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s.VI Treaty Clauses, Conditions on Joining a Treaty

Duncan B Hollis

From: The Oxford Guide to Treaties (1st Edition)

Edited By: Duncan B. Hollis

A newer edition of The Oxford Guide to Treaties is available. Latest edition (2 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 21 May 2024

Subject(s):
Vienna Convention on the Law of Treaties — Treaties, signature — Treaties, ratification — Treaties, reservations and declarations

(p. 676) Conditions on Joining a Treaty

6.  Consent to be Bound

To become a party to a treaty, States, IOs, and other qualified subjects of international law must first express their consent to be bound by it. Generally, they do so through a concrete act that manifests a willingness to accept the international legal commitment embodied in the agreement. The VCLT identifies five vehicles for expressing consent: (i) definitive signature; (ii) an exchange of instruments constituting a treaty; (iii) ratification; (iv) acceptance or approval; and (v) accession. To that list, the 1986 VCLT adds (vi) an ‘act of formal confirmation’ for IO consent.28 Each of these methods is explained and explored in detail in Chapter 7.

Most treaties will contain one or more clauses designating which method(s) of consent are acceptable. Bilateral treaties may contain clauses providing for consent via an exchange of notes, letters, or instruments of ratification. Or, they may contain clauses where the exchange brings the treaty into force, in which case the exchange also impliedly (and simultaneously) constitutes consent. In these cases, consent occurs by the act of the exchange itself, such that if the exchange is not simultaneous, it is effective on the date the later instrument is received. As for definitive signature, it may be contemplated expressly or be inferred whenever a treaty provides that signature brings the agreement into force.

Multilateral treaties may contain a clause providing for just one method of consent, but more often list an array of ways by which States or others may consent to be bound. Where ratification is a listed option—whether alone, or alongside options for acceptance or approval29—the treaty will usually include an additional clause on (simple) signature.30 Signature clauses indicate who may sign the treaty, and now regularly include details on where signature may occur, at what point the treaty will be ‘open for signature’ and for how long. Accession clauses may be included where a treaty was not open for signature or to permit consent by States that did not (or could not) sign the treaty. Clauses on IO consent by formal confirmation are less frequent, and IOs like the EU frequently express their consent by signature followed by acceptance or approval (p. 677) instead. In cases of ratification, acceptance, approval, accession, or formal confirmation, consent to be bound will generally be effective from the date the relevant instrument is deposited or exchanged.

A State only becomes a ‘party’ to a treaty when it has consented to be bound by the treaty and that treaty is in force. When a State consents to a treaty that is not yet in force, it is referred to as a ‘contracting State’. The label ‘signatory’ applies to States during the period following their simple signature but prior to the expression of consent by ratification, acceptance or approval. Finally, it must be emphasized, as both VCLTs acknowledge, that consent may also occur ‘by any other means if so agreed’.31 This leaves room for an array of additional (and often creative) methods for expressing consent to bound, just a few of which are included below.32

A.  Consent by definitive signature

1.  Expressly

  • •  Article 36(1)–(2)(a), International Tropical Timber Agreement (2006) [2007] OJ L262/8:

    1. 1.  This Agreement shall be open for signature, at United Nations Headquarters from 3 April 2006 until one month after the date of its entry into force, by Governments invited to the United Nations Conference for the Negotiation of a Successor Agreement to the International Tropical Timber Agreement, 1994.

    2. 2.  Any Government referred to in paragraph 1 of this article may:

      1. (a)  At the time of signing this Agreement, declare that by such signature it expresses its consent to be bound by this Agreement (definitive signature) …

  • •  Article 9, Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles (1998) 2119 UNTS 129:

    1. 9.1  Countries and regional economic integration organizations specified in Article 2 may become Contracting Parties to this Agreement by …

      1. 9.1.1.  signature without reservation as to ratification, acceptance or approval;

2.  By implication

B.  Consent by exchange of instruments

1.  By exchange of notes

  • •  Article 20(1), Agreement for the Exchange of Information for the Purpose of the Prevention of Fiscal Evasion and the Allocation of Rights of Taxation With Respect to Income of Individuals (Japan-Bermuda) (2010) <http://www.oecd.org/dataoecd/21/2/44538948.pdf>:

    This Agreement shall be approved in accordance with the legal procedures of each of the Contracting Parties and shall enter into force on the thirtieth day after the date of exchange of diplomatic notes indicating such approval.

2.  By exchange of notifications

  • •  Article XI, Agreement for Cooperation in the Field of Fusion Energy Research (European Atomic Energy Community-India) (2009) [2010] OJ L242/26:

    This Agreement shall enter into force on the date on which the Parties have notified each other in writing that their respective internal procedures necessary for its entry into force have been completed, and shall remain in force for five (5) years.

  • •  Article 13, Agreement on the Promotion and Reciprocal Protection of Investments (Greece-South Africa) (1998) <http://www.unctad.org/sections/dite/iia/docs/bits/greece_southafrica.pdf>:

    This Agreement shall enter into force thirty days after the date on which the Contracting Parties have exchanged written notifications informing each other that the procedures required by their respective laws to this end have been completed.

3.  By exchange of notes (or letters) constituting the treaty33

  • •  Exchange of Notes Amending Chapter 4 of Annex IV of the Treaty concerning Pacific Salmon (Canada-US) (2010) <http://www.state.gov/documents/organization/179954.pdf>:

    DEPARTMENT OF STATE

    WASHINGTON

    December 21, 2010

    Excellency:

    (p. 679) I have the honor to acknowledge receipt of your diplomatic note No. UNEN0075 dated December 21, 2010, which reads as follows:

    ‘I have the honour to refer to the recent recommendations of the Pacific Salmon Commission relating to Chapter 4 of Annex IV of the Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, signed at Ottawa on 28 January 1985, as amended (“the Treaty”). That chapter is scheduled to expire by its own terms on 31 December 2010. I therefore have the honour to propose an agreement between our two Governments, pursuant to Article XIII of the Treaty, to amend Annex IV as follows:

    • Annex IV, Chapter 4, Paragraph 1 be amended to read “The provisions of this Chapter shall apply for the period 2005 through 2012.”

    • If the proposal set forth in this Note is acceptable to your Government, I have the honour to propose that this Note, which shall be equally authentic in the English and French languages, and your affirmative reply shall constitute an Agreement between our Governments, which shall enter into force on the date of your reply, and shall continue in force for a period of two years from January 1, 2011.

    • Please accept, Madam Secretary, the assurances of my highest consideration.’

    I am pleased to inform you that the Government of the United States of America accepts the proposal set forth in your diplomatic note. The Government of the United States of America further agrees that your diplomatic note, together with this reply, shall constitute an Agreement between the United States of America and Canada, which shall enter into force on the date of this note, and shall continue in force for a period of two years from January 1, 2011.

    Accept, Excellency, the renewed assurances of my highest consideration.

    For the Secretary of State: [signature]

4.  By exchange of instruments of ratification

  • •  Article 23(1), Agreement on Social Security (Australia-Italy) (1993) [2000] ATS 29:

    This Agreement shall be ratified by both Parties in accordance with their respective procedures and shall enter into force on the first day of the month following that in which there has been an exchange of instruments of ratification.

C.  Consent by ratification

1.  By ratification exclusively

  • •  Article 6(1), Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (2007) [2007] OJ C306/1:

    This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

  • •  Article 29(1), Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (Canada-Gabon) (2002) Canadian Treaty Series 2008/5:

    (p. 680) This Convention shall be ratified and the instruments of ratification shall be exchanged as soon as possible.

2.  By ratification where the treaty is open for signature indefinitely

  • •  Article 25(1), (3), Convention on the Elimination of All Forms of Discrimination against Women (1979) 1249 UNTS 13:

    1. 1.  The present Convention shall be open for signature by all States. …

    2. 3.  The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3.  By ratification requiring signature prior to treaty’s entry into force

  • •  Articles 15–16, Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on their Destruction (1997) 2056 UNTS 211:

    Article 15

    This Convention, done at Oslo, Norway, on 18 September 1997, shall be open for signature at Ottawa, Canada, by all States from 3 December 1997 until 4 December 1997, and at the United Nations Headquarters in New York from 5 December 1997 until its entry into force.

    Article 16

    This Convention is subject to ratification, acceptance or approval of the Signatories …

4.  By ratification requiring treaty signature within a defined period

  • •  Articles 24–25(1), Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998) 2244 UNTS 337:

    Article 24  Signature

    This Convention shall be open for signature at Rotterdam by all States and regional economic integration organizations on the 11th day of September 1998, and at United Nations Headquarters in New York from 12 September 1998 to 10 September 1999.

    Article 25  Ratification, acceptance, approval or accession

    1. 1.  This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations …

D.  By acceptance or approval

1.  By acceptance only

  • •  Article XIII(1)–(2), Agreement for the Establishment of the Regional Commission for Fisheries (1999) <http://www.fao.org/Legal/treaties/028t-e.htm>:

    1. 1.  In accordance with Article I.2, this Agreement shall be open to acceptance by Members and Associate Members of the Organization as well as by non-member (p. 681) States of the Organization that are coastal States or Associate Members whose territories are situated wholly or partly within the Area defined in Article IV.

    2. 2.  Acceptance of this Agreement by any Member or Associate Member of the Organization that is a coastal State or Associate member whose territories are situated wholly or partly within the Area defined in Article IV, shall be effected by the deposit of an instrument of acceptance with the Director-General of the Organization, the depositary of this Agreement, and shall take effect on receipt of such instrument by the Director-General …

2.  By acceptance or approval

  • •  Articles 38–39, Energy Charter Treaty (1994) 2080 UNTS 95:

    Article 38  Signature

    This Treaty shall be open for signature at Lisbon from 17 December 1994 to 16 June 1995 by the states and Regional Economic Integration Organizations which have signed the Charter.

    Article 39  Ratification, Acceptance or Approval

    This Treaty shall be subject to ratification, acceptance or approval by signatories. Instruments of ratification, acceptance or approval shall be deposited with the Depository.

E.  By accession

1.  Accession at any time

  • •  Article 25(1)–(3), International Convention for the Suppression of the Financing of Terrorism (1999) 2178 UNTS 197:

    1. 1.  This Convention shall be open for signature by all States from 10 January 2000 to 31 December 2001 at United Nations Headquarters in New York.

    2. 2.  This Convention is subject to ratification, acceptance or approval …

    3. 3.  This Convention shall be open to accession by any State. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

2.  Accession once treaty no longer open to signature

  • •  Article 25(1), Stockholm Convention on Persistent Organic Pollutants (2001) 2256 UNTS 119:

    This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. It shall be open for accession by States and by regional economic integration organizations from the day after the date on which the Convention is closed for signature …

3.  Accession once treaty is in force

  • •  Article XIII, Comprehensive Nuclear-Test-Ban Treaty (1996, not yet in force) <http://www.ctbto.org/the-treaty>:

    (p. 682) Any State which does not sign this Treaty before its entry into force may accede to it at any time thereafter.

4.  By accession to make a bilateral agreement into a multilateral one

  • •  Article 23.1, Free Trade Agreement (Australia-US) (2004) [2005] ATS 1:

    1. 1.  Any country or group of countries may accede to this Agreement subject to such terms and conditions as may be agreed between such country or countries and the Parties and following approval in accordance with the applicable legal procedures of each country.

    2. 2.  This Agreement shall not apply as between any Party and any acceding country or group of countries if, at the time of the accession, either Party does not consent to such application.

5.  By accession only

  • •  Article 43(1), Revised General Act for the Pacific Settlement of International Disputes (1949) 71 UNTS 101:

    The present General Act shall be open to accession by the members of the United Nations, by the non-member States which shall have become parties to the Statute of the International Court of Justice or to which the General Assembly of the United Nations shall have communicated a copy for this purpose.

F.  By formal confirmation

  • •  Article 43, Convention on the Rights of Persons with Disabilities (2006) 2515 UNTS 3:

    The present Convention shall be subject to ratification by signatory States and to formal confirmation by signatory regional integration organizations …

G.  Consent by a combinations of methods

1.  By ratification or accession

  • •  Articles 25(1)–(2), 26, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 1465 UNTS 85:

    Article 25

    1. 1.  This Convention is open for signature by all States.

    2. 2.  This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

    Article 26

    This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

(p. 683) 2.  By ratification, acceptance, approval, or accession

  • •  Article 16(1)–(3), Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) 2056 UNTS 211:

    1. 1.  This Convention is subject to ratification, acceptance or approval of the Signatories.

    2. 2.  It shall be open for accession by any State which has not signed the Convention.

    3. 3.  The instruments of ratifications, acceptance, approval or accession shall be deposited with the Depositary.

3.  By signature, ratification, acceptance, approval, or accession

  • •  Article 12(1)–(2), International Convention on Arrest of Ships (1999) UN Doc A/CONF.188.6:

    1. 1.  This Convention shall be open for signature by any State at the Headquarters of the United Nations, New York, from 1 September 1999 to 31 August 2000 and shall thereafter remain open for accession.

    2. 2.  States may express their consent to be bound by this Convention by:

      1. (a)  signature without reservation as to ratification, acceptance or approval; or

      2. (b)  signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

      3. (c)  accession.

H.  Consent by ‘any other means so agreed’

1.  Initialling pursuant to separate agreement

  • •  Articles I–II, Agreement on Initialing the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) (1995) <http://www.ohr.int/dpa/default.asp?content_id=380>:34

    Article I.

    The negotiation of the General Framework Agreement for Peace in Bosnia and Herzegovina and its Annexes has been completed. The Parties, and the Entities that they represent, commit themselves to signature of these Agreements in Paris in their present form, in accordance with Article III, thus establishing their entry into force and the date from which the Agreements shall have operative effect.

    Article II.

    The initialing of each signature block of the General Framework Agreement for Peace in Bosnia and Herzegovina and its Annexes today hereby expresses the consent of the Parties, and the Entities that they represent, to be bound by such Agreements.

(p. 684) 2.  By adoption of a Resolution of Approval

  • •  Text on the Establishment of a Preparatory Commission for the Comprehensive Test-Ban Organization (1996) [1999] UKTS 46:

    The States Signatories of the Comprehensive Nuclear Test-Ban Treaty, adopted by the General Assembly at New York on 10 September 1996,

    Having decided to take all necessary measures to ensure the rapid and effective establishment of the future Comprehensive Nuclear Test-Ban Treaty Organization,

    Having decided to this end to establish a Preparatory Commission,

    1. 1.  Approve the Text on the Establishment of a Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organization, as annexed to the present resolution;

    2. 2.  Request the Secretary-General of the United Nations, in accordance with General Assembly resolution 50/245, of 10 September 1996, on the Comprehensive Nuclear Test-Ban Treaty, to provide the services required to initiate the work of the Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organization, including the Meeting of States Signatories and the First Session of the Preparatory Commission.

3.  Consent subject to additional conditions

  • •  Article XII(1), Marrakesh Agreement establishing the World Trade Organization (1994) 1867 UNTS 3:

    Any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Agreements annexed thereto.

  • •  Article 41, International Sugar Agreement (1992) 1703 UNTS 203:

    This Agreement shall be open to accession by the Governments of all states upon conditions established by the Council. Upon accession, the State concerned shall be deemed to be listed in the annex to this Agreement, together with its votes as laid down in the conditions of accession. Accession shall be effected by the deposit of an instrument of accession with the depositary. Instruments of accession shall state that the Government accepts all the conditions established by the Council.

  • •  Article 4(3)–(5), Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (1980) 1342 UNTS 137:

    1. 3.  Expressions of consent to be bound by any of the Protocols annexed to this Convention shall be optional for each State, provided that at the time of the deposit of its instrument of ratification, acceptance or approval of this Convention or accession thereto, that State shall notify the Depositary of its consent to be bound by any two or more of these Protocols.

    2. (p. 685) 4.  At any time after the deposit of its instrument of ratification, acceptance or approval of this Convention or accession thereto, a State may notify the Depositary of its consent to be bound by any annexed Protocol by which it is not already bound.

    3. 5.  Any Protocol by which a High Contracting Party is bound shall for that Party form an integral part of this Convention.

7.  Reservations

Reservations are unilateral statements by a State (or an IO such as the EU) in signing or consenting to be bound by a multilateral treaty that purport ‘to exclude or to modify the legal effect of certain provisions of the treaty in their application’ to that State or IO.35 A reservation is generally permitted except where: (a) the treaty explicitly prohibits reservations; (b) the treaty permits some reservations but not the one made; or (c) the reservation is otherwise ‘incompatible with the object and purpose of the treaty’.36

Chapter 11 deals with the extraordinarily complicated law and practice currently surrounding reservations. There are a host of outstanding issues—What statements constitute a reservation? When and how is a reservation incompatible with a treaty’s object and purpose? What legal effects flow from a reservation? And just who has authority to decide the answers to these questions? The ILC has recently revisited the topic, and time will tell what effect its involvement will have.37

In the current environment, treaty clauses offer a way to mitigate some (but certainly not all) of the issues reservations raise. Whether because of a failure to agree, political objections, or general inattention, a treaty may not contain any provision on reservations. But, as the VCLT envisions, negotiators can use clauses to regulate whether and how reservations may be made. A treaty can, of course, expressly prohibit all reservations. Or, it might authorize all reservations not incompatible with the treaty’s object and purpose. In between these poles, treaty clauses can specify provisions, parts, subjects, or factual circumstances in relation to which reservations will (or will not) be permitted.

As a general rule, ‘unless the treaty otherwise provides, a reservation may be withdrawn at any time’38 by the State or IO that made it; the consent of other parties is not required. In practice, treaties tend not to alter this default rule, but rather reiterate it. In contrast, the issue of modifying existing reservations tends not to be addressed by treaties at all.

(p. 686) A.  Clauses prohibiting treaty reservations entirely

  • •  Article 25, Convention on Contact concerning Children (2003) CETS No 192:

    No reservation may be made in respect of any provision of this Convention.

  • •  Article 30, Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (2002) 2375 UNTS 237:

    No reservations shall be made to the present Protocol.

  • •  Article 120, Rome Statute of the International Criminal Court (1998) 2187 UNTS 3:

    No reservations may be made to this Statute.

  • •  Article XVI(5), Marrakesh Agreement establishing the World Trade Organization (1994) 1867 UNTS 3:

    No reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements. Reservations in respect of a provision of a Plurilateral Trade Agreement shall be governed by the provisions of that Agreement.

B.  Reservations expressly permitted

1.  Generally

  • •  Article 14(1), Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (1998) 2296 UNTS 5:

    When definitively signing, ratifying or acceding to this Convention or any amendment hereto, a State Party may make reservations.

2.  Except those incompatible with the treaty’s object and purpose

  • •  Article 51(2), Convention on the Rights of the Child (1989) 1577 UNTS 3:

    A reservation incompatible with the object and purpose of the present Convention shall not be permitted.

3.  Only where authorized by the treaty

  • •  Article 98, United Nations Convention on Contracts for the International Sale of Goods (1980) 1489 UNTS 3:

    No reservations are permitted except those expressly authorized in this Convention.

(p. 687) 4.  For all provisions except certain articles

  • •  Article 42(1), Convention Relating to the Status of Refugees (1951) 189 UNTS 137:

    At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16 (1), 33, 36–46 inclusive.

5.  For certain provisions or parts of the treaty only

  • •  Article 42, Convention on Cybercrime (2001) 2296 UNTS 167:

    By a written notification addressed to the Secretary General of the Council of Europe, any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, declare that it avails itself of the reservation(s) provided for in Article 4, paragraph 2, Article 6, paragraph 3, Article 9, paragraph 4, Article 10, paragraph 3, Article 11, paragraph 3, Article 14, paragraph 3, Article 22, paragraph 2, Article 29, paragraph 4, and Article 41, paragraph 1. No other reservation may be made.

  • •  Article 24(2), International Convention for the Suppression of the Financing of Terrorism (1999) 2178 UNTS 197:

    Each State may at the time of signature, ratification, acceptance or approval of this Convention or accession thereto declare that it does not consider itself bound by paragraph 1 [on binding dispute resolution by arbitration or the ICJ]. The other States Parties shall not be bound by paragraph 1 with respect to any State Party which has made such a reservation.

  • •  Article 21(1)–(4), Trademark Law Treaty (1994) 2037 UNTS 35:

    1. (1)  [Special Kinds of Marks] Any State or intergovernmental organization may declare through a reservation that, notwithstanding Article 2(1)(a) and (2)(a), any of the provisions of Articles 3(1) and (2), 5, 7, 11 and 13 shall not apply to associated marks, defensive marks or derivative marks. Such reservation shall specify those of the aforementioned provisions to which the reservation relates.

    2. (2)  [Modalities] Any reservation under paragraph (1) shall be made in a declaration accompanying the instrument of ratification of, or accession to, this Treaty of the State or intergovernmental organization making the reservation.

    3. (3)  [Withdrawal] Any reservation under paragraph (1) may be withdrawn at any time.

    4. (4)  [Prohibition of Other Reservations] No reservation to this Treaty other than the reservation allowed under paragraph (1) shall be permitted.

  • •  Article XXIII(1)–(2), Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973) 993 UNTS 243:

    1. 1.  The provisions of the present Convention shall not be subject to general reservations. Specific reservations may be entered in accordance with the provisions of this Article and Articles XV and XVI.

    2. 2.  Any State may, on depositing its instrument of ratification, acceptance, approval or accession, enter a specific reservation with regard to:

      (p. 688)
      1. (a)  any species included in Appendix I, II or III; or

      2. (b)  any parts or derivatives specified in relation to a species included in Appendix III.

6.  For parts other than the main treaty text

  • •  Article XXII, Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on their Destruction (1992) 1974 UNTS 45:

    The Articles of this Convention shall not be subject to reservations. The Annexes of this Convention shall not be subject to reservations incompatible with its object and purpose.

7.  With respect to excluding certain subjects

  • •  Article 10(1), International Convention on Arrest of Ships (1999) UN Doc A/Conf.188/6:

    1. 1.  Any State may, at the time of signature, ratification, acceptance, approval, or accession, or at any time thereafter, reserve the right to exclude the application of this Convention to any or all of the following:

      1. (a)  ships which are not seagoing;

      2. (b)  ships not flying the flag of a State Party;

      3. (c)  claims under article 1, paragraph 1 (s).

8.  Dependent on the existence of certain factual conditions

  • •  Article 2(1)–(3), Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (1989) 1642 UNTS 414:

    1. 1.  No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.

    2. 2.  The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime.

    3. 3.  The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory.

  • •  Article 32(4), Convention on Psychotropic Substances (1971) 1019 UNTS 175:

    A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade.

(p. 689) 9.  So long as it relates to one or more specific provisions

  • •  Article 13, Inter-American Convention on Personality and Capacity of Juridical Persons in Private International Law (1984) 1752 UNTS 237:

    Each State may, at the time of signature, ratification or accession, make reservations to this Convention, provided that each reservation concerns one or more specific provisions.

C.  Admissibility of reservations

1.  Admissible on unanimous acceptance or in the absence of objections

  • •  Article XII, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993) 2221 UNTS 91:

    Acceptance of this Agreement may be made subject to reservations which shall become effective only upon unanimous acceptance by all Parties to this Agreement. The Director-General shall notify forthwith all Parties of any reservation. Parties not having replied within three months from the date of the notification shall be deemed to have accepted the reservation. Failing such acceptance, the State or regional economic integration organization making the reservation shall not become a Party to this Agreement.

2.  Incompatible or inhibitive if two-thirds of the parties object

  • •  Article 20(1)–(2), International Convention on the Elimination of All Forms of Racial Discrimination (1966) 660 UNTS 195:

    1. 1.  The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it.

    2. 2.  A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it.

3.  Permitted absent objection by one-third of parties

  • •  Article 32(3), Convention on Psychotropic Substances (1971) 1019 UNTS 175:

    A State which desires to become a Party but wishes to be authorized to make reservations other than those made in accordance with paragraphs 2 and 4 may inform the Secretary-General of such intention. Unless by the end of twelve months after the date of the Secretary-General’s communication of the reservation concerned, this reservation has been objected to by one third of the States that have signed without reservation of ratification, ratified or acceded to this Convention before the end of that period, it shall (p. 690) be deemed to be permitted, it being understood however that States which have objected to the reservation need not assume towards the reserving State any legal obligation under this Convention which is affected by the reservation.

D.  Withdrawing reservations

1.  Withdrawal at any time

  • •  Article 46(2), Convention on the Rights of Persons with Disabilities (2006) 2515 UNTS 3:

    Reservations may be withdrawn at any time.

2.  Effective on notice

  • •  Article 28(3), Convention on the Elimination of All Forms of Discrimination Against Women (1979) 1249 UNTC 13:

    Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General of the United Nations, who shall then inform all States thereof. Such notification shall take effect on the date on which it is received.

3.  Partial withdrawal permitted

  • •  Article 15, Convention on Customs Treatment of Pool Containers Used in International Transport (1994) 2000 UNTS 289:

    … Any Contracting Party which has entered reservations may withdraw them, in whole or in part, at any time, by notification to the depositary specifying the date on which such withdrawal takes effect.

8.  Declarations and Notifications

Reservations are not the only statements that may accompany treaty signature or consent. The most important alternatives are: (i) interpretative declarations; (ii) optional declarations; (iii) mandatory declarations; and (iv) notifications.39 As Chapter 11 explains, States frequently issue ‘interpretative declarations’. Unlike reservations, interpretative declarations do not purport to modify or exclude the treaty’s provisions; rather, they clarify how the State understands the treaty’s scope or meaning.40 Thus, whatever interpretative significance they have, such declarations do not alter the treaty commitments assumed. In contrast, optional declarations do (p. 691) allow States or IOs to assume additional or different commitments on joining the treaty than those they would have absent a declaration. Mandatory declarations are also legally binding on their authors. These are issued on joining the treaty (or soon thereafter) in response to requirements for information on how the declaration’s author will perform the treaty, whether by giving content to a particular provision, delimiting competences, or choosing to opt in (or out) of some specific obligation or procedure. Notifications may perform similar functions, or may simply pass along relevant information concerning the treaty and its implementation.

Treaties only occasionally contain provisions for interpretative declarations. In contrast, optional and mandatory declarations are almost always responsive to particular treaty clauses. Those clauses are often quite specific in terms of the declaration’s required timing, scope, or format. The same holds true for clauses involving notifications. Moreover, unlike reservations clauses, provisions on declarations and notifications may be found throughout the treaty text, not just in its final clauses.

A.  Provision for interpretative declarations

  • •  Articles 42–43, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) 2167 UNTS 3:

    Article 42

    No reservations or exceptions may be made to this agreement.

    Article 43

    Article 42 does not preclude a State or entity, when signing, ratifying or acceding to this Agreement, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Agreement, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Agreement in their application to that State or entity.

B.  Provisions for optional declarations

1.  That modify the commitment otherwise assumed

  • •  Article 10(2), International Convention on Arrest of Ships (1999) UN Doc A/CONF.188.6:

    A State may, when it is also a State Party to a specified treaty on navigation on inland waterways, declare when signing, ratifying, accepting, approving or acceding to this Convention, that rules on jurisdiction, recognition and execution of court decisions provided for in such treaties shall prevail over the rules contained in article 7 of this Convention.

  • •  Article 124, Rome Statute of the International Criminal Court (1998) 2187 UNTS 3:

    Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of (p. 692) this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

2.  That add to the commitment otherwise assumed

  • •  Article 20(3), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989) 1673 UNTS 57:

    When ratifying, accepting, approving, formally confirming or acceding to this Convention, or at any time thereafter, a State or political and/or economic integration organization may declare that it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

    1. (a)  submission of the dispute to the International Court of Justice; and/or

    2. (b)  arbitration in accordance with the procedures set out in Annex VI.

    Such declaration shall be notified in writing to the Secretariat which shall communicate it to the Parties.

  • •  Article 22(1), (8), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 1465 UNTS 85:

    1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration …

    2. 8.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.

C.  Provisions for mandatory declarations

1.  That clarify or elaborate on the content of the obligations assumed

  • •  Article 3(2), Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) 2173 UNTS 222:

    Each State Party shall deposit a binding declaration upon ratification of or accession to this Protocol that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards that it has adopted to ensure that such recruitment is not forced or coerced.

  • (p. 693) •  Article III(1)(a)(i), (ii), (v), Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1992) 1974 UNTS 45:

    Each State Party shall submit to the Organization, not later than 30 days after this Convention enters into force for it, the following declarations, in which it shall:

    1. (a)  With respect to chemical weapons:

      1. (i)  Declare whether it owns or possesses any chemical weapons, or whether there are any chemical weapons located in any place under its jurisdiction or control;

      2. (ii)  Specify the precise location, aggregate quantity and detailed inventory of chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control …

      3. (v)  Provide its general plan for destruction of chemical weapons that it owns or possesses, or that are located in any place under its jurisdiction or control …

2.  That declare the extent of competence

  • •  Article 25(3), Stockholm Convention on Persistent Organic Pollutants (2001) 2256 UNTS 119:

    In its instrument of ratification, acceptance, approval or accession, a regional economic integration organization shall declare the extent of its competence in respect of the matters governed by this Convention. Any such organization shall also inform the depositary, who shall in turn inform the Parties, of any relevant modification in the extent of its competence.

  • •  Article 47(2)(a), Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) 2167 UNTS 3:

    In cases where an international organization referred to in Annex IX, article 1, of the Convention has competence over all the matters governed by this Agreement, the following provisions shall apply to participation by such international organization in this Agreement:

    1. (a)  at the time of signature or accession, such international organization shall make a declaration stating:

      1. (i)  that it has competence over all the matters governed by this Agreement;

      2. (ii)  that, for this reason, its member States shall not become States Parties, except in respect of their territories for which the international organization has no responsibility; and

      3. (iii)  that it accepts the rights and obligations of States under this Agreement;

3.  That require a selection among alternatives

  • •  Article 1(B)(1), Convention Relating to the Status of Refugees (1951) 189 UNTS 137:

    For the purposes of this Convention, the words ‘events occurring before 1 January 1951’ in article 1, section A, shall be understood to mean either (p. 694)

    1. (a)  ‘events occurring in Europe before 1 January 1951’; or

    2. (b)  ‘events occurring in Europe or elsewhere before 1 January 1951’ and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

D.  Conditions on the formation and withdrawal of declarations

  • •  Article 97, UN Convention on Contracts for the International Sale of Goods (1980) 1489 UNTS 3:

    1. 1.  Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval.

    2. 2.  Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary.

    3. 3.  A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary. Reciprocal unilateral declarations under article 94 take effect on the first day of the month following the expiration of six months after the receipt of the latest declaration by the depositary.

    4. 4.  Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary. Such withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary.

    5. 5.  A withdrawal of a declaration made under article 94 renders inoperative, as from the date on which the withdrawal takes effect, any reciprocal declaration made by another State under that article.

E.  Notifications

  • •  Article 7(3), International Convention for the Suppression of the Financing of Terrorism (1999) 2178 UNTS 197:

    Upon ratifying, accepting, approving or acceding to this Convention, each State Party shall notify the Secretary-General of the United Nations of the jurisdiction it has established in accordance with paragraph 2. Should any change take place, the State Party concerned shall immediately notify the Secretary-General.

  • •  Article 45(4), Convention on Road Traffic (1968) 1042 UNTS 17:

    On signing this Convention or on depositing its instrument of ratification or accession, each State shall notify the Secretary-General of the distinguishing sign it has selected for display in international traffic on vehicles registered by it, in accordance with Annex 3 to this Convention. By a further notification addressed to the Secretary-General, any State may change a distinguishing sign it has previously selected.

Footnotes:

28  1986 VCLT Art 11(2).

29  As Chapter 7 explains, acceptance or approval are generally interchangeable terms that follow the same rules (and have the same legal effects) as ratification unless the treaty otherwise provides. Acceptance or approval clauses are often paired with ratification clauses to accommodate those States who prefer to avoid using ratification for domestic reasons. See Chapter 7 (Part III.D, 199 et seq).

30  For further discussion of simple signature and its legal effects, see Chapter 8.

31  VCLT Art 11; 1986 VCLT Art 11.

32  For examples of clauses dealing with consent to treaty amendments, see headings 19–20 of this Section.

33  Diplomatic Notes are usually reserved for communications among Embassies and Foreign Ministries; letters are commonly used in communications involving another State agency.

34  The text of the referenced Dayton Agreement is available at [1996] 35 ILM 75.

35  VCLT Art 2(d); 1986 VCLT Art 2(d). Reservations formulated in signing a treaty subject to ratification, acceptance, approval, or act of formal confirmation require confirmation at the time the State or IO consents to be bound. VCLT Art 23(2); 1986 VCLT Art 23(2).

36  VCLT Art 19; 1986 VCLT Art 19. Reservations may also be prohibited implicitly. For example, even though ILO treaties do not expressly prohibit reservations, it is generally accepted that the nature of the ILO regime precludes them.

37  See eg ILC, ‘Guide to Practice on Reservations to Treaties’ (forthcoming in [2011] YBILC, vol II(2)) <http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/1_8_2011.pdf>.

38  VCLT Art 22(1).

39  There is also a fifth option, where States make ‘political’ statements in signing, ratifying, or acceding that are not intended to have legal effects with respect to the treaty itself. See Chapter 11 (Part I, n12 and accompanying text).

40  The ILC has suggested, however, that ‘conditional interpretative declarations’ (those that condition consent on the specific interpretation proposed) should be treated like reservations. See Guide to Practice (n 37) Guideline 1.4.