human rights that could be adopted. One alternative strategy would be to apply pressure to all states to adopt an ambitious set of substantive legal norms together with relatively specified mechanisms for their implementation and enforcement. This approach, if successful, presumably would provide the greatest protection for human rights. But states may be unwilling or unable to undertake or to fulfill some proposed human rights provisions, for a range of reasons. The more expansive and extensive the substantive norms proposed and the more highly specified the implementation mechanisms prescribed, the less likely it will be that broad and uniform adherence will be gained. To the extent that breadth and uniformity of adherence are lost, the normative force of the rules will be reduced. Looking specifically at the choices made by the United States concerning whether to adopt each provision of the ICCPR, one may question whether the optimal choice has been made in each instance. But the process has been the right one; the decisions have been made through the appropriate political decision-making process. A political decision could have been made simply to adopt the ICCPR wholesale, but that was not the choice made. Had the ICCPR by its terms required wholesale adoption-had it been an all-or-nothing choice-then the treaty might well have been rejected by the United States. Happily, the decision reflected in the ICCPR itself is not to require wholesale adoption. Rather, by permitting reservations, the treaty allows states to pick and choose which obligations to undertake, as long as those choices are not incompatible with the object and purpose of the treaty.6 This limitation-that reservations are permissible if and only if they are compatible with the object and purpose of the treaty-makes that compatibility determination crucial. There are a number of possible approaches to determining whether particular reservations are compatible with the object and purpose of a human rights treaty.7 (And there remains the related question, which I will not consider here, of who is to make that compatibility determination.)8 In pursuing the strategy of garnering the greatest possible treaty adherence by allowing states flexibility in selecting the provisions to which they will adhere, it would seem advisable to take an inclusive rather than a restrictive approach to permitting reservations. …