Reservations 8

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Reservations

andDeclarations


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Reservations


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What Are Reservations?

Unilateral statements made upon signature, ratification,acceptance, approval of or accession to a treaty.

However phrased or named, any statement purporting toexclude or modify the legal effect of a treaty

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

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


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Time for Formulating Reservations

Article 19 VCLT: A State may, when signing, ratifying,accepting, approving or acceding to a treaty, make areservation unless:

(a) The reservation is prohibited by the treaty;

(b) The treaty provides that only specified reservations, whichdo not include the reservation in question, may be made; or

(c) The reservation is incompatible with the object andpurpose of the treaty.

Some countries have denounced treaties and reacceded

in order to lodge reservations


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Form of Reservations

It is a limitation on the commitment undertaken.

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

If separate, must be signed by the Head of State, Head ofGovernment or Minister for Foreign Affairs

or a person having full powers for that purposeissued by one of the above authorities.


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Treaty Provisions

Some treaties specifically prohibit reservations. E.g., Art. 120, ICC Statute

Art. 18, Montreal Protocol

If made upon simple signature it is merely declaratory

must be formally confirmed in writing on ratification oracceptance.

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

Could be made on definitive signature

Need not be confirmed later.


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Territorial Exclusion

Some States exclude part of the territory from the application oftreaties

United Kingdom, Netherlands, Denmark, New Zealand

Not consistent with art. 29 VCLT

But treated as a regional practice

Prof. Pellet does not endorse this approach.


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The Depositarys Role

Where a treaty expressly prohibits reservations:

the depositary makes a preliminary legal assessment

whether a statement constitutes a reservation.

If it has no bearing on the States legal obligations,the depositary circulates the statement.

If it excludes or modifies the legal effects ofprovisions of the treaty, the depositary will draw theattention of the State concerned to the issue

will not circulate the unauthorised reservation.


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Where, prima facie, there is no doubt

if the declarant formally clarifies that the statementis not a reservation, the Secretary-General will

formally receive the instrument in deposit

Where prima facie determination is not possible, and doubtsremain

the Secretary-General may request a clarification

In such case, the State is estopped from relyingon the statement as a reservation.


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Reservations Not Permitted

E.g., Montreal Protocol on Substances that Deplete theOzone Layer, 1987

China assumed responsibility for Macao in 1999

Macao was considered to be developed entity under Portugal falling under art. 2, Montreal Protocol

China declared that it will not extend art. 5 to MacaoArt. 5 provided a phase out period for developing countries

No objections


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Treaty Expressly Authorises Reservations

Where a State formulates a reservation that is authorised, theSecretary-General informs the States concerned.

Unless a translation or an in-depth analysis is required, sucha notification is processed and transmitted by e-mail on thedate of formulation.

Such reservation does not require any subsequentacceptance by the States concerned.


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Treaty Is Silent on Reservations

Where a treaty is silent on reservations and a State formulates a

reservation,

the depositary informs the States concerned.

Such reservation should be consistent with art. 19 VCLT

Generally, in human rights treaties.

Prof. Pellet discusses this case

Supports the Secretary-General drawing the attention ofStates to a prohibited reservation.

Not all States agree with proposal.


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Who DecidesWhether a Reservation Is

Permissible?

Whether consistent with the object and purpose

States parties?

Human rights bodies?

Depositary?

A debate continues.

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


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ICESCR

Declaration which could be a reservation (where the treaty issilent).

China made a declaration

limiting the right of Hong Kong trade unions toconfederate.

Depositary did not pass judgment on this.

Number of countries have objected.


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Objections to Reservations

Time for making objections

Where a treaty is silent,

States concerned have 12 months to object, beginning

on the date of the depositary notification or

on the date on which the State expressed its consentto be bound by the treaty

(See art. 20 (5) VCLT)

An objection lodged after the end of the 12-month period iscirculated as a communication.

Notifications are circulated by e-mail.


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ICCPR and CEDAW

Many States have formulated reservations to theInternational Covenant on Civil and Political Rights, 1966,and the Convention on the Elimination of All Forms ofDiscrimination against Women, 1979.

These reservations have attracted a wide range ofobjections.


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Effect of Objections

Effect of objections on entry into force

An objection does not preclude the entry into forceof the treaty ... unless a contrary intention is definitelyexpressed by the objecting State

To avoid uncertainty, an objecting State specifies whether itsobjection precludes the entry into force.

If a State does not object to a reservation made byanother State, it is deemed to have tacitly accepted thereservation.

An objection need not be signed by one of therecognized authorities.


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Withdrawal of a Reservation

A State may withdraw its reservation completely or partiallyat any time.

The consent of the States concerned is not necessary.

Must be formulated in writing and signed by the Head ofState, Head of Government or Minister for Foreign Affairs or a person having full powers for that purpose issued by one of

the above authorities.

The Secretary-General circulates a notification of awithdrawal.

Objections can be withdrawn at any time also.

Art. 22(3) VCLT: a withdrawal of a reservation becomesoperative only when a concerned State has been notified.


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Late Reservations

Formulating reservations after ratification, acceptance,approval or accession

The Secretary-General circulates the reservation.

Accepts the reservation in deposit only if no such Stateobjects.

On the basis of the need to receive unanimous

acceptance.

The Secretary-Generals practice deviates from the strictrequirements of the Vienna Convention.


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Time Limit for Objections

12 months from the date of the depositary notification. Originally 90 days.

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

Prof. Pellets report endorses the Secretary-Generals practice.


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Modifications to Reservations

An existing reservation may be modified so as to result in apartial withdrawal or to create new exemptions.

A modification of the latter kind has the nature of a newreservation.

The Secretary-General circulates such modifications andgrants the States concerned a specific period withinwhich to object to them.

In the past, the practice as depositary had been to stipulate90 days.

On 4 April 2000, it was advised that the time provided forobjections to modifications would be 12 months.


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Declarations


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Interpretative Declarations

A State may make a declaration about its understanding of amatter contained in or the interpretation of a particularprovision in a treaty.

Do not purport to exclude or modify the legal effects of atreaty.

Some treaties specifically provide for interpretative

declarations.


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O

ptional andM

andatory Declarations

Treaties may provide for States to make optional and/ormandatory declarations.

These are legally binding.


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Optional Declarations

Many human rights treaties provide for optional declarations.

Relate to the competence of human rights commissions orcommittees.


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Mandatory Declarations

Where a treaty requires States becoming party to make amandatory declaration, the Secretary-General seeks toensure that they make such declarations.

Need to be signed by proper authorities.

Some disarmament and human rights treaties.


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Time for Formulating Declarations

Declarations are usually deposited at the time of signature

or at the time of deposit of the instrument of ratification,acceptance, approval or accession

Sometimes, subsequently


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Form of Declarations

Normally need not be signed by a formal authority

Preferably signed by the Head of State, Head of Government orMinister for Foreign Affairs

or a person having full powers for that purpose issued by one ofthe above authorities.

This practice avoids complications in the event of a doubtwhether the declaration in fact constitutes a reservation

Optional and mandatory declarations impose legal obligationson the declarant

Must be signed by the Head of State, Head of Governmentor Minister for Foreign Affairs

or by a person having full powers for that purpose.


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Notification of Declarations by the

Depositary

The Secretary-General reviews all declarations to treaties thatprohibit reservations

to ensure that they are prima facie not reservations.

Where a treaty is silent or authorises reservations, theSecretary-General makes no determination.

The text is simply communicated to all States concerned

States draw their own legal conclusions.


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Objections to Declarations

Where the treaty is silent on reservations

States sometimes object to declarations relating to a

treaty that is silent on reservations

The Secretary-General circulates any such objection

Reservations 8

Documents

Transcript of Reservations 8