Compatibility with the object & purpose test and Turkey’s reservations to international human rights instruments
Zeynep Elibol [Research Assistant, Koç University Law School, PhD Candidate in International Law, Istanbul University]
In both cycles of the United Nations Universal Periodic Review (UPR) Turkey rejected all recommendations that asked for withdrawal of her reservations to “the core International Human Rights Instruments”. Turkey explained in the Report of the Working Group on the Universal Periodic Review, Turkey, addendum, Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, A/HRC/15/13/Add.1, 15. session, para. 10 that her reservations were in line with the object and purpose of the relevant treaties, as required by Article 19(c) of the 1969 Vienna Convention on the Law of Treaties (VCLT). Yet, is this assessment in conformity with the current developments in the understanding of the object and purpose test in international law?
It goes without saying that theoretical debates concerning the definition of ‘object and purpose’ of treaties and the legal consequences of formulating a reservation against the object and purpose of a treaty require deeper analysis and would exceed the scope of this blog post. The aim of this post is to pursue a typological examination of Turkey’s reservations to the core international human rights instruments and mention reactions thereto, followed by a brief outlook to the current legal framework regarding the compatibility of a reservation with the object and purpose of a treaty, in particular, the framework recently laid down by the International Law Commission (ILC), and finally briefly evaluate Turkey’s contention of compatibility of her reservations in the light of these developments.
Turkey’s practice regarding reservations
Turkey is party to eight of the nine core international human rights treaties, namely, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), CEDAW, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Convention on the Rights of the Child (CRC), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), and Convention on the Rights of Persons with Disabilities (CRPD). It also adhered to the optional protocols of most of these conventions, that are, Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1), Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (ICCPR-OP2), Optional Protocol to the Convention on the Elimination of Discrimination against Women (OP-CEDAW), Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT), Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OP-CRC-AC) and Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OP-CRC-SC). Of these 16 core instruments, Turkey has reservations to 10, including all core human rights treaties but CRPD. Besides, declarations made to 11 of these instruments have been regarded as reservations by a number of State parties and treaty-monitoring bodies.
Turkey’s reservations and declarations to UN Human Rights treaties can be categorized as
(1) normative reservations whereby Turkey refers to its right to interpret or apply specific provisions according to its relevant law;
(2) reservations that declare that Turkey will implement the relevant instrument’s provisions only with respect to the State parties which it recognizes and with which it has diplomatic relations;
(3) reservations limiting the implementation of the instrument ratione loci, ratione temporis, ratione personae or ratione materiae; and
(4) reservations excluding the dispute settlement mechanism.
Turkey has been criticised by various international law actors with regard to its reservations and declarations under the first three categories, in particular. Turkey adhered to ICCPR and ICCPR-OP1, ICESCR, CRC and ICRMW with reservations belonging to the first category. Through making normative reservations to specific provisions, Turkey stated that it aimed to interpret and apply the relevant provisions according to its Constitution, together with the 1923 Lausanne Treaty and its appendixes or its relevant domestic law, or merely some specific articles of the Turkish Constitution.
These reservations were confronted with State party objections, due to the lack of specificity of the reservation (objections of Finland, Germany, Sweden to ICCPR reservations; objections of Finland, Germany, Sweden to ICESCR reservations; objections of Ireland, the Netherlands, Portugal to CRC reservations) and concerns with regard to the compatibility of the reservation with the object and purpose of the relevant instrument (objections of Germany, Portugal, Sweden to ICCPR reservations; objections of Germany, Portugal, Sweden to ICESCR reservations; objections of Ireland, the Netherlands, Portugal to CRC reservations). Objecting State parties often linked these two grounds, referring to lack of clarity as the cause of incompatibility with the object and purpose (e.g. objections of Portugal and Sweden to ICESCR reservations). Treaty monitoring bodies also recommended Turkey to withdraw its normative reservations to the relevant human rights instruments with the same concerns, emphasising that such reservations should not hamper the protection of rights of individuals which are enshrined under the reserved provisions (Human Rights Committee, Concluding observations on the initial report of Turkey adopted by the Committee at its 106th session, CCPR/C/TUR/CO/1, para. 9; Human Rights Committee, Summary record of the 2927th meeting, para. 18; Concluding observations of the Committee on Economic, Social and Cultural Rights at its Forty-sixth session, Turkey, E/C.12/TUR/CO/1, para. 6; Committee on the Rights of the Child, Concluding observations: Turkey, 60th session, CRC/C/TUR/CO/2-3, paras. 8,9).
The second type of reservations comes in the form of “declarations” attached by Turkey to its adherence documents to ICERD, ICCPR so as to include ICCPR-OP1, ICESCR, OP-CRC-AC, and OP-CRC-SC. These declarations purport to limit the implementation of the relevant instruments between Turkey and those State parties with which Turkey has diplomatic relations. These have been objected with the view that these declarations are in fact reservations. Accordingly, the uncertainty of the declarations makes the treaty obligations undertaken by Turkey ambiguous. Therefore, these declarations, which are in fact reservations, are viewed as against the object and purpose of the relevant instrument (Objections of Cyprus, Sweden, United Kingdom of Great Britain and North Ireland to ICERD reservations; objections of Cyprus, Greece and Sweden to ICCPR reservations –identical to those to ICESCR reservations-; the objection of Cyprus to OP-CRC-AC reservations –identical to those to OP-CRC-SC reservations).
Here, the reasoning of Greece adds an important aspect to that of other State parties, and is worth mentioning. Greece holds that the declaration of this type undermines the exclusion of inter-State reciprocity with regard to human rights treaties, which endow rights upon individuals. Indeed, treaties of a normative nature such as human rights treaties do not grant reciprocal rights and obligations to State parties. They are “inward-targeted” and create norms (Bruno Simma, Reservations to Human Rights Treaties - Some Recent Developments, in: Liber Amicorum Professor Seidl-Hohenveldern, p. 660), rendering the exclusion of the implementation of treaty provisions as regards some State parties nonsensical. The uncertainty caused by this declaration has been emphasized by treaty monitoring bodies as well (e.g. Committee on Economic, Social and Cultural Rights, Summary record of the 3rd meeting, E/C.12/2011/SR.3, para. 18).
The third type of reservations concern declarations made by Turkey to ICERD, ICCPR including the first protocol of the ICCPR, and the ICESCR. These declarations limit the implementation of the relevant treaty provisions to Turkey’s national territory, and were subject to objections by Sweden and Greece. The State parties emphasized that Turkey must undertake its treaty obligations with regard to all individuals under its jurisdiction, and regarded this declaration as a reservation against the object and purpose of the relevant instrument. These objections are in line with the European Court of Human Rights judgments in the cases of Belilos v. Switzerland and Loizidou v. Turkey. Furthermore, the Human Rights Committee and The Committee on the Elimination of Racial Discrimination also touched upon this declaration and asked Turkey to remove the territorial limitation to the application of the Convention (Concluding observations of the Committee on the Elimination of Racial Discrimination, Turkey, CERD/C/TUR/CO/3, 74th Session, para. 8; Human Rights Committee, Concluding observations on the initial report of Turkey adopted by the Committee at its 106th session, CCPR/C/TUR/CO/1, para. 5).
International legal framework regarding reservations
What is the legal framework with which we can make sense of Turkey’s reservations and objections to such reservations? First, according to Article 2(d) of the VCLT, a reservation to a treaty is formulated to “exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. Here, what matters is the statement’s purport, regardless of how such a unilateral statement is phrased or named. With this respect, it is no wonder that some of Turkey’s declarations are regarded as reservations.
Second, Article 19(c) of the VCLT, the key provision upon which criticisms against Turkey are grounded, stipulates that a reservation to a treaty may be formulated only if it is compatible with the object and purpose of the treaty. Therefore, Article 19(c) stands as a barrier for a unilateral statement formulated by a State party to be subjected to the VCLT reservations regime. In other words, a unilateral statement formulated by a State while adhering to a treaty shall be “impermissible” (First report on the law and practice relating to reservations to treaties by Mr. Alain Pellet, Special Rapporteur, The Law and Practice Relating to Reservations to Treaties, A/CN.4/470, p. 142), if it is against the object and purpose of the treaty. Hence, putting aside the discussions concerning the legal consequences of formulating an impermissible reservation (such as the “severability” doctrine as stipulated by treaty monitoring bodies and some objector states, or not becoming a party to the treaty as a whole), this legal framework enables other State parties as well as relevant monitoring bodies to view a reservation against the object and purpose of a treaty invalid.
Although conditions for being compatible with the object and purpose of a treaty are not indicated in the VCLT, this issue was handled by the Human Rights Committee in its General Comment No. 24 with regard to reservations to ICCPR and its Optional Protocols, followed by an in depth and comprehensive work by the ILC lead by the Special Rapporteur Alain Pellet, which lead to the 2011 ILC Guide to Practice on Reservations to Treaties and the emergence of a so-called “Vienna-plus” regime (Marko Milanovic and Linos-Alexander Sicilianos, “Reservations to Treaties: An Introduction”, EJIL Vol. 24 no. 4, p. 1056) through its comprehensive work (Analytical Guide to the Work of the International Law Commission, Reservations to treaties).
Although the Guide to Practice is not a binding instrument, its persuasive authority as a document shedding light on substantial issues is evident. The guideline no. 3.1.5, titled “Incompatibility of a reservation with the object and purpose of the treaty” bears utmost importance since it provides guidance on how to determine the compatibility of a reservation with the object and purpose of a treaty. Accordingly, a reservation should be worded clearly (guideline 220.127.116.11); a reservation to provisions on non-derogable rights should be subjected to higher scrutiny (guideline 18.104.22.168); reservations relating to internal law should be carefully formulated not to affect an essential element of the treaty or its general tenour (guideline 22.214.171.124); reservations to treaties containing numerous interdependent rights and obligations should be formulated in a way as to mind the interdependence of provisions and not to harm the essential element or general tenor of the treaty (guideline 126.96.36.199).
As Turkey’s reservations predate these guidelines, Turkey would benefit from making a self- assessment of whether its reservations and declarations are in fact compatible with the object and purpose of the relevant human rights instrument as stipulated by the Pellet Guidelines. Here, it is essential to pursue a theoretical analysis in light of methods of interpretation relevant to human rights treaties, accompanied by a practical analysis of the current and potential impacts of making reservations to the core international human rights instruments. Guideline 188.8.131.52. titled “Reservations to treaties containing numerous interdependent rights and obligations” encompasses international human rights treaties. The commentary thereto also reveals that the assessment of compatibility with the object and purpose is a challenging task requiring comprehensive and in-depth analysis. As the commentary puts it, “it is especially difficult to determine at what point that interdependence, which is the raison d’être of the treaty, is threatened by a reservation relating to one of its elements.” (Report of the International Law Commission, A/66/10/Add.1, Sixty-third session, p. 383).
The future of Turkey’s reservations
The contention that Turkey’s reservations to the core international human rights instruments are compatible with the object and purpose of the relevant treaties lacks a thorough analysis so as to demonstrate such compatibility by referring to documents produced by human rights treaty monitoring bodies, and the ILC Guidelines. Returning to the UPR process, it is clear that a mere statement by Turkey confirming that its reservations and declarations comply with Article 19(c) of the VCLT will not save it from being reviewed on the same matter in every upcoming review. Turkey did not submit an implementation report after the first cycle, despite concerns reflected in Turkey’s Mid-term Implementation Assessment report released by UPR-info, and Turkey’s own voluntary pledge with this regard.
Issuing a mid-term implementation report for the second cycle and taking this opportunity, in the light of ILC guidelines, to review its reservations would be a welcoming step.