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Reservations By Bradford C. Smith. Reservations “The subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity.”

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Presentation on theme: "Reservations By Bradford C. Smith. Reservations “The subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity.”"— Presentation transcript:

1 Reservations By Bradford C. Smith

2 Reservations “The subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity.” Sir Hersch Lauterpacht

3 Reservations Why are reservations important? Why are reservations important? What are reservations? What are reservations? Who can formulate reservations? Who can formulate reservations? When can reservations be formulated When can reservations be formulated Form of reservations Form of reservations The Depositary’s Role The Depositary’s Role Objections Objections Late Reservations Late Reservations Withdrawal and Modification Withdrawal and Modification

4 Why are reservations important? Reservations enable a State to participate in a treaty in which it would not be able to participate due to an unacceptable provision or provisions. Reservations enable a State to participate in a treaty in which it would not be able to participate due to an unacceptable provision or provisions. In many cases the purpose of the reservation is merely to adjust the reserving State’s obligations under the treaty to conform to its domestic law where, for political, cultural or social reasons, it is not feasible or desirable to change the law. In many cases the purpose of the reservation is merely to adjust the reserving State’s obligations under the treaty to conform to its domestic law where, for political, cultural or social reasons, it is not feasible or desirable to change the law. It is desirable to have States parties to treaties with reservations than for States not to be parties to such treaties at all. It is desirable to have States parties to treaties with reservations than for States not to be parties to such treaties at all. Many States make reservations. Many States make reservations.

5 What are reservations? Unilateral statements, however phrased or named, purporting to exclude or modify the legal effect of certain provisions of a treaty in their application to the reserving State. Unilateral statements, however phrased or named, purporting to exclude or modify the legal effect of certain provisions of a treaty in their application to the reserving State. Entitled “reservation”, “declaration”, “understanding”, “interpretative declaration” or “interpretative statement”. Entitled “reservation”, “declaration”, “understanding”, “interpretative declaration” or “interpretative statement”. (Article 2(1)(d) of the Vienna Convention 1969)

6 Who can formulate a reservation? In the S-G’s practice, only the Head of State or Government or the MFA (or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities) can formulate (i.e. sign) a reservation. In the S-G’s practice, only the Head of State or Government or the MFA (or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities) can formulate (i.e. sign) a reservation. A reservation is a limitation on the commitment undertaken by a state. A reservation is a limitation on the commitment undertaken by a state. Only the same authorities who can undertake a treaty action can formulate a reservation (The same applies to withdrawals and modifications to reservations). Only the same authorities who can undertake a treaty action can formulate a reservation (The same applies to withdrawals and modifications to reservations).

7 When can reservations be formulated? Upon signature, ratification, acceptance, approval, accession, etc., unless: Upon signature, ratification, acceptance, approval, accession, etc., unless: The reservation is prohibited by the treaty; The reservation is prohibited by the treaty; The treaty provides that only specified reservations, which do not include the reservation in question may be made; or The treaty provides that only specified reservations, which do not include the reservation in question may be made; or The reservation is incompatible with the object and purpose of the treaty (VCLT, article 19). The reservation is incompatible with the object and purpose of the treaty (VCLT, article 19).

8 Reservation made on signature If made upon simple signature it is merely declaratory. If made upon simple signature it is merely declaratory. o Must be formally confirmed in writing upon ratification, acceptance, or approval. If made on definitive signature, it need not be confirmed later. If made on definitive signature, it need not be confirmed later. (Art. 23(2), Vienna Convention, 1969) (Art. 23(2), Vienna Convention, 1969)

9 Form of Reservations It is a limitation on the commitment undertaken by the State. It is a limitation on the commitment undertaken by the State. Must, therefore, be included in the instrument of ratification, acceptance, approval or accession or be annexed to it. Must, therefore, be included in the instrument of ratification, acceptance, approval or accession or be annexed to it. If separate, it must be signed by the Head of State or Government or MFA (or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities). If separate, it must be signed by the Head of State or Government or MFA (or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities).

10 The Depositary’s Role When reservations are made, the depositary must determine whether such a reservation should be accepted upon signature or upon deposit of an instrument. When reservations are made, the depositary must determine whether such a reservation should be accepted upon signature or upon deposit of an instrument. If a declaration or statement is made, the depositary must make a prima facie determination as to whether the declaration or statement is in fact a reservation. If a declaration or statement is made, the depositary must make a prima facie determination as to whether the declaration or statement is in fact a reservation. What does the treaty say? Either the treaty is silent as to reservations, or has provisions relating to reservations. What does the treaty say? Either the treaty is silent as to reservations, or has provisions relating to reservations. If the treaty has provisions relating to reservations, the depositary is guided by the relevant provisions of the treaty itself. If the treaty has provisions relating to reservations, the depositary is guided by the relevant provisions of the treaty itself.

11 Reservations Prohibited Where a treaty expressly prohibits reservations: Where a treaty expressly prohibits reservations: The depositary makes a preliminary legal assessment whether a statement constitutes a reservation. The depositary makes a preliminary legal assessment whether a statement constitutes a reservation. If it has no bearing on the State’s legal obligations, and is not therefore a “reservation”, the S-G will formally receive the statement in deposit and circulate it. If it has no bearing on the State’s legal obligations, and is not therefore a “reservation”, the S-G will formally receive the statement in deposit and circulate it. The S-G will not circulate an unauthorised reservation. The S-G will not circulate an unauthorised reservation. Where the S-G requests a clarification and the state confirms the absence of a reservation, the State is estopped from relying on the statement as a reservation. Where the S-G requests a clarification and the state confirms the absence of a reservation, the State is estopped from relying on the statement as a reservation.

12 Examples Some treaties specifically prohibit all reservations, for example: Some treaties specifically prohibit all reservations, for example: Statute of the International Criminal Court (art. 120); Statute of the International Criminal Court (art. 120); Many disarmament treaties deposited with the S-G (Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons Convention, Anti-Personnel Mines Convention); Many disarmament treaties deposited with the S-G (Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons Convention, Anti-Personnel Mines Convention); Most environmental treaties deposited with the S-G (Montreal Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm Convention, Cartagena Protocol, etc.) Most environmental treaties deposited with the S-G (Montreal Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm Convention, Cartagena Protocol, etc.)

13 Examples Other treaties prohibit certain reservations, for example: Other treaties prohibit certain reservations, for example: UN Convention on the Law of the Sea, pursuant to its article 309, states that no reservations may be made to the Convention unless expressly permitted by other articles of this Convention. UN Convention on the Law of the Sea, pursuant to its article 309, states that no reservations may be made to the Convention unless expressly permitted by other articles of this Convention.

14 Territorial Exclusions – Are they reservations? Some States exclude parts of the territory from the application of treaties: Some States exclude parts of the territory from the application of treaties: For example, United Kingdom, Netherlands, Denmark, New Zealand and, in some instances, China. For example, United Kingdom, Netherlands, Denmark, New Zealand and, in some instances, China. In most cases non-metropolitan territories (except China). In most cases non-metropolitan territories (except China). Not consistent with art. 29 VCLT Not consistent with art. 29 VCLT But is treated by the Secretary-General as a regional practice. But is treated by the Secretary-General as a regional practice. No objections by other States. No objections by other States. These States continue to engage in this practice. These States continue to engage in this practice. Why? Why? Compliance with domestic legal procedures which may require consultations with the territory concerned. Compliance with domestic legal procedures which may require consultations with the territory concerned.

15 Treaty Expressly Authorises Reservations Where a State formulates a reservation that is authorised, the S-G circulates the reservation to the States concerned. Where a State formulates a reservation that is authorised, the S-G circulates the reservation to the States concerned. Such reservation does not require any subsequent acceptance by the States concerned. Such reservation does not require any subsequent acceptance by the States concerned.

16 Treaty authorizes only specified reservations According to VCLT, article 19(b) – a reservation is allowed unless the treaty provides that only specified reservations, which do not include the reservation in question, may be made. According to VCLT, article 19(b) – a reservation is allowed unless the treaty provides that only specified reservations, which do not include the reservation in question, may be made. Many treaties deposited with the S-G authorize reservations with regard to settlement of dispute procedures and are otherwise silent as to reservations. Many treaties deposited with the S-G authorize reservations with regard to settlement of dispute procedures and are otherwise silent as to reservations. Does this mean that all other reservations are prohibited? Does this mean that all other reservations are prohibited? No – the S-G’s practice in this regard is to interpret the above provision narrowly, and will accept other reservations in deposit. No – the S-G’s practice in this regard is to interpret the above provision narrowly, and will accept other reservations in deposit.

17 Treaty is silent on reservations Where a treaty is silent on reservations and a State formulates a reservation, the depositary informs the States concerned. Where a treaty is silent on reservations and a State formulates a reservation, the depositary informs the States concerned. The depositary does not make a judgement in this regard (whether compatible with object and purpose). The depositary does not make a judgement in this regard (whether compatible with object and purpose). His role is to accept the reservation in deposit, to communicate it to all States concerned, and leave it to each State to draw the legal consequences from such reservations. His role is to accept the reservation in deposit, to communicate it to all States concerned, and leave it to each State to draw the legal consequences from such reservations. Unless a state objects within 12 months, it is presumed to have accepted the reservation. Unless a state objects within 12 months, it is presumed to have accepted the reservation.

18 Who decides whether a reservation is consistent with the object and purpose? Whether consistent with the object and purpose: Whether consistent with the object and purpose: Given the complexity of today’s treaties, identifying the object and purpose can be difficult. Given the complexity of today’s treaties, identifying the object and purpose can be difficult. Human rights bodies?- Have tried to take over this role. Human rights bodies?- Have tried to take over this role. – Criticized by States. Depositary? Depositary? – For now no. – Pellet and some States see a role for the depository. States Parties? States Parties? A debate continues. A debate continues. The Secretary-General will continue with the current practice unless States agree otherwise. The Secretary-General will continue with the current practice unless States agree otherwise.

19 Case Study – ICESCR Declaration which could be a reservation (where the treaty is silent). Declaration which could be a reservation (where the treaty is silent). China made a declaration on becoming party to the ICESCR limiting the right of Hong Kong trade unions to confederate. China made a declaration on becoming party to the ICESCR limiting the right of Hong Kong trade unions to confederate. Depositary did not pass judgment on this and circulated the declaration. Depositary did not pass judgment on this and circulated the declaration. A number of countries have objected noting article 8 (1)(a) of the Covenant. A number of countries have objected noting article 8 (1)(a) of the Covenant.

20 Objections to Reservations Only States which are signatories or parties to a treaty may object to a reservation; Only States which are signatories or parties to a treaty may object to a reservation; Where a reservation has been circulated, States concerned have 12 months to object, beginning Where a reservation has been circulated, States concerned have 12 months to object, beginning on the date of the depositary notification or on the date of the depositary notification or on the date on which the State expressed its consent to be bound by the treaty (See art. 20 (5) VCLT) on the date on which the State expressed its consent to be bound by the treaty (See art. 20 (5) VCLT) An objection lodged after the end of the 12-month period is circulated as a “communication”. An objection lodged after the end of the 12-month period is circulated as a “communication”. The legal effect is uncertain but may have a political effect. The legal effect is uncertain but may have a political effect. Many States have made reservations to CEDAW, which have attracted a wide range of objections. Many States have made reservations to CEDAW, which have attracted a wide range of objections.

21 Effect of Objections An objection “… does not preclude the entry into force of the treaty... unless a contrary intention is definitely expressed by the objecting State”. An objection “… does not preclude the entry into force of the treaty... unless a contrary intention is definitely expressed by the objecting State”. To avoid uncertainty, an objecting State specifies whether its objection precludes the entry into force. To avoid uncertainty, an objecting State specifies whether its objection precludes the entry into force. If a State does not object to a reservation made by another State, it is deemed to have tacitly accepted the reservation. If a State does not object to a reservation made by another State, it is deemed to have tacitly accepted the reservation. An objection need not be signed by one of the recognized authorities. An objection need not be signed by one of the recognized authorities. As with reservations, only concerned States (signatories and parties) are competent to pass upon the legal effect of an objection. The S-G will circulate “objections” by non- contracting or signatory States as “communications” since they are of no legal effect. As with reservations, only concerned States (signatories and parties) are competent to pass upon the legal effect of an objection. The S-G will circulate “objections” by non- contracting or signatory States as “communications” since they are of no legal effect.

22 Examples of Objections-CEDAW …Austria is of the view that the exclusion of such an important provision of non-discrimination is not compatible with object and purpose of the Convention. Austria therefore objects to this reservation. This position, however, does not preclude the entry into force in its entirety of the Convention between Saudi Arabia and Austria. …Austria is of the view that the exclusion of such an important provision of non-discrimination is not compatible with object and purpose of the Convention. Austria therefore objects to this reservation. This position, however, does not preclude the entry into force in its entirety of the Convention between Saudi Arabia and Austria. …The Government of Finland therefore objects to the above-mentioned reservations made by the Government of the Federated States of Micronesia to the Convention. This objection does not preclude the entry into force of the Convention between Micronesia and Finland. The Convention will thus become operative between the two states without Micronesia benefiting from its reservations. …The Government of Finland therefore objects to the above-mentioned reservations made by the Government of the Federated States of Micronesia to the Convention. This objection does not preclude the entry into force of the Convention between Micronesia and Finland. The Convention will thus become operative between the two states without Micronesia benefiting from its reservations.

23 Late Reservations Formulating reservations after ratification, acceptance, approval or accession: Formulating reservations after ratification, acceptance, approval or accession: The S-G circulates such reservations, and accepts them in deposit only if none of the States concerned object. The S-G circulates such reservations, and accepts them in deposit only if none of the States concerned object. The S-G’s practice deviates from the strict requirements of the VCLT. The S-G’s practice deviates from the strict requirements of the VCLT. Practical solution based on the fact that States have an inherent right to modify treaty relations and such modification must receive unanimous acceptance. Practical solution based on the fact that States have an inherent right to modify treaty relations and such modification must receive unanimous acceptance. Alternative would be denunciation. Some States have denounced treaties and re-acceded in order to lodge reservations. This approach has been criticised by other States. Alternative would be denunciation. Some States have denounced treaties and re-acceded in order to lodge reservations. This approach has been criticised by other States.

24 Time Limit for Objections to Late Reservations States have 12 months from the date of the depositary notification within which to object to a late reservation. States have 12 months from the date of the depositary notification within which to object to a late reservation. Same where a State withdraws an initial reservation and substitutes it with a new or modified reservation. Same where a State withdraws an initial reservation and substitutes it with a new or modified reservation.

25 Withdrawal of a Reservation A State may withdraw its reservation completely or partially at any time. A State may withdraw its reservation completely or partially at any time. The consent of the States concerned is not necessary. The consent of the States concerned is not necessary. Must be formulated in writing and signed by the Head of State or Government or MFA ( or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities). Must be formulated in writing and signed by the Head of State or Government or MFA ( or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities). A withdrawal of a reservation becomes operative only when a concerned State has received notification of the withdrawal by the reserving State (VCLT, Art. 22(3)). A withdrawal of a reservation becomes operative only when a concerned State has received notification of the withdrawal by the reserving State (VCLT, Art. 22(3)). Objections can be withdrawn at any time also. The withdrawal of an objection becomes operative only when notice of it has been received by the reserving State (Need not be signed). Objections can be withdrawn at any time also. The withdrawal of an objection becomes operative only when notice of it has been received by the reserving State (Need not be signed).

26 Modifications to Reservations An existing reservation may be modified so as to result in a partial withdrawal or to create new exemptions. An existing reservation may be modified so as to result in a partial withdrawal or to create new exemptions. A modification of the latter kind has the nature of a new reservation. A modification of the latter kind has the nature of a new reservation. The S-G circulates such modifications and grants the States concerned 12 months within which to object to them. The S-G circulates such modifications and grants the States concerned 12 months within which to object to them.

27 Copyright Notice Copyright 2005 by the United Nations. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations. Copyright 2005 by the United Nations. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations.


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