1. 1 OLA/UNITAR Seminar on law and practice of treaties Reservations and Declarations to Treaties

2. The Vienna Convention on the Law of Treaties Article 2(1)(d): Definition of a reservation Part II, Section 2: Article 19:Formulation of reservations Article 20:Acceptance of and objection to reservations Article 21:Legal effects of reservations and objections Article 22:Withdrawal of reservations and objections Article 23:Procedure regarding reservations 2

3. The Guide to Practice on Reservations to Treaties “… while the Guide to Practice, as an instrument—or “formal source”—is by no means binding, the various provisions in the guidelines cover a wide range of obligatoriness and have very different legal values”. The Guide to Practice contains: Rules from the Vienna Convention Rules from the Vienna Convention Rules that supplement the Vienna Convention Rules that supplement the Vienna Convention Rules that complete the Vienna Convention Rules that complete the Vienna Convention Proposals de lege ferenda Proposals de lege ferenda Recommendations Recommendations 3

4. 4 What is a reservation? Article 2(1)(a) of the Vienna Convention “reservation” means 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 Therefore: A reservation is a unilateral act A reservation is a unilateral act A reservation purports either (i) to exclude or (ii) to modify the legal effect of the treaty A reservation purports either (i) to exclude or (ii) to modify the legal effect of the treaty The name of the reservation does not matter The name of the reservation does not matter

5. Difference between reservations and interpretative declarations The Vienna Convention does not define interpretative declarations. Definition in the Guide to Practice to reservations: “Interpretative declaration” means a unilateral statement, however phrased or named, made by a State …, whereby that State … purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions (Guideline 1.2) Difference Reservationvs.Interpretative declaration Exclude or modifyvs.Specify or clarify 5

6. 6 The place of reservations in the framework of the law of treaties The principle of consent is at the core of the law of treaties  As a unilateral act, a reservation could be seen as a potential challenge to the principle of consent An inherent tension: Preservation of the integrity of the treaty vs. Pursuit of the universality of the treaty

7. A brief history of reservations The traditional regime  Rigid regime of unanimous acceptance of reservations The Pan-American regime  Flexible regime of bilateralization of multilateral treaty relations The regime of the ICJ 1951 Advisory Opinion on Reservations to the Genocide Convention  Flexible regime based on the preservation of the “object and purpose” of the treaty 7

8. 8 Who can formulate a reservation?  Head of State, Head of Government or Minister for Foreign Affairs, without any need for full powers  Other officials (including at the ministerial level), with full powers issued by one of the above authorities

9. 9 When can a reservation be formulated? Articles 2(1)(a) and 19 of the Vienna Convention: “… when signing, ratifying, accepting, approving or acceding to a treaty…” Late formulation of a reservation  A reservation may not be formulated after the expression of consent to be bound by the treaty, unless the treaty otherwise provides or none of the other contracting parties opposes the late formulation  In his depositary practice, the Secretary-General will circulate the late reservation and will accept it in deposit if no other State has opposed the reservation An interpretative declaration may be formulated at any time.

10. 10 When are reservations permissible? Article 19 of the Vienna Convention A State may formulate a reservation unless: (a)The reservation is prohibited by the treaty Exs:United Nations Convention on the Law of the Sea Rome Statute of the International Criminal Court (b)The treaty provides that only specified reservations, which do not include the reservation in question, may be made Exs:Convention Relating to the Status of Refugees Convention on the Suppression of the Financing of Terrorism (c)The reservation is incompatible with the object and purpose of the treaty.

11. 11 The mechanism of acceptances of and objections to reservations State A (formulates a reservation) State B (accepts) State C (objects to the entry into force) State D (objects) State E (remains silent) Article 20 of the Vienna Convention

12. 12 Legal effects of reservations Article 21 of the Vienna Convention Between the reserving State and the accepting State: Between the reserving State and the accepting State:  The reservation modifies the provisions of the treaty to the extent of the reservation Between the reserving State and the objecting State: Between the reserving State and the objecting State:  The provisions to which the reservation relates do not apply to the extent of the reservation

13. 13 What is the legal effect of a reservation incompatible with the object and purpose of the treaty? Two options:  The reserving State would be bound by the treaty without the benefit of the reservation, or  The reserving State would not be bound by the treaty Guideline 4.5.3:  The status of an invalid reservations depends on the intention of the reserving State  However: it is presumed that, unless otherwise established, the intention was to become a contracting State without the benefit of the reservation The practice of the Secretary-General as depositary  A reservation is circulated to States  States may express their views through acceptances, objections or declarations

14. Withdrawal or modification of reservations Withdrawal of reservations  Completely or partially  At any time  The withdrawal is subject to the same formal conditions as the reservation Modification of reservations  Partial withdrawal  Widening of the scope (subject to the regime of late reservations) 14

15. 15 How to settle disputes regarding reservations? The “reservations dialogue” Mechanisms proposed by the ILC together with its Guide to Practice  A reservations assistance mechanism?  An “observatory” on reservations? The role of monitoring treaty bodies Means of peaceful dispute settlement  Arbitration and adjudication

16. 16 Copyright Copyright 2014 by the United Nations. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations. Copyright 2014 by the United Nations. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations.