Dawn Osakue, Reservation to treaties: A Summary

2010

According to Article 2(1)(d) of the Vienna Convention on the Law of Treaties, a reservation is 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.
Slomanson defines a reservation as a states unilateral variation from the language of some general
term contained in the negotiated text.1 They are inherently impossible in bilateral treaties, simply
because in such situations any objections can be incorporated into the document. A reservation made
by state A in respect to a clause also makes other states not bound to state A concerning the clause.
Examples of this will be provided by Dr Bismuth.
Reservations are important because like Slomanson states, they encourage wider participation in
multilateral treaties through practical compromise.2 A famous example of the usefulness of
reservations is the ICJ Statute: Article 36.6 of the United Nations Statute on the ICJ holds that the
court is to determine which disputes fall within its jurisdiction. This is a clause sovereign states
would naturally find unacceptable, and being able to make reservations to that clause is the only
reason the ICJ Statute was ratified by a broad spectrum of states.
According to the Article 19 of the VCLT, Reservations can be made except under the following
conditions:

The reservation is prohibited by the treaty; This is very touchy though, for example the 1995
Agreement for Implementation of the United Nations Convention on the Law of the Sea of
10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks
prohibited reservations in the final treaty text. The US, when ratifying warned that it may not
agree to treaties bearing such in the future.

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

This last point is a reflection of ICJ opinion on the Convention on Genocide in 1951. This
Convention had been unanimously adopted by the General Assembly, with WW2 memories still
fresh. However states could not ratify this treaty because of its ambiguity in defining genocide, and
especially because the treaty was silent on the question of reservations. The ICJ when asked for an
advisory opinion ruled that:

It could certainly not be inferred from the silence of an article providing for reservations in a
multilateral convention that the contracting states are prohibited from makingreservations

Account should also be taken of the fact that the absence of such an article can be
explained by the desire not to invite a multiplicity of reservations

And concerning the meeting point between sovereignty and reservations to treaties, the court opined
that:

Dawn Osakue, Reservation to treaties: A Summary

2010

(It) cannot share the view that any state entitled to become a party to the convention may do
so while making any reservation it chooses by virtue of its sovereignty. It is obvious that so
extreme an application of the idea of state sovereignty could lead to a complete disregard of
the object and purpose of the convention.

Procedures in making reservations.

Article 23 of the VCLT provides that:
1. A reservation, an express acceptance of a reservation and an objection to a reservation must be
formulated in writing and communicated to the contracting States and other States entitled to
become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation
must be formally confirmed by the reserving State when expressing its consent to be bound by the
treaty. In such a case the reservation shall be considered as having been made on the date of its
confirmation.
3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the
reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.
Objections to reservations.
ICJ ruling on the Convention on Genocide in 1951 advices that:

It is the compatibility with the object and purpose of the convention that must furnish the
criterion for the attitude of a state in making the reservation as well as objecting to a
reservation

Article 20(5) of the VCLT gives a time limit of 12 months for reservations to be objected against.
a reservation is considered to have been accepted by a State if it shall have raised no
objection to the reservation by the end of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its consent to be bound by the treaty,
whichever is later.
For political reasons, states sometimes wait for the twelve month period to pass before making
objections to reservations.3

Withdrawals
Article 22 of the VCLT provides that reservations and objections to reservations can be
withdrawn at any time. This is unless the treaty states otherwise. Furthermore:

Dawn Osakue, Reservation to treaties: A Summary

2010

(a) The withdrawal of a reservation becomes operative in relation to another contracting State
only when notice of it has been received by that State;
(b) The withdrawal of an objection to a reservation becomes operative only when notice of it has
been received by the State which formulated the reservation.
Case Study
Convention on the Elimination of All Forms of Discrimination against Women 2006.4 The
United Arab Emirates made some reservations:
The United Arab Emirates makes reservations to articles 2 (f), 9, 15, paragraph
2, 16 and 29, paragraph 1, of the Convention, as follows:
Article 2 (f)
The United Arab Emirates, being of the opinion that this paragraph violates the
rules of inheritance established in accordance with the precepts of the sharia, makes
a reservation thereto and does not consider itself bound by the provisions thereof.
Article 9
The United Arab Emirates, considering the acquisition of nationality an internal matter which is
governed, and the conditions and controls of which are established, by national legislation
makes a reservation to this article and does not consider itself bound by the provisions thereof.
Article 15, paragraph 2
The United Arab Emirates, considering this paragraph in conflict with the
precepts of the sharia regarding legal capacity, testimony and the right to conclude
contracts, makes a reservation to the said paragraph of the said article and does not
consider itself bound by the provisions thereof.
Article 16
The United Arab Emirates will abide by the provisions of the article insofar as
they are not in conflict with the principles of the sharia. The United Arab Emirates
considers that the payment of a dowry and support after divorce is an obligation of
the husband, and the husband has the right to divorce, just as the wife has her
independent financial security and her full rights to her property and is not required
to pay her husbands or her own expenses out of her own property. The sharia makes
a womans right to divorce conditional on a judicial decision, in a case in which she
has been harmed.
Article 29, paragraph 1
The United Arab Emirates appreciates and respects the functions of this
article, which provides: Any dispute between two or more States Parties
concerning the interpretation or application on the present Convention which is not
settled by negotiation shall, at the request of one of them, be submitted to

Dawn Osakue, Reservation to treaties: A Summary

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arbitration. If within six months ... the parties are unable to agree any one of
those parties may refer the dispute to the International Court of Justice This
article, however, violates the general principle that matters are submitted to an
arbitration panel by agreement between the parties. In addition, it might provide an
opening for certain States to bring other States to trial in defence of their nationals;
the case might then be referred to the Committee charged with discussing the State
reports required by the Convention and a decision might be handed down against the
State in question for violating the provisions of the Convention. For these reasons
the United Arab Emirates makes a reservation to this article and does not consider
itself bound by the provisions thereof.
The Austrian Government made the following objection
With regard to the reservations made by the United Arab Emirates upon
accession:
The Government of Austria has examined the reservation made by the
Government of the United Arab Emirates upon accession to the Convention on the
Elimination of All Forms of Discrimination against Women regarding articles 2 (f),
9, 15, paragraph 2, 16 and 29, paragraph 1.
The Government of Austria finds that the reservations to article 2 (f), article 9,
article 15, paragraph 2, and article 16, if put into practice, would inevitably result in
discrimination against women on the basis of sex. This is contrary to the object and
purpose of the Convention.
The Government of Austria would like to recall that, according to article 28,
paragraph 2, of the Convention as well as customary international law as codified in
the Vienna Convention on the Law of Treaties, a reservation incompatible with the
object and purpose of a treaty shall not be permitted.
It is in the common interest of States that treaties to which they have chosen to
become parties are respected as to their object and purpose, by all parties, and that
States are prepared to undertake any legislative changes necessary to comply with
their obligations under the treaties.
For these reasons, the Government of Austria objects to the aforementioned
reservations made by the United Arab Emirates to the Convention on the
Elimination of All Forms of Discrimination against Women.

Slomanson, William R. Fundamental Perspectives on International Law, 4th ed. Belmont: Wadsworth, 2003. Pp 350
Ibid., pp351
3
Annebeth Rosenboom, Reservations and Declarations in Multilateral Treaties. As presented at the Capacity-building
Workshop on Treaty Law and Practice and the Domestic Implementation of Treaty Obligations .Wuhan, China, October
2009.
2

Dawn Osakue, Reservation to treaties: A Summary

Convention on the Elimination of All Forms of Discrimination against Women http://daccess-ddsny.un.org/doc/UNDOC/GEN/N06/309/97/PDF/N0630997.pdf?OpenElement

2010