‘Reserved Ratification’: An Analysis of States’ Entry of Reservations Upon Ratification of Human Rights Treaties

Abstract

Governing elites often ratify human rights treaties, even when their policies do not align with those treaties’ obligations. This article argues that this can be explained by the fact that executives anticipate the potential challenges these treaties could raise vis-à-vis their domestic policies and enter different types of reservations when they ratify to head them off. The types of reservations they use depend on key characteristics of the executive’s policies and practices, as well as its relationship with the legislative and judicial branches. Domestic actors can raise different types of challenges against the executive depending on variations in these key factors. The types of reservations executives use will therefore vary depending on the specific challenges ratification raises for them. Using an original dataset of the reservations states entered on human rights treaties registered with the United Nations, and employing an event history analysis, this study shows that the particular challenges treaties present for executives in different types of states help explain variation in how they use reservations when they ratify human rights treaties.

Social Pressure in the International Human Rights Regime: Why States Withdraw Treaty Reservations

“…Edry (2020) convincingly argues that legal systems influence the withdrawal of reservations through the path of making reservations, and consequently also uses the domestic legal system as an instrument. Simmons (2009) and McKibben and Western (2020) also argue that countries with common law systems and Islamic law systems are more likely to make reservations because of the occasional incompatibility of domestic law with treaty law. It is likely that the legal system influences reservation withdrawal in a number of ways, but all of them hinge on the process by which a country makes a reservation.…”

“…States use reservations to modulate their treaty obligations, particularly in the area of human rights (Neumayer 2007) and especially when obligations are demanding (Zvobgo, Sandholtz, and Mulesky 2020). Reservations reduce treaties' effect on state behavior by limiting executives' legal exposure under a treaty (McKibben and Western 2020), keeping domestic standards low and undercutting judiciaries that would uphold international standards (Hill 2016). Islamic law countries (McKibben and Western 2020; Simmons 2009) and common law countries (McKibben and Western 2020; Simmons 2009; Zvobgo, Sandholtz, and Mulesky 2020) are also more likely to enter reservations than civil law countries 1…”

“… 14 Pakistan (70 objections received), Qatar (31), Brunei Darussalam (30), United Arab Emirates (28), Saudi Arabia (27), Oman (26), Maldives (24), Malaysia (23), Syria (21), and Turkey (20) are the top-ten countries receiving objections to reservations. It is not surprising to see many predominantly Muslim countries at the top of this list, as countries with Islamic law systems are more likely to make reservations than countries with civil law systems (McKibben and Western 2020). Many Islamic law countries invoke reservations with the reasoning that treaty provisions must comply with Sharia law.…”

Do indicators influence treaty ratification? The relationship between mid‐range performance and policy change

“…These states have this status already and therefore ratification has less added benefit. Moreover, although these states have generally good policies, they might act inconsistently with the treaty text on technical grounds, and thus can be held in violation of the agreement, accruing legal and political costs they would otherwise be able to avoid (McKibben & Western, 2020). These states may still ratify because they agree with the content of the treaty (Simmons, 2009), but compared to those in the middle there is less incentive to do so quickly.…”

Signing CEDAW and Women’s Rights: Human Rights Treaty Signature and Legal Mobilization

“…The landmark International Court of Justice (ICJ) advisory opinion directed reservations are accepted “manifestations of a new need for flexibility in the operation of multilateral conventions” and allowed for greater state participation. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide , Advisory Opinion, [1951] ICJ Rep 15; see Neumayer 2007; McKibben and Western 2020; Comstock 2019 (for more detailed analysis of reservations, understandings, and declarations and human rights treaties).…”