Reservations Unhinged: The Belilos Case before the European Court of Human Rights

Abstract

IN the debate between the advantages of securing wide participation in treaties, especially standard-setting ones, and the desirability of preserving the integrity of the texts of those treaties, reservations emerged as an important means by which States could be induced to assume obligations while accommodating them in an acceptable way to their own particular circumstances.' It is perhaps for this reason that international tribunals have always accorded reservations a respect which seems almost to go beyond the mere recognition of a sovereign act. Thus, they have been quite willing to apply reservations, to interpret them, to limit their scope, even to find ways of circumventing them or at least minimising their impact, but have always stopped short of actually disregarding them, setting them aside or formally declaring them invalid by reference to some objective criterion.2 The recent decision of the European Court of Human Rights (the Court) in the Belilos case marks the culmination of a reversal of this tradition of deference towards reservations, at least so far as the European Convention on Human Rights (the Convention) is concerned. In 1980 the European Commission of Human Rights (the Commission) called for a reconsideration of its previous decisions concerning reservations,3 decisions in which it had automatically ruled applications inadmissible after finding that their subject matter fell within the scope of a reservation on the part of the relevant State.4 In 1983 the Commission went so far as to question-if only eventually to uphold-the validity of an interpretative declaration, which it said was