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Problem 3: From law in treaties to law about treaties PART IIE-lesson: 22
Literature: Chapter 3
Legislation: Vienna Convention on Law of Treaties
Case Law: GN-case, Reservations to Genocide, Democratic Republic of the Congo v. Rwanda
When can a State make reservations or declarations to a treaty?
Reservations (voorbehoud)
The ability to create reservations to treaties is part of the sovereign powers of a state. In other words,
the ability of a state to create reservations demonstrates that a state cannot be bound by something it
has not consented to.
The definition can be found in Article 2(1)(d) VCLT.
» Reservations are unilateral (eenzijdig) acts of the state and are therefore a tool of flexibility for
state parties;
» However, provisions on treaty reservations are only relevant as to multilateral treaties.
States cannot make reservations to bilateral treaties;
» Should a state propose a reservation to a bilateral treaty, it is considered
merely a proposal for renegotiations.
A first question to consider is whether or not a specific treaty allows for state parties to make
reservations.
» Part 2, Section II VCLT contains provisions regarding reservations to (multilateral) treaties.
Article 19 VCLT sets out three possibilities as to whether the treaty in question allows for state
parties to create reservations to it or not.
Sub a – when reservations are prohibited by the treaty
If the states parties to the treaty agree that no reservations should be made to the treaty, then they
can include a provision prohibiting reservations in the treaty.
For example, most new multilateral environmental treaties expressly prohibit reservations. In such
treaties, consensus is deemed fundamental.
Sub b – when some types of reservations are prohibited by the treaty
States may also agree that certain (specified) reservations are prohibited or allowed. Some human
rights treaties specifically allow for a prohibition of reservations to particular provisions. The nature of
international human rights law explains the rationale behind such partial prohibitions.
» The law of treaties is based on the contractual nature of treaties. However, human rights
treaties are not contractual in nature. They do not only create obligations between states, but
they create complex threefold-relationships between states and individuals, involving rights
and duties;
» On the other hand, it is considered beneficial if as many states as possible accede (toetreden)
to a human rights treaty. The allowance of treaty reservations may function as an incentive
(aansporing) to accede to human rights treaties.
Sub c – when the treaty is silent on the matter of reservations
When the treaty remains silent on reservations, Article 19 VCLT provides guidance. Reservations are
allowed in principle, unless sub a or b applies, or unless the reservation is contrary to the object and
purpose of the treaty in question.
The object and purpose of a treaty with regards to the permissibility of reservations has been
addressed by the International Court of Justice in the case Reservations to Genocide.
The case concerned a reservation made by the United States to Article IX of the Convention on
Genocide. Article IX states that disputes relating to the interpretation, application or fulfilment of the
Genocide Convention shall be submitted to the ICJ at the request of any of the parties to the dispute.
The United State's reservation to Article IX stipulated that the United States could not automatically be
subjected to the jurisdiction of the International Court of Justice. The US reservation is formulated as
follows:
, "(1) That with reference to article IX of the Convention, before any dispute to which the United States
is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the
specific consent of the United States is required in each case.”
The United States made a similar reservation to Article 30 of the Convention Against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment. The reservation is formulated as
follows:
"(2) That pursuant to Article 30(2) the United States declares that it does not consider itself bound by
Article 30(1), but reserves the right specifically to agree to follow this or any other procedure for
arbitration in a particular case.”
Relevant sources with regards to treaty reservations
Reservations to Genocide
The case concerned reservations made to the Genocide Convention, which was silent on the
matter of reservations. Because several states had adopted reservations to this Convention,
the UN General Assembly decided to ask the ICJ to provide an advisory opinion regarding the
permissibility of such reservations. The Court adopted a flexible approach to treaty
reservations on pages 24 and 29;
HRC General Comment 24
By contrast, an example of a reservation which has been deemed incompatible with the object
and purpose of the treaty concerns a reservation made to the Optional Protocol 1 to the
International Covenant on Civil and Political Rights ("ICCPR”).
Optional Protocol 1 concerns individual petition rights to the Human Rights Committee (HRC),
the enforcing organ of the ICCPR.
In 1994, the Human Rights Committee issued Comment no. 24, in which it declared that
reservations which would obstruct the realization of jus cogens norms would be incompatible
with the object and purpose of the ICCPR, and so would reservations concerning non-
derogable (onaantastbare) human rights.
Moreover, the HRC stated that a reservation to Optional Protocol 1 of the ICCPR (the right to
receive individual communications) would be incompatible with the object and purpose of the
ICCPR. See in particular paragraphs 5, 6 11, 13 and 14.
From the two examples mentioned here, it can be gathered that a reservation that is incompatible with
the object and purpose of a treaty would not be permissible.
In the case Reservations to Genocide, the object and purpose of the treaty was clear. However, in
other treaties, a single object and purpose may be more difficult to determine.
» Therefore, the practical value of the object and purpose-test remains somewhat vague.
The acceptance of and objection to reservations are outlined in Article 20 VCLT.
» The traditional approach is included in paragraph 2. In case a treaty has a limited number of
state parties and the object and purpose of the treaty indicate a necessity for all state parties
to be bound in its entirety, all parties must agree with a reservation;
» The more flexible approach is outlined in paragraph 4, which provides for three situations.
The eventual effects of a reservation may differ according to Article 21 VCLT.
Declarations (verklaring)
According to doctrine, declarations can be divided into two categories:
1. Interpretative declarations: a state declares its understanding of a matter contained in a
particular provision in a treaty. Unlike a reservation, such a declaration does not exclude or
modify the legal effects of a treaty. The purpose is to clarify the meaning of certain provisions
or of the entire treaty. Treaties may also provide for states to make optional and/or mandatory
declarations. These are legally binding on the declarants.
2. Qualified interpretative declarations: may actually constitute a reservation in practice,
depending on the effect. A qualified interpretative declaration is not so much an informal
interpretation of (part of) the treaty, but rather a condition for the acceptance of the treaty by
the declaring state.
The state indicates that is does not consider itself bound by interpretations of the treaty that
does not correspond with its qualified interpretative declaration.
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