The “Reservations Dialogue” as a Constitution-Making Process

In: International Community Law Review

Abstract

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.

  • 1)

    UN GA Res. 217 A (III) of 10 December 1948.

  • 23)

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

  • 25)

    Seventeenth Report p. 2 para. 2.

  • 39)

    Multilateral Treaties p. 309.

  • 48)

    Multilateral Treatiessupra note 35 p. 342.

  • 49)

    Multilateral Treaties note 36 p. 342.

  • 51)

    Elster Forces and Mechanismssupra note 50 pp. 368 370–373.

  • 53)

    Elster Forces and Mechanismssupra note 50 p. 373.

  • 55)

    Elster Forces and Mechanismssupra note 50 p. 374.

  • 61)

    Elster Forces and Mechanismssupra note 50 p. 384. This issue is also discussed in Elster Ways supra note 50 p. 131ff.

  • 63)

    Multilateral Treaties pp. 290–291.

  • 67)

    Multilateral Treaties note 35 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 note 35 p. 342.

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