Reservations Reservations By Bradford C. SmithBy Bradford C. Smith

ReservationsReservations

““The subject of reservations to The subject of reservations to multilateral treaties is one of unusual multilateral treaties is one of unusual

– in fact baffling – complexity.” – in fact baffling – complexity.” Sir Sir Hersch LauterpachtHersch Lauterpacht

ReservationsReservations

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 formulatedWhen can reservations be formulated Form of reservationsForm of reservations The Depositary’s RoleThe Depositary’s Role ObjectionsObjections Late ReservationsLate Reservations Withdrawal and ModificationWithdrawal and Modification

Why are reservations important?Why are reservations important? Reservations enable a State to participate in a Reservations enable a State to participate in a

treaty in which it would not be able to participate treaty in which it would not be able to participate due to an unacceptable provision or provisions.due to an unacceptable provision or provisions.

In many cases the purpose of the reservation is In many cases the purpose of the reservation is merely to adjust the reserving State’s obligations merely to adjust the reserving State’s obligations under the treaty to conform to its domestic law under the treaty to conform to its domestic law where, for political, cultural or social reasons, it where, for political, cultural or social reasons, it is not feasible or desirable to change the law. is not feasible or desirable to change the law.

It is desirable to have States parties to treaties It is desirable to have States parties to treaties with reservations than for States not to be with reservations than for States not to be parties to such treaties at all.parties to such treaties at all.

Many States make reservations.Many States make reservations.

What are reservations?What are reservations?

Unilateral statements, however phrased or Unilateral statements, however phrased or named, purporting to exclude or modify the named, purporting to exclude or modify the legal effect of certain provisions of a treaty legal effect of certain provisions of a treaty in their application to the reserving State.in their application to the reserving State.

Entitled “reservation”, “declaration”, Entitled “reservation”, “declaration”, “understanding”, “interpretative “understanding”, “interpretative declaration” or “interpretative statement”. declaration” or “interpretative statement”.

(Article 2(1)(d) of the Vienna Convention 1969) (Article 2(1)(d) of the Vienna Convention 1969)

Who can formulate a reservation?Who can formulate a reservation? In the S-G’s practice, only the Head of State In the S-G’s practice, only the Head of State

or Government or the MFA or Government or the MFA (or a person (or a person acting in that capacity or having delegated acting in that capacity or having delegated authority for that purpose issued by one of authority for that purpose issued by one of the above authorities) can formulate (i.e. the above authorities) can formulate (i.e. sign) a reservation. sign) a reservation.

A reservation is a limitation on the A reservation is a limitation on the commitment undertaken by a state.commitment undertaken by a state.

Only the same authorities who can Only the same authorities who can undertake a treaty action can formulate a undertake a treaty action can formulate a reservation (The same applies to reservation (The same applies to withdrawals and modifications to withdrawals and modifications to reservations).reservations).

When can reservations be When can reservations be formulated?formulated?

Upon signature, ratification, acceptance, Upon signature, ratification, acceptance, approval, accession, etc., unless:approval, accession, etc., unless: The reservation is prohibited by the treaty;The reservation is prohibited by the treaty; The treaty provides that only specified The treaty provides that only specified

reservations, which do not include the reservations, which do not include the reservation in question may be made; orreservation in question may be made; or

The reservation is incompatible with the The reservation is incompatible with the object and purpose of the treaty (VCLT, object and purpose of the treaty (VCLT, article 19).article 19).

Reservation made on signatureReservation made on signature

If made upon simple signature it is merely If made upon simple signature it is merely declaratory.declaratory.o Must be formally confirmed in writing upon ratification, Must be formally confirmed in writing upon ratification,

acceptance, or approval. acceptance, or approval.

If made on definitive signature, it need not If made on definitive signature, it need not be confirmed later.be confirmed later.

(Art. 23(2), Vienna Convention, (Art. 23(2), Vienna Convention, 1969)1969)

Form of ReservationsForm of Reservations

It is a limitation on the commitment It is a limitation on the commitment undertaken by the State.undertaken by the State.

Must, therefore, be included in the instrument Must, therefore, be included in the instrument of ratification, acceptance, approval or of ratification, acceptance, approval or accession or be annexed to it.accession or be annexed to it.

If separate, it must be signed by the Head of If separate, it must be signed by the Head of State or Government or MFA (or a person State or Government or MFA (or a person acting in that capacity or having delegated acting in that capacity or having delegated authority for that purpose issued by one of the authority for that purpose issued by one of the above authorities).above authorities).

The Depositary’s RoleThe Depositary’s Role

When reservations are made, the depositary must When reservations are made, the depositary must determine whether such a reservation should be determine whether such a reservation should be accepted upon signature or upon deposit of an accepted upon signature or upon deposit of an instrument.instrument.

If a declaration or statement is made, the depositary If a declaration or statement is made, the depositary must make a must make a prima facieprima facie determination as to whether determination as to whether the declaration or statement is in fact a reservation. the declaration or statement is in fact a reservation.

What does the treaty say? Either the treaty is silent as What does the treaty say? Either the treaty is silent as to reservations, or has provisions relating to to reservations, or has provisions relating to reservations.reservations.

If the treaty has provisions relating to reservations, If the treaty has provisions relating to reservations, the depositary is guided by the relevant provisions of the depositary is guided by the relevant provisions of the treaty itself.the treaty itself.

Reservations ProhibitedReservations Prohibited

Where a treaty expressly prohibits reservations:Where a treaty expressly prohibits reservations: The depositary makes a preliminary legal assessment The depositary makes a preliminary legal assessment

whether a statement constitutes a reservation. whether a statement constitutes a reservation. If it has no bearing on the State’s legal obligations, and If it has no bearing on the State’s legal obligations, and

is not therefore a “reservation”, the S-G will formally is not therefore a “reservation”, the S-G will formally receive the statement in deposit and circulate it. 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 Where the S-G requests a clarification and the state

confirms the absence of a reservation, confirms the absence of a reservation, the State is the State is estopped from relying on the statement as a estopped from relying on the statement as a reservation.reservation.

ExamplesExamples

Some treaties specifically prohibit all Some treaties specifically prohibit all reservations, for example:reservations, for example:• Statute of the International Criminal Court (art. Statute of the International Criminal Court (art.

120);120);• Many disarmament treaties deposited with the Many disarmament treaties deposited with the

S-G (Comprehensive Nuclear-Test-Ban Treaty, S-G (Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons Convention, Anti-Personnel Chemical Weapons Convention, Anti-Personnel Mines Convention);Mines Convention);

• Most environmental treaties deposited with the Most environmental treaties deposited with the S-G (Montreal Protocol, Kyoto Protocol, S-G (Montreal Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm Convention, Rotterdam Convention, Stockholm Convention, Cartagena Protocol, etc.)Cartagena Protocol, etc.)

ExamplesExamples

Other treaties prohibit certain Other treaties prohibit certain reservations, for example:reservations, for example: UN Convention on the Law of the Sea, UN Convention on the Law of the Sea,

pursuant to its article 309, states that pursuant to its article 309, states that no reservations may be made to the no reservations may be made to the Convention unless expressly permitted Convention unless expressly permitted by other articles of this Convention.by other articles of this Convention.

Territorial Exclusions – Territorial Exclusions – Are they reservations?Are they reservations?

Some States exclude parts of the territory from the Some States exclude parts of the territory from the application of treaties:application of treaties: For example, United Kingdom, Netherlands, Denmark, New For example, United Kingdom, Netherlands, Denmark, New

Zealand and, in some instances, China.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 VCLTNot consistent with art. 29 VCLT But is treated by the Secretary-General as a regional But is treated by the Secretary-General as a regional

practice.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 Compliance with domestic legal procedures which may

require consultations with the territory concerned.require consultations with the territory concerned.

Treaty Expressly Authorises Treaty Expressly Authorises ReservationsReservations

Where a State formulates a Where a State formulates a reservation that is authorised, the S-reservation that is authorised, the S-G circulates the reservation to the G circulates the reservation to the States concerned.States concerned.

Such reservation does not require Such reservation does not require any subsequent acceptance by the any subsequent acceptance by the States concerned.States concerned.

Treaty authorizes only specified Treaty authorizes only specified reservationsreservations

According to VCLT, article 19(b) – a reservation According to VCLT, article 19(b) – a reservation is allowed unless the treaty provides that only is allowed unless the treaty provides that only specified reservations, which do not include specified reservations, which do not include the reservation in question, may be made.the reservation in question, may be made.

Many treaties deposited with the S-G authorize Many treaties deposited with the S-G authorize reservations with regard to settlement of reservations with regard to settlement of dispute procedures and are otherwise silent as dispute procedures and are otherwise silent as to reservations.to reservations.

Does this mean that all other reservations are Does this mean that all other reservations are prohibited?prohibited?

No – the S-G’s practice in this regard is to No – the S-G’s practice in this regard is to interpret the above provision narrowly, and will interpret the above provision narrowly, and will accept other reservations in deposit. accept other reservations in deposit.

Treaty is silent on reservationsTreaty is silent on reservations

Where a treaty is silent on reservations and a State Where a treaty is silent on reservations and a State formulates a reservation, the depositary informs the formulates a reservation, the depositary informs the States concerned. States concerned. The depositary does not make a judgement in The depositary does not make a judgement in

this regard (whether compatible with object and this regard (whether compatible with object and purpose).purpose).

His role is to accept the reservation in deposit, to His role is to accept the reservation in deposit, to communicate it to all States concerned, and communicate it to all States concerned, and leave it to each State to draw the legal leave it to each State to draw the legal consequences from such reservations. consequences from such reservations.

Unless a state objects within 12 months, it is Unless a state objects within 12 months, it is presumed to have accepted the reservation.presumed to have accepted the reservation.

Who decides whether a reservation Who decides whether a reservation is consistent with the object and is consistent with the object and

purpose?purpose? Whether consistent with the object and purpose:Whether consistent with the object and purpose:

Given the complexity of today’s treaties, identifying the Given the complexity of today’s treaties, identifying the object and purpose can be difficult.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.Criticized by States.

Depositary? Depositary? – For now no.For now no.– Pellet and some States see a role for the depository.Pellet and some States see a role for the depository.

States Parties?States Parties? A debate continuesA debate continues..

The Secretary-General will continue with the current The Secretary-General will continue with the current practice unless States agree otherwise.practice unless States agree otherwise.

Case Study – ICESCRCase Study – ICESCR

Declaration which could be a reservation (where Declaration which could be a reservation (where the treaty is silent).the treaty is silent). China made a declaration on becoming party China made a declaration on becoming party

to the ICESCR limiting the right of Hong Kong to the ICESCR limiting the right of Hong Kong trade unions to confederate.trade unions to confederate.

Depositary did not pass judgment on this and Depositary did not pass judgment on this and circulated the declaration.circulated the declaration.

A number of countries have objected noting A number of countries have objected noting article 8 (1)(a) of the Covenant.article 8 (1)(a) of the Covenant.

Objections to ReservationsObjections to Reservations

Only States which are signatories or parties to a Only States which are signatories or parties to a treaty may object to a reservation;treaty may object to a reservation;

Where a reservation has been circulated, States Where a reservation has been circulated, States concerned have 12 months to object, beginning 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 on the date on which the State expressed its consent to

be bound by the treaty (See art. 20 (5) VCLT)be bound by the treaty (See art. 20 (5) VCLT) An objection lodged after the end of the 12-month An objection lodged after the end of the 12-month

period is circulated as a “communication”.period is circulated as a “communication”. The legal effect is uncertain but may have a political The legal effect is uncertain but may have a political

effect.effect. Many States have made reservations to CEDAW, Many States have made reservations to CEDAW,

which have attracted a wide range of objections. which have attracted a wide range of objections.

Effect of ObjectionsEffect of Objections

An objection “… does not preclude the entry into force An objection “… does not preclude the entry into force of the treaty ... unless a contrary intention is definitely of the treaty ... unless a contrary intention is definitely expressed by the objecting State”.expressed by the objecting State”. To avoid uncertainty, an objecting State specifies whether its To avoid uncertainty, an objecting State specifies whether its

objection precludes the entry into force.objection precludes the entry into force. If a State does not object to a reservation made by If a State does not object to a reservation made by

another State, it is deemed to have tacitly accepted another State, it is deemed to have tacitly accepted the reservation.the reservation.

An objection need not be signed by one of the An objection need not be signed by one of the recognized authorities.recognized authorities.

As with reservations, only concerned States As with reservations, only concerned States (signatories and parties) are competent to pass upon (signatories and parties) are competent to pass upon the legal effect of an objection. The S-G will circulate the legal effect of an objection. The S-G will circulate “objections” by non-contracting or signatory States as “objections” by non-contracting or signatory States as “communications” since they are of no legal effect. “communications” since they are of no legal effect.

Examples of Objections-CEDAWExamples of Objections-CEDAW

……Austria is of the view that the exclusion of such Austria is of the view that the exclusion of such an important provision of non-discrimination is not an important provision of non-discrimination is not compatible with object and purpose of the compatible with object and purpose of the Convention. Austria therefore objects to this Convention. Austria therefore objects to this reservation. reservation. This position, however, does not This position, however, does not preclude the entry into force in its entirety of the preclude the entry into force in its entirety of the Convention between Saudi Arabia and Austria.Convention between Saudi Arabia and Austria.

……The Government of Finland therefore objects to The Government of Finland therefore objects to the above-mentioned reservations made by the the above-mentioned reservations made by the Government of the Federated States of Micronesia Government of the Federated States of Micronesia to the Convention. to the Convention. This objection does not preclude This objection does not preclude the entry into force of the Convention between the entry into force of the Convention between Micronesia and Finland. The Convention will thus Micronesia and Finland. The Convention will thus become operative between the two states without become operative between the two states without Micronesia benefiting from its reservations.Micronesia benefiting from its reservations.

Late ReservationsLate Reservations

Formulating reservations after ratification, Formulating reservations after ratification, acceptance, approval or accession:acceptance, approval or accession: The S-G circulates such reservations, and accepts The S-G circulates such reservations, and accepts

them in deposit only if none of the States them in deposit only if none of the States concerned object.concerned object.

The S-G’s practice deviates from the strict The S-G’s practice deviates from the strict requirements of the VCLT.requirements of the VCLT.

Practical solution based on the fact that States Practical solution based on the fact that States have an inherent right to modify treaty relations have an inherent right to modify treaty relations and such modification must receive unanimous and such modification must receive unanimous acceptance. acceptance.

Alternative would be denunciation. SAlternative would be denunciation. Some States ome States have denounced treaties and re-acceded in order have denounced treaties and re-acceded in order to lodge reservations. This approach has been to lodge reservations. This approach has been criticised by other States.criticised by other States.

Time Limit for Objections Time Limit for Objections to Late Reservationsto Late Reservations

States have 12 months from the date States have 12 months from the date of the depositary notification within of the depositary notification within which to object to a late reservation.which to object to a late reservation.

Same where a State withdraws an Same where a State withdraws an initial reservation and substitutes it initial reservation and substitutes it with a new or modified reservation.with a new or modified reservation.

Withdrawal of a ReservationWithdrawal of a Reservation

A State may withdraw its reservation completely or partially A State may withdraw its reservation completely or partially at any time. 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 Must be formulated in writing and signed by the Head of

State or Government or MFA (State or Government or MFA (or a person acting in that or a person acting in that capacity or having delegated authority for that purpose issued by capacity or having delegated authority for that purpose issued by one of the above authorities). one of the above authorities).

A withdrawal of a reservation becomes operative only when a A withdrawal of a reservation becomes operative only when a concerned State has received notification of the withdrawal by concerned State has received notification of the withdrawal by the reserving State (VCLT, Art. 22(3)).the reserving State (VCLT, Art. 22(3)).

Objections can be withdrawn at any time also. The Objections can be withdrawn at any time also. The withdrawal of an objection becomes operative only when withdrawal of an objection becomes operative only when notice of it has been received by the reserving State (Need notice of it has been received by the reserving State (Need not be signed). not be signed).

Modifications to ReservationsModifications to Reservations

An existing reservation may be An existing reservation may be modified so as to result in a partial modified so as to result in a partial withdrawal or to create new withdrawal or to create new exemptions. exemptions. A modification of the latter kind has the A modification of the latter kind has the

nature of a new reservation. nature of a new reservation. The S-G circulates such modifications and The S-G circulates such modifications and

grants the States concerned 12 months grants the States concerned 12 months within which to object to them.within which to object to them.

Copyright NoticeCopyright Notice

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