Reservations

1. Definition

To understand the meaning of “reservations” in the context of a treaty, a good place to start will be the Vienna Convention on the Law of Treaties (hereinafter referred to as “the Vienna Convention”). The Vienna Convention was adopted on 22nd May 1969 and came into force on the 27th January 1980(8). It has since been recognised to reflect the general international law(9).

Article 2(d) of the Vienna Convention defines “reservations” as follows:-

“a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”

Reservations are usually entered into in multilateral treaties(10). Cassese in his book(11) submits that reservations are entered with the intention of either:-

(a) exclude the application of one or more provisions; or
(b) place a certain interpretation on them(12).

As such, reservations are not only expected but are legally valid.

2. Limitations

While acknowledging the validity – and even the necessity – of reservations, the International Court of Justice state that with regards to multilateral treaties, “None of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d’etre of the convention”(13).

Article 19 of the Vienna Convention provides the following limitations:-

a. The reservation is prohibited by the treaty;

b. The treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

c. In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.

Thus, if a particular treaty is silent on the types of reservations which are prohibited or specifically allowed, the test to determine whether a reservation is valid is to see if it is incompatible with the object and purpose of the treaty.

3. Human Rights treaties

There has suggestions that for human rights treaties in particular, a special legal regime applicable to reservations in such treaties. Korkelia highlighted 2 special features of human rights treaties to support the argument(14). First, the lack of reciprocal obligations between State member parties. Therefore, there is no incentive for States to object to reservations by other member States.

The second special feature is the existence of a treaty supervising/monitoring body.

Hampson(15) finds that the Reservations to the Genocide Convention Case(16) and the Vienna Convention itself suggests that Article 19 therein is for general application, and as such, there is no evidence it would not apply to any special categories of treaties, if there are any.

Therefore, she concludes that the applicable legal regime is in the said Article 19. The CRC echoes Article 19 and specifically provides in Article 51(2) that “[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted”.

However, these provisions are silent as to who should decide on the compatibility of reservations in human rights treaties.



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(8) source http://www.un.org/law/ilc/texts/treaties.htm
(9) Reservations to the Genocide Convention Case, ICJ Rep 15 (1951)
(10) For bilateral treaties, parties would simply just renegotiate the terms
(11) International Law (Oxford, oxford University Press, 2nd Edition, 2001), at pg 129
(12) But the UN HRC was of the view that “if a so-called reservation merely offers a State's understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation”. See note 21 below at para 3

(13) See note 9 above

(14) Korkelia, K – New Challenges to the regime of Reservations under the International Covenant on Civil and Political Rights 13 EJIL 437 (2002)
(15) her working paper entitled Reservations to Human Rights Treaties submitted pursuant to Sub-Commission decision 1998-113 (E/CN.4/Sub.2/1999/28)
(16) See note 9 above

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