ABSTRACT
The IHR entail a number of features not shared by treaties. In relation to the ‘unique’ nature of the contracting out procedure,89 it must also be emphasised that the rules relating to reservations differ considerably from those of treaties. First, the Vienna Convention on the Law of Treaties is silent on how to evaluate the validity of reservations entered by contracting parties, except for requiring their compatibility with the object and purpose of a treaty. This question is left to other State parties to the treaty, and reservations are regarded as having been accepted by States that have raised no objection to them within 12 months after notification of the reservation, or by the date on which consent to be bound by the treaty was expressed, whichever is later.90 In contrast, Art 88 of the IHR provides that a reservation to the IHR ‘shall not be valid unless it is accepted by the World Health Assembly’, and until that acceptance, the IHR shall not enter into force with respect to a reserving State.91 The second difference is the effect of unaccepted reservations on the IHR, especially the principle that incompatible reservations make the entire regulations inapplicable to the reserving State. There exist two possibilities in international law as to the effect of an illegal reservation on a treaty: either the treaty provision to which the reservation is formed applies in full to the reserving State; or the consent of the State to the treaty as a whole ought to be considered as invalid so that it is not a party to the treaty.92 On one hand, there is a tendency in international human rights law to follow the first approach, severing invalid reservations from a provision and obliging the reserving State to comply with it.93 On the other, the IHR’s approach approximates to the second possibility. If the WHA considers that the reservation ‘substantially detracts from the character and purpose’ of the IHR, the reservation is not considered as valid. The invalidity of a reservation leads to the consequence that the IHR’s entry into force in the reserving State is suspended until that reservation is withdrawn. It must be added that even if the invalid reservation is not withdrawn and the IHR do not enter into force in the reserving State, the State remains bound by the earlier International Sanitary Conventions, Regulations and other agreements.94 To subordinate
89 Taylor, A, ‘Controlling the global spread of infectious diseases: towards a reinforced role for the International Health Regulations’ (1997) Hous L Rev 1327, p 1345.
