Treaties, Multilateral, Reservations to
- Customary international law — Unilateral acts — Codification — Right to non-discrimination — Economic, social, and cultural rights — Vienna Convention on the Law of Treaties — Treaties, application — Object & purpose (treaty interpretation and) — Treaties, invalidity, termination, suspension, withdrawal — Treaties, reservations and declarations — Treaties, amendments and modification — Extraterritorial application of treaties
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Notion and Types of Reservations
1 According to Art. 2 (1) (d) Vienna Convention on the Law of Treaties (1969) (‘VCLT’) and Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (‘VCLT-IO’), reservation means a unilateral statement, however phrased or named, made by a State or by an international organization (International Organizations or Institutions, External Relations and Co-operation; International Organizations or Institutions, General Aspects) whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that international organization (see also Treaties, Amendment and Revision). This definition reflects the customary international law notion of a reservation which differs from other declaration[s], eg interpretative declarations and understandings (Treaties, Declarations of Interpretation), in that it expresses the intention of the reserving State or international organization to modify its treaty obligations, an intention to be ascertained through interpretation according to Arts 31 and 32 VCLT/VCLT-IO (Interpretation in International Law). The distinctive criterion characterizing a reservation is the purported modificatory legal effect of the declaration. While the name or title of the statement is one aspect to be considered, its substance will be decisive, taking into account the circumstances and context (Continental Shelf Arbitration [France v United Kingdom]). If a statement has thus been identified as a reservation, its exact scope will also be ascertained pursuant to the rules of treaty interpretation.
2 Although being unilateral statements (Unilateral Acts of States in International Law; see also Unilateralism/Multilateralism), reservations are aimed at creating bilateral legal relationships. Pursuant to customary international law, as expressed in Art. 20 (4) (c), (5) VCLT/VCLT-IO, they will therefore have their intended legal effects—see paras 18–26 below—only if at least one other contracting party expressly or tacitly accepts them (Consent; Tacit Consent/Opting Out Procedure; see also Acquiescence). Otherwise the reserving State will not become a party to the multilateral treaty. While a reservation can thus be formulated unilaterally, it can be successfully made only with the agreement of at least one other party. Technically, a reservation brings about a separate treaty between the reserving party and all those other contracting parties that at least tacitly accept its reservation. This separate treaty modifies the main treaty in their respective mutual relationships in a reciprocal way (Reciprocity). Essentially the same holds true as expressed in Art. 21 (3) VCLT/VCLT-IO if a party objects to a reservation without opposing the entry into force of the treaty in relation to the reserving party for this will render inapplicable, in their mutual relationship, the provisions to which the reservation relates so that, as between them, the treaty enters into force only in an abbreviated version (Treaties, Conclusion and Entry into Force).
3 The historical unanimity doctrine according to which a reserving State would become a party to a modified multilateral treaty only if its reservation was accepted by all the other parties has thus left a prominent trace in Art. 20 (4) (c) VCLT/VCLT-IO. This is a consequence of the principle of consent embedded in the customary law of treaties with the effect that, in the words of the International Court of Justice (ICJ), ‘no reservation can be effective against any State without its agreement thereto’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide [Advisory Opinion] [‘Reservations to the Convention on Genocide (Advisory Opinion)’] 21; Genocide Convention, Reservations [Advisory Opinion]). However, the modern system is more flexible than the traditional one, leaving the acceptance or rejection of reservations to each contracting party individually and thus potentially leading to a fragmentation of the treaty relationships (see also Fragmentation of International Law).
4 According to their goal one can distinguish reservations ratione materiae, modifying the substance of the treaty obligations; reservations ratione temporis, modifying the temporal range of the treaty obligations; and reservations ratione loci, modifying the geographical application of the treaty (Treaties, Territorial Application). According to their target, reservations to substantive provisions can be distinguished from reservations to procedural provisions/dispute settlement clauses (Judicial Settlement of International Disputes) which purport to limit or exclude the otherwise obligatory jurisdiction of international courts and tribunals, eg, Art. IX Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) (International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications) or treaty bodies, eg, Art. 5 Optional Protocol to the International Covenant on Civil and Political Rights (1966) (‘ICCPR’; Human Rights). Sometimes States attach reservations to the declarations they make pursuant to optional clauses—eg, Art. 14 International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) (Racial and Religious Discrimination)—whereby they recognize, but at the same time restrict by their reservation, the competence of supervisory bodies. Thus Germany, when recognizing the competence of CERD to consider communications from persons claiming to be victims of racial discrimination, stated that the competence of CERD should not extend to matters that were being or had been examined under another procedure of international investigation or settlement. While these restrictive statements are not, technically, reservations because they purport to modify the legal effect of a unilateral declaration and not a treaty, they raise analogous problems because they affect the scope of the State’s treaty obligations and should therefore be subject to analogous standards.
B. Purpose and Relation to Other Devices Modifying Effects of Treaties
5 Normative multilateral treaties that codify and/or progressively develop customary international law will attain their purpose only if a large number of States become parties (Codification and Progressive Development of International Law). International practice uses several legal devices to promote the widest possible acceptance of such treaties by alleviating the legal burdens that would otherwise be imposed on contracting parties. These legal devices attempt to strike a balance between the interests of the international community as a whole and the special interests of (some of) its individual members. Among these devices are the pick and choose method, eg, Art. 20 European Social Charter; optional clauses, eg, Art. 14 CERD; optional protocols, eg, the Optional Protocol to the ICCPR (‘OP-ICCPR’); and reservations. While promoting a treaty’s universality these devices will inevitably affect its coherence and integrity, as they result in a considerable diversification of treaty obligations, thereby counteracting the codificatory purpose of normative multilateral treaties and perhaps even frustrating their essential legislative goal.
6 Of all these devices the reservation is the simplest and least disruptive. Its use does not require any express authorization in the multilateral treaty. Reservations will also only split up the treaty regime if and to the extent that States use them actively for this purpose. In contrast to this, in all the other cases States must actively construct a coherent treaty regime, eg by ratifying optional protocols, making parallel declarations pursuant to optional clauses or picking parallel provisions from the available catalogue. As the existence of these other more disruptive treaty-modifying devices indicates, however, States apparently do not consider reservations alone as a sufficient safeguard against treaty obligations which they are politically unwilling or constitutionally unable to accept: if the ICCPR had included a compulsory individual complaints procedure instead of separating it out into an Optional Protocol, the ICCPR would probably have been ratified by a much smaller number of States despite the possibility of entering a reservation against the procedure (Human Rights, Individual Communications/Complaints; see also Individuals in International Law).
C. Legal Regime under the Vienna Convention on the Law of Treaties and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations
1. Customary International Law Background and International Law Commission’s Reconsideration
7 Starting out from and further developing the ICJ’s Advisory Opinion in Reservations to the Convention on Genocide, the VCLT and the VCLT-IO establish a comprehensive—if incomplete—regime on the admissibility of reservations, the reaction of other parties to them, their legal effects and the procedure to be followed. Since 1993, the International Law Commission (ILC) has been considering the topic ‘Reservations to Treaties’ on which Special Rapporteur Allain Pellet has so far submitted 16 reports. In their eyes, the legal regime on reservations of the VCLT and the VCLT-IO achieves a satisfactory balance between the objectives of preservation of the integrity of the treaty and universality of participation in it. But the rules of the conventions require some further elaboration which the ILC intends to provide through a future Guide to Practice containing numerous guidelines. The rules of the Vienna Conventions are declaratory of customary international law and will therefore henceforth be used as a reference. They are also residuary in nature and will give way to more special provisions in the treaty to which the reservation relates. The VCLT and the VCLT-IO make no provision for the succession of States or international organizations in respect of reservations and objections thereto, and so these issues have been partly regulated in Art. 20 Vienna Convention on Succession of States in respect of Treaties (State Succession in Treaties; see also State Succession in Other Matters than Treaties). As this convention has not entered into force one is referred back to the rules of customary international law.
2. Making and Withdrawal of Reservations (Arts 22, 23 VCLT/VCLT-IO)
8 Reservations must be formulated in writing and communicated to the Contracting States or international organizations and other States or international organizations entitled to become parties to the treaty, otherwise they will not be valid. The same applies to their withdrawal which must, however, only be communicated to the other Contracting States or international organizations (Case concerning Armed Activities on the Territory of the Congo [New Application: 2002] [Democratic Republic of the Congo v Rwanda] [Jurisdiction of the Court and Admissibility of the Application] [ICJ, 3 February 2006] paras 41–44; Armed Activities on the Territory of the Congo Cases). If a reservation is formulated at the signing of a treaty subject to ratification, acceptance or approval, it must be formally confirmed by the reserving State or international organization at ratification etc. Late reservations formulated by a party after having expressed its consent to be bound by the treaty will only be valid if they are either permitted by the treaty or if none of the other contracting parties objects. The power to formulate or withdraw a reservation at the international level is determined by Art. 7 VCLT/VCLT-IO, irrespective of the internal power distribution, pursuant to the constitution of the respective State or international organization (see also Treaty Making Power).
3. Admissibility (Art. 19 VCLT/VCLT-IO)
9 As a corollary of State sovereignty, a reservation is admissible unless it comes within one of the three exceptions listed in Art. 19 VCLT/VCLT-IO, being either contrary to an explicit or implicit prohibition in the treaty as foreseen in Art. 19 (a) and (b) or incompatible with the object and purpose of the treaty (Art. 19 (c) VCLT/VCLT-IO; Treaties, Object and Purpose). It is unclear whether Art. 19 (a) VCLT/VCLT-IO generally includes implicit prohibitions—an interpretation that would carry much uncertainty into the reservation regime—or whether in the absence of an explicit prohibition reservations are only inadmissible if they are covered by either Art. 19 (b) VCLT/VCLT-IO, which is quite narrow, requiring a treaty clause to the effect that specified reservations may be made only—such as Art. 2 (1) Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty—or Art. 19 (c) VCLT/VCLT-IO.
10 The object and purpose standard in Art. 19 (c) VCLT/VCLT-IO, originating from the ICJ’s abovementioned Advisory Opinion in Reservations to the Convention on Genocide, is to protect against destruction from within what has been paraphrased in the on-going debates within the ILC as the core contents or basic structure or essential provisions indispensable to the general architecture of the treaty which constitute its raison d’être and whose modification or exclusion would seriously disturb the balance of the treaty. While this goal is clear the standard is difficult to define and thus hard to apply objectively even if one appeals to the principle of good faith (bona fide) and to common sense. The ILC in its commentary to the UN ILC ‘Draft Articles on the Law of Treaties with Commentaries’ (1966) thus suggested that it was ‘in every case very much a matter of the appreciation of the acceptability of the reservation by the other contracting States’ (at 207) so that Art. 19 (c) VCLT/VCLT-IO had to be read in close conjunction with Art. 20 VCLT/VCLT-IO (see para. 4 above). This is because treaties usually lack an obligatory procedure for the settlement of disputes on the admissibility of reservations. If, however, there should be a court with compulsory jurisdiction and the power to issue legally binding decisions—eg, the European Court of Human Rights (ECtHR)—this court will also be the ultimate arbiter of the admissibility of reservations and it will consider the reaction of other contracting parties as no more than persuasive authority.
11 A reservation whose vagueness and generality makes it impossible for the other contracting parties to determine its scope—and thus also its compatibility with the treaty’s object and purpose—will be incompatible with the object and purpose of the treaty, eg a reservation purporting to exclude any legal effect of a treaty in so far as it is incompatible with whatever provision of the reserving party’s internal law (International Law and Domestic [Municipal] Law). A reservation to a treaty provision embodying a rule of customary international law, while not being inadmissible in itself, will only have the effect of relieving the reserving State from the effects of a ‘conventionalization’ of that rule and not affect its binding nature as a customary norm. If, however, the central purpose of the treaty is to codify, and thereby put beyond dispute, certain norms of customary international law, reservations to the corresponding treaty provisions will be inadmissible. And if a treaty provision embodies a peremptory norm of general international law (Ius cogens) a reservation to it will be inadmissible, which is a consequence deriving mutatis mutandis from the principle set forth in Art. 53 VCLT/VCLT-IO, in view of the contractual relationship established between a reserving party and the other parties accepting its reservation.
12 A provision in a treaty relating to rules which are non-derogable in a state of emergency—eg, the human rights provisions listed in Art. 4 (2) ICCPR (Emergency, State of; see also Necessity, State of)—may be made subject to a reservation, provided that the provision does not embody a ius cogens norm and that the reservation is otherwise compatible with the object and purpose of the treaty. In making this assessment the decisive question will be if the parties have made the rule non-derogable because of its importance or only because there was no need to derogate from it in a state of emergency. Reservations to procedural provisions concerning the monitoring of treaty implementation or dispute settlement are incompatible with the object and purpose of a treaty if these provisions are so central to the efficacy of the substantive obligations of the contracting parties that they constitute the raison d’être of the treaty which would lose its essential thrust without them.
13 A reservation expressly or impliedly prohibited by the treaty cannot be saved on the pretext that it was compatible with the treaty’s object and purpose. Conversely, a treaty provision which expressly or implicitly authorizes reservations without reference to the object and purpose standard—eg, Art. 57 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’)—can usually not be considered as exhaustive so that this standard will apply additionally, either as a standard implicit in the treaty or as a supplementary standard of customary international law.
4. Acceptance of or Objections to Reservations by Other contracting parties (Art. 20 VCLT/VCLT-IO)
14 Except if a reservation is expressly authorized by a treaty as expressed in Art. 20 (1) VCLT/VCLT-IO, the reserving State’s or international organization’s position as a party will depend according to Art. 20 (4), (5) VCLT/VCLT-IO on the reaction of the other contracting parties: at least one of them must accept the reservation either expressly or tacitly, by not objecting to it within 12 months, otherwise the act by which the reserving State or international organization has expressed its consent to be bound by the treaty will not become effective. This is in accordance with the principle of customary international law that a treaty will not come into being in the absence of an agreement among the parties. The (tacit) acceptance of the reservation by another contracting party will constitute the reserving State or international organization a party to the treaty in relation to that other party with the treaty’s entry into force for those parties. An objection by another contracting party to a reservation will not preclude the entry into force of the treaty as between the objecting and the reserving State or international organization unless a contrary intention is definitely expressed by the former. In the absence of such an expressed intention the objection will only have the effect provided in Art. 21 (3) VCLT/VCLT-IO, rendering inapplicable the provisions concerned as between the reserving and the objecting party to the extent of the reservation.
15 The flexible framework of Art. 20 (4), (5) VCLT leaves the decision whether to enter into a treaty relationship with a reserving State or international organization to each contracting party. It establishes a relative system of participation in a multilateral treaty that can result in the fragmentation of treaty relations. There are, however, special rules in Art. 20 (2) and (3) VCLT/VCLT-IO for certain categories of treaties (see paras 27–28 below).
16 A State or international organization need not state its legal or political reasons for raising an objection against a reservation. It is free, for mere political reasons, to object even to a reservation which is admissible pursuant to Art. 19 VCLT/VCLT-IO, except if it is expressly authorized by the treaty. Contrary to the expectation voiced by the ICJ in Reservations to the Convention on Genocide (Advisory Opinion), States do not appraise the reservations of other contracting parties only according to the object and purpose standard.
17 For over 10 years, both the Council of Europe (CoE) and the European Union have been systematically screening reservations so as to make co-ordinated responses possible (European Community and Union, Party to International Agreements). The Committee of Ministers of the Council of Europe on 18 May 1999 adopted Recommendation No R (99) 13 on Responses to Inadmissible Reservations to International Treaties with a variety of model response clauses in the appendix, to be used by the Member States ( 20 HRLJ 278). In the interest of maintaining the international rule of law, especially in the area of human rights, Member States of the Council of Europe relatively often raise objections to reservations formulated by non-European States which they consider inadmissible. On the other hand, the Committee of Ministers recommended, and a considerable number of Member States made, a reservation to Art. 5 (2) (a) OP-ICCPR, to the effect that the competence of the Human Rights Committee (‘HRC’) shall not extend to a communication if the same matter has already been examined under another procedure of international investigation or settlement. They thereby immunize decisions of the ECtHR against review by the HRC.
5. Legal Effects (Art. 21 VCLT/VCLT-IO)
(a) Admissible Reservations
18 A reservation established vis-à-vis another party in accordance with the substantive and procedural requirements of Arts 19, 20 and 23 VCLT/VCLT-IO operates reciprocally between the reserving party and the other party, modifying the treaty for both of them in their mutual relationship to the extent of the reservation, but not for the other parties inter se. The legal effects will be similar when a contracting party has objected to the reservation but not opposed the entry into force of the treaty between itself and the reserving party. In this case, the provisions to which the reservation relates do not apply at all in their mutual relationship to the extent of the reservation.
19 The reciprocity rule that determines the legal effects of reservations, no matter if they are accepted or objected to by another party, is geared to multilateral treaties with a synallagmatic structure in which a party fulfils its obligations in a bilateral relation with one specific other party. It is hardly appropriate for normative treaties which do not create a bundle of bilateral treaty relationships but establish generally applicable erga omnes rules in the common interest of the treaty community as a whole, eg human rights treaties (see paras 31–40 below; Obligations erga omnes). While with regard to the former category of treaties, the reciprocity rule compels the reserving party to pay a price for its reservation in the form of forgoing a reciprocal right, this inhibitory mechanism is ineffective with regard to the latter.
(b) Inadmissible Reservations
20 The VCLT and the VCLT-IO do not expressly regulate the legal effects of reservations which are inadmissible in the light of Art. 19 VCLT/VCLT-IO. These are not covered by Art. 21 VCLT/VCLT-IO, as this article’s introductory clause makes clear, and will therefore not have the legal effects laid down in this provision. As the contracting parties are the masters of the treaty it is theoretically possible, if unlikely, that they may unanimously accept an inadmissible reservation, making it admissible through an informal amendment to the treaty. The other legal issues raised by inadmissible reservations have not yet found a clear answer.
21 In Reservations to the Convention on Genocide (Advisory Opinion), the ICJ stated that if a reservation was incompatible with the object and purpose of the convention the reserving State could not be regarded as being a party to it. The court thus assumed that an inadmissible reservation would render this State’s ratification or accession ineffective in toto. It is a matter of dispute whether the current general international law has adopted this ‘total invalidity’ solution. At first sight, it seems to correspond to the general principle that a State or international organization will not be bound by a treaty without its consent, for the reserving State or international organization expressed its consent to become a party to the treaty only subject to the inadmissible reservation. On the other hand, not becoming a party to the treaty is no less incompatible with the express intention of the reserving State or international organization. The State’s or international organization’s expression of consent is contradictory in itself, accepting the treaty while at the same time purporting to reverse its terms in the case of Art. 19 (a), (b) VCLT/VCLT-IO or object and purpose in the case of Art. 19 (c) VCLT/VCLT-IO.
22 From a policy standpoint, the ICJ’s strict solution is unsatisfactory because it eliminates any serious legal risk for the reserving party which is tempted to safeguard its individual interests by extensive reservations and expect nothing worse than ending up not being a party to the treaty. In the interest of the integrity of multilateral normative treaties the parties should rather be induced to use reservations cautiously. One inducement would come from a ‘partial invalidity’ solution which would sever an inadmissible reservation from the party’s expression of consent to be bound by the treaty, declare the former void and preserve the latter. The reserving State or international organization would thus become a party to the treaty without the benefit of its inadmissible reservation. It would bear the risk of formulating an inadmissible reservation which would induce it carefully to avoid the pitfalls of Art. 19 VCLT/VCLT-IO. Even if it failed in this endeavour it could usually denounce the treaty so that it would gain another chance to decide which aspect of its contradictory expression of consent should prevail.
23 The legal uncertainty concerning the fate of ratifications with inadmissible reservations is worsened by the absence of obligatory adjudication by a neutral instance. Undoubtedly the depositary has no adjudicatory power, except in obvious cases. Accordingly, the United Nations Secretary-General (United Nations [UN]; United Nations, Secretary-General), in his capacity as depositary, communicates reservations and objections to all States concerned, leaving it to each of them to draw legal consequences. But he will refuse to accept the deposit of an instrument accompanied by a manifestly inadmissible reservation. This leaves the primary responsibility with the other contracting parties which can raise objections and explain the legal consequences envisaged by them.
24 Sometimes objecting States have, in accordance with the ‘total invalidity’ solution, opposed the entry into force of the treaty between itself and the reserving State on the ground that the reservation was inadmissible. Sometimes they have, in accordance with the ‘partial invalidity’ solution, expressly stated that an inadmissible reservation was invalid and thus the treaty applicable in its entirety without the reserving State benefiting from its reservation. But as no constant and uniform practice has developed in this respect one cannot definitely say that either of the two alternative solutions is part of universal customary international law in general. A different picture arises with regard to regional and universal human rights treaties with judicial or quasi-judicial monitoring bodies which have followed the ‘partial invalidity’ solution (see paras 34–40 below).
(c) Withdrawal of Reservations and Objections (Art. 22 VCLT/VCLT-IO)
25 A withdrawal of a reservation will remove its legal effects, making the treaty operative in relation to those parties that had objected to the reservation and opposed the treaty’s entry into force, and making the treaty provision against which the reservation had been directed applicable in relation to all parties.
26 The legal consequences of a withdrawal of an objection depends on the effect which the objecting party has given it: if it is the normal minimum effect of Art. 21 (3) VCLT/VCLT-IO, the withdrawal will henceforth make the treaty provision to which the reservation relates applicable between the two parties. If it is the unusual maximum effect of Art. 20 (4) (b) VCLT/VCLT-IO, the treaty will enter into force as between the objecting and reserving parties.
D. Special Categories of Treaties
1. Plurilateral Treaties (Art. 20 (2), (5) VCLT/VCLT-IO)
27 The traditional system of unanimity is retained for plurilateral treaties: when it appears from the limited number of negotiating States and/or negotiating organizations and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires the express or tacit acceptance by all the parties. If unanimous acceptance cannot be attained the reserving State or international organization will not become a party to the treaty, which for this reason may not enter into force at all, depending on its particular provisions. An example would be the Treaty on the Final Settlement with respect to Germany of 1990 (Germany, Unification of) to which in fact, however, no State has tried to make a reservation.
2. Constituent Instruments of International Organizations (Art. 20 (3) VCLT/VCLT-IO)
28 When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the express acceptance of the competent organ of that organization, otherwise the reserving State or international organization will not become a member (International Organizations or Institutions, Membership). The integrity of such a constituent instrument outweighs other considerations because reservations can jeopardize its effective implementation. This is why several of these instruments expressly—eg Art. XVI (5) WTO Agreement (World Trade Organization [WTO])—or implicitly—eg the United Nations Charter—prohibit reservations. For the others, the ILC wanted to leave it to the members of the organization, acting through its competent organ (International Organizations or Institutions, Decision-Making Bodies), to determine how far any relaxation of the integrity of the constitution was acceptable. One of the few examples is the unanimous approval by the World Health Assembly of the reservation which the US attached to its acceptance of the Constitution of the World Health Organization (‘WHO Constitution’; World Health Organization [WHO]).
3. International Labour Organization’s Conventions and World Health Organization’s International Health Regulations
29 As a rule, reservations to International Labour Organization (ILO) conventions are not permitted because these are adopted by the International Labour Conference where each Member State is represented not only by two government delegates, but also by one employer delegate and one worker delegate. The conventions thus not being the exclusive domain of governments the latter, exercising the state’s foreign relations power, should not be able to make reservations modifying them all on their own (see also Foreign Relations Law).
30 According to Arts 21 and 22 WHO Constitution, the World Health Assembly has the power to adopt health regulations by a majority vote which will be binding on all members except for such members which ‘contract out’ by notifying the Director-General of rejection or reservations within a certain period. Arts 88 and 89 International Health Regulations (1969) currently in force provide special rules on the making and withdrawal of such reservations. According to the more elaborate Arts 62 and 63 revised International Health Regulations (2005), which will enter into force in May 2007, reservations to these regulations shall not be incompatible with their object and purpose. Even an evaluation procedure is established: if within six months at least one-third of the Member States object to a reservation it will ultimately be for the majority of the World Health Assembly to determine its compatibility with the object and purpose of the regulations. If the vote is negative, the regulations will enter into force for the reserving State only after it withdraws its reservation.
4. Human Rights Treaties
(a) Application of the General Rules or Special Case?
31 Human rights treaties have seen an exceptionally high number of both reservations and objections thereto on the grounds of their inadmissibility. It is questionable whether the rules on reservations and objections of the VCLT/VCLT-IO provide an appropriate legal regime for this category of treaties because these rules are based on the freedom of contracting parties to formulate reservations while human rights treaties are intended to secure the minimum standard of inalienable rights of man for all on earth (see also Human Rights, Treaties, Extraterritorial Application and Effects). Furthermore, the regime of the VCLT and the VCLT-IO, being based on the concept of reciprocity, presupposes treaties establishing a web of exchanges of mutual obligations between the parties for their mutual benefit. Human rights treaties, however, primarily create obligations of an objective character, being designed to protect individual rights in the interest of humanity as a whole, and thus lend themselves neither to an evaluation of a reserving party’s treaty membership by other contracting parties individually nor to a mutual release from treaty obligations between reserving and objecting parties. Still, the ILC, in its Preliminary Conclusions on Reservations to Normative Multilateral Treaties including Human Rights Treaties of 1997, considered the flexible rules of the VCLT/VCLT-IO as suited to the requirements also of human rights treaties although it acknowledged that they gave rise to legal questions that were not envisaged when the VCLT and the VCLT-IO were drafted, in view of the monitoring bodies which many of them established (Human Rights, Treaty Bodies).
(b) Survey of Reservation Clauses in Human Rights Treaties
32 Four of the seven universal human rights treaties include reservation clauses. Art. 28 Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’; Women,Rights of, International Protection) and Art. 51 Convention on the Rights of the Child (Children, International Protection) prohibit reservations incompatible with the object and purpose of the convention. Art. 28 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’; Torture, Prohibition of) provides that reservations to Art. 20 CAT may be made without apparently excluding reservations to other articles. Art. 20 CERD is unique in that it prohibits reservations incompatible with the object and purpose of the convention as well as reservations the effect of which would inhibit the operation of a treaty body. It moreover provides that a reservation shall be considered incompatible or inhibitive if at least two-thirds of the States Parties object to it, which has never happened. The Genocide Convention (Genocide), the ICCPR and the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) with no reservation clauses of their own are subject to the object and purpose standard of customary international law. It is an open question whether the seven universal human rights treaties form a coherent whole so that a State is prevented from making a reservation to a provision of, for example, CEDAW if it has not made a reservation to an analogous provision of, for example, ICCPR.
33 At the regional level, Art. 75 American Convention on Human Rights (1969) (‘ACHR’) refers to the VCLT while the African Charter on Human and Peoples’ Rights (1981) is silent on the issue of reservations. The elaborate Art. 57 ECHR provides that a State may only make a reservation in respect of any particular provision of the convention to the extent that any law in force in its territory is not in conformity with the provision. The reservation must contain a brief statement of the law concerned. Reservations of a general character, ie, those which do not refer to a specific provision of the ECHR or are worded in such a way that their scope cannot be defined, are expressly forbidden. Art. 57 ECHR also applies to Protocols No 1, 4, 7, and 12 to the ECHR while Art. 4 Protocol No 6 and Art. 3 Protocol No 13 to the ECHR prohibit reservations. Art. 57 ECHR, which was drafted before the ICJ issued its advisory opinion on reservations to the Genocide Convention, is not exhaustive but leaves room for the application of the object and purpose test, but there are no pertinent decisions of the ECtHR yet.
(c) Practice of Treaty Bodies
(i) Authority of Treaty Bodies in General
34 Most human rights treaties establish judicial or quasi-judicial monitoring bodies that are charged with reviewing State reports on the implementation of their treaty commitments and optionally considering State and/or individual complaints (Human Rights, State Complaints). These bodies having an inherent authority to determine the scope of their jurisdiction, they must also have an inherent authority to determine whether a statement qualifies as a reservation, whether it is a valid reservation and what effects it has. Otherwise they would be unable to perform their functions, ie deciding whether or not the reserving party has fulfiled its obligations with regard to the treaty provision affected by its statement.
35 Whether a monitoring body’s opinion with regard to a reservation is legally binding on the reserving party depends on whether the treaty in general gives it the power to issue binding decisions, eg, Art. 46 ECHR, or only non-binding views, eg, Art. 5 (4) OP-ICCPR. At any rate such an opinion will be highly authoritative. The reactions of the other parties to a reservation—their acceptances or objections—provide guidance for the monitoring body, as subsequent practice in the sense of Art. 31 (3) (b) VCLT/VCLT-IO, but do not disparage its inherent decision-making authority.
(ii) European Court of Human Rights
36 The ECtHR will not consider a reservation ex officio but only if the respondent State invokes it. Nor will it extend a reservation directed at a certain provision of the ECHR to any other provision not expressly mentioned. In a series of judgments, the Court has strictly reviewed reservations by the substantive and procedural standards of Art. 57 (1) and (2) ECHR, even if no party had objected when they were made. If found incompatible, a reservation will be declared invalid by the ECtHR and severed from the ratification so that the reserving party will be bound by the convention without benefiting from its reservation. This constant jurisprudence, starting with the judgment Belilos v Switzerland, has been accepted by all parties to the ECHR.
(iii) Inter-American Court of Human Rights
37 In two advisory opinions—The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts 74 and 75) Inter-American Court of Human Rights Series A No 2 (24 September 1982) and Restrictions to the Death Penalty (Arts 4 (2) and 4 (4) American Convention of Human Rights) Inter-American Court of Human Rights Series A No 3 (8 September 1983)—the Inter-American Court of Human Rights (IACtHR) interpreted Art. 75 ACHR as referring to Arts 19 (c) and 20 (1) VCLT/VCLT-IO. In expressly allowing all reservations that are compatible with the convention’s object and purpose, reservations do not require any subsequent acceptance by the other contracting States. Pursuant to Art. 74 (2) ACHR the Convention thus enters into force also for a reserving State on the date of the deposit of its instrument of ratification or adherence. The IACtHR interprets reservations in a manner that is most consistent with the object and purpose of the ACHR, namely the protection of the basic rights of individuals, irrespective of their nationality, both against the State of their nationality and all other Contracting States. It will therefore not extend a reservation made to a certain article of the convention beyond its text to encompass another article unless otherwise the reservation would make no sense.
38 The IACtHR has considered quasi-reservations to declarations by States recognizing its jurisdiction which go beyond the conditions specifically permitted in Art. 62 (2) (1) ACHR as incompatible with the object and purpose of the ACHR. Accordingly, it has dismissed preliminary objections to its jurisdiction based on such inadmissible quasi-reservations, eg Case of Hilaire v Trinidad and Tobago (Preliminary Objections) (Series C No 80 [1 September 2001]) relying on the analogous jurisprudence of the ECtHR in Loizidou v Turkey (Preliminary Objections) (Series A No. 310; Loizidou Case) with regard to the optional clauses in Arts 25 and 46 ECHR in their original version which were superseded by the entry into force of Protocol XI to the ECHR that made the ECHR’s jurisdiction mandatory.
(iv) Human Rights Committee
39 Like the ECtHR, the HRC will consider a reservation only if a State Party invokes it. In its detailed General Comment No 24 (52) relating to reservations of 2 November 1994 (GAOR 50th Session Supp 40 vol I, 119–25) the HRC adopted the object and purpose standard for evaluating reservations to the ICCPR and the First OP-ICCPR, giving it a fairly broad sweep. At the same time, the committee emulated the ECtHR in claiming the exclusive power to decide on the admissibility of reservations, declare inadmissible reservations void, ‘generally’ sever them from a State’s declaration of consent to be bound by the treaty, and apply the covenant or protocol to the reserving party without benefit of the reservation. But whereas the respective jurisprudence of the ECtHR was accepted by the States Parties, France, the United Kingdom and the US objected to the main propositions of General Comment No 24 (52), and in particular its adoption of the ‘partial invalidity’ solution (GAOR 50th Session Supp 40 vol I, 104, 130, 126).
40 Irrespective of this criticism, the HRC has applied the reasoning of its General Comment No 24 (52) when considering States’ reports and individual communications. On this basis, the majority of the HRC declared a communication by a prisoner under death sentence admissible (Death Penalty), in disregard of a reservation to Art. 1 OP-ICCPR by which the State Party concerned had excluded the committee’s competence to consider communications from this particular group of complainants (UN Commission on Human Rights Rawle Kennedy v Trinidad and Tobago[decision on Admissibility] [2 November 1999] UN CCPR/C/67/D/845/1999). The four dissenting committee members pointed out that because a State Party to the ICCPR was free either to accept or not to accept the individual communication procedure established by the OP-ICCPR, it was also free to accept it in part. After its reservation had been found incompatible with the object and purpose of the OP-ICCPR and invalid, leaving it subject to the OP-ICCPR without qualification, Trinidad and Tobago denounced the OP-ICCPR. To avoid such a reaction, both the Committee on the Elimination of Racial Discrimination (Preliminary Opinion on the issue of reservations to treaties on human rights [13 March 2003] CERD/C/62/Misc.20/Rev. 3) and the Committee on the Elimination of Discrimination against Women have been more cautious in dealing with problematic reservations, preferring to engage in a constructive dialogue with reserving States.
E. Evaluation and Prospects
41 The legal rules concerning reservations to multilateral normative treaties must bridge the fundamental dichotomy between the universality and the integrity of these treaties, which amounts to squaring the circle. While the flexible system introduced by the VCLT/VCLT-IO, and entered into customary international law, seems most appropriate to accomplish the impossible, it has its price. Its use of the reciprocity rule is questionable. It can also lead to the fragmentation of treaties and to disputes about the admissibility and validity of reservations which cannot be settled unless there is a mandatory procedure such as the one established by the ECHR. The guidelines and model treaty clauses which the ILC is currently developing will help in bringing a greater degree of coherence to the application of the VCLT regime, primarily at the universal level. The reservation regime established by regional treaties and customary rules and authoritatively administered by judicial bodies especially in Europe will stay ahead of the universal regime because of the greater homogeneity of the States involved.
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