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Reservations By Bradford C. Smith

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1 Reservations By Bradford C. Smith
Complex issue with a difficult history. Much has been written on the subject since VCLT was concluded (articles 19 to 23 deal with reservations). A spirited debate has developed on how the articles should be applied. More complex multilateral treaties with more States (in 1945 the UN had 51 Member States. Today it has 191 Member States). With more multilateral treaties being concluded by more States, there are more reservations, and, consequently, more difficulties experienced by States in dealing with the issue. As a result, the subject of reservations was referred to the International Law Commission in 1994 for re-examination. Prof. Alain Pellet was appointed as its Special Rapporteur. One of the mostr distinguished French experts on international law – professor at University of Paris-X, adviser to governments and international organizations, and an active practitioner befor ICJ. Prof. Alain Pellet, Special Rapporteur since 1994, has submitted his Eighth report to the ILC. The topic has been discussed by legal luminaries such as James Brierly, Sir Hersch Lauterpacht, Sir Gerald Fitzmaurice and Sir Humphrey Waldock in the 50s and 60s. All have submitted reports to the ILC. Their views influenced the Vienna Convention, 1969. Reservations were the subject of an advisory opinion of the ICJ in 1951. GA Resolution (1952) required the Secretary-General to conform with the Advisory Opinion with regards to the Genocide Convention and subsequent conventions. Since 1959, the Secretary-General has been required to apply this principle with regards to all conventions deposited with him. See GA Resolution of 1959. Given its nature, further issues continue to arise and some are discussed in Prof. Pellet’s reports. The large number of treaties deposited with the S-G. The evolving needs of the international community. They affect the depositary practice of the S-G. My presentation will essentially deal with Reservations as they affect the depositary practice of the S-G. Complex legal issues are left to a different forum. The S-G’s practice has seen the law on reservations develop. In some areas, not envisaged in the Vienna Convention.

2 Reservations “The subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity.” Sir Hersch Lauterpacht Sir Hersch Lauterpacht was an eminent British international lawyer and ICJ judge.

3 Reservations Why are reservations important? What are reservations?
Who can formulate reservations? When can reservations be formulated Form of reservations The Depositary’s Role Objections Late Reservations 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. 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. 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. 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. 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). Prof. Pellett endorses this approach as a particular practice of the depositary. Prof. Pellet is a renowned French international lawyer who currently serves as the Special Rapporteur of International Law Commission.

7 When can reservations be formulated?
Upon signature, ratification, acceptance, approval, accession, etc., unless: 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 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. Must be formally confirmed in writing upon ratification, acceptance, or approval. If made on definitive signature, it need not be confirmed later. (Art. 23(2), Vienna Convention, 1969)

9 Form of Reservations 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. 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. 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. 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: 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. 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.

12 Examples Some treaties specifically prohibit all reservations, for example: 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); 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:
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: For example, United Kingdom, Netherlands, Denmark, New Zealand and, in some instances, China. In most cases non-metropolitan territories (except China). Not consistent with art. 29 VCLT But is treated by the Secretary-General as a regional practice. No objections by other States. These States continue to engage in this practice. Why? Compliance with domestic legal procedures which may require consultations with the territory concerned. Prof. Pellet does not endorse this approach. Art. 29 – Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.

15 Treaty Expressly Authorises Reservations
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.

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. 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? No – the S-G’s practice in this regard is to interpret the above provision narrowly, and will accept other reservations in deposit. It will refuse to accept a reservation only in those cases where it can be clearly inferred from the treaty that “only” the specified reservation is allowed, and all other reservations prohibited. According to Prof. Pellet, the implicit prohibition of certain reservations arisring from article 19(b) relies on the fulfillment of three conditions: The treaty’s reservation clause must permit the formulation of reservations; The reservations permitted must be “specified”; It must be specified that “only” those reservations “may be made”. Prof. Pellet endorses this approach.

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. 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. Unless a state objects within 12 months, it is presumed to have accepted the reservation. Human Rights treaties typically are silent as to reservations. GA in its resolutions 598 (VI) and 1452 B (XIV) advised the S-G, as depositary, to follow this practice.

18 Who decides whether a reservation is 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. Human rights bodies?- Have tried to take over this role. Criticized by States. Depositary? For now no. Pellet and some States see a role for the depository. States Parties? A debate continues. The Secretary-General will continue with the current practice unless States agree otherwise. Prof. Pellet discusses this issue This presumption is a problem for many small states. Supports the Secretary-General drawing the attention of States to reservations which are not compatible. Some smaller States have endorsed this proposal. Many foreign ministries do not have the resources to examine reservations. Not all States agree with proposal. Human Rights Committee, established by ICCPR, gave the impression that it could make an authoritative determination on this question in certain cases – if needed to carry out its functions, in particular considering reports from Parties. This view has been severely criticized since it was not given the power to pronounce on general questions of international law. Example of a clear case of incompatibility. In 1988, Chile masde a reservation to CAT designed to permit an alleged torturer to plead the defence of superior orders – a defence expressly precluded by the treaty. After serveral objections that the reservation was incompatible, the reservation was withdrawn.

19 Case Study – ICESCR 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. 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. Here you have a case where a State has made a reservation limiting the right of HK trade unions to confederate – a clear case of incompatibility. Nevertheless, the depositary circulated it to all States without passing judgment leaving it to the relevant States to draw their own legal conclusions. Many States have objected.

20 Objections to Reservations
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 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) 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. Many States have made reservations to CEDAW, which have attracted a wide range of objections. Before 1951 generally the rule was unanimity. A reservation required the acceptance of all States concerned. In 1951, the GA asked the ICJ for an Advisory Opinion about certain reservations made to Genocide Convention: If a reservation has been objected to by one or more parties, but not by others, the reserving State will be a party, provided the reservation is compatible with the object and purpose. If a party objects to a reservation because it considers it incompatible with the object and purpose, that party may consider the reserving State as not a party. If a party accepts a reservation as being compatible with the object and purpose, it may consider the reserving State as a party. After de-colonisation, it became clear that the much greater number of potential parties to multilateral treaties made adherence to the unanimity principle impractical, and a more flexible system developed.

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”. 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. 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. Common objections read: -The Government of X objects to the reservation made by the Government of Y. This objection does not preclude the entry into force of the Convention between X and Y. -The Government of X objects to the reservation made by the Government of Y. This objection does not preclude the entry into force of the Convention between X and Y. The Convention enters into force in its entirety between the two States without Y benefitting from its reservation.

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. …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: 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. 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.

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. Same where a State withdraws an initial reservation and substitutes it with a new or modified reservation. Prof. Pellet’s report endorses the Secretary-General’s practice.

25 Withdrawal of a Reservation
A State may withdraw its reservation completely or partially at any time. 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). 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).

26 Modifications to Reservations
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. 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.

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