Anthony Aust. Handbook of International Law

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Article 19 states the basic rule that a state may formulate a reservation unless:

the reservation is prohibited by the treaty: it is increasingly common for treaties, particularly on

human rights, or those that result from a ‘package deal’, to provide expressly that reservations

are not permitted;

the treaty provides that only specified reservations may be made: typically, a reservation may

be made in respect of one or more specified Articles, such as an Article providing for the

submission of disputes to the International Court of Justice;

exceptions (a) and (b) do not apply, but the reservation is incompatible with the object and

purpose of the treaty (the compatibility test).

Although only paragraph (a) expressly uses the term ‘prohibited’, paragraphs (b) and (c) in effect

specify the other situations in which reservations are prohibited. But, whereas it is relatively easy to

determine whether a reservation is prohibited under paragraphs (a) or (b), when a treaty is silent

about reservations it can be difficult to assess whether a reservation passes the compatibility test.

Many differing views have been expressed as to how the test should be applied, especially to human

rights treaties,

and the practice of states is patchy and uncertain. Today, as treaties become longer

and more complex, identifying the object and purpose of a treaty like the UN Convention on the

Law of the Sea 1982

is virtually impossible, given its 320 Articles and nine annexes, unless for

this purpose it is permissible to break down the treaty into various subjects, such as the high seas,

straits, the continental shelf etc.

Acceptance of, and objection to, reservations

Even when a reservation is not prohibited under Article 19(a), (b) or (c), other contracting states can

still object to it for any reason of law or policy. By formulating a reservation, the reserving state is

consenting to be bound subject to a condition. It makes an offer which is subject to acceptance by

the other contracting states. It will, therefore, not be

69. See the TIR Convention 1975, 1079 UNTS 89 (No. 16510).

70. There is a considerable literature. See, for example, L. Lijnzaad, Reservations to UN Human Rights

Treaties, Dordrecht, 1995.

71. See p. 75 below.

72. 1833 UNTS 397 (No. 31363); ILM (1982) 1261; UKTS (1995) 81.

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legally effective in relation to another contracting state unless that state has accepted it either

expressly or by necessary implication. (The only exceptions are where a reservation has been

expressly authorised by the treaty (Article 20(1)).) But, in practice, most objections are made on the

ground that the reservation is prohibited, and usually because it fails the compatibility test.

‘Plurilateral treaties’

This term describes a treaty negotiated between a limited number of states with a particular interest

in the subject matter. Article 20(2) provides that if it appears from the object and purpose of the

treaty that the application of it in its entirety, and between all the parties, is an essential condition for

the consent of each of them to be bound by it, any reservation will require the acceptance of all the

parties. Examples might include the Antarctic Treaty 1959, which had only fifteen negotiating states

and created a special regime, for which the integrity of the Treaty is vital.

Constituent instrument of an international organisation

Where a treaty forms the constitution of an international organisation, it is also essential to preserve

its integrity. Article 20(3) provides that a reservation will require the acceptance of the competent

organ of the organisation – usually an assembly of the members – unless the constituent instrument

otherwise provides.

All other cases

Before 1951, generally the rule was unanimity: a reservation was only effective if it had been

accepted by all the negotiating states, expressly or tacitly, and usually before signature. This changed

after the 1951 International Court of Justice advisory opinion on certain reservations which had been

made to the Genocide Convention 1948.

Article 20(4) sets out the residual rules to be applied

when one is not dealing with an expressly authorised reservation, a plurilateral treaty or the

constituent instrument of an international organisation. The rules were intended to be a flexible

means of accommodating the different needs of the reserving state and the other contracting states:

73. See p. 354 below.

74. ICJ Reports (1951), p. 15; 18 ILR 364.

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acceptance by another contracting state of a reservation constitutes the reserving state a party to

the treaty in relation to that other state if or when the treaty is in force 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 and reserving states unless a contrary intention is

definitely expressed by the objecting state;

an act expressing a state’s consent to be bound by the treaty and containing a reservation is

effective as soon as at least one other contracting state has accepted the reservation.

It is rare for a contrary intention to be ‘definitely’ (explicitly) expressed (paragraph (b)), and Article

20(5) provides that acceptance of a reservation can be tacit. The combined effect of Article 20(5)

and paragraph (c) is that the reserving state will become a contracting state unless all the other

contracting states (1) object to the reservation and (2) explicitly object to the reserving state

becoming a contracting state. This is most unlikely ever to happen. The Convention puts the onus on

an objecting state both to express its objection and, if it does not want the treaty to enter into force

between it and the reserving state, to say so explicitly. But this did not take sufficiently into account

the actual practice of states. Very few states object even when a clearly objectionable reservation has

been made.

It is thus possible that not every party to a multilateral treaty will be bound by the treaty to every

other party. A reserving state, Utopia, may be a party to a treaty in relation to Ruritania (which raised

no objection), but not Freedonia (which did, and expressly said that it precluded the treaty entering

into force between it and Utopia), although Ruritania and Freedonia may themselves be mutually

bound. However, although such a result is not surprising if the reservation is not prohibited, there is

good reason to believe that the scheme of Article 20(4) and (5) does not apply when the reservation

is prohibited, including when it has been objected to even by one contracting state on the ground that

it fails the compatibility test (see below).

The legal effects of reservations and of objections to reservations

Article 21(1) sets out the rules governing the legal effects of a reservation which has been

established (i.e. in accordance with the requirements of Articles 19, 20 and 23 (see below)) with

regard to another party: that is

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to say a reservation which is legally effective in relation to another party, not being prohibited under

Article 19(a), (b) or (c) or objected to by the other party. Such a reservation:

modifies for the reserving state in its relations with that other party the provisions of the treaty

to which the reservation relates to the extent of the reservation; and

modifies those provisions to the same extent for that other party in its relations with the

reserving state.

Thus a party is bound only to the extent to which it has agreed to be bound – so that if a party has

made an effective reservation it will operate reciprocally between it and any other party which has

not objected to it, modifying the treaty to the extent of the reservation for them both in their mutual

relations. But, as between the other parties, the treaty is unaffected (Article 21(2)).

Some unresolved issues

The main unresolved issue is whether the regime constructed by Articles 20 and 21 applies to all

reservations. Certainly it works satisfactorily with respect to permissible reservations. But severe

problems arise if one attempts to apply it to reservations prohibited under Article 19(a), (b) or (c).

Nevertheless, there is a view that there is nothing in the scheme that precludes its application to a

prohibited reservation; provided it has been accepted under Article 20(4). This could be done under

Article 20(5), and (as pointed out) is usually done tacitly, the reserving state becoming a party in

relation to those states that do not object. But the argument must necessarily seek to draw a

distinction between reservations prohibited by Article 19(a) and (b) and those prohibited by Article

19(c), on the basis that the question whether a reservation passes the compatibility test is a matter for

each contracting state. Yet, Article 19 makes no such distinction. It authorises the formulation of

reservations subject to three exceptions. It is most unlikely that Articles 20 and 21 were intended to

apply to reservations which Article 19 says may not be made. It is not argued that, if a treaty

prohibits the making of reservations, or allows only specified ones, a contracting state could

nevertheless accept (perhaps even tacitly) a prohibited reservation. The rules in Article 21 on the

legal effects of reservations refer to reservations ‘established’ in accordance with Articles 19, 20 and

23, and it is hard to see how one could validly establish a reservation when it is prohibited.

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When a treaty is silent about reservations, the determination whether a reservation passes the

compatibility test is not easy, but there is no reason why it should be treated any differently to the

other classes of possibly prohibited reservations. The compatibility test should be applied

objectively, even if in most cases it has to be applied by states rather than by a court, a situation

which is very common in international law. If a reservation has been objected to by even one

contracting state for failing the test, the reserving state has an obligation to consider the objection in

good faith. If the two states (there may of course be more) cannot agree, the question then becomes a

matter of concern to the other contracting states, whether or not they have objected.

There is a related question: if a state has made a prohibited reservation, is it then bound by the

treaty but without the benefit of the reservation? In Belilos, the European Court of Human Rights

held that a declaration by Switzerland to the European Convention on Human Rights (ECHR) was

an invalid reservation, but that it could be disregarded, Switzerland remaining bound by the ECHR

in full.

However, Belilos needs to be seen in the light of the particular circumstances. The issue

arose within a regional system dedicated to adherence to common social and political values. The

ECHR has a special character and must be interpreted in the light of contemporary conditions, its

enforcement machinery and its object and purpose.

Objections to reservations show a divergence of views by states on the question of whether a

prohibited reservation can be disregarded. Some do not say what effect its objection would have.

Some say their objections do not preclude the entry into force of the Convention between them and

the reserving state, so leaving ambiguous the effect of the reservation on its obligations under the

Convention. Some say that, although their objections do not preclude the entry into force of the

Convention between them and the reserving state, it would do so without the latter benefiting from

the reservation. This ignores the plain fact that the reserving state had made it clear that it was

willing to be bound only subject to a condition. The better view is that, if one or more contracting

states have objected to the reservation as being prohibited, it is the reserving state that must decide

whether or not it is prepared to be a party without the reservation;

75. ECHR Pubs. Series A (Preliminary Objections), Vol. 132 (1988); 88 ILR 635. See also Loizidou

ECHR Pubs. Series A, Vol. 310 (1995); (1995) 20 EHRR 99; 103 ILR 621; and S. Marks, ‘Reservations

Unhinged: The Belilos Case before the European Court of Human Rights’ (1990) ICLQ 300.

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and until it has made its position clear it cannot be regarded as a party. There is an express provision

to this effect in the European Agreement concerning the Work of Crews of Vehicles Engaged in

International Road Transport 1970 (AETR Agreement).

Reservations to human rights treaties

In the case of a human rights treaty, there may be weighty political reasons why a state is reluctant to

object to the entry into force of the treaty between it and a reserving state, even when it has objected

to the reservation. Most objecting states are reluctant to take the position that the treaty will not be in

force between it and the reserving state unless and until the reservation is withdrawn. In fact, when

faced with a questionable reservation to a human rights treaty, most parties remain silent. And those

that do formally express views frequently take differing positions. There have been a variety of

responses, particularly by Western European states, to the general reservations to human rights

treaties made by the United States to the effect that nothing in the treaty requires or authorises

legislation or other action by the United States that would be prohibited by the Constitution of the

United States as interpreted by the United States (the ‘constitutional reservation’). Another similar

general reservation is one that seeks to subordinate a human rights treaty to the domestic law of the

reserving state, in particular to Islamic (Sharia) law (the ‘religious reservation’).

Treaty monitoring bodies

The problem of determining whether a reservation is permissible, and in particular whether it passes

the compatibility test, is further compounded by the absence in most cases of a standing tribunal or

other organ with competence to decide such matters. Although the European Convention on Human

Rights and the American Convention on Human Rights

each have a permanent court, most

modern universal human rights treaties establish no more than a committee of (albeit mostly

distinguished) independent experts to monitor the way in which the parties carry out their

obligations. The best known is the Human Rights

76. See p. 76, n. 81 below.

77. There is a huge literature. For a recent survey of the subject, see J. Gardner (ed.), Human Rights as

General Norms and a State’s Right to Opt Out, BIICL, London, 1997.

78. See pp. 246-48 below.

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Committee established by the International Covenant on Civil and Political Rights 1966.

The

Committee is not empowered to give decisions binding on the parties. Nevertheless, in its General

Comment No. 24 in 1994,

the Committee said that it must necessarily take a view as to the status

and effect of a reservation if this is required in order for it to carry out its functions, in particular

considering reports from parties. The Committee gave the impression that it could in such

circumstances make an authoritative determination. This view has been severely criticised. It, and

similar committees, cannot be equated to international courts or tribunals that reach decisions

binding on the parties after hearing full legal argument.

Some ways of minimising the problem of reservations

If express provision is made in each new treaty, many of the problems of reservations may be

avoided. The European Agreement concerning the Work of Crews of Vehicles Engaged in

International Road Transport 1970 (AETR Agreement) provides that a non-authorised reservation

shall be deemed to be accepted if, within six months of being notified of it, none of the contracting

states has opposed it. Otherwise, the reservation shall not be admitted, and, if it does not withdraw

the reservation, the reserving state shall not become a party.

A more recent formulation is found in the FAO Compliance Agreement 1993:

reservations shall

become effective only upon unanimous acceptance by all the parties; parties not having replied

within three months from the date of notification shall be deemed to have accepted; failing

unanimous acceptance, the reserving state shall not become a party to the Agreement. Of course, the

reserving state can always withdraw the reservation or deposit a fresh acceptance without the

reservation.

Procedure

A statement made during the negotiation of the treaty or on its adoption, even if recorded formally,

must be made again if it is to be effective as a reservation. If it is made on signature of a treaty that is

subject to ratification, to be effective it must be formally confirmed by the reserving state when

expressing its consent to be bound (Article 23(2)).

79. See p. 248 below.

80. See ILM (1995) 839; 107 ILR 54. The text, and the observations of France, the United Kingdom and

the United States, are in J. Gardner (ed.), Human Rights as General Norms and a State’s Right to Opt Out,

BIICL, London, 1997, pp. 185–207.

81. 993 UNTS 143 (No. 14533), Article 21(2).

82. ILM (1994) 968; B&B Docs. 645.

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Since a reservation can be withdrawn, it may in certain circumstances also be possible to modify, or

even to replace, a reservation, provided the result is to limit its effect. Some treaties make express

provision for this.

Late reservations

Although the Convention does not authorise the making of reservations other than when a state

consents to be bound, if the UN Secretary-General subsequently receives a reservation he will

sometimes circulate the text with a note that, unless he receives an objection within ninety days, the

reservations will be deemed to have been accepted. This is only done when the reservation is

specifically authorised by the treaty or is the same as one already made by another state.

The International Law Commission study

Since 1993, the International Law Commission has had on its agenda ‘Reservations to Treaties’, for

which Professor Alain Pellet was appointed Special Rapporteur. Since 1995, he has produced nine

reports. Instead of proposing amendments to the Convention, the Commission intends to produce a

draft set of ‘Guidelines’ for consideration by the Sixth Committee of the UN General Assembly.

Entry into force

A treaty is not like national legislation which, once in force, applies to all to whom it is directed. A

treaty is much closer to a contract: even when it has entered into force it is in force only for those

states that have consented to be bound by it. Each of them is then a ‘party’ to the treaty (Article

2(1)(g)), and should never be referred to by the ambiguous term ‘signatory’.

But, when a state

expresses its consent to be bound, that does not necessarily mean that the treaty will enter into force

for it at that time; it depends on whether the treaty is already in force or whether further consents are

needed to bring it into force.

83. See Article 13(2) of the European Convention on the Suppression of Terrorism 1977, 1137 UNTS 93

(No. 17828); ILM (1976) 1272; UKTS (1978) 93.

84. See his reports, and those of the ILC, at www.un.org/law/ilc/.

85. See p. 65 above.