Treaty flexibility unilaterally boosted: Reservations to European Social Charters
| Author | Wojciech Burek |
| DOI | http://doi.org/10.1177/09240519231151950 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
Treaty flexibility unilaterally
boosted: Reservations to
European Social Charters
Wojciech Burek
MenschenRechtsZentrum, the University of Potsdam, Potsdam, Germany
Abstract
Thus far, research into reservations to treaties has often overlooked reservations formulated to
both European Social Charters (and its Protocols) and the relevant European Committee of
Social Rights practices. There are several pressing reasons to further explore this gap in existing
literature. First, an analysis of practices within the European Social Charters (and Protocols) will
provide a fuller picture of the reservations and responses of treaty bodies. Second, in the context
of previous landmark events it is worth noting the practices of another human rights treaty mon-
itoring body that is often omitted from analyses. Third, the very fact that the formulation of reser-
vations to treaties gives parties such far-reaching flexibility to shape their contractual obligations (à
la carte) is surprising. An important outcome of the research is the finding that, despite the far-
reaching flexibility present in the treaties analysed, both the States Parties and the European
Committee of Social Rights generally treat them as conventional treaties to which the general
rules on reservations apply. Consequently, there is no basis for assuming that the mere fact of
adopting the à la carte system in a treaty with no reservation clause implies a formal prohibition
of reservations or otherwise discourages their formulation.
Keywords
treaty reservations, interpretative declarations, European social charters, European committee of
social rights, treaty flexibility
1. INTRODUCTION
In her 1999 article on reservation clauses in Council of Europe (CoE) treaties, Spiliopoulou
Akermark notes that out of the vast quantity of literature on reservations, relatively little has
Corresponding author:
Wojciech Burek, Assistant Professorat the Institute of European Studies, Jagiellonian University Krakow, Poland. Currently
(2021–2023) Humboldt Fellow at the MenschenRechtsZentrum, the University of Potsdam, Germany.
Email: w.burek@uj.edu.pl
Article
Netherlands Quarterly of Human Rights
2023, Vol. 41(1) 35–52
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/09240519231151950
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been published on practices within the CoE. The author points out one reason for this: it was
not until the late 1990s that documentation of reservations and objections began to be pub-
lished on the CoE’swebsite.
1
However, the exception to this rule concerned reservations
and declarations formulated to the European Convention on Human Rights (ECHR)
2
and
the practices of its two treaty bodies - the European Commission of Human Rights and the
European Court of Human Rights. In the landmark Temeltasch
3
and Belilos
4
cases, the
ECHR bodies explicitly gave themselves the power to assess reservations, including the
power to invalidate those that they deemed inadmissible. Both these and other decisions
and judgments of ECHR bodies regarding reservations and interpretative declarations have
been subject to extensive comments and analysis in legal literature,
5
and since then it has
been difficult to imagine researching and publishing on the issue of reservations to human
rights treaties without reference to this practice.
6
Apart from this exception,
7
it is indeed
true that it was only in the late 1990s that interest in reservations in the practice of the
CoE treaties grew significantly. It is equally true that researching this topic is much easier
today, as full documentation regarding all treaties within the CoE is available on its Treaty
Office website.
8
In the same year that Spiliopoulou Akermark’s article was published, Polakiewicz published his
monograph on treaty-making within the CoE, and a significant part of it was devoted to reservations
and declarations.
9
In 1997, the CoE’s Ad Hoc Committee of Legal Advisers on Public International
Law (CAHDI) established the Group of Specialists on Reservations to International Treaties, which
1. Sia Spiliopoulou Akermark, ‘Reservation Clauses in Treaties Concluded within the Council of Europe’(1999) 48
International and Comparative Law Quarterly 479–480.
2. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended
by Protocols Nos. 11, 14 and 15, 4 November 1950, ETS 5.
3. Application No 9116/80, Temeltasch v Switzerland, Commission’s Report of 5 March 1983, Decisions and Reports, vol.
31 (1983).
4. Application No 10328/83, Marlene Belilos v Switzerland, Commission’s Report of 7 May 1986, Decisions and Reports,
vol. 44 (1985), Court’s Judgment of 29 April 1988, available via the HUDOC database.
5. See Pierre-Henri Imbert, ‘Reservations to the European Convention on Human Rightsbefore the Strasbourg Commission:
The TemeltaschCase’(1984) 33 Internationaland Comparative Law Quarterly558; Susan Marks, ‘Reservations Unhing ed:
The BelilosCase before the European Courtof Human Rights’(1990) 39 Internationaland ComparativeLaw Quarterly 300;
Iain Cameron andFrank Horn, ‘Reservations to theEuropean Convention on HumanRights: The Belilos Case’(1990) 33
German Yearbook of International Law 69; Jochen Abr. Frowein, ‘Reservations to the European Convention on Human
Rights’in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension - Studies in Honour of
Gérard J. Wiarda (Heymanns1988) 193; Henry J Bourguignon, ‘The Belilos Case: New Light on Reservations to
Multilateral Treaties’(1989) 29 Virginia Journal of International Law 347; Gérard Cohen-Jonathan, ‘Les rés erves à la
Convention européenne des droits de l’homme (à propos de l’arrêt Belilos du 29 avril 1988)’(1989) 93 Revue générale
de droit international public 273; Ronald St. John MacDonald, ‘Reservations under the European Conventionon Human
Rights’(1998) 21 Revue Belge de DroitInternational 429.
6. See Natalie Staff, ‘The Severability Regime and Its Customary Elements: A Presumption Rebuttable at ‘Any Time’
(2018) 87 Nordic Journal of International Law 103.
7. And apart from an article published in 1971, which in part deals with reservation clauses and other devices of flexibility
within the CoE’s treaties. See also W Paul Gormley, ‘The Modification of Multilateral Conventions by Means of
“Negotiated Reservations”and Other “Alternatives”: A Comparative Study of the ILO and Council of Europe-Part
Two’(1971) 39 Fordham Law Review 413.
8. Available at ventions/full-list> date accessed 20 December 2022.
9. Jörg Polakiewicz, Treaty Making in the Council of Europe (Council of Europe Publishing 1999) 77–117.
36 Netherlands Quarterly of Human Rights 41(1)
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