Reservations and Declarations in Multilateral Treaties Regional Training on Treaty Law and Practice Treaty Section, Office of Legal Affairs United Nations

Reservations  Why are reservations important?  What are reservations? How are they different from declarations?  Who can formulate reservations?  When can reservations be formulated  Form of reservations  The Depositary’s Role  Objections  Late Reservations  Withdrawal and Modification of reservations

Why are reservations important?  Reservations enable a State to participate in a treaty in which it would not otherwise be able to participate due to an unacceptable provision or provisions.  Multilateral treaties are the result of negotiations - with many concessions and compromises.  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.  Many States make reservations.

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.  May be entitled “ reservation ”, “ declaration ”, “ understanding ”, “ interpretative declaration ” or “ interpretative statement ”. (Article 2(1)(d) of the Vienna Convention 1969)

How are reservations different from declarations?  The title does not matter – only the effect.  States will at times submit to the depositary statements called declarations or interpretive declarations.  If the “ Declaration ” excludes or modifies the legal effect of certain provisions of a treaty in their application to the State in question, it is a reservation.  We will not change the title, however, in the depositary notification.

Who can formulate a reservation?  In the UN SG’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. If a reservation is separate or annexed to an instrument of ratification or accession, 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).  The same standard applies to withdrawals and modifications to reservations.

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

Reservation made on signature  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. (Art. 23(2), Vienna Convention, 1969)

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.

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 SG will formally receive the statement in deposit and circulate it. The UN SG will not circulate an unauthorised reservation. Where the SG requests a clarification and the State confirms the absence of a reservation, the State is estopped from relying on the statement as a reservation at a later date.

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

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

Treaty authorizes only specified reservations  VCLT art 19(b) treats the situation where 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 SG 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 SG’s practice is to accept other reservations in deposit.

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 judgment in this regard (whether compatible with object and purpose). Depositary 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.

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. – This has been criticized by States. Depositary? – For now, no. – The Special Rapporteur of the International Law Commission, Mr. Pellet, and some States see a role for the depository. States Parties?  A debate continues. The SG will continue with the current practice unless States agree otherwise.

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 by the depositary as a “ communication ”.  May be a political decision by States to wait until after 12 months

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 SG will circulate “ objections ” by non-contracting or signatory States as “ communications ” since they are of no legal effect.

Example of Objection-UNCAC  Netherlands  6 December 2007  Objection to the reservations made by the United States of America upon ratification:  “The Government of the Kingdom of the Netherlands has carefully examined the reservations made by the United States of America to the United Nations Convention against Corruption.  The Government of the Kingdom of the Netherlands considers that reservations which consist of a reference to the federal structure of a State or to its national legislation leave it uncertain to which extent that State accepts to be bound by the obligations under the treaty. It is in the common interest of States that treaties which they decide to ratify or accede to be fully complied with by all parties and that States be prepared to adapt their national legislation to their obligations under such treaties. Reservations such as the ones made by the United States, which declare that obligations under the Convention will be assumed to the extent consistent with its fundamental principles of federalism or national law, undermine the basis of the international law of treaties. The Government of the Kingdom of the Netherlands therefore objects to these reservations.  It is the understanding of the Government of the Kingdom of the Netherlands that the reservations of the United States of America do not exclude or modify the legal effect of provisions of the Convention in their application to the United States.  This objection does not constitute an obstacle to the entry into force of the Convention between the Kingdom of the Netherlands and the United States.”

Late Reservations  Formulating reservations after ratification, acceptance, approval or accession The SG circulates such reservations, and accepts them in deposit only if none of the States concerned object. The SG ’ 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. Certain States have denounced treaties and re-acceded in order to lodge reservations. This approach has been criticised by other States. An example is the case of the International Covenant on Civil and Political Rights.

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.  If there is an objection, the proposed late reservation fails and is not accepted in deposit.  As with timely reservations, an objection lodged after the end of the 12-month period is circulated by the depositary as a “ communication ”.  May be a political decision by States to wait until after 12 months

Withdrawal of Reservations  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)).  In practice, notice is provided by a depositary notification and the date of the depositary notification is deemed the date of constructive notice.

Withdrawal of Objection  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. In practice, notice is provided by a depositary notification (CN) and the date of the depositary notification is deemed the date of constructive notice.  A withdrawal of an objection does not need to be signed by one of the 3 authorities.

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 SG circulates such modifications and grants the States concerned 12 months within which to object to them.

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