Reservations to the Convention on the Rights of the Child

I. Introduction

Forty-seven states parties to the Convention on the Rights of the Child ¹ have accompanied their ratification of the instrument with reservations or interpretative declarations ² intended to limit the scope of their obligations. ³ Thus, although the Convention on the Rights of the Child is now the most successful and widely-ratified human rights treaty, with more than 175 states parties, this impressive support for the instrument is regrettably mitigated by the reservations. Of the few holdouts that have failed to ratify, the United States is surely the most important. Though it signed the treaty in February 1995 without reservation, there can be no doubt that if the United States ever ratifies the Convention this will be associated with a substantial list of reservations should past behavior be any guide.

Making reservations to multilateral treaties is a well-accepted practice in international law. ⁴ It facilitates negotiation of treaties because states know that they may eventually accept an instrument without binding themselves to every single provision. It also encourages ratification, because it is possible for a state to avoid assuming obligations in conflict with certain aspects of its internal legislation. As the chairpersons of United Nations treaty bodies recognized at their 1992 meeting, at which the chair of the Committee on the Rights of the Child participated, “there is an important and legitimate role for reservations to treaties.” ⁵

At the same time, in partially limiting the scope of an instrument, reservations detract from the protection of individuals which is the purpose of international human rights law. For this reason, human rights advocates have urged states to avoid making reservations and, once they have been made, to reduce their scope or withdraw them altogether. The widespread use of reservations in human rights treaties has been frequently criticized for weakening the overall effectiveness of the proposed norms which, by and large, are expressed as minimum standards. ⁶

Compared to multilateral treaties in general, human rights treaties have a very high rate of reservation. ⁷ The Convention on the Elimination of All Forms of Discrimination Against Women ⁸ is the most extreme case with slightly less than half of the states parties having made reservations. Some forty of the approximately 130 states parties to the International Covenant on Civil and Political Rights ⁹ have accompanied their instruments of ratification or accession with reservations or interpretative declarations. ¹⁰ Because these very high numbers of reservations seriously weaken the treaty regimes, the chairpersons of United Nations treaty bodies have agreed that “States parties concerned should be urged to withdraw the reservations.” ¹¹

The World Conference on Human Rights, held in Vienna in June 1993, encouraged states to avoid resorting to reservations and to withdraw those reservations that already have been made. The Vienna Declaration and Programme of Action states:

5. The World Conference on Human Rights encourages States to consider limiting the extent of any reservations they lodge to international human rights instruments, formulate any reservations as precisely and narrowly as possible, ensure that none is incompatible with the object and purpose of the relevant treaty and regularly review any reservations with a view to withdrawing them. ¹²

26. The World Conference on Human Rights welcomes the progress made in the codification of human rights instruments, which is a dynamic and evolving process, and urges the universal ratification of human rights treaties. All States are encouraged to accede to these international instruments; all States are encouraged to avoid, as far as possible, the resort to reservations. ¹³

Making specific reference to the Convention on the Rights of the Child, the Vienna Declaration and Programme of Action affirms:

46. The World Conference on Human Rights urges States to withdraw reservations to the Convention on the Rights of the Child contrary to the object and purpose of the Convention or otherwise contrary to international treaty law. ¹⁴

This paper analyzes issues concerning reservations to the Convention on the Rights of the Child, including the legality of such reservations, the role of the Committee on the Rights of the Child...