Skip to main content
Loading Explore guides…
Treaty Reservations · Acedra
Home
Explore
Law
Treaty Reservations
Sign in to save
Chat
If YouTube asks you to sign in, open the video on YouTube.
Watch on YouTube
Reload player
Transcript
58 segments
Copy
Hide video
0:01
we have seen how treaties are concluded and how they are only binding for states parties to that treaty however not all states of a treaty are always bound by the same provisions the legal regime applicable to reservations is fundamental to fully understand the obligations created by treaties however it is also a bit convoluted and takes a while to understand i have included multiple examples in the second part of this presentation to illustrate the explanations
0:30
please bear with me until the end so hopefully the examples will make everything else clear
0:40
many states many times states can decide to become parties of a treaty introducing modifications to some provisions of the treaty or excluding the application of a specific article to themselves the device they use to this effect are known as reservations i will start explaining the rationale for the existence of reservations to treaties and where to find the main provisions regulating them then i will show some examples of unilateral declarations made by states at the time of
1:10
signing treaties to illustrate the difference between reservation and the so-called declarations
1:20
article 2 and articles 19-23 of the Vienna convention on the law of treaties codify rules on the legal regime governing reservations these rules are accepted as customary law and in 2011 the international law commission complemented them with a publication of a guide to practice on reservation to treaties or on reservations to treaties the outcome of this
1:48
guide is mixed the guide clarifies some of the issues raised or not properly covered by the convention but also seems to obscure others
2:02
as we will see the customary rules contained in the vienna convention on the law of treaties have been considered deficient especially when applied to treaties that are not concerned with reciprocal obligations many authors have promoted the idea of codifying other rules for treaties that protect common interests such as environmental treaties or human rights however the international law commission decided that it was preferable to
2:30
maintain a single regime applicable to all treaties it has considered that the vienna regime is flexible enough to accommodate a specific rules for specific treaties
2:48
article 2 of the vienna convention on the law of treaties provides a definition for reservations to treaties concluded between several states according to this definition a reservation is a unilateral statement made by a state or international organization when signing ratifying or accepting to a treaty the purpose of that statement is to modify or to exclude certain provisions of the treaty for themselves
3:20
the international law commission has rephrased the definition to cover both multilateral
3:26
treaties concluded between states and others concluded between states and international organizations or between international organizations in brief a reservation is a limit to the obligations a state or an international organization are willing to take when manifesting their consent to be bound by a treaty
3:52
the capacity of a state to make reservations to an international treaty derives from its sovereignty it seems logical or a normal consequence that if a state can decide not to become bound by a treaty at all it can also decide to become only partially bound by a treaty it makes sense that if a state can decide not to become at all bound by the vienna convention on the law of treaty for instance it should also be allowed to become party of the convention
4:23
except for some of its articles in addition reservations facilitate ratification states may agree to be bound by a treaty which they will otherwise reject entirely multilateral treaties must accommodate very diverse diverse economic political and legal realities so permitting reservation is a means of accommodating such differences
4:50
let's now analyze the legal effect of reservations what happens when a state or an international organization decide to exclude or modify parts of the treaty for themselves the most important rule governing reservations is the same governing treaties in general states are free to decide what regime to apply to a specific treaty so whatever a treaty establishes over reservation prevails in other words to know the legal regime of reservations introduced in
5:21
a treaty we must start by reading what the treaty says about reservations for instance a treaty may prohibit reservations or allow them only for certain articles but not others reservations are permitted unless expressly prohibited which is the case of many treaties such as the statute of the international criminal court or and also many treaties dealing with disarmament such as the chemical weapons convention the anti-personnel mine covenant or the nuclear test ban treaty
5:58
by their own nature some treaties cannot accept reservations this is the case of a bilateral treaty for instance where the non-acceptance of a provision by one of the state parties involves renegotiating the treaty if both parties don't agree to the text they must renegotiate the text a reservation in this scenario makes no sense equally it is incompatible with the nature of the treaty to introduce reservations to treaties that establish boundaries the vienna convention on the
6:31
law of treaties prohibits reservations that are contrary to the object and purpose of the treaty in practice this kind of reservations are not different from others first of all it is states themselves who decides which reservations they consider contrary to the object and purpose of the treaty so they operate like any other reservation we will see this with some specific examples later
6:58
second treaties don't tend to encapsulate a single and clear distinguishable purpose the practice of states or the practice of states objecting reservations demonstrates that states have divergent interpretations of what constitutes the object and purpose of treaties in fact states use objections many times to push a particular view on what the object of the treaty is
7:28
reservations are unilateral acts that have the legal effect of excluding or modifying a provision of the treaty in relation to the reserving states many times states introduce other declarations at the time of signing or ratifying that don't produce any legal effect they tend to be political in character and do not change the provisions of the treaties sometimes it is difficult to distinguish between a unilateral statement that modifies the content of a provision
7:58
reservation and modificative reservation as i have called them here and declarations aimed at clarifying the meaning of a provision in the treaty so it is not always crystal clear whether a unilateral declaration is a reservation or a declaration this is one of the issues that the international law commission has tried to clarify not always successfully i have selected a few examples of statements that do not have the legal effect of excluding
8:32
or modifying a provision of a treaty therefore they are declarations and not reservations for instance here bolivia's declaration on its opinion about the vienna convention on the law of treaties
8:48
this one is from israel explaining why the country was not becoming a party of the international criminal court statute
8:59
many states who keep control over former colonies away from the mainland may exclude from the application of treaties they sign these territories for instance this is the case of the united kingdom in relation to gibraltar or new zealand regarding tokelau whether this is considered or not a reservation it has a similar effect it limits the commitment acquired by one state in relation to that treaty
9:28
i have reproduced other examples of political declarations that are common in diplomatic practice when becoming party of a treaty many states want to take the opportunity to highlight that entering the treaty does not mean anything about pending dispute with other states parties of the same treaty for instance argentina tends to remind the united kingdom at every possible opportunity that it has not renounced to territorial territorial
9:55
claims over the malvinas what the united kingdom calls the falkland islands here we have a declaration objecting to the fact that the international convention on the elimination of all forms of racial discrimination is open to all u.n member states instead of all states of the world again a political declaration that does not modify or exclude any provision of the treaty no norm of international law prescribes the right to enter a treaty nor
10:24
the obligation to open it to signature to any other than the negotiating states may agree
10:33
in this example afghanistan provides a particular interpretation to the meaning of article 62 in the vienna convention on the law of treaties since the category of unequal treaty is not settled in international law this declaration probably has no legal effect but could be interpreted as a reservation modifying a provision of the vienna convention on the law of treaties
10:57
so we have seen what is a reservation where to find the main rules regulating reservations and the distinction between reservations and other declarations when signing or ratifying a treaty we are now going to explore what are the legal effects of reservations please remember these rules only apply if the treaty does not establish a different regime or if reservations are not prohibited by the nature of the treaty therefore these rules apply when
11:25
the treaty remains silent on the topic of reservations which happens very often for instance the vienna convention on the law of treaties does not establish a regime for reservations to that treaty therefore the rules i am going to explain apply the legal effect of reservation depends on the reaction of other state parties to that reservation states who formulate reservations what we call the reserving state must inform the other treaty parties of the reservation
11:55
here the figure of the depository is especially relevant reservations are deposited along with the instrument of ratification and it is the depository who notifies the other parties of the treaty about the existence of such reservations once they are informed about the existence of a reservation other state state parties or international organizations parties to the treaty can accept or object to reservations made by a state
12:26
there are two ways of accepting reservations by accepting them expressly or by remaining silent to 12 months if a state does not object to a reservation the reservation becomes accepted for that state after 12 months states can also object to reservations this means this means they announce they reject a reservation made by another state first they can simply state they reject object to the reservation formulated by the reserving state it
13:00
is what we call a non-qualified objection second a state may decide the importance of the reservation introduced is such that it prevents the entry into force of the full treaty between the reserving state and itself using the words of the guide of the international law commission this means that a state or an international organization that formulates an objection to a reservation may oppose the entry into force of the treaty as between itself and the author of the reservation
13:38
let's look at the effect of accepted and objected reservations with a few examples the first rule is that a reservation excluding a provision of a treaty and accepted by other states implies that the excluded provision does not enter into force between the reserving state and the accepting states here we have a reservation to the vienna convention on the law of treaties formulated but by argentina excluding from the provisions argentina is committing
14:07
to when ratifying the treaty article 62 on fundamental changes of circumstances as bases to terminate a treaty states who expressly accept this reservation or remain silent for 12 months will not be bound by article 62 in their relationship with argentina article 62 does not enter into force between argentina and accepting states
14:38
an objection to reservation excluding a provision of a treaty has the same legal effect than accepting the reservation the provision does not enter into force between the reserving state and the objecting state the difference is political the objecting state is expressing his rejection to the reservation here argentina objects to reservations made by afghanistan morocco and syria to article 62-2 of the vienna convention on the law of treaties
15:08
it means that this provision will not enter into force between argentina and afghanistan between argentina and morocco and between argentina and syria the effect will be the same if argentina had accepted the reservation but argentina wants to express its rejection
15:28
states can decide to refuse the entry into force of a treaty between them and the reserving state on the basis of a reservation made by that state however as established by the international court of justice and the practice of the states this must be expressly established otherwise only the provision affected is excluded in the reciprocal relationship between the reserving state and the objecting state not the full treaty
15:58
many times a state will object to a reservation accompanying by a claim that the reservation violates the object and purpose of the treaty this is not by itself a qualified reservation this is why i said at the start of this presentation that in practice reservations contrary to the object and purpose of the treaty have the same effect as other reservations since it is a states who assess if this is the case there are multiple possible interpretations
16:26
only one state expressly manifests that the treaty will not enter into force between itself and the reserving state we will be in the presence of a qualified reservation
16:41
here i have added a couple of examples more regarding reservations that have been objected by other states it is also possible that a reservation to a provision raises an objection that impacts thought that impacts other provisions not directly affected by the reservation i have reproduced here an objection by japan in relation to any state who has formulated a reservation to article 66 of the vienna convention on the law of treaties article 66 outlines the
17:13
settlement of dispute mechanism states should use to resolve their conflicts in relation to the validity and termination of treaties japan's objection does not only affect article 66 but all part 5 of the vienna convention on the law of treaties which includes articles 42-72 outlining the regime governing validity and termination of treaties without that qualification japan's objection will have the effect of excluding article 66 in the relationships between japan
17:46
and states reserving the application of article 66 however the qualification formulated by japan means that the 30 articles comprising part 5 of the vienna convention on the law of treaties will not enter into forms between japan and states formulating a reservation to article 66
18:09
here we have an example of a proper qualified objection new zealand objection to the reservation entered by syria to the vienna convention on the law of treaties is of such importance to new zealand that it objects to it preventing the entry into force of the full convention between syria and new zealand so the vienna convention on the law of treaties does not bind syria and new zealand in their reciprocal relationships
18:40
finally we will find the reservations that modify rather than exclude the provision of the treaty they are many times difficult to distinguish from interpretative declarations without clear legal effect reservations modifying a provision of a treaty work as follows if a state accepts the reservation the provision enters into forms between the reserving and accepting states as modified by the reservation if a state does not accept the reservation
19:08
the provision does not enter into force between the reserving and objecting state
19:19
i am using here the example of a syrian reservation to article 52 of the vienna convention on the law of treaties according to the reservation formulated by syria article 52 regulating the validity of a treaty if its conclusion has been procured by the threat of use of force the expression use of force is not limited to the use of armed force and also includes other forms of coercion we have already seen in the session regarding validity of
19:50
treaties that this interpretation of article 52 was advocated by several states but it has not been widely accepted as the meaning of use of force in international law however for the purpose of this treaty and for the purpose of reservations syria has introduced a modification to article 52 states accepting the reservation are accepting a modified version of article 52 in their relationship with syria between accepting states and syria states can claim the invalidity
20:22
of a treaty based on the concurrence of economic political military and psychological coercion
20:33
for estates objecting to the syrian modification article 52 does not enter into force between syria and the objecting state in the example i am reproducing here where japan objects the reservation formulated by syria article 52 does not enter into force between syria and japan this can become more complicated if we question the nature of this reservation some scholars will say this is an interpretative declaration and does not produce the legal effects of a reservation we can
21:05
see here how the distinction between reservations modifying an article or interpretative declaration is not obvious but has legal implications depending on the interpretation we want to give it
21:19
the regime articulated in the vienna convention on the law of treaties that reflects the practice of the states and therefore is customary law does not seem to work well with treaties that protect common interests rather than regulating reciprocal obligations this has been highlighted in particular regarding human rights treaties but it is also true for treaties protecting similar collective interests such as environmental treaties
21:48
let's see this with a well-known example we have here a reservation of the united states of america to the 1966 covenant on civil and political rights prohibiting the imposition of death penalty to minors the united states entered a reservation excluding that provision from the obligations it was ready to be bound by when ratifying the government several states objected to this reservation the vienna convention on the law of treaties regime implies
22:17
that the aim of objecting states is to prevent this provision to enter into force between them and the united states clearly states objecting to this provision don't seek that objective they don't seek to exclude the article that prohibits the imposition of death penalty to minors from the legal regime regulating their relationships with the united states what they try to do here is to manifest their rejection to the formulation of this reservation and to the imposition of
22:49
death penalty for crimes committed by children while some human rights bodies have tried to act as evaluators of permissible and non-permissible reservations by states to human rights treaties this has been widely rejected states remain the main actors assessing whether or not a reservation is permissible or not in conclusion the vienna convention on the law of treaties
23:17
and its regime on reservation is not ideal for human rights treaties but there is no another one
23:25
furthermore the international law commission guide on the practice of reservations has supported the benefit of not having a differentiated regime for human rights treaties on the contrary alain pellet prominently involved in drafting the guide has attacked the approach of human rights lawyers or advocates who believe human rights are special according to him and his position is reflected in the guide if states want a special regime for human rights treaties they
23:52
introduce it in the text of the treaty there is nothing special about human rights treaties that merits a different legal regime as you can see understanding reservations is fundamental to fully understand the obligations accepted by a state when ratifying a treaty so to know if a state is bound by the provisions of a treaty we must check first if the state has provided its consent to be bound by that treaty
24:20
two if the treaty has entered into force and three if there are if there are reservations that modify the legal obligations the state has accepted by becoming a party of the treaty
Here to help you learn
Sign in to keep a private conversation with your course tutor.
Ask me anything about the material…
Sign in to chat