Reservations Unhinged: The Belilos Case before the European Court of Human Rights
![handle is hein.journals/incolq39 and id is 318 raw text is: RESERVATIONS UNHINGED: THE BELILOS CASE
BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS
SUSAN MARKS*
I. INTRODUCTION
IN the debate between the advantages of securing wide participation in
treaties, especially standard-setting ones, and the desirability of preserv-
ing the integrity of the texts of those treaties, reservations emerged as
an important means by which States could be induced to assume obli-
gations 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 minimis-
ing their impact, but have always stopped short of actually disregarding
them, setting them aside or formally declaring them invalid by reference
2
to some objective criterion.
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 Euro-
pean Convention on Human Rights (the Convention) is concerned.
In 1980 the European Commission of Human Rights (the Com-
mission) called for a reconsideration of its previous decisions con-
cerning 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
* Fellow, Emmanuel College, Cambridge; the author is grateful for the assistance and
encouragement of Professor A. Cassese of the European University Institute, Florence,
Italy.
1. See Reservations to the Convention on Genocide Advisory Opinion, 28 May [19511
I.C.J. Rep. 15, 24-26.
2. The well-known views of Judge Lauterpacht concerning self-judging or automa-
tic reservations to declarations under Art.36(2) of the Statute of the International Court
of Justice are an exception to this. See Norwegian Loans Case, 6 July [1957] I.C.J. Rep. 9,
43-66 and Interhandel Case (Preliminary Objections), 21 March [1959] I.C.J. Rep. 6,
101-118.
3. See E. Comm. H.R., X. v. Austria (No.8180/78), decision on admissibility of 10
May 1979 (1980) 20 Decisions and Reports 23, 27.
4. See e.g. E. Comm. H.R., App.462/59, 7 July 1959 (1958-59) Yb.E.C.H.R. 382,
384-385; App.473/59, 29 Aug. 1959, Yb. idem, 400, 404-406.
(1990) 39 I.C.L.Q.](ViewImageLocal?handle=hein.journals/incolq39&div=22&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Reservations Unhinged: The Belilos Case before the European Court of Human Rights
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most