162. For this purpose, it is necessary to identify the object and purpose of the
Charter, a complex task given that the Charter provides for multiple interdependent
rights, freedoms and obligations to multiple objects and purposes.36
163. The International Law Commission offers apt guidance for determining the
object and purpose of a treaty such as the Charter when it states that “… a fairly general
approach is required: it is not a question of “dissecting” the treaty in minute detail and
examining its provisions one by one, but of extracting the “essence”, the overall
“mission” of the treaty”.37 Using this approach, the Commission considers that the
object and purpose of the Charter is the protection and promotion of human and
peoples’ rights.
164. Whether a given reservation is incompatible with this object and purpose of a
treaty is easier claimed than substantiated. For one thing, it does not necessarily mean
that every reservation that impairs the protection and promotion of a single or a few
rights would be incompatible per se. The Commission is further inspired by the
guidance of the ILC that “a reservation is incompatible with the object and purpose of
the treaty if it affects an essential element of the treaty that is necessary to its general
tenour, in such a way that the reservation impairs the raison d’être of the treaty.”38 An
essential element may be a norm, a right or an obligation which interpreted in context
is essential to the general tenour of the treaty, and whose exclusion or modification
would compromise the treaty’s raison d’être.39
165. In the present case, the Respondent State’s reservation affects not just a single
right (freedom of religion, Article 8 of the Charter), but even so one aspect of that right:
the freedom to manifest religions other than those recognised by the State. Further, the
object of the treaty is clearly not the freedom of religion alone, and the general or
overall purpose of the Charter as a whole is certainly not the protection of freedom of
religion. However profound and fundamental freedom of religion may in itself be
regarded, it certainly does not constitute or embody the general raison d’être of the
Charter. It is unlike the general and cross-cutting guarantee under Article 2 of the
Charter which concerns the enjoyment of all the rights and freedoms recognised and
guaranteed under the Charter. Article 2 of the Charter embodies a typical norm that is
essential and necessary to the general tenor of the Charter as it concerns the enjoyment
of all the Charter rights. This is not the case with the freedom to practice religion (an
It is unlike treaties which focus on one or few rights, freedoms, principle, or subject of fundamental
importance. Examples include treaties on genocide, discrimination, and torture. The object and purpose
of such treaties can easily be deciphered.
37 ILC Guidelines on Reservations, n 21 above, Guideline 3.1.5 para. 2 of the commentary, p. 352
38 Id, Guideline 3.1.5
39 Id, para 14(i) of the commentary on Guideline 3.1.5
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