The ILC Guide to Practice on Reservations to Treaties Put to the Test in the Hossam Ezzat Case Before the African Commission on Human and Peoples’ Rights

In 2011 the International Law Commission adopted the Guide to Practice on Reservations to Treaties (Guide on Reservations) to clarify and develop the regime concerning reservations under the 1969 Vienna Convention on the Law of Treaties. The report of the African Commission on Human and Peoples’ Rights (African Commission) in the Hossam Ezzat case provides an occasion for reflecting on the usefulness of the Guide with regard to some problems having a bearing on human rights treaties. In the report, the “Sharia reservation” formulated by Egypt to Article 8 of the African Charter on Human and Peoples’ Rights enshrining religious freedom was at stake. The author argues that weaknesses of the Guide on Reservations underlie certain shortcomings of the reasoning of the African Commission. In particular, as the Guide on Reservations does not specify whether vague or general reservations are permissible, the African Commission considered the Egyptian reservation to be merely problematic. In order to determine the scope of the reservation, the African Commission artificially resorted to a “reservations dialogue”, as introduced in an Annex to the Guide on Reservations. Ambiguities in the guidelines relating to reservations to provisions concerning rights from which no derogation is permissible and to treaties containing interdependent rights and obligations may explain why the African Commission did not follow them.