The “Reservations Dialogue” as a Constitution-Making Process

In: International Community Law Review
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  • 1 Irish Centre for Human Rights, National University of Ireland Galway, Ireland

The article proposes a new reading of the reservations regime to human rights treaties. The practice developed by states in relation to the reservations regime is analysed and presented as a constitution-making process. This new vision is based on the notion of the reservations dialogue as presented and developed by the Special Rapporteur of the International Law Commission on reservations to treaties. However, the article also proposes a wide reading of the practice of the reservations dialogue using examples from the Convention on the Elimination of All Forms of Discrimination against Women. Based on this analysis, the author formulates some proposals as to a more adequate development of the reservations dialogue and the reservations regime. A development which will favour the formation of inclusive international human rights as a basis for a future international constitution accepted as legitimate by all members of the international community.

  • 23

    Swaine, supra note 13, p. 319; Greig, supra note 13, pp. 118–135; Horn, supra note 13, pp. 206–209.

  • 25

    Seventeenth Report, supra note 3, p. 2, para. 2.

  • 26

    Ibid., p. 5, para. 9.

  • 28

    Seventeenth Report, supra note 3, p. 7, para. 14 et seq.

  • 29

    Ibid., p. 13, para. 22.

  • 30

    Ibid., p. 14, para. 25.

  • 36

    Guide to Practice, supra note 4, Annex, and the last paragraph of the preamble.

  • 39

    Multilateral Treaties, supra note 37, p. 309.

  • 48

    Multilateral Treaties, note 37, p. 342.

  • 51

    Elster, Forces and Mechanisms, ibid., pp. 368, 370–373.

  • 53

    Elster, Forces and Mechanisms, supra note 50, p. 373.

  • 55

    Elster, Forces and Mechanisms, supra note 50, p. 374.

  • 56

    Ibid., p. 374–375.

  • 61

    Elster, Forces and Mechanisms, supra note 50, p. 384. This issue is also discussed in Elster, Ways, supra note 50, p. 131 et seq.

  • 63

    Multilateral Treaties, supra note 37, pp. 290–291.

  • 67

    Multilateral Treaties, supra note 37, p. 342. It is interesting to note that the last sentence of the French statement does not appear in the text of the official printed collection of multilateral treaties after it was decided to accept Malaysia’s partial withdrawal. However, this last sentence appears in the version published on the web-site, see supra note 37.

  • 69

    Multilateral Treaties, supra note 37, p. 342.

  • 71

    Elster, Forces and Mechanisms, supra note 50, p. 384.

  • 73

    Elster, ibid., p. 137.

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