On February 28, 2001, "In accordance with the Decision made by the Standing Committee of the Ninth National People's Congress of the People's Republic of China at its Twentieth Session, the President of the People's Republic of China hereby ratifies the International Covenant on Economic, Social and Cultural Rights."248 The statement went on to say, "The application of Article 8(1)(a) of the Covenant to the People's Republic of China shall be consistent with the relevant provisions of the Constitution of the People's Republic of China, Trade Union Law of the People's Republic of China and Labor Law of the People's Republic of China."249 As discussed below, the Trade Union Law denies Chinese workers the right to organize independent unions.
Article 1(d) of the Vienna Convention on the Law of Treaties defines "reservation" in terms of the effect of a statement, rather than the name given it:
"[R]eservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.
Commenting on the general question of identifying reservations, the U.N. Human Rights Committee noted that the intent, rather than the form, is the basis for classification.
It is not always easy to distinguish a reservation from a declaration as to a State's understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation.250
In accordance with this standard, despite the fact that China's statement uses the word "declares," it should be considered a reservation, because it purports to exclude or modify the legal effect of the provision it addresses.
Article 19 of the Vienna Convention on the Law of Treaties states that: "A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless...the reservation is incompatible with the object and purpose of the treaty."
The Human Rights Committee, in its General Comment 24 of 1994, applied the "object and purpose" standard, and further argued that an incompatible reservation invalidates itself. "The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation."251
In other words, a reservation that violates the object and purpose of the treaty is in most cases to be considered severable: "the reservation must be regarded as null and void, at least in those parts that prove to be incompatible with the object and purpose of the treaty."252 In Kennedy v. Trinidad and Tobago, the Human Rights Committee clarified that "this assumption cannot apply when it is abundantly clear that the reserving state's agreement to becoming a party to the Covenant is dependent on the acceptability of the reservation."253
Although the severability argument has been criticized by some states, it has been supported by the European Court of Human Rights in two important cases.254 By arguing that incompatible reservations are severable, the Human Rights Committee and the European Court support a presumption in favor of the integrity of human rights treaties. Without this presumption, there is little to prevent states that ratify human rights treaties from entering reservations so contrary to the goals of the treaty so as to render their obligations meaningless.
As the Human Rights Committee noted, "Human rights treaties...are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights."255 In the case of treaties which are simply an exchange of obligations, an incompatible reservation is usually considered to nullify the ratification of the treaty, rather than the reservation itself.0 Traditionally, the determination as to whether a reservation is valid is left to other states party, who are expected to object to a reservation that is incompatible with the object and purpose of the treaty.1
In the case of multilateral human rights treaties, however, states parties rarely object to other states' reservations, because no reciprocal obligation is threatened; when there are objections, "most objecting states are making perfunctory objections with no discernable policy." States therefore may enter reservations without fear of serious challenge.2
Negating the ratification of the treaty is sensible for reciprocal-obligations treaties, where states enter into a contract-like agreement with each other and failure to recognize one obligation can threaten the whole agreement. But it would be inconsistent with the purpose of human rights treaties to free a state from all its commitments under the treaty because the state had refused to accept the obligations of one article. As the European Court wrote in Loizidou:
In addressing this issue the Court must bear in mind the special character of the Convention as an instrument of European public order (ordre public) for the protection of individual human beings....[T]he special character of the Convention regime....militates in favour of the severance of the impugned clauses since it is by this technique that the rights and freedoms set out in the Convention may be ensured...3
Weighing the interests involved in this issue, one scholar writes, "If there is a conflict between the two requirements (the international community's need for contracting parties to remain bound as far as possible by international standards on human rights, and the intent of one of these parties to eschew the legal impact of such a standard), the former must prevail."4
China's statement declares that:
The application of Article 8(1)(a) of the Covenant to the People's Republic of China shall be consistent with the relevant provisions of the Constitution of the People's Republic of China, Trade Union Law of the People's Republic of China and Labor Law of the People's Republic of China.
Article 8(1)(a) of the ICESCR obligates states parties to ensure:
The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others.
At least one of the laws referred to in China's reservation seriously conflicts with these obligations. China's Trade Union Law prescribes in detail the organizational structure, allotment of funds, and other obligations of trade unions. In this sense, the law directly contravenes the right to form and join unions that are "subject only to the rules of the organization concerned."
In its specific provisions, the law further violates the "object and purpose" of Article 8(1)(a). Article 11 of the Trade Union Law says, "The establishment of a primary trade union, federations of trade unions at a local level, and national or local industry-specific trade unions must be reported to the trade union organization at the higher level for approval." Article 10, which says, "The All-China Federation of Trade Unions shall be established as the unified national organization," facilities the inconsistencies with the Covenant illustrated by the above quotations. It is the practical application of this clause that rules out independent organization and violates the core of Article 8(1)(a).
The reservation is additionally problematic in light of the Human Rights Committee's view that "reservations should not systematically reduce the obligations undertaken only to those presently existing in less demanding standards of domestic law."5 This is clearly what China has attempted to do with its reservation.
The laws referred to in China's reservation in effect outlaw independent labor unions as conceived by Article 8(1)(a). It can therefore be argued that the reservation is incompatible with the "object and purpose" of the ICESCR. This implies that the reservation is invalid, and China's obligations under the treaty survive.
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248 People's Republic of China, "Statement made upon ratification of the International Covenant on Economic, Social and Political Rights," March 27, 2001, http://www.unhchr.ch/html/menu3/b/treaty4_asp.htm (accessed on July 24, 2002).
250 Human Rights Committee, "General Comment 24," U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 3.
252 Antonio Cassese, International Law (New York: Oxford, 2001), p. 131.
253 Kennedy v. Trinidad and Tobago (845/99), para. 16.
254 See European Court of Human Rights, Belilos case, Series A, no. 132 (1988), para. 60; Loizidou case (preliminary objections), Series A, no. 310 (1995), paras. 90-98.
255 Human Rights Committee, "General Comment No. 24."
0 This standard derives from a 1951 decision of the International Court of Justice, "Advisory Opinion on Reservations to the Genocide Convention," ICJ Reports, 15, at 29; and from the Vienna Convention on the Law of Treaties, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331.
1 Vienna Convention on the Law of Treaties, art. 20, para. 5. The other states party have twelve months to object; if they do not, the reservation is considered accepted.
2 The United States, for example, when ratifying the ICCPR entered five reservations, five understandings, and four declarations to twelve articles of the Covenant. According to one commentator, "the net effect of these reservations was to eliminate every Covenant obligation that would require any change in U.S. law or practice...Eleven states objected to the U.S. reservations, but none moved to block the U.S. ratification under the object and purpose test. Under the Vienna Convention procedure, the U.S. reservations were then tacitly accepted one year after ratification." Elena A. Baylis, "General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties." 17 Berkeley J. Int'l Law 277, at 306. See also William Schabas, "Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child," 3 Wm. & Mary J. of Women & L. 79.
3 Loizidou case, paras. 93-96.
4 Antonio Cassese, International Law, p. 131.
5 Human Rights Committee, "General Comment No. 24,"para. 19.