Treaty Reservations | International Law

So in the previous lesson what we did was spend some time talking about the Vienna Convention on the Law of Treaties, this being one of the major instruments which, as it turns out, is itself a treaty that regulates the rules and principles and provisions which underpin the law of treaties. It is very good, it's a very good convention that has a number of different provisions cited therein and a number of these provisions have passed through the realm of just being provisions within a treaty and in fact also represent customary international law. Now one of the things that is very interesting about treaties is the idea of having reservations to a treaty. Now we'll explain what a reservation is in a second but fundamentally the short answer to this question is a treaty reservation is a thing that a state party wants to refrain from being obligated to do in a treaty. So if let's say there is a treaty that is being negotiated between two states and there are 10 provisions, the states might sign on to the treaty with certain reservations, i.e. they might sign on to the treaty but only adhere to eight or nine of the 10 provisions and they will cite the specific provisions of which they have reservations to and so as a result of which are not obligated to essentially be upheld or at least be obligated to follow through with those particular parts of the treaty. The concept of treaty reservations will be highlighted as a very important element of treaty law but it will also be noted that there are certain conventions that do not allow for the existence of reservations so if you're going to sign on to a treaty of this nature you have to sign it on in its entirety, once for example this is the Rome Statute for the International Criminal Court, you can't sign and ratify the Rome Statute and say we're going to have reservations in relation to Article 6 which is of course genocide or Article 7 which is of course crimes against humanity, you have to adhere to its entirety. We'll also highlight a very important ICJ case on the issue of reservations and we'll also talk about how the Vienna Convention on the Law of Treaties examines and underpins their understanding of reservations as well. So we already really know what a reservation is, I've already explained it, but essentially states have the right to sign on to treaties with the acceptance of certain reservations, i.e. disagreeing with certain parts of the treaty and essentially removing any obligation that they may have to follow for those specific parts of the It ties to the idea that fundamentally treaties are formulated under the consent of the states and so the result here is that fundamentally if the states are going to consent to negotiate a treaty they should also have the ability, if they so choose, to be able under their own state consent to have reservations on certain treaties. The view that states have consent to enter into negotiations but that they also do not have any kind of rights to have reservations, they have to accept the treaty in their entirety, would sort of fundamentally negate this idea of state consent in the first place and so the result here is that fundamentally treaties are formulated under state consent and so states can also have an agreement where they do not agree to every single part of the treaty. This is the case in most treaties. Most treaties allow for the acceptance of reservations. Some of them allow for the acceptance of reservations for any part of the treaty. Others may allow for the acceptance of reservations in certain elements of the treaties. Maybe there are certain provisions which you are allowed to have a reservation for but for the most part, for example, there might be some fundamental elements of the treaties that you can't really have a reservation against. So then there are other treaties where there is no reservations allowed. This is an advisory opinion from the International Court of Justice in 1951, the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. Now, as we know, the Genocide Convention was entered into force in 1948 and the Genocide Convention today represents not only customary international law in its almost in this entirety, but for the most part, but those parts that are representative of customary international law also represent what are known as Jus Cogens obligations. They're obligations for which there can be no reservations and for which any treaty which attempts to violate them are immediately and even post hoc described as void. But this was a question that the ICJ had in 1951. They have the 48 Convention being entered into force where it's been created, it's been passed, people are, states are signing on to the Convention and then the ICJ is asked the question, could you have a reservation to the Convention on the Prevention and Punishment of the Crime of Genocide? Could you say, for example, that we don't want to sign on to Article 3 of the Convention which cites the criminal acts that constitute genocide or even we will accept the preventions of the Genocide Convention, all of them except for Article 2 which actually defines genocide itself. Could you do this? The ICJ came to the rescue to try and try and answer this question. So it was bought when a number of states were looking essentially to sign on and ratify the Convention but they wanted to do so with the view that they would be able to accept a number of reservations to the treaty. They didn't necessarily, in all cases, say that they were going to accept the treaty with reservations and cite the specific reservations in question. The advisory opinion that was asked was, could you accept any reservation? Could anybody or any state sign on and ratify the Genocide Convention with any reservations or are reservations completely out of the question for this particular Convention? Well, the most contentious issue was whether or not states would want to be bound to Article 9 of the Convention. This was a provision which related to settlements and the ICJ recognised a number of principles. Firstly, they recognised that an understanding is reached within the UN General Assembly that reservations can be reached by states in the signing of the Convention. But the question for the court was whether or not this power of reservation is an unlimited power and applies to literally any treaty. So the question for the court in this advisory opinion was whether or not the authority of reservations was unlimited. It could apply to any treaty and so when we cite the Genocide Convention as an example, the Genocide Convention is obviously a Convention which you would expect not to accept reservations and so this was really the challenge of the question. The ICJ say the following in their advisory opinion. They say, quote, the origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as a crime under international law involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great loss to humanity and which is contrary to moral law and to the spirit and aims of the United Nations. So, fundamentally, this is just giving a citation to what the Genocide Convention does and the kind of severity of the crime of genocide in this particular understanding and but then it goes on to suggest that in such a Convention the contracting states do not have any interests of their own. They merely have one and all a common interest, namely the accomplishment of those high purposes for which are the raison d'etre of the Convention. So the ICJ is sort of saying here that the Convention isn't really for you states, there isn't really a, you don't benefit as a state to sign on to the Genocide Convention. Who does benefit? Well, those who have the common interest, the common interest for which every single state ought to have which is, of course, the prevention and punishment of the crime of genocide. So the raison d'etre, the justification, the motivation for the Genocide Convention isn't to enshrine rights or to give anything positive to states, that's not what the point is. The point is to prevent and punish instances of the crime of genocide and so for this reason there is no interest in states being able to have reservations to the Convention on the prevention and punishment of the crime of genocide. It implies that there can be limitations on the concept of a treaty reservation when it was levied at international treaties of this kind of nature, treaties of such a kind of such like the Genocide Convention. Now there are additional elements that you have to think about when we think about the sources of international law, even if reservations would be allowed for the prevention and punishment of the crime of genocide, certain provisions of the Genocide Convention are already not only customary rules of international law but also represent It seems to suggest in this case that states are unable to sign onto the Genocide Convention but put in place reservations that allow them to commit genocide freely. This would not only go against the spirit of the Genocide Convention but would act fundamentally in contravention of the raison d'etre of the Genocide Convention itself. So how does the Vienna Convention on the Law of Treaties deal with the idea of reservations? Well Article 19 says the following, this is the regulation of the concept of treaty reservations, it says quote a state may when signing accepting approving or ascending to a treaty formulate reservations, a reservation, unless and then these are the reasons why. Now this gives us a negative set of obligations here, so what it is saying is that except in these circumstances where you're not allowed to sign on, you're not allowed a reservation, reservations are allowed. This gives a a negative list of the instances where reservations aren't allowed rather than a positive list of where reservations are allowed, if that makes sense. So unless one the reservation is prohibited by the treaty, one such example of this is the International Criminal Court Statute, the Rome Statute, the ICC Statute, they prohibit any reservation in the treaty. The treaty provided that only specified reservations which do not include the reservation in question may be made, so not only are there some treaties where all reservations in their entirety are prohibited like the ICC Statute, but there are also some treaties that exist where they have the acceptance of reservations but only certain reservations, okay, you can have reservations against provisions 1, 4, 7 and 9, but you can't have reservations against all the rest of the provisions for example, that would also be a limitation of the concept of reservations. And then it also says that in cases falling under subparagraphs A and B, the ones we've just cited, the reservation is incompatible with the objects and purpose of the treaty. This is the one that is the furthest in terms of a broad scope, okay, what do we mean when we talk about the object and purpose of the or we can refer back in fact to the advisory opinion on reservations for the Genocide Convention, because fundamentally the ICJ, in the statements that I've made, had essentially positioned their understanding and they positioned their ruling as suggesting that any reservation against the Genocide Convention would be incompatible with the object and purpose of the treaty, the raison d'etre is the phrase that they used. So there are a number of treaties, like I've said, that do not accept treaty reservations, the Genocide Convention, the Rome Statute for the International Criminal Court, specifically article 120 of the Rome Statute states that no reservations can be made within the ratification of the Rome Statute. Finally then, article 20 of the Vienna Convention on the Law of Treaties says the following, it says quote, So what this is suggesting here is that we're going to just essentially is talking a little bit more in a little bit more detail about article 19c. Article 19c is telling us, for example, that it is the object and purpose of the treaty that really is one of the ways in which we can disallow the existence of a reservation. If the object to the purpose of the treaty does not allow for the existence of reservations, then it should be the case that there should be no reservations to this treaty. Only this can be negated in circumstances where all of the parties to the treaty accept the existence of a reservation. So for example, let's say there is a treaty whose object and purpose doesn't really allow for the existence of reservations. Let's say a state like the US comes along and they say, well we're happy to sign on to the treaty but we want reservations. The only way this would be allowed is if all the other states go, well fine, you can have your reservations. Have your reservations for this and the consent of all the parties are allowed a reservation requiring acceptance by all the parties. So again, this not only does this limit the extent to which reservations can be issued for treaties where the object and purpose is of a particular type, but it also keeps and maintains this view that we have in public international law. This view in public international law that states have to sign on to treaties, that states exist and that is state consent that allows for the existence of certain circumstances throughout the world and throughout treaty regulation. So a reservation could be accepted by all parties with the consent of all parties. Part three says when a treaty is a constituent instrument of an international organization and unless it otherwise provides a reservation required the acceptance of the competent organ of that organization. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides, acceptance by another contracting state of a reservation constitutes the reserving state a party to the treaty in relation to that of the other state or when the treaty is enforced for those states. An objection by another contracting state to a reservation does not preclude the entry into force of the treaty as between the objecting reserving states unless a contrary intention is definitively expressed by the objecting states and then finally an act expressing a state's consent to be bound by the treaty and containing reservation is effective as soon as at least one other contracting state is accepted the reservation. This is a bit more procedural in terms of the ways and the times in which reservations become binding or become valid and the treaty becomes entered into force.