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Transcript of Phil Salvesen Dissertation
Reservations to Multilateral
Environmental Law Treaties
Philip Salvesen
Bachelor of Laws (LLB)
Durham Law School
Durham University
March 2013
i
Acknowledgements
I would like to thank my supervisor, Dr Gleider Hernández, for his support and advice over the
past academic year. Our discussions and his insightful comments have been invaluable to me
throughout the dissertation process.
ii
Table of Contents
List of Abbreviations .................................................................................................................. iv
Introduction .................................................................................................................................. 1
Chapter 1: The History of the Rules Governing Reservations to Treaties ............................. 3
1.1 The Unanimity Approach ..................................................................................................... 4
1.2 The Pan-American Approach ............................................................................................... 6
1.3 The Genocide Convention Case ........................................................................................... 8
1.4 The Vienna Convention on the Law of Treaties ................................................................ 11
Chapter 2: Reservations to Multilateral Human Rights Treaties ......................................... 15
2.1 The Validity of Reservations ............................................................................................. 15
2.1.1 The Opposability School ............................................................................................. 15
2.1.2 The Permissibility School ........................................................................................... 19
2.2 The Consequences of Impermissible Reservations ............................................................ 22
2.2.1 The Surgical Doctrine ................................................................................................. 22
2.2.2 The Backlash Doctrine ................................................................................................ 23
2.2.3 The Severability Doctrine ........................................................................................... 25
iii
Chapter 3: Reservations to Multilateral Environmental Law Treaties ................................ 29
3.1 The Vital Importance of Global Participation .................................................................... 31
3.2 The Close Connection to Human Rights Protection .......................................................... 33
3.3 The Non-Reciprocal Nature of Environmental Obligations .............................................. 36
3.4 Implementing a Human Rights Approach .......................................................................... 39
Chapter 4: Conclusion ............................................................................................................... 41
Bibliography ............................................................................................................................... 43
Textbooks ................................................................................................................................. 43
Articles ..................................................................................................................................... 45
Other Sources ........................................................................................................................... 51
International Conventions ........................................................................................................ 53
Table of Cases .............................................................................................................................. 55
iv
List of Abbreviations
AJIL: American Journal of International Law
ARIEL: Austrian Review of International and European Law
BYIL: British Yearbook of International Law
CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women
Colo.J.Int'l Envtl.L.& Pol'y: Colorado Journal of International Environmental Law and Policy
Colum.Hum.Rts.L.Rev.: Columbia Human Rights Law Review
CUP: Cambridge University Press
EHRR: Essex Human Rights Review
EJIL: European Journal of International Law
Fordham Envtl.L.J.: Fordham Environmental Law Journal
Geo.Int'l Envtl.L.Rev: Georgetown International Environmental Law Review
GYIL: German Yearbook of International Law
Harv.Int'l L.J.: Harvard International Law Journal
HRC: United Nations Human Rights Committee
Hum.Rts.Q.: Human Rights Quarterly
ICCPR: International Covenant on Civil and Political Rights
v
ICJ: International Court of Justice
ICLQ: International and Comparative Law Quarterly
ICRW: International Convention on the Regulation of Whaling
ILC: International Law Commission
ILM: International Legal Materials
IWC: International Whaling Commission
JLS: Journal of Legal Studies
MJIL: Melbourne Journal of International Law
MLR: Modern Law Review
OUP: Oxford University Press
Stan.J.Int'l L.: Stanford Journal of International Law
SYBIL: Singapore Yearbook of International Law
U.Pa.L.Rev.: University of Pennsylvania Law Review
UNGA: United Nations General Assembly
UNTS: United Nations Treaty Series
VCLT: Vienna Convention on the Law of Treaties
Yale J.Int'l L.: Yale Journal of International Law
YBILC: Yearbook of the International Law Commission
1
Introduction
The 1969 Vienna Convention on the Law of Treaties (VCLT)1 codified the rules governing the
formation, validity, and effects of reservations to treaties. Although intended to be generally
applicable to all treaties, its rules governing reservations have faced opposition by the specialised
regime of international human rights law. That regime has concluded that the VCLT rules
governing reservations are inadequate due to the specific features and aims of international
human rights treaties, and therefore an alternative human rights approach has slowly gained
recognition and support from the wider international community. This dissertation aims to
expand on this diverging practice by critically assessing the adequacy of the VCLT rules
governing reservations in relation to multilateral environmental law treaties.
Chapter 1 will examine the historical development of the rules governing reservations, which has
been shaped by the competing policies of integrity and universality. It will argue that although
the VCLT implements a better balance between the two policies, its combination of subjective
and objective tests of validity presents fundamental uncertainties regarding the effectiveness of
the current regime.
Chapter 2 will focus on the suitability of the VCLT regime for multilateral human rights treaties.
First, it will examine the rules governing the validity of reservations. It will contend that, due to
the particular features and aims of human rights treaties, and in order to ensure the integrity of
treaty provisions, the validity of reservations should be assessed according to the permissibility
school. Secondly, the chapter will critically assess the possible consequences of impermissibility.
1 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).
2
It will argue that international human rights regimes have correctly adopted a presumption of
severability for inessential reservations, as this approach most effectively protects the integrity of
treaty provisions whilst ensuring maximum treaty participation.
Chapter 3 will seek to justify the application of the human rights approach to reservations to
multilateral environmental law treaties. It will contend that, despite the minimal commentary on
the subject, the issue of reservations to multilateral environmental law treaties is of growing
concern and must be addressed in order to ensure the effectiveness of future environmental
protection. It will argue that, due to the vital requirement of global treaty participation, the close
connection between environmental and human rights protection, and the non-reciprocal nature of
environmental obligations, the VCLT reservations regime is inadequate. Instead, the human
rights approach, implemented through environmental treaty-monitoring bodies, provides the
optimal balance of integrity and universality required for effective multilateral environmental
protection.
3
Chapter 1: The History of the Rules Governing Reservations to Treaties
The historical development of the rules governing reservations has been shaped by the two
competing policies of integrity and universality. According to the former, reservations cause
injury to the integrity of the treaty as they exclude or modify provisions that were a fundamental
part of the original treaty.2 The absolute necessity of upholding a treaty’s integrity is supported
by those who view reservations as merely a means by which states circumvent any treaty
obligations they do not want to comply with. 3 However, according to the latter policy,
reservations are necessary in order to facilitate a wider level of participation by states. Proponents
argue that rather than formulating reservations to damage the integrity of a treaty, a state that
intends to undermine a treaty might ratify the treaty in its entirety and then simply ignore its
obligations. In comparison, states that intend to take the treaty seriously have the greatest
incentive to submit reservations to provisions that they do not want to, or cannot, be bound by;
and thus reservations may be a sign of seriousness on the part of a state.4
As the interests of the international community have evolved, moving towards the protection of
normative and community values, the required balance between universality and integrity has
shifted to facilitate wider participation through greater flexibility. The rules governing
reservations have adapted accordingly. Each stage of development to be discussed, therefore,
reflects the changing social and political aims of the international community at the time. The
2 A Pellet and D Müller, 'Reservations to Human Rights Treaties - Not an Absolute Evil…' 2, in U Fastenrath, R Geiger, D-E Khan, A Paulus, S von Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (OUP 2011). 3 J L Goldsmith and E Posner, The Limits of International Law (OUP 2005). 4 E Neumayer, ‘Qualified Ratification: Explaining Reservations to International Human Rights Treaties’, (2007) 36(2) JLS 397, 401.
4
remainder of this chapter will critically examine how the law of reservations has evolved up until
the codification of the VCLT, taking into account the noticeable shift in the balance between
integrity and universality.
1.1 The Unanimity Approach
The rules governing reservations originated in the unanimity approach, as adopted by the Council
of the League of Nations in 1927.5 According to this approach, a valid reservation required
unanimous acceptance by all other states parties.6 This strict test was derived from the ‘contract
theory’: in other words, when states entered into a treaty it implied the completion of an offer and
acceptance of a contract.7 Consequently, a reservation was regarded as a counteroffer to the
original treaty, which required unanimous acceptance by the other parties.8 Therefore, the validity
of reservations was assessed identically to the negotiation of treaty provisions, to which all states
had to agree.
The unanimity rule was adopted to protect the integrity of treaties.9 This was because it was
believed that states parties could be relied upon to object to detrimental reservations and, since
objections had universal consequences, this would bind all states through uniformity of treaty
commitments.10 Nevertheless, on a close examination the unanimity approach suffered from two
5 A McNair, Law of Treaties (OUP 1961) 163. 6 B Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’ (1991) 85 AJIL 281, 289. 7 I M Sinclair, ‘Vienna Conference on the Law of Treaties’, (1970) 19(1) ICLQ 47, 54. 8 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 273, 275. 9 J K Koh, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, (1982) 23 Harv.Int'l L.J. 71, 79. 10 R Jennings, Oppenheim’s International Law (9th edn, OUP 1992) 1244.
5
fundamental issues that meant it could not safeguard the integrity of treaties. First, it rested upon
the assumption that a reservation accepted by all states parties would not undermine the integrity
of a treaty. One cannot rule out, however, the possibility of all states parties accepting a
reservation that clearly undermines vital aspects of the treaty, thus damaging its integrity.11 On a
practical level, the justification is also untenable when unanimous acceptance takes place due to
political reasons or by virtue of failure to raise objections, instead of in relation to its content.12
This issue is worsened and made possible by the second flaw: that the unanimity approach
imposed no substantive limits on the content of reservations. Consequently, reservations could
modify or exclude fundamental rights and obligations that the treaty sought to protect. Therefore,
since the only protection derived from the subjective test of acceptance by the other states parties,
without any restrictions on the content of reservations, the unanimity approach failed to
adequately uphold treaty integrity.
This approach was also criticised for failing to consider the emerging principle of universality.
Reservations are often essential in order to modify provisions that conflict with domestic
legislation. Therefore, such reservations make it possible for states to join treaties that they
previously could not. Consequently, by requiring unanimous acceptance and thus providing each
other state party with a veto, a state’s chances of joining a treaty were severely reduced when
reservations were essential.13 An objection to an essential reservation left the reserving state with
only two options. Either it could attempt to negotiate with the objecting state to gain acceptance, 11 As discussed in Section 1.3, the ‘object and purpose test’ of the ICJ in the Genocide Convention case was to protect these vital aspects of the treaty that lacked protection under the earlier approaches to treaty reservations. 12 P Devidal, 'Reservations, Human Rights Treaties in the 21st century - from Universality to Integrity' (2003) University of Georgia School of Law LLM: Theses and Essays, Paper 10, 10. 13 A Pellet and D Müller (n 2) 4.
6
or it had to abandon its attempt to join the treaty. Where multiple states raised objections the
chances of successfully negotiating with them all to accept the reservation would be increasingly
unlikely, leaving the reserving state with only the latter option. Therefore, given these criticisms
of the high threshold, it is unsurprising that the unanimity approach became disregarded as the
importance of universality grew from the increase in human rights and other normative treaties.
1.2 The Pan-American Approach
In the 1930s the Pan-American Union adopted an alternative approach to determining the validity
of reservations.14 This involved a purely subjective test of validity governed exclusively by the
acceptance of reservations by other states parties.15 Therefore, in accordance with the unanimity
approach, there existed no substantive limits on the content of reservations or on a state’s ability
to accept them. Nevertheless, it was markedly different to the unanimity approach as a
reservation no longer required unanimous acceptance. Instead, acceptance by a single state party
was enough to validate a reservation, even if others raised objections.16 Therefore, whereas under
the unanimity approach only unanimous acceptance would entail validity, under the Pan-
American approach only unanimous opposition would entail invalidity.17
A further noticeably different feature of this approach was that, as a result of contrasting
reactions of states to a reservation, three possible treaty arrangements could simultaneously exist
between different states parties. Between states ratifying without reservations, the treaty would be
14 G McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to the First Optional Protocol’ (2001) 23(3) Hum.Rts.Q. 769, 785. 15 J K Koh (n 9) 80. 16 A Gillespie, ‘Iceland’s Reservation at the International Whaling Commission’ (2003) 14(5) EJIL 977, 984. 17 J K Koh (n 9) 81.
7
in force in its entirety; between a reserving state and an accepting state, the treaty would be in
force as modified by the reservations; and between a reserving state and an objecting state, the
treaty would not be in force.18 Consequently, whereas the unanimity rule produced uniform
obligations for all states parties, the Pan-American approach resulted in a collection of loosely
related bilateral treaty arrangements that differed in scope, albeit under an overarching
multilateral framework.19
Due to these significant changes, the Pan-American approach successfully addressed the
universality deficiencies of the unanimity approach by prioritising maximum participation.
Whereas the unanimity approach subordinated a state's freedom to formulate reservations to the
protection of the treaty’s integrity, the Pan-American approach offered states the maximum
degree of flexibility.20 This flexibility, afforded through the existence of differing bilateral
arrangements, clearly prioritised the goal of universality as a single objection would not prevent a
reserving state’s participation.21 However, this was achieved at the expense of treaty integrity.
This sacrifice of integrity was a direct result of allowing a nexus of diverse relationships to exist
under a single treaty.22 It could not be guaranteed that the bilateral arrangements would retain the
rights and obligations that the original treaty sought to protect.23 This was because the validity of
18 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) 1951 ICJ Reports 15, 17. 19 E Swaine, ‘Reserving’ (2006) 31(2) Yale J.Int'l L. 307, 312. 20 G McGrory (n 14) 786. 21 A Gillespie (n 16) 984. 22 M Fitzmaurice, 'On the protection of human rights, the Rome statute and reservations to multilateral treaties' (2006) 10 SYBIL 133, 135. 23 The existence of bilateral relationships denied the possibility of multilateralisation. Although this could have been avoided by simply prohibiting reservations, as adopted by UNCLOS and the ICC Rome Statute, this complete prohibition has negative implications for the achievement of universality of treaty membership; therefore making this
8
reservations was purely relativistic: governed by the subjective views of individual states whose
perception and consideration of reservations could widely differ. Therefore, different sets of
states could have widely differing treaty obligations with large aspects of the original provisions
modified or excluded, despite all being parties to the same multilateral treaty. This lack of
security for the integrity of a treaty made the Pan-American approach unsuitable for normative
treaties, where such results would make the treaty highly ineffective.24 Therefore, despite
attempting to rectify the unanimity approach’s lack of consideration for universality, the Pan-
American approach went too far in this regard. It failed to establish a satisfactory balance
between universality and integrity, resulting in a system of validity that could significantly hinder
the substantive purposes of a treaty.
1.3 The Genocide Convention Case
The unsettled rules governing reservations presented an issue following the negotiation of the
Convention on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention)25 as it was unclear whether reserving states could be counted within the stipulated
number of ratifications required for its coming into effect.26 As no agreement was reached during
a General Assembly debate, the issue was referred to the International Court of Justice (ICJ).
solution impractical for normative treaties. Instead, Chapters 2 and 3 support the adoption of a single objective test in order to ensure consistent multilateral obligations between states parties. 24 J M Ruda, ‘Reservations to Treaties’ (1975) 146 Recueil des Cours 95, 116. 25 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 26 E Swaine, ‘Reserving’ (n 19) 313.
9
From the outset, the ICJ demonstrated a clear focus on reconciling the competing goals of
integrity and universality.27 In considering the unanimity rule the Court concluded that it did not
constitute a rule of international law28 and subsequently rejected the approach for reasons of
universality. It was regarded as inconceivable that the contracting parties had contemplated that
an objection to a minor reservation would result in the exclusion of the reserving state.29 This
would severely reduce the level of participation in the treaty, which would be particularly
detrimental due to the universal nature of the condemnation of genocide and the cooperation
required to prevent its occurrence.30 This would restrict the scope of the Convention’s application
and consequently detract from the authority of its moral and humanitarian foundations.31
Therefore, the unanimity approach was rejected in favour of a more flexible regime.32
Simultaneously, however, the ICJ was reluctant to adopt a Pan-American style system with an
undivided focus on universality. It was believed that, despite their rejection of unanimity, even
less could the contracting parties have intended to sacrifice the integrity of the treaty in favour of
securing as many participants as possible.33 It thus acknowledged that both policies needed to be
sufficiently balanced, unlike in the earlier approaches. The Court’s reluctance to impose a purely
subjective test, without any substantive limits on the content of reservations, can be clearly seen
in its constant references to the character and purpose of the Convention, its provisions, and
modes of preparation and adoption. These factors were considered to be vital elements in 27 B Clark (n 6) 293. 28 Genocide Convention case (n 18) 24. 29 ibid. 30 ibid 23. 31 ibid 24. 32 G McGrory (n 14) 788. 33 Genocide Convention case (n 18) 24.
10
determining the possibility of formulating reservations. 34 In particular, the moral and
humanitarian values of the Convention meant that states required a set of guiding principles, if
not substantive rules, as to which reservations could not be accepted due to their detrimental
impact on its integrity. Therefore, unlike in previous approaches, the Court explicitly sought to
limit the freedom of states to accept certain reservations.
The ICJ’s new regime permitted a reserving state to become a party to a treaty, notwithstanding
objections by some states parties, as long as the reservation was “compatible with the object and
purpose of the Convention.”35 Therefore, it implemented a two-stage test. First, it established an
objective test related to the content of reservations in the form of a ‘compatibility test’. This
represented a significant innovation as it was the first time that the content of reservations was to
be objectively regulated. By directly relating this to the object and purpose of the treaty, its
integrity would be protected by preventing the subsistence of damaging reservations. The second
stage retained the Pan-American system of subjective acceptance by states parties. Therefore,
once a reservation passed the compatibility test it did not require unanimous acceptance. Instead,
each state continued to individually appraise reservations and its subsequent decision would only
affect the relationship between the two states.36 This second stage ensured the degree of
flexibility required to facilitate universality.
Evidently, by combining objective and subjective elements, the ICJ successfully improved the
continuity between universality and integrity.37 On the one hand, wide treaty participation was
34 ibid 21. 35 ibid 29. 36 ibid 26. 37 R Goodman, 'Human Rights Treaties, Invalid Reservations, and State Consent' (2002) 96(3) AJIL 531, 534.
11
favoured by retaining the individual assessment of reservations; but by implementing the
compatibility test, a treaty’s integrity was protected simultaneously.
1.4 The Vienna Convention on the Law of Treaties
Despite the Genocide Convention case, there existed no universally accepted regime on treaty
reservation until 1969. This was because the ICJ emphasised that it was expressing its views on
the operation of reservations only in relation to the Genocide Convention, rather than establishing
a generally applicable regime. Furthermore, the United Nations General Assembly declared that
for new conventions coming into force each state could individually decide the consequences of
acceptance of or objection to reservations.38 Therefore, the drafters of the VCLT set out to codify
a set of generally applicable rules for all conventions. In general, the VCLT adopts the ICJ’s
approach to reservations with a combination of objective and subjective tests.39 By doing so it
strives to strike a balance between safeguarding treaty integrity whilst maintaining the flexibility
required for maximum participation.40 The rules relating to the formulation, validity and effects
of reservations are contained in Articles 19-21.
Article 19 codifies an objective test from the start by specifying three limitations: states parties
are allowed to formulate a reservation unless, (a) the reservation is prohibited by the treaty;41 (b)
the treaty provides that only specified reservations, which do not include the reservation in
question, may be made;42 or (c) in cases not failing under subparagraphs (a) and (b), the
38 J M Ruda (n 24) 152. 39 M Fitzmaurice, 'On the protection of human rights...’ (n 22) 139. 40 M Fitzmaurice, ‘The Practical Working of the Law on Treaties’ in Malcolm Evans (ed), International Law (3rd Edition, OUP 2010) 191. 41 VCLT Article 19 (a). 42 ibid Article 19 (b).
12
reservation is incompatible with the object and purpose of the treaty.43
Article 20 establishes the rules for the acceptance of and objection to reservations, thus codifying
the importance of subjective ‘approval’ and the rule that acceptance will be presumed in the
absence of expressed objection. Article 20(4)(a) states that acceptance by another state constitutes
the reserving state a party to the treaty in relation to the accepting state. Article 20(4)(b)
encourages wide participation by providing that an objection does not preclude the entry into
force of the treaty between the two states, unless a contrary intention is expressed by the
objecting state. Article 20(5) further facilitates universality, by introducing a presumption of tacit
acceptance if a state fails to object to a reservation within twelve months of being notified of it or
by the date on which it expressed its consent to be bound by the treaty, whichever is later.
Article 21 sets out the legal effects of reservations and of objections to reservations. Article
21(1)(b) establishes the reciprocal nature of reservations, specifying that modifications made by a
reservation apply to the same extent for the other party in its relations with the reserving state.
Article 21(2) affirms the independence of acceptance and objections, as a reservation does not
modify the provisions of the treaty as between the other states parties. Therefore, the VCLT
regime retains the bilateral system of acceptance of and objections to reservations, with the result
that a state may be party to the treaty in relation to some, but not necessarily all, other states.44
Finally, Article 21(3) declares that when an objecting state does not oppose the entry into force of
the treaty between the two states, the provisions to which the reservation relates do not apply as
between the two states.
43 ibid Article 19 (c). 44 M Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’ (2000) 11(3) EJIL 489, 495; Although this presumption of the bilateral nature of obligations may be sufficient for some treaties, it is inadequate to apply this to normative treaties, as will be explored in Chapters 2 and 3.
13
These provisions demonstrate that the validity and effects of reservations are determined by a
combination of objective and subjective tests. The objective test of Article 19 is based upon the
object and purpose test of the Genocide Convention case and is designed to protect the integrity
of the treaty through its objective limitations on the content of reservations. The subjective test of
Article 20 allows states to individually decide whether to accept or object to a reservation, with
the effects of a reservation dependent on those decisions. This subjective element intends to
facilitate wide treaty participation. However, the exact interaction of these sets of rules is unclear
and two contrasting schools of thought have emerged. The opposability school bases the validity
of a reservation entirely upon its acceptance by other states parties, thus viewing the objective
criteria merely as guidelines on which states may choose to base their decisions.45 However, the
permissibility school employs a two-stage test, first requiring that a reservation is objectively
compatible with the object and purpose of the treaty.46 If the reservation passes the compatibility
test, it proceeds to the second stage whereby other states decide whether to accept or object to it.
However, if a reservation is incompatible it will be void ab initio and therefore other states
parties are unable to accept it.47
This generally unresolved debate raises significant doubts over the effectiveness of the VCLT
regime. This is because by interpreting the objective criteria as merely guidelines the VCLT
would in practice lack objective control over the content of reservations. This has particularly
negative implications for human rights treaties due to their specific aims and features.
Consequently, the international human rights regime has taken a strong stance in favour of the
45 J M Ruda (n 24) 190. 46 M Fitzmaurice, ‘The Practical Working of the Law on Treaties’ (n 40) 192. 47 D W Bowett, ‘Reservations to Non-Restricted Multilateral Treaties’ (1976) BYIL 67, 84.
14
permissibility school in order to safeguard the effectiveness of multilateral human rights treaties.
Chapter 2 will begin by critically examining the two schools of thought in relation to the
particular features and goals of human rights treaties. In doing so, it will justify the adoption of
the permissibility school.
15
Chapter 2: Reservations to Multilateral Human Rights Treaties
As explained, the VCLT does not answer the important question of whether the rules relating to
the acceptance of and objection to reservations are applicable to all reservations or only
permissible ones.48 This chapter will critically analyse the suitability of the opposability and
permissibility school in relation to human rights treaties. Having established that the
permissibility school most effectively protects the integrity of treaty provisions and is best suited
to the key features of human rights treaties, the possible consequences of impermissibility will be
examined. It will be concluded that the general adoption of a presumption of severability for
inessential reservations is justified due to its facilitation of wide participation without
compromising the integrity of treaty provisions.
2.1 The Validity of Reservations
2.1.1 The Opposability School
According to the opposability school the validity of a reservation depends solely on its
acceptance by another state party.49 Consequently, the object and purpose test of Article 19(c)
serves merely as a guideline on which states may decide to base their decisions.50 The
opposability school is supported by the absence in Article 20 of any mention of the compatibility
test. Additionally, it is based on the principles of state sovereignty and non-interference in
internal affairs, which arguably may lead to the unrestricted right of states to accept or object to
48 A Pellet, ‘First Report on Reservations to Treaties’ (1995) UN Doc A/CN.4/470, paras 119–120. 49 K Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’ (2002) 13(2) EJIL 437, 453. 50 J M Ruda (n 24) 190.
16
reservations. However, a system of validity governed by this unrestricted acceptance or objection
to reservations is inadequate for human rights treaties, for the following reasons:
First, the opposability school removes any guarantee of objective control over the content of
reservations, and thus fails to guarantee treaty integrity. If a reservation’s validity is determined
solely by its acceptance by states, with Article 19(c) merely as guidance, it is possible for states
to accept reservations that are incompatible with the object and purpose of the treaty.51 It could be
argued that this will not be particularly detrimental, as in theory contracting states should have no
interest in accepting such reservations. However, this cannot be assured as a state’s desire to
protect the object and purpose of a treaty may be displaced, for example, by political motives.52
Therefore, in practice the opposability school imposes a purely subjective test of validity, similar
to that of the Pan-American Union.53 This is inadequate for human rights treaties due to the
particular nature or value of their provisions. Human rights treaties aim to protect rules that have
a distinct moral value and are “essential to international society.”54 Their purpose is to codify
community interests and set minimum global standards of treatment for individuals.55 For
example, the ICJ heavily relied upon the “moral and humanitarian principles” of the Genocide
Convention when formulating the compatibility test.56 This relates to the substance of the values
themselves, which has led the international community to recognise that their effective
51 A Pellet, ‘Fifteenth Report on Reservations to Treaties, First Addendum’ (26 May 2010) UN Doc A/CN.4/624/Add.1, paras 410–413. 52 J M Ruda (n 24) 190. 53 J K Koh (n 9) 98. 54 F Hampson, ‘Working paper submitted pursuant to Sub-Commission decision 1998/113’ (1999) UN Doc E/CN.4/Sub.2/1999/28, para 13. 55 R Goodman (n 37) 534. 56 Genocide Convention case (n 18) 24.
17
implementation and protection is fundamentally important. For these reasons, human rights
require protection beyond most other multilateral treaties that includes implementation, where
possible, in an undiminished form. This cannot be ensured if states are able to opt out, or allow
others to opt out, through objectively unrestricted reservations. Only by limiting the substantive
content of reservations can this be guaranteed. The opposability school fails to meet this
requirement and thus, by allowing states to accept objectively incompatible reservations, offers
no guaranteed protection for important human rights norms.
The second inadequacy of the opposability school derives from the non-reciprocal nature of
human rights obligations. The principle of reciprocity underpins the VCLT system of acceptance
and objections.57 By accepting or failing to raise an objection to a reservation, a state allows the
reserving state to alter directly the treaty obligations between the two states. Therefore, when
faced by a reservation that is incompatible with the object and purpose of the treaty, a state has a
clear incentive to object in order to prevent the diminishing of obligations owed directly between
the two states. However, human rights treaties do not create reciprocal obligations between
states.58 Unlike most treaties, the direct beneficiaries of human rights treaties are individuals, and
therefore states are not directly affected by reservations.59 The only potential consequences are
indirect: either to their nationals or moral standards.60 These indirect effects are unlikely to
provide substantial incentives for states to object to reservations. In particular, it would be naïve
to trust states to consistently object on the basis of moral standards for two reasons. First,
political or economic interests will often outweigh moral values due to their direct effects, thus
57 A Pellet, ‘First Report on Reservations to Treaties’ (n 48) para 138. 58 G McGrory (n 14) 790. 59 K Korkelia (n 49) 439. 60 R Higgins, ‘Human Rights: Some Questions of Integrity’ (1989) 52 MLR 1, 11.
18
preventing objections. Secondly, given the vast number of multilateral treaties, many of which
attract multiple reservations, states may not have the time or resources to closely analyse the
substance of all reservations. In such situations, it is likely that states will prioritise the
examination of reservations that have direct consequences, such as those to trade or investment
treaties. Furthermore, any resulting delay in examining a reservation may result in the
presumption of its tacit acceptance, despite any substantive issues with its content.61 Therefore,
these reasons cast serious doubt over the effectiveness of the opposability school for human
rights treaties.
In practice, the adoption of the opposability school has resulted in the integrity of several human
rights treaties being compromised.62 For example, when Libya formulated a sweeping reservation
to the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW),63 stipulating that the Convention would not apply when in conflict with Sharia law,
only four states parties submitted objections. 64 Commentators, however, suggest that the
reservation is objectively incompatible with the object and purpose of the CEDAW.65 Despite
this objective incompatibility, the reservation remains operative due to the unfettered reliance on
states parties to individually raise objections, and thus the integrity of the treaty has been
61 VCLT Article 20 (5); although states frequently fail to adhere to the twelve-month time limit: F Horn, Reservations and Interpretative Declarations to Multilateral Treaties (Elsevier Science Ltd 1988) 205-209. 62 C Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment No.24(52)’ (1997) 46(2) ICLQ 390, 391. 63 Convention on the Elimination of All Forms of Discrimination against Women, (entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).
64 United Nations Division for the Advancement of Women, ‘Declarations, Reservations and Objections to CEDAW’ <http://www.un.org/womenwatch/daw/cedaw/reservations-country.html> accessed 24 Jan 2013; L Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff Publishers 1995) 324, 348. 65 B Clark (n 6) 299.
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impaired. This demonstrates how the negative implications of the opposability school are not
merely theoretical, thereby reinforcing its inadequacy for human rights treaties.
2.1.2 The Permissibility School
In comparison, the permissibility school rejects the assertion that incompatible reservations can
be valid. Therefore, it maintains that the rules on the acceptance of and objection to reservations
do not apply to impermissible reservations.66 This is supported by the fact that the ICJ, in the
Genocide Convention case, and the drafters of the VCLT, in the wording of Article 19(c), clearly
envisaged that reservations would be strictly limited to those that are compatible with the object
and purpose of the treaty. This was intended as a binding rule rather than a guideline.67
According to this interpretation it is not possible for states to accept an impermissible reservation,
as such a reservation is void ab initio. The decision to accept or object to a reservation, therefore,
only arises once a reservation has been objectively confirmed as permissible.68 The fact that the
permissibility school imposes substantive limits on the content of reservations provides a stronger
guarantee that reservations will not impair the integrity of human rights treaties. However, in
order to fully confirm this positive appraisal, the method of conducting the permissibility test
must be determined.
The permissibility school suffers from complications over how the compatibility test is to be
conducted. In some cases the most practical or only solution is to leave the assessment to the
states parties. In this way, permissibility is judged through a system of acceptance and objections
66 B Simma and G Hernández, 'Legal Consequences of an Impermissible Reservation to a Human Rights Treaty - Where do we Stand?' in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 60. 67 L Sucharipa-Behrmann, ‘The Legal Effects of Reservations to Multilateral Treaties’ (1996) 1 ARIEL 67, 77. 68 D W Bowett (n 47) 80.
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with the Article 19 criteria as binding rules, rather than guidelines.69 Putting aside the issues of
monitoring state compliance with those rules, even if compliance was guaranteed the system
would still suffer from inconsistencies in the application of the criteria. Each state, in assessing
permissibility, would be influenced by natural prejudices and biases arising from its political,
cultural and economic allegiances. Furthermore, the lack of clear judicial direction as to how to
determine the object and purpose of a treaty would increase the likelihood of inconsistencies.70
These problems are exacerbated in the case of human rights treaties: first, the large numbers of
member states means the chances of achieving consensus from all states’ individual assessments
is unlikely; and secondly, the ambiguity of the compatibility test is amplified due to the wide
range of rights being protected.71 For these reasons, relying upon states to individually judge the
permissibility of reservations would never in practice produce truly objective or consistent
results. Instead of ensuring uniform obligations, a loosely connected framework of bilateral
treaties with differing obligations would be created. This is inadequate for human rights treaties
as it facilitates an inconsistent and subjective application of the validity criteria, which should be
assessed objectively to guarantee the integrity of treaty provisions.
In order to ensure objectivity, the adjudication of permissibility should be delegated to
independent treaty-monitoring bodies. Although they are generally set up to aid enforcement by
monitoring compliance with treaty obligations, many regard it within their competences to assess
69 J Klabbers, ‘On Human Rights Treaties, Contractual Conceptions and Reservations’ in I Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhoff Publishers, 2004) 178. 70 A Pellet, ‘Tenth Report on Reservations to Treaties, First Addendum’ (2005) UN Doc A/CN.4/558/Add.1, 81. 71 G McGrory (n 14) 791.
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the validity of reservations.72 Originally established by the European Commission of Human
Rights,73 this approach has been followed by The European Court of Human Rights,74 the Human
Rights Committee75 and various other monitoring bodies, albeit to the protestations of several
states.76 Despite this consistent trend, the first stage in any delegation would involve establishing
the competence of the particular body. As long as the adjudication of permissibility is not ultra
vires, a delegation provides for a much more objective standard of assessment. Whereas states are
naturally unable to make an objective assessment due to external pressures and biases, treaty-
monitoring bodies are by definition independent from external factors with the sole aim of
protecting the integrity of the treaty. Even though experts serving on those bodies are nominated
and elected by states parties, they serve in their personal capacity and act independently from
their respective governments.77 Therefore, they are able to objectively assess the permissibility of
reservations and, since the result of the assessment will apply to all states parties, this avoids
bilateralism in favour of multilateralisation and uniformity of treaty commitments.
Therefore, it is evident that the adoption of the permissibility school most effectively ensures the
integrity of human rights treaty provisions. Where possible, the assessment of permissibility
72 H Steiner & P Alson, International Human Rights in Context: Law, Politics, Morals (2nd edn, OUP 2000) 773. 73 Temeltasch v. Switzerland, Case 9116/80, 5 May 1982, (1982) 5 EHHR 417. 74 Belilos v Switzerland, Case 10328/83, 29 April 1988, (1988) 10 EHRR 466. 75 HRC, ‘General Comment No 24: General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant’ (4 November 1994) CCPR/C/21/Rev.1/Add.6, para 18. 76 E Swaine, ‘Treaty Reservations’ in D B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 299. 77 C Sidoti, ‘National Human Rights Institutions and the International Human Rights System’ in R Goodman & T Pegram (eds), Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (CUP 2011) 116.
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should be carried out by treaty-monitoring bodies in order to achieve objectivity and consistent
treaty obligations between states.
2.2 The Consequences of Impermissible Reservations
There are three possible consequences of impermissible reservations.78 First, the reserving state
remains bound by the treaty, except for the provision to which the impermissible reservation
relates. Secondly, the impermissible reservation invalidates the state’s instrument of ratification,
so it is no longer a party. Thirdly, the impermissible reservation is severed from the instrument of
ratification, leaving the reserving state bound by the entire treaty without the benefit of its
reservation. These are known as the ‘surgical’, ‘backlash’ and ‘severability’ doctrines
respectively.79
2.2.1 The Surgical Doctrine
The surgical doctrine can be quickly disregarded as a feasible option as it has the paradoxical
effect of allowing a reserving state to benefit from its reservation, despite its impermissibility.80
By excluding the application of the relevant provision, an invalid reservation would have the
same effect as if it were valid. This would render the admissibility criteria of Article 19
ineffective, removing any point in making an assessment of permissibility. This would be
particularly detrimental for human rights treaties where the integrity of treaty provisions is vital
and the permissibility criteria are designed to serve this purpose. Furthermore, the surgical
78 R Goodman (n 37) 531. 79 I Cameron and F Horn, ‘Reservations to the European Convention: The Belilos Case’ (1990) 33 GYIL 69, 115. 80 E Swaine, ‘Treaty Reservations’ (n 76) 293-294.
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doctrine arguably infringes upon the consent of the other states parties.81 In drafting, negotiating
and ratifying a treaty the states parties agree upon its core principles. Therefore, these can only be
excluded or modified by reservations if they are compatible with the object and purpose of the
treaty and receive the consent of the states parties. Consequently, if a reserving state were to
remain a party and benefit from an impermissible reservation this would clearly undermine the
consent of the other states parties. For these reasons, the surgical doctrine presents an
inappropriate consequence of impermissibility.
2.2.2 The Backlash Doctrine
The backlash doctrine represents a noticeably better option for human rights treaties than the
surgical doctrine. According to this doctrine an impermissible reservation invalidates the
reserving state’s consent to be bound, resulting in it no longer being a party to the treaty. This has
the vital improvement of protecting a treaty’s integrity by ensuring that impermissible
reservations are void and thus ineffective, as envisaged by the permissibility school.
Additionally, the doctrine has positive foundations in the protection of state consent, grounded
upon the assumption that a state’s consent in ratifying the treaty is made on the basis that it
contained the impermissible reservation.82 Various commentators voice support for the doctrine
for this reason.83 However, despite these positive factors, the doctrine can be criticised for failing
to consider the fundamental goal of universality.
81 R Goodman (n 37) 533. 82 Certain Norwegian Loans (France v Norway), 6 July 1957, (1957) ICJ Reports 9, 55–9; Interhandel (Switzerland v United States), 21 March 1959, (1959) ICJ Reports 6, 117 (Separate Opinion of Judge Lauterpacht). 83 R Baratta, ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?’ (2000) 11 EJIL 413; D W Bowett (n 47) 89; C Bradley and J Goldsmith, ‘Treaties, Human Rights, and Conditional Consent’ (2000) 149(2) U.Pa.L.Rev. 399, 429–39; L Helfer, ‘Not Fully Committed? Reservations, Risk and Treaty Design’, (2006) 31(2)
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One of the major aims of human rights treaties is to secure ratification by as many states as
possible. The backlash doctrine, however, significantly interferes with this goal of universality.84
This is because a single impermissible reservation results in the automatic exclusion of the
reserving state. Although this undoubtedly protects the treaty’s integrity and the reserving state’s
consent, it fails to contemplate the importance of securing the participation of the reserving state.
Arguably, in some cases this unfulfilled goal may be as equally important. For example, when the
USA ratified the International Covenant on Civil and Political Rights (ICCPR) it submitted five
reservations,85 many elements of which were declared by the United Nations Human Rights
Committee (HRC) as incompatible with the object and purpose of the treaty. 86 If the
consequences were that the USA was no longer a party, the effectiveness and authority of the
ICCPR would be severely undermined. For many multilateral human rights treaties, especially in
their early stages, the participation of the largest and most influential states is paramount in order
to assert the treaty’s authority. Therefore, in such cases the backlash doctrine would be
detrimental. The fundamental problem seems to be a lack of categorisation of states and
reservations. By treating all states and reservations equally, the doctrine can lead to adverse
consequences whereby vital states may face expulsion due to the impermissibility of minor
reservations. In such situations, the negative consequences on universality arguably outweigh the
positives of protecting state consent and treaty integrity. Its approach is more suited to traditional
Yale J.Int'l L. 367, 380; C Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 BYIL 245, 267. 84 R Moloney, 'Incompatible Reservations to Human Rights Treaties - Severability and the Problem of State Consent' (2004) 5(1) MJIL 155, 159. 85 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 86 HRC, ‘Report of the Human Rights Committee’, (3 October 1995) UN Doc A/50/40.
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bilateral relations where universality is a minor concern. Therefore, the backlash doctrine is
inadequate for general application to all impermissible reservations to human rights treaties.
2.2.3 The Severability Doctrine
According to the severability doctrine an impermissible reservation can be severed from the
instrument of ratification, leaving the reserving state bound by the entire treaty without the
benefit of its reservation. The doctrine takes the view that a reserving state’s intention to be
bound by the treaty, as evidenced by its ratification, should prevail over its contradictory
intention to impose an impermissible reservation.87 This ensures that reserving states remain
treaty members, thus protecting the goal of universality without having to compromise treaty
integrity. This balance of integrity and universality has led to its adoption by various human
rights bodies, including the European Court of Human Rights,88 Inter-American Court of Human
Rights89 and HRC.90
The doctrine, however, must be reconciled with the principle of state consent. By definition a
reservation excludes or modifies a treaty provision, and therefore demonstrates a state’s intention
not to be bound by the treaty in its original form. Consequently, the severability doctrine presents
a direct contradiction to state consent, as it leaves a state bound by provisions that it specifically
rejected. This problem is amplified when states explicitly condition their consent to be bound by
87 D W Bowett (n 47) 76. 88 Belilos v Switzerland (Preliminary Objections) (n 74); Weber v Switzerland, 22 May 1990, Series A No 177; Loizidou v Turkey (Preliminary Objections), 23 March 1995, Series A No 310. 89 Hilaire v Trinidad and Tobago, Inter-American Court of Human Rights Series C No 80 (1 September 2001). 90 HRC, ‘General Comment No 24’ (n 75) para 18.
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a treaty subject to certain reservations.91 This is often due to a conflict with the reserving state’s
domestic constitution.92 Therefore, if those reservations were impermissible and accordingly
severed, the reserving state would remain bound by provisions that are domestically
unconstitutional. This constitutes a major breach of the reserving state’s consent by imposing
obligations upon it in the absence of consent.93 For this reason many states have objected to the
HRC’s adoption of severability, with the USA in particular expressing a distinct preference for
the backlash doctrine.94 These reactions demonstrate how fundamental the principle of state
consent is regarded by states. They reject the idea that an impermissible reservation will leave
them bound by an entire treaty, when they only consented to be bound by it in a modified form.
In order to resolve this conflict with state consent, impermissible reservations must be
categorised into two groups: those that are essential conditions of a state’s consent to be bound by
a treaty, and those that are merely ‘accessory’ conditions.95 Essential reservations cannot be
severed due to the incompatibility with the reserving state’s consent. Instead the backlash
doctrine should apply, with the unfortunate result that the reserving state is no longer a party.
However, inessential or ‘accessory’ reservations can be severed without such problems. An
accessory reservation is inessential in the sense that, although it was submitted by a state on
91 For example, the USA made it clear that its consent required for the ratification of the ICCPR was given “subject to the following reservations…”: United States, ‘Senate Committee Foreign Relations Report on the International Covenant on Civil and Political Rights’ (1992) 31 ILM 645, 658-659; However, one must be wary of such reservations as they are inherently self-judging, meaning that the assessment of constitutional incompatibility is made by the reserving state and not subject to objective review: see Certain Norwegian Loans (n 82) 34 (Dissenting Opinion of Judge Lauterpacht). 92 C Bradley and J Goldsmith (n 83) 417. 93 R Baratta, ‘Book Review: Ineta Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation’ (2006) 17(2) EJIL 475, 477. 94 K Korkelia (n 49) 462-463. 95 Interhandel (n 82) 94 (dissenting Judge Armand-Ugon).
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ratification, the reserving state would have assented to the treaty without it.96 In such cases, the
desire to remain party to the treaty outweighs the importance of the reservation.97 Thus, the
severance of inessential reservations incurs no breach of the reserving state’s consent to be bound
by the treaty and provides the optimal consequence of impermissibility, by protecting integrity
and facilitating universality.
The determination of a reservation’s essentiality should be left to independent treaty-monitoring
bodies in order to avoid bilateralism, as discussed in relation to permissibility. Despite this
delegation, problems may still arise as there is no clear guidance regarding how to determine
essentiality. In some cases this determination will be facilitated by the reserving state clearly
stating whether a reservation forms an essential part of its consent to be bound. However, in the
absence of this declaration the International Law Commission (ILC) posits the most effective
solution.98 This solution is that, in the absence of any declaration regarding essentiality, the
reserving state shall be presumed to have tacitly agreed to the severability of any impermissible
reservations. The obvious criticism of this approach is that, being merely a presumption, it may
lead to the wrongful severance of an essential reservation, perhaps due to practical difficulties in
discerning the intention of the reserving state.99 However, if compared to the alternative solution
of a presumption in favour of the backlash doctrine, it is clear that the consequences of a
wrongful severance are less severe. Wrongfully expelling a state from a treaty can have multiple
negative consequences.100 On an international level, for example, the state will lose its leadership
96 R Goodman (n 37) 538. 97 R Moloney (n 84) 165. 98 ILC, ‘Guide to Practice on Reservations to Treaties’ (2011) II (2) YBILC 4.5.3.2. 99 B Simma and G Hernández (n 66) 84. 100 R Goodman (n 37) 556.
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or level of participation in the regime, which may not be regained on re-accession. On a domestic
level the state may incur large costs and difficulties in re-acceding to the treaty. For example, the
USA would entail substantial political difficulties and costs in re-obtaining the President’s and
Senate’s support. These problems are worsened if there has been a change of government or
political instability since the original ratification. Furthermore, in states with poor human rights
records re-accession may not be guaranteed. Comparatively, although the wrongful severance of
a reservation has significant impacts, including the breach of state consent, states have a
relatively simple way of rectifying the damage by withdrawing from the treaty. This is a much
simpler and less expensive process than re-accession, and prevents the continuing breach of state
consent. Therefore, from a harm minimisation perspective it can be concluded that, where the
essentiality of a reservation is undeclared, a presumption of severability is the optimal solution
for impermissible reservations to human rights treaties.
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Chapter 3: Reservations to Multilateral Environmental Law Treaties
This chapter contends that the limited commentary on the subject of reservations to multilateral
environmental law treaties does not reflect its importance. On the contrary, there are several
reasons that explain why the bulk of academic debate has instead centred on reservations to
human rights treaties:
First, despite both being relatively modern, human rights protection became a major concern for
the international community at an earlier stage than environmental protection. Human rights
protection emerged as a chief international policy in the post-Second World War era following
the 1948 Universal Declaration of Human Rights.101 However, it was not until 1993 that the issue
of reservations to human rights treaties was perhaps fully recognised, as signified by its inclusion
in the ILC’s agenda.102 In comparison, environmental protection was largely confined to bilateral
or regional issues until the late 1960s,103 with the 1972 United Nations Conference on the Human
Environment representing the driving force for developments on an international scale.104 From
this point onwards the international community began to fully recognise the global scope of
numerous environmental problems, and arguably it became possible to identify the emergence of
a truly distinctive regime of international environmental law.105 Therefore, as the issue of
reservations to human rights treaties is only now reaching its resolution, it is unsurprising that the
issue of reservations to environmental law treaties is yet to attract widespread commentary.
101 H Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354, 354. 102 ILC, (1993) II(2) YBIL 96, 440. 103 P Cullet, Differential Treatment in International Environmental Law (Ashgate 2003) 4. 104 G Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86(2) AJIL 259, 266. 105 T Stephens, International Courts and Environmental Protection (CUP 2009) 3.
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Secondly, whereas human rights treaties impose uniform obligations for all states parties,
multilateral environmental law treaties generally take a more flexible approach.106 Through the
principle of ‘common but differentiated responsibilities’ the scope of obligations will often differ
from state-to-state dependent on factors such as their contributions to global environmental
degradation, their technologies and their financial resources.107 This ensures that, where possible,
states are able to join the treaty without having to formulate reservations. It also demonstrates
that states recognise the importance of coordinated universal participation in order for
environmental protection to be effective.
Thirdly, many environmental law treaties specifically either exclude the possibility of making
reservations108 or permit reservations only in relation to specific provisions.109
These final two features mean that reservations to environmental treaties are less prevalent than
in human rights regimes. Therefore, the issue is perhaps seen as of lesser importance than that of
reservations to human rights treaties. This chapter contends that this assumption is incorrect.
Despite the increase in the scope and content of international environmental law, the scale and
pace of environmental destruction has continued to grow to the extent that it is estimated that
106 D French, ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ (2000) 49(1) ICLQ 35, 41. 107 L Rajamani, Differential Treatment in International Environmental Law (OUP 2006) 9. 108 For example: Montreal Protocol on Substances That Deplete the Ozone Layer (adopted 16 September 1987, entered into force 01 January 1989) 1522 UNTS 3, Art 18; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 28 ILM 649, Art 26(1); Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December 1993) 1760 UNTS 79, Art 37; United Nations Framework Convention on Climate Change (adopted 09 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (Climate Change Convention), Art 24; Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119, Art 27. 109 For example: Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (adopted 21 June 1993) 32 ILM 1228, Art 35.
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over 60 per cent of all ecosystems that support life have been degraded or are being used
unsustainably.110 This directly affects human populations in many ways, such as by preventing
effective action against poverty and hunger. As a result of the increasing list of environmental
problems, the scope of international environmental law continues to increase through the
implementation of international treaties.111 Additionally, as the international community seeks to
maximise state participation it is likely that we will see a growing number of treaties allowing for
reservations. Therefore, even if it is not yet a pressing concern, the issue of reservations to
multilateral environmental law treaties will almost certainly become just that.
This chapter will argue that given their similar, and often identical, features and aims, the human
rights approach to reservations should be equally applicable to multilateral environmental law
treaties. Without this, the international community will once again be faced with an inadequate
regime of reservations that it will have to take steps to remedy, having failed to take preventative
measures.
3.1 The Vital Importance of Global Participation
The first justification for a human rights approach to reservations derives from the global effects
and sources of environmental degradation. These features mean that a lack of participation by
even a single state could undermine the entire environmental protection regime, with
consequences for the whole global community. Consequently, securing international cooperation
110 T Stephens (n 105) 1. 111 P Sands and J Peel, with A Fabra and R MacKenzie, Principles of International Environmental Law (3rd edn, CUP 2012) 49.
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of the highest order, through universal treaty participation, is a necessity for multilateral
environmental law treaties.112
The protection of the environment is an issue of international concern as the consequences of
environmental degradation regularly extend beyond the offending state. Therefore, purely
voluntary or national responses by individual states provide inadequate solutions.113 Furthermore,
even though regional initiatives may solve certain transboundary disputes, such as air or river
pollution,114 other issues require extensive multilateral involvement due to their truly global
impacts resulting from activities all over the world.115 Climate change and biological diversity,
for example, are both the subject of global regulatory treaties due to their designation as being the
‘common concern of mankind’.116 The most important features in defining these issues as ‘global
concerns’ are their universal character and the need for common action by all states if measures
of protection are to work effectively.117 The depletion of the ozone layer, therefore, would
similarly be categorised as being of global concern. This is evident as it is impossible to pinpoint
the cause of ozone depletion to a single state or region. Instead, the scientific advancements have
identified the cause as the cumulative production and use of chlorofluorocarbons and halons.118
This is something that the majority of, if not all, states have been guilty of contributing to, albeit
in differing degrees. 112 A Gillespie (n 16) 989. 113 R W Hahn and K R Richards, ‘The Internationalization of Environmental Regulation’ (1989) 30(2) Harv.Int'l L.J. 421, 423. 114 P Birnie, A Boyle and C Redgwell, International Law & the Environment (3rd edn, OUP 2009) 128. 115 D Shelton, ‘Human Rights, Environmental Rights, and the Right to the Environment’ (1991) 28 Stan.J.Int'l L. 103, 107. 116 Climate Change Convention (n 108) Preamble; Convention on Biological Diversity (n 108) Preamble. 117 ibid. 118 R W Hahn and K R Richards (n 113) 425.
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Therefore, to ensure effective resolution of these global issues multilateral environmental treaties
must achieve as wide participation of states as possible.119 This is because, due to their global
nature, the lack of participation of even a single state, particularly one of industrial and economic
superiority, could act as a spoiler for the whole protective regime.120 This would severely limit
the effectiveness of a treaty regime, as environmental damage would continue to occur and affect
the entire global community.121 Therefore, in order to facilitate wide participation, a presumption
of severability should be adopted for inessential reservations so that reserving states are not
expelled due to impermissibility.
3.2 The Close Connection to Human Rights Protection
The second justification for the application of a human rights approach to reservations derives
from the often vital importance of environmental protection to the international human rights
regime. Despite being separate regimes they are premised upon similar values, seek similar goals,
and further the aims of each other.122 This overlap has led to the suggestion that environmental
issues belong within the category of human rights, as arguably the primary aim of environmental
protection is to enhance the quality of human life.123 However, given the existence of non-
anthropocentric justifications for environmental protection124 and the lack of support from
119 A W Samaan, ‘Enforcement of International Environmental Treaties: An Analysis’ (2011) 5(1) Fordham Envtl.L.J. 261, 277. 120 For this reason, the Montreal Protocol on Substances That Deplete the Ozone Layer of 1987 was amended in 1990 in order to facilitate wider treaty participation from developing states that were unwilling to become parties because of its economic and development implications. 121 J I Charney, ‘Universal International Law’ (1993) 87(4) AJIL 529. 122 D Shelton (n 115) 104. 123 W P Gormley, ‘The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms’ (1990) 3 Geo.Int'l Envtl.L.Rev. 85, 86. 124 P Birnie, A Boyle and C Redgwell (n 114) 8.
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binding international legal instruments,125 the validity of this notion is limited. Therefore, this
section adopts a more moderate view that, due to their overlapping values and objectives, there is
an intrinsic link between the protection of the environment and the realisation of human rights.126
In its basic form the connection is that damage to the environment incidentally diminishes quality
of life.127 This does not mean that every case of environmental degradation will lead to a human
rights violation. However, often the two consequences will be complimentary. Therefore, if
environmental treaties fail to adopt the human rights approach to reservations the international
protection of human rights, strengthened by the implementation of a distinct reservations regime,
will be frustrated.
The international community has generally accepted this close connection, with the UN General
Assembly recognising the distinct relationship between the quality of the human environment and
the enjoyment of basic rights.128 If we look at this statement through the lens of today’s
impending environmental problems, such as the effects of climate change, there is significant
support for the suggestion that environmental degradation will have major impacts on
humanity.129 The environment and human existence cannot be viewed in distinct spheres, as this
would ignore both the effect of humanity on environmental degradation and the effect of
environment degradation on humanity. The reality is that, although it might increase the comfort
125 L E Rodriguez-Rivera, ‘Is the Human Right to Environment Recognized Under International Law? It Depends on the Source’ (2001) 12 Colo.J.Int'l Envtl.L.& Pol'y 1, 44. 126 United Nations Human Rights Council, ‘Report of the OHCHR on the relationship between climate change and human rights’, (15 January 2009) UN Doc. A/HRC/10/61, para 18. 127 N A F Popović, ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration on the Draft Declaration of Principles on Human Rights and the Environment’ (1996) 27 Colum.Hum.Rts.L.Rev. 487, 487. 128 UNGA Res 2398 (XXII) (3 December 1968). 129 F Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21 EJIL 41, 44.
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level of a select few who derive short-term economic benefits, environmental degradation makes
the world less hospitable for humanity.130 In particular, there are several human rights whose
protection could be severely impaired by inadequacies in environmental protection, potentially
due to an inadequate reservations regime. The right to life, for example, has the possibility of
being substantially affected by environmental issues.131 This was recognised in the Stockholm
Declaration, which acknowledged the essential role of the environment in the enjoyment of the
right to life.132 In practice, this connection has been relied upon by individuals who allege a
violation of their right to life as a result of environmental damage. For example, in one case the
UN Human Rights Committee recognised that the dumping of nuclear waste, despite being
primarily an environmental concern, raised serious issues with regards to the obligation of states
to protect human life.133 Even though the case was declared inadmissible due to a failure to
exhaust local remedies, the remarks of the Committee clearly support the view that
environmental protection often amounts to a precondition for the enjoyment of human rights.134
Other environmental violations that may affect a person’s right to life include the failure to
provide access to clean drinking water that is free from toxins or other contaminants, or a failure
to regulate the use of dangerous pesticides.135 Once again, despite these issues falling under the
130 N A F Popović (n 127) 488. 131 Earthjustice Legal Defense Fund, ‘Environmental Rights Report 2008: Human Rights and the Environment’ (2008) 6 <http://earthjustice.org/sites/default/files/library/reports/2008-environmental-rights-report.pdf> accessed 12 Feb 2013. 132 ‘Declaration of the United Nations Conference on the Human Environment’ (1973) UN Doc A/Conf.48/14/Rev.1, preamble, para 1. 133 EHP v Canada, Communication No. 67/1980, UN Doc CCPR/C/OP/1, 20. 134 D Shelton (n 115) 113. 135 P Sands and J Peel, with A Fabra and R MacKenzie (n 111) 780.
36
ambit of environmental regulation, the potential consequences could amount to a violation of the
right to life.
Overall, it can be firmly established that there often exists a direct connection between the
protection of the environment and the effective safeguarding of human rights. In many cases,
therefore, the guarantee of human rights will not be possible without adequate environmental
regulation. This highlights the vital importance of effective international environmental
protection, which inevitably must start at the stage of drafting multilateral treaties. Without the
substantive limits of the permissibility school, in order to prevent the acceptance of incompatible
reservations, the integrity of environmental treaties cannot be guaranteed, and neither can the
effective protection of international human rights. Therefore, in order to safeguard these
fundamental humanitarian concerns, the human rights approach to reservations must be adopted
by the international environmental regime.
3.3 The Non-Reciprocal Nature of Environmental Obligations
International environmental law obligations are generally non-reciprocal. This is evident as their
direct beneficiaries are either the whole global community or human individuals, without
reciprocal advantages for states.136 Consequently, many violations of multilateral environmental
treaty obligations will not per se affect the rights of any individual state.137 This feature has
significant implications on the adequacy of the VCLT rules on reservations.
136 A Trinidade, ‘The Parallel Evolutions of International Human Rights Protection and of Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights’ (1991) 13 Inter-American Institute of Human Rights Magazine 35. 137 P Birnie, A Boyle and C Redgwell (n 114) 233.
37
The problems associated with non-reciprocal environmental obligations are strongly evidenced
by analogy to the deficiencies of the regime of state responsibility in enforcing environmental
obligations. The first problem is that standing to bring a claim is confined to injured states.138
Although identifying injury to a state is often possible in transboundary disputes due to the
locality of the issue,139 violations of global obligations are more problematic.140 These violations
generally fail to affect the legal rights or interests of any state, thus preventing individual states
from bringing claims as they suffered no direct injury.141 Consequently, states seeking to enforce
multilateral environmental obligations have had to rely upon the exceptional, and often
disputed, 142 possibility of an actio popularis resulting from erga omnes environmental
obligations.143 Secondly, states have demonstrated a general reluctance to initiating proceedings,
even in the case of transboundary or severe environmental damage.144 This is because, as strongly
emphasised in Chapter 2, the desire to protect community interests will often be outweighed by
economic and political agendas. For example, many suggest that the promotion of East-West
relations was the reason behind European governments deciding not to invoke the responsibility
138 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 42. 139 For example: Trail Smelter Arbitration, (1939) 33 AJIL 182. 140 A W Samaan (n 119) 268. 141 A E Boyle, ‘Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches’ in P Wetterstein (ed), Harm to the Environment: The Right to Compensation and the Assessment of Damages (OUP 1997) 83. 142 Nuclear Tests Cases, (1974) ICJ Reports 387. 143 T Stephens (n 105) 67. 144 For example: states on the Rhine waived their right to invoke the responsibility of Switzerland after the Sandoz chemical spill of 1986 that released pesticides, mercury and other highly poisonous agricultural chemicals into the river: M Ehrmann, ‘Procedures of Compliance Control in International Environmental Treaties’ (2002) 13 Colo.J.Int'l Envtl.L.& Pol'y 377, 381.
38
of the Soviet Union in relation to the Chernobyl disaster of 1986.145 In cases of less severe
environmental damage this problem is likely to be exacerbated.
If the inadequacies of the principles of state responsibility are applied to the rules on reservations
there are clear justifications for rejecting opposability in favour of permissibility. First, as
violations of environmental obligations rarely result in direct injury to individual states, it is
unlikely that states will foresee injury when deciding whether to object to a reservation.
Secondly, even if a state does foresee potential injury within its sovereign territory, or perhaps
has strong moral concerns for the global environment, their decision to accept or object to a
reservation is likely to be heavily swayed by economic and political agendas. This is particularly
problematic for environmental treaties due to the perceived conflict between economic growth
and environmental protection, especially in newly developing states.146 Consequently, it is
unlikely that a reservation will be met by numerous objections, even if it may result in severely
detrimental impacts to the environment. Therefore, if the validity of reservations is subjectively
determined along bilateral lines, as contended by the opposability school, there will be no
guaranteed collective protection for the integrity of environmental treaties.147 Instead, an adoption
of the permissibility school is required to prevent this by imposing objective limitations on the
content of reservations.
145 M E O’Connell, ‘Enforcing the New International Law of the Environment’ (1992) 35 GYIL 293, 315-316. 146 A W Samaan (n 119) 272. 147 A Gillespie (n 16) 995.
39
3.4 Implementing a Human Rights Approach
The previous sections have strongly evidenced the need for the international environmental law
regime to adopt a human rights approach to reservations. This involves the adoption of the
permissibility school when assessing the validity of reservations and a presumption of
severability for impermissible and inessential reservations. In order to be effective the
assessments of permissibility and essentiality should not be determined bilaterally by individual
states, but instead should be assessed unilaterally and objectively. As seen in the human rights
regime, the widespread existence of environmental treaty-monitoring bodies could facilitate this
objective assessment. The competence of each body to assess reservations will have to be
individually established, as their general purpose is to supervise the states’ implementation and
compliance with a particular regime.148 However, given the way that many human rights treaty-
monitoring bodies have readily declared their competence to determine the legality of
reservations, despite having similar mandates, there seems to be no fundamental reason why
environmental bodies will not follow suit.149 In 2001, for example, the International Whaling
Commission (IWC) determined that it had the competence to assess the legality of Iceland’s
reservation to the International Convention on the Regulation of Whaling (ICRW).150 Although
the member states only voted in favour by 19 votes to 18, with dissenting states suggesting that
the IWC was acting in contravention of customary international law,151 the IWC’s decision was
148 R R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94(4) AJIL 623, 623. 149 E Swaine, ‘Reserving’ (n 19) 321-322. 150 IWC, ‘Final Press Release from the IWC 53rd Annual Meeting’ (2001) <http://archive.iwcoffice.org/meetings/meeting2001.htm> accessed 28 Feb 2013. 151 IWC, ‘Statement Concerning Iceland’s Adherence to the International Convention for the Regulation of Whaling’, IWC/53/50.
40
made in accordance with the VCLT: as it is the competent organ of that organisation, as
empowered through the ICRW, which is the constituent instrument of that organisation.152 The
IWC’s decision may signify a distinct shift in practice, indicating that international
environmental regimes already favour the assessment of validity being carried out by objective
treaty-monitoring bodies. However, due to the narrowness of the decision and the lack of
supportive practice from other environmental bodies, the issue of competence requires further
research and evidence before a general rule can be established. Therefore, the competence to
assess the validity and essentiality of reservations will have to be established on an individual
basis, either expressly granted by the founding document or implied by other factors. Where this
delegation is possible, it will result in an objective and unilateral decision that will provide the
optimal protection for the unity and integrity of environmental law treaties.
152 A Gillespie (n 16) 997.
41
Chapter 4: Conclusion
By using the international human rights regime as a standpoint, this dissertation has attempted to
present a compelling argument for the general adoption of a human rights approach to
reservations by the international environmental law regime. This was done initially by critically
examining the practice of the international human rights regime in diverging from the traditional
rules of the VCLT.
In relation to the validity of reservations, it was concluded that the opposability school provides
an inappropriate assessment of validity as it lacks substantive control over the content of
reservations and its foundations in the principle of reciprocity make it unsuitable for non-
reciprocal human rights obligations. In comparison, by interpreting the VCLT according to the
permissibility school, and thus implementing the validity criteria of Article 19 as binding rules,
the international human rights regime has successfully ensured that incompatible reservations
cannot subsist and undermine the integrity of treaties. Furthermore, by delegating the assessment
of validity to treaty-monitoring bodies the content of reservations can be controlled in a truly
objective manner, to ensure uniformity of treaty commitments that retain the integrity of the
original treaty.
Three possible consequences of impermissibility were identified: the surgical, backlash and
severability doctrines. Although the backlash doctrine represents a significant improvement on
the surgical doctrine by upholding treaty integrity and state consent, its suitability for human
rights treaties is undermined by its failure to facilitate wide treaty participation. In comparison,
the severability doctrine effectively guarantees treaty integrity without having to sacrifice
universality. Additionally, from a harm minimisation perspective, a wrongful presumption of
severability presents significantly reduced detriments than those of a wrongful presumption of
42
expulsion. Consequently, its adoption by the international human rights regime for inessential
reservations, in order to resolve the conflict with state consent, represents a notable improvement
on the traditional VCLT approach.
Despite the numerous benefits of this approach it has not sparked a shift in the practice of the
international environmental law regime, or indeed of any other specialised regime. Although
several factors may explain the lack of supporting practice and commentary, this paper has
stressed how the issue of reservations to multilateral environmental law treaties is of growing
concern, given the increasing awareness of environmental degradation and the need to obtain
universal treaty participation to ensure effective action. Furthermore, the distinct connection and
shared features between the human rights and environmental law regimes emphasise the equally
applicable inadequacies of the VCLT rules on reservations.
In hindsight, it is likely that the proponents for the human rights approach to reservations would
argue that, had it been possible, they would have preferred to have taken preventative action
before the issue of reservations came to a head. Evidently, due to the highly controversial issues
at stake and the radical nature of the development, this was not possible. In contrast, the
international environmental law regime is in the enviable position of being able to benefit and
learn from the past actions of the human rights regime, thus providing the perfect opportunity to
take preventative action instead of having to cure an existing problem. Undoubtedly it will take
time to fully establish this approach within the diverse regime of international environmental law,
especially since matters such as the competence of treaty-monitoring bodies remain unsettled.
Therefore, it is imperative that the international environmental regime takes heed of the need to
address this concern early so that preventative action can be effectively implemented.
43
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