Reservation (law)

Last updated

A reservation in international law is a caveat to a state's acceptance of a treaty. A reservation is defined by the 1969 Vienna Convention on the Law of Treaties (VCLT) as:

Contents

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. (Article 2 (1)(d)) [1]

In effect, a reservation allows the state to be a party to the treaty, while excluding the legal effect of that specific provision in the treaty to which it objects. States cannot take reservations after they have accepted the treaty; a reservation must be made at the time that the treaty affects the State. The Vienna Convention did not create the concept of reservations but codified existing customary law. Thus even States that have not formally acceded to the Vienna Convention act as if they had. As reservations are defined under the Vienna Convention and interpretative declarations are not, the two are sometimes difficult to discern from each other. Unlike a reservation, a declaration is not meant to affect the State's legal obligations but is attached to State's consent to a treaty to explain or interpret what the State deems unclear.

Procedure

The Articles 19–23 of the Vienna Convention details the procedures relating to reservations. To see if a reservation is valid the legality of the reservation test applies as described in article 19 of the Vienna Convention. According to this article a state may not formulate a reservation if:

1: The reservation is prohibited by the treaty. (e.g. the Supplementary Convention on the Abolition of Slavery and Convention against Discrimination in Education)
2: The treaty provides that only specified reservations, which do not include the reservation in question, may be made.

This is often the case when during negotiations it becomes apparent that a certain provision in a treaty will not be agreed upon by all parties. Therefore, the possibility is given to parties not to agree with that provision but to agree with the treaty in general.

3: In cases not falling under (1) or (2), the reservation is incompatible with the object and purpose of the treaty.

Point 3 is called the compatibility test and is difficult to determine. It is not always clear what the object and purpose of the treaty is, especially when treaties are long and complex.

A reservation must be put into writing and then sent to either the depository of the treaty, in the case of a multilateral treaty, or directly to the other States party to the treaty.

A State may withdraw a reservation at any time. This requires written submission to the other signatory States.

Objections

When states make an objection to a reservation stating that it failed the legality test, there are three possible results, according to legal commentators:

  1. The state which made the reservation is not bound by the treaty anymore. In other words, the state is no longer a party to this treaty.
  2. The state which made the reservation is bound by the treaty including the parts on which it made the reservation.
  3. The state which made the reservation is bound by the treaty, but not by the part on which it made the reservation.

There are many opponents to the second option who argue that this goes against the principle of state consent. States can only be bound by provisions they have consented to. Since they have made a reservation to a certain provision, they cannot be bound by it.

According to some commentators, [2] what happens in practice in the VCLT regime is the third option. What follows from article 20 paragraph 4(b) and article 21 paragraph 3 VCLT is that the only thing which can happen is, that if an objecting state feels very strongly about a reservation, it will state that the whole treaty is not in effect between the reserving state and itself. This rarely happens, thus the reservation stands, whether it passed the legality test or not.

Others think differently on this. According to Anthony Aust, “if one or more contracting states have objected to the reservation as being prohibited, the reserving state must decide whether or not it is prepared to be a party without the reservation; and until it has made its position clear it cannot be regarded as a party”. [3]

The difference of opinion on this is the fact that it is not likely that the articles 20 and 21 apply to reservations, which cannot to be made according to article 19 of the VCLT. [4] However, they are applied in practice.

Example

Perhaps the most famous and controversial reservations are those taken by the United States when it signed the Convention on the Prevention and Punishment of the Crime of Genocide in 1986. The reservations taken were:

(1) That with reference to article IX of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.
(2) That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

The second reservation may be interpreted as a statement that the national Constitution overrides any treaty obligations — a position mandated by a 1957 U.S. Supreme Court decision, Reid v. Covert. Under reciprocity, the United States cannot submit a legal case to the ICJ unless the other State agrees and does not state that it violates its national constitution.

Several nations expressed dismay and disapproval at the reservations, stating that it essentially made the treaty toothless. The responses included:

The Government of Ireland is unable to accept the second reservation made by the United States of America on the occasion of its ratification of the [said] Convention on the grounds that as a generally accepted rule of international law a party to an international agreement may not, by invoking the terms of its internal law, purport to override the provisions of the Agreement.

As concerns the first reservation, the Government of the Kingdom of the Netherlands recalls its declaration, made on 20 June 1966 on the occasion of the accession of the Kingdom of the Netherlands to the Convention […] stating that in its opinion the reservations in respect of article IX of the Convention, made at that time by a number of states, were incompatible with the object and purpose of the Convention, and that the Government of the Kingdom of the Netherlands did not consider states making such reservations parties to the Convention. Accordingly, the Government of the Kingdom of the Netherlands does not consider the United States of America a party to the Convention. […]

As the Convention may come into force between the Kingdom of the Netherlands and the United States of America as a result of the latter withdrawing its reservation in respect of article IX, the Government of the Kingdom of the Netherlands deems it useful to express the following position on the second reservation of the United States of America:

The Government of the Kingdom of the Netherlands objects to this reservation on the ground that it creates uncertainty as to the extent of the obligations the Government of the United States of America is prepared to assume with regard to the Convention. Moreover, any failure by the United States of America to act upon the obligations contained in the Convention on the ground that such action would be prohibited by the constitution of the United States would be contrary to the generally accepted rule of international law, as laid down in article 27 of the Vienna Convention on the law of treaties (Vienna, 23 May 1969)

The Government of the United Kingdom have consistently stated that they are unable to accept reservations to article IX. Accordingly, in conformity with the attitude adopted by them in previous cases, the Government of the United Kingdom do not accept the first reservation entered by the United States of America.
The Government of the United Kingdom object to the second reservation entered by the United States of America. It creates uncertainty as to the extent of the obligations which the Government of the United States of America is prepared to assume with regard to the Convention.

Human rights treaties

The problem with inadmissible reservations happens more often with human rights treaties. Many reservations to these treaties have been made. However, not many states have expressed their objection. When states did make objections, not many have taken the position that the treaty is not in force between them and the reserving state, in the hope that they can influence the reserving states into eventually accepting all the provisions in the treaty.

Another source of difficulty is that human rights treaties do not create relations, per-se, between the states but create a system of protecting human rights. It is harder to find an objection to that which does not fail the legality test.

With some human rights treaties there are monitoring bodies like tribunals who can make binding decisions; e.g. the European Court of Human Rights in the 1988 Belilos case. [5] In this case, the court decided that a certain reservation by Switzerland was an invalid one. It could, according to the court, therefore be disregarded but Switzerland remained bound by the treaty.

The court chose here for the option ‘The state which made the reservation is bound by the treaty including the parts on which it made the reservation’. Although Switzerland could have chosen to withdraw from the treaty, it chose not to do so.

Monitoring bodies are generally not allowed to make binding decisions; e.g. the Human Rights Committee which monitors the International Covenant on Civil and Political Rights. However this committee gave the impression in its General Comment no.24 [6] that it could. In this case the committee stated that

the normal consequence of an unacceptable reservations is not that the covenant will not be in effect at all for a reserving party. Rather such a reservation will be generally be severable, in the sense that the covenant will be operative for the reserving party without benefit of the reservation.

As in Belilos, the result is that the committee chose the second option.

The committee decided that they were competent to make this decision because:

It necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because, as indicated above, it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions. …Because of its special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively, by reference to legal principles, and the Committee is particularly well placed to perform this task.

This has been criticized for the reason above-stated regarding option three.

The Vienna Declaration and Programme of Action affirms that "all States are encouraged to accede to the international human rights instruments; all States are encouraged to avoid, as far as possible, the resort to reservation. [7]

The International Law Commission

Because of a high number of reservations against human rights treaties, the International Law Commission (ILC) has, since 1994, included the topic in its work program. Originally the topic was named as “the law and practise relating to reservations to treaties” but this was later changed into “reservations to treaties”. For this topic a special Rapporteur, Mr. Alain Pellet, was appointed. [8] As of 2009, the handling of this topic is still a work in progress.

The ILC was asked to check if the VCLT would have to be changed with reservations against human rights treaties. In the 1997 report [9] the ILC rejected this idea. According to the ILC, the reasons why there were problems with reservations against human rights were the same reasons why there were problems with reservations against other treaties. Therefore, the ILC decided that no special regime for human rights treaties would be required.

Suggestions by the ILC concerning reservations were the following: [10]

On this suggestion, the ILC stated that this solution could work only if there is political will for such a provision.

However, when a monitoring body is established by a human rights treaty, it is allowed only to comment on or make recommendations about reservations. The ILC did not agree with General Comment 24 of the Human Rights Committee. The fact that the monitoring body can comment upon the admissibility of reservations has no effect on the principle of state consent. The Human Rights Committee stated that they themselves can decide what the consequence will be of an inadmissible reservation. The ILC states that only the reserving state can decide what action it will follow. The state can decide to withdraw or change its reservation or decide not to become a party to the treaty in question.

Further, the ILC stated that a guide to practice should be made consisting of guidelines to clarify certain problems in the VCLT concerning reservations. States welcomed this suggestion, although it must be added this guide to practice will have no binding legal force.

Related Research Articles

<span class="mw-page-title-main">Treaty</span> Express agreement between nations under international law

A treaty is a formal, legally binding written contract between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal persons.

<span class="mw-page-title-main">International Covenant on Civil and Political Rights</span> Treaty adopted by United Nations General Assembly in 1965

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. It was adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966 and entered into force on 23 March 1976 after its thirty-fifth ratification or accession. As of June 2022, the Covenant has 173 parties and six more signatories without ratification, most notably the People's Republic of China and Cuba; North Korea is the only state that has tried to withdraw.

<span class="mw-page-title-main">Vienna Convention on the Law of Treaties</span> International agreement

The Vienna Convention on the Law of Treaties (VCLT) is an international agreement that regulates treaties among sovereign states.

<span class="mw-page-title-main">American Convention on Human Rights</span> 1969 international human rights instrument

The American Convention on Human Rights, also known as the Pact of San José, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere in San José, Costa Rica, on 22 November 1969. It came into force after the eleventh instrument of ratification was deposited on 18 July 1978.

Ratification is a principal's legal confirmation of an act of its agent. In international law, ratification is the process by which a state declares its consent to be bound to a treaty. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

<span class="mw-page-title-main">International Covenant on Economic, Social and Cultural Rights</span> Covenant adopted in 1966 by United Nations General Assembly resolution

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly (GA) on 16 December 1966 through GA. Resolution 2200A (XXI), and came into force on 3 January 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to all individuals including those living in Non-Self-Governing and Trust Territories. The rights include labour rights, the right to health, the right to education, and the right to an adequate standard of living. As of February 2024, the Covenant has 172 parties. A further four countries, including the United States, have signed but not ratified the Covenant.

<span class="mw-page-title-main">Convention on the Elimination of All Forms of Discrimination Against Women</span> International bill of rights for women

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it was instituted on 3 September 1981 and has been ratified by 189 states. Over fifty countries that have ratified the convention have done so subject to certain declarations, reservations, and objections, including 38 countries who rejected the enforcement article 29, which addresses means of settlement for disputes concerning the interpretation or application of the convention. Australia's declaration noted the limitations on central government power resulting from its federal constitutional system. The United States and Palau have signed, but not ratified the treaty. The Holy See, Iran, Somalia, Sudan, and Tonga are not signatories to CEDAW.

<span class="mw-page-title-main">International Law Commission</span>

The International Law Commission (ILC) is a body of experts responsible for helping develop and codify international law. It is composed of 34 individuals recognized for their expertise and qualifications in international law, who are elected by the United Nations General Assembly (UNGA) every five years.

<span class="mw-page-title-main">Vienna Convention on Succession of States in Respect of Treaties</span> 1978 international treaty

The Vienna Convention on Succession of States in Respect of Treaties is an international treaty opened for signature in 1978 to set rules on succession of states. It was adopted partly in response to the "profound transformation of the international community brought about by the decolonization process". It entered into force on 6 November 1996, which was triggered by the succession of the Republic of Macedonia to the treaty giving it the requisite 15 parties.

<span class="mw-page-title-main">War and environmental law</span>

War can heavily damage the environment, and warring countries often place operational requirements ahead of environmental concerns for the duration of the war. Some international law is designed to limit this environmental harm.

International law is the set of rules, norms, and standards generally recognized as binding between states. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. International law differs from state-based domestic legal systems in that it is primarily, though not exclusively, applicable to states, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states. States may choose to not abide by international law, and even to breach a treaty but such violations, particularly of peremptory norms, can be met with disapproval by others and in some cases coercive action ranging from diplomatic and economic sanctions to war.

A multilateral treaty is a treaty to which two or more sovereign states are parties. Each party owes the same obligations to all other parties, except to the extent that they have stated reservations. Examples of multilateral treaties include the Convention Relating to the Status of Refugees, the United Nations Convention on the Law of the Sea, the Geneva Conventions, and the Rome Statute of the International Criminal Court.

The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, otherwise known as the European Convention on Bioethics or the European Bioethics Convention, is an international instrument aiming to prohibit the misuse of innovations in biomedicine and to protect human dignity. The Convention was opened for signature on 4 April 1997 in Oviedo, Spain and is thus otherwise known as the Oviedo Convention. The International treaty is a manifestation of the effort on the part of the Council of Europe to keep pace with developments in the field of biomedicine; it is notably the first multilateral binding instrument entirely devoted to biolaw. The Convention entered into force on 1 December 1999.

<span class="mw-page-title-main">Convention on the Rights of Persons with Disabilities</span> Treaty of the United Nations

The Convention on the Rights of Persons with Disabilities is an international human rights treaty of the United Nations intended to protect the rights and dignity of persons with disabilities. Parties to the convention are required to promote, protect, and ensure the full enjoyment of human rights by persons with disabilities and ensure that persons with disabilities enjoy full equality under the law. The Convention serves as a major catalyst in the global disability rights movement enabling a shift from viewing persons with disabilities as objects of charity, medical treatment and social protection towards viewing them as full and equal members of society, with human rights. The convention was the first U.N. human rights treaty of the twenty-first century.

A plurilateral agreement is a multi-national legal or trade agreement between countries. In the jargon of global economics, it is an agreement between more than two countries, but not a great many, which would be multilateral agreement.

The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP-CEDAW) is an international treaty which establishes complaint and inquiry mechanisms for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Parties to the Protocol allow the Committee on the Elimination of Discrimination against Women to hear complaints from individuals or inquire into "grave or systematic violations" of the convention. The Protocol has led to a number of decisions against member states on issues such as domestic violence, parental leave and forced sterilization, as well as an investigation into the systematic killing of women in the Mexican city of Ciudad Juárez, Chihuahua.

<span class="mw-page-title-main">Geneva Conventions</span> International treaties of war

The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian treatment in war. The singular term Geneva Convention colloquially denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–1945), which updated the terms of the two 1929 treaties and added two new conventions. The Geneva Conventions extensively define the basic rights of wartime prisoners, civilians and military personnel; establish protections for the wounded and sick; and provide protections for the civilians in and around a war-zone.

<span class="mw-page-title-main">International Convention on the Elimination of All Forms of Racial Discrimination</span> 1969 United Nations human rights instrument

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The Convention also requires its parties to criminalize hate speech and criminalize membership in racist organizations.

The right to family life is the right of all individuals to have their established family life respected, and to have and maintain family relationships. This right is recognised in a variety of international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights.

References

  1. ↑ Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) Text of the Convention
  2. ↑ Klabbers, J. (2000). "Accepting the Unacceptable? A new Nordic approach to Reservations to Multilateral Treaties". Nordic Journal of International Law. 69 (2): 179–193. doi:10.1163/15718100020296233.
  3. ↑ Anthony Aust, Modern treaty law and practice, Cambridge university press, 2004, p.119
  4. ↑ Anthony Aust, Modern treaty law and practice, Cambridge university press, 2004, p.117
  5. ↑ ECHR Pubs. Series A, vol 132, 1988
  6. ↑ 15 HRLJ (1994) 464, at 467
  7. ↑ Vienna Declaration and Programme of Action, Part I paragraph 26
  8. ↑ Official Records of the General Assembly, Forty-ninth Session, Supplement No. 10 (A/49/10), para. 382.
  9. ↑ The report of the international law commission on the work of the 49th session, 12 may 18 July 1997, UN GAOR, 52nd session, pp 75-79 U.N. Doc. A/52/10 (1997)
  10. ↑ The Report of the International Law Commission on the Work of the Forty ninth Session, 12 May - 18 July 1997, UN GAOR, 52nd sess., PP 77, U.N. Doc. A/52/10 (1997).

Sources

Books and articles

Cases

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.