response to the Complainants’ challenge which only comes in the rejoinder.32
Regardless, the Commission considers the information available to be sufficient for
purposes of determining the validity of the reservations.
156. Article 19 of the VCLT generally constitutes the regime for determining the
validity and so, the permissibility of reservations to treaties. For the present purposes,
and in the absence of a provision in the Charter relating to the formulation of
reservations, it is Article 19(c) of the VCLT that is applicable. Article 19(c) of the VCLT
is permissive in that a State may formulate a reservation unless the reservation is
incompatible with the object and purpose of the treaty. The term “object and purpose”
is not defined under the VCLT. No guidance is provided under the VCLT itself for
determining the object and purpose of a treaty, or indeed the consequences of a
determination that a reservation is incompatible with the object and purpose of the
treaty.
157. In the present Communication, Complainants contend that the Respondent
State’s reservation is not permissible for two reasons. Firstly, the reservation is general,
lacks details of the Sharia law and does not indicate its scope in precise terms.33
Secondly, it is incompatible with the object and purpose of the Charter in that the
Respondent State interprets it to permit discriminatory acts such as imposing Sharia
on non-Muslims in personal status disputes and to refuse to issue IDs to persons of
non-Abrahamic faiths.
158. The generality of a reservation does not ipso jure entail its incompatibility with
the object and purpose of the Charter. Rather, the generality entails that the reservation
is indeterminately broad in scope. This poses two problems. Firstly, the extent to which
such reservation, if otherwise permissible, modifies or excludes the effect of a treaty or
any of its provisions cannot be assessed and determined on the terms of the
reservation. Secondly, the generality makes it difficult if not impossible to evaluate its
compatibility with the object and purpose of the treaty, where the latter has been
established.
159. The reservation under consideration is specifically directed at Article 8 of the
Charter. In this respect, it is not general in its reference to the Charter. However, the
details of the Islamic Law (a pervasive source of law) or indeed a summary thereof are
In their initial submissions the Complainants only referred to the reservation to Article 18 of the
ICCPR and the views of the HRC on the same. They did not make any reference to the reservation to
the Charter and advance arguments on its validity. It is only in the re-joinder that the Complainants
turn on the validity of the reservation to Article 8 of the Charter in particular.
33 Complainants cite the HRC’s concern that Arab Republic of Egypt’s reservation to the ICCPR is
general and ambiguous, and the recommendation that the state should either clarify it or withdraw it
altogether: HRC, UN Human Rights Committee: Concluding Observations: Egypt, 28 November 2002,
CCPR/CO/76/EGY
32
31