TREATIES: RESERVATION

ID

During the course of the negotiation of a multilateral treaty, there will often be differences of
view as to the meaning of a particular provision. If these cannot be resolved, a delegation may
make a formal statement expressing the interpretation favoured by its government.
• The purpose is very often to establish an interpretation of the treaty which is consistent with
the domestic law of the state concerned. When ratifying the Rights of the Child Convention
1989, the United Kingdom made several declarations, one of which interpreted the
references to ‘parents’ to mean:
“only those persons who, as a matter of national law, are treated as parents. This includes cases
where the law regards a child as having only one parent, for example, where a child has been
adopted by one person only, and in certain cases where a child is conceived other than as a
result of sexual inter- course by the woman who gives birth to it [e.g. by in vitro fertilisation
by donor] and she is treated as the only parent.”
• This was done by UK to show the domestic law regarding a term which is not easy to define.

• A declaration which is no more than a statement of general policy, or informs the other party
as to how the declarant state will implement the treaty, should pose no problem.
• A declaration may be as to the general policy of the state towards the subject matter of the
treaty, or a disclaimer that ratification does not signify recognition of a particular party as a
state.

• Several have been to the effect that ratifying a particular treaty which Israel has already
ratified does not imply that the state recognises Israel or is entering into relations with it.
 DISGUISED RESERVATIONS

If a state makes its acceptance of certain provisions on the ‘understanding’, etc. that they are to
be interpreted in a particular way, that may, depending on the circumstances, amount to a
reservation.

Disguising a reservation may be done because the treaty prohibits reservations, or because it
may be politically more acceptable for a state not to appear to be attaching conditions to its
participation in a treaty.
But, as the definition of reservation makes clear, it does not matter how the declaration is
phrased or what name is given to it, one must look at the substance.
• EX- On ratification of Chemical Weapons Convention (1993 )United States stated that, for
the purposes of the Annex on Implementation and Verification, it would be a ‘condition’ that
no sample collected by an inspection team could be removed from the United States for
analysis. The Annex does not envisage any such restriction. Although not labelled as
‘reservation’ the statement, and in particular the use of the term ‘condition’ shows that it was
not exactly ’interpretation.’
 MULTILATERAL TREATIES AND
RESERVATIONS

The need to make reservations stems from the nature of the multilateral treaty-making process
Reason is that even when states are part of the same continent (or even the same island), they
very often have their own domestic legal systems, varying national policies and different
languages. The problems these pose for the successful negotiation of even a regional treaty are
multiplied when the treaty is intended to have general application, as do most treaties adopted
in the United Nations or the UN specialised agencies.
In the United Nations, multilateral treaties can be negotiated by over 190 states. Reaching
agreement on a text requires compromises to accommodate all their different interests and
concerns. Now that most multilateral treaties are adopted by consensus inevitably some, or
even many, of the negotiating states will be dissatisfied with at least some aspects of the
resulting text.
But, for political reasons, a state may be reluctant to stand in the way of reaching consensus,
and may even sign a treaty despite some unhappiness at the result. If it is greatly dissatisfied, it
will have the option of not becoming a party.
If this would be difficult politically, a state may seek to adjust certain provisions in their
application to it so as to make it possible for it to become a party: that is, it will formulate and
enter reservations. Sometimes a legislature will require such adjustments as a condition of its
consent to ratification.
 PROVISIONS ON RESERVATION ANALYSIS: ART. 19-
23

Most important aspect of reservation to be kept in mind is that reservations are “generally” not
prohibited.
• Article 19 states the basic rule that a state may formulate a reservation 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)  in cases not falling under subparagraphs(a)and(b),the reservation is incompatible with the
object and purpose of the treaty [the so-called ‘compatibility test’].

Although only paragraph (a) expressly uses the term ‘prohibited’, in effect the term
(prohibited) applies also when referring to paragraphs (b) and (c), since clearly they also deal
with prohibited reservations.
Exception (a): the reservation is prohibited by the treaty
• It is increasingly common for treaties, such as the International Criminal Court Statute 1998,
to provide expressly that reservations are not permitted.
• This can cause problems, in particular for the United States given the way the Senate guards
its power to refuse or give conditional approval to those treaties which have to be submitted
to it. approving the ratification of the Fish Stocks Agreement 1995 the Senate criticised the
‘no reservations’ clause in Article 42.
“The effect of inhibiting the Senate from exercising its constitutional duty to give advice and
consent to a treaty, and the Senate’s approval of this treaty should not be construed as a
precedent for acquiescence to future treaties containing such a provision”

• The International Labour Organization (ILO) Constitution prohibits the making of

reservations to the ILO Conventions. This is because of the unique, trilateral negotiating
structure of ILO: trade unions, employers’ associations and governments
 EXCEPTION (B): THE TREATY PROVIDES THAT ONLY
SPECIFIED RESERVATIONS MAY BE MADE

• In the course of the negotiation of a treaty it may become evident that it will not be possible
to reach consensus unless certain states are given the possibility of, in effect, opting out of
one or more provisions. Although the treaty could be silent on the question of reservations
(and many are), this can be most unsatisfactory. The permissibility of a reservation will then
depend on whether it satisfies the compatibility test in exception (c), the application of
which is difficult and uncertain. It is therefore preferable to specify expressly the matters on
which reservations are permitted
Exception (c): exceptions (a) and (b) do not apply, and the reservation is incompatible with
the object and purpose of the treaty (compatibility test)

It is relatively easy to determine whether a reservation is expressly or impliedly prohibited

under exceptions (a) or (b). But, when a treaty is silent on the matter of reservations it can be
extremely difficult to assess
Whether the reservation passes the compatibility test.

Many different views have been expressed as to how the test should be applied, especially to
human rights treaties, but the practice of states is patchy and uncertain. A reservation to the
Torture Convention 1984 which sought to exclude torture of a suspected terrorists would be a
clear case of incompatibility.
In the case of that treaty in 1988 Chile made a reservation designed to permit an alleged
torturer to plead the defence of ‘superior orders’, a defence expressly precluded by the treaty.
After several objections that the reservation was incompatible it was withdrawn.
A reservation made to Art. 6(5) (article specifies that no sentence of death to be given to
person committing crimes under 18 years of age nor to a pregnant woman) of the International
Covenant on Civil and Political Rights 1966 by the United States on its ratification in 1992,
reserved the right (subject to its constitutional constraints) to execute convicted persons (other
than pregnant women) even if they were under eighteen years of age when they committed the
crime.
• Eleven European States objected that the reservation was incompatible with the object and
purpose of the Covenant in that it amounted to a general derogation from the prohibition in
the Covenant on the execution of minors.
• Though it is still not clear whether US failed.

• But the US SC declared in 2005 that it was unconstitutional to give capital punishment to
person not 18 years of age.
 LEGAL EFFECT OF RESERVATION

The eventual rule included in the 'Vienna Convention works as follows: the reservation
formulated (at the appropriate time) by the reserving state is circulated to all the patties to the
treaty as well as to all those entitled to become parties to the treaty.
These addressees then have a fourfold choice:
1. to remain silent (S);
2. To accept the reservation (A);
3. To formulate an Objection to the reservation—but accept that the treaty will enter into
force between itself and the reserving state (0);
4. To object to the reservation and oppose the entry into force of the treaty between itself and
the reserving state (00).
• Each course of action would lead to different result.
 EXAMPLE
• Art. 27(3) VCDR 1961
The diplomatic bag shall not be opened or detained (by the receiving state).
Libya formulated a reservation to Article 27(3) stating that it reserves its right to request the
opening of such pouch in the presence of an official representative of the diplomatic mission
concerned.
If such request is denied by the authorities of the sending state, the diplomatic pouch shall be
returned to its place of origin:
State S which stays silent has 12 months to consider whether to object or not. After that time it
is considered to have accepted the reservation and will be in the same position as State A
which has explicitly accepted the reservation.
For State A the treaty enters in force between it and the reserving state and modified to the
extent of the reservation. This would usually work in a reciprocal fashion.
• In our example (if) UK having remained silent for 12 months in the face of Libyan
reservation, would be deemed to have accepted the reservation.

• If the Libyan authorities suspect the content of a British bag arriving at Tripoli airport from
the Embassy they would be entitled as per the treaty to ask a British official to be present
while it is opened. If the United Kingdom refused the bag can be returned back and UK
would not have the right to complain (treaty being modified between them).
• Same would apply vice versa.

• if the British authorities at Heathrow airport suspect the Libyan diplomatic bag en route to
Tripoli they can ask to open it in the presence of a Libyan official. If this is refused the bag
can be sent back to the Libyan Embassy in London. Libya could not complain of a violation
of the Convention.
• Reference- Murder of WPC Fletcher from shots fired from Libyan Embassy.
• For the objecting state O the treaty is in force but the relevant provision does not apply to the
extent of reservation.

• So neither the rule forbidding opening of the bag (favored by State O) nor the modified rule
allowing for opening of the bag under certain circumstances would apply between two
states.

• What rule will then apply?

• The rest of the provision that states that bag may not be detained would continue to apply, so
will the rest of the treaty.
• The UK authorities chose for political reasons not to challenge the Libyan bags leaving the
embassy in St. James Square following the shooting of WPC Fletcher outside the embassy.

• According to Prof. Councillor Eileen Denza the bags almost certainly contained the murder
weapon.
• For the State OO that both objects to the reservation and opposes the entry into force
between itself and the reserving state, there are no treaty rights and obligations between the
two.

• Neither state can complain about a violation of any of the provisions of the whole treaty by
the other state, nor are they capable to use any mechanism that provide for the settlement of
a dispute with regard to the treaty because the treaty is not in force between them.