Reservations

By Bradford C. Smith

Reservations

The subject of reservations to

multilateral treaties is one of unusual
in fact baffling complexity. Sir
Hersch Lauterpacht

Reservations

Why are reservations important?

What are reservations?
Who can formulate reservations?
When can reservations be formulated
Form of reservations
The Depositarys Role
Objections
Late Reservations
Withdrawal and Modification

Why are reservations important?

Reservations enable a State to participate in a

treaty in which it would not be able to participate
due to an unacceptable provision or provisions.
In many cases the purpose of the reservation is
merely to adjust the reserving States obligations
under the treaty to conform to its domestic law
where, for political, cultural or social reasons, it
is not feasible or desirable to change the law.
It is desirable to have States parties to treaties
with reservations than for States not to be
parties to such treaties at all.
Many States make reservations.

What are reservations?

Unilateral statements, however phrased or

named, purporting to exclude or modify the
legal effect of certain provisions of a treaty
in their application to the reserving State.

Entitled reservation, declaration,

understanding, interpretative
declaration or interpretative statement.
(Article 2(1)(d) of the Vienna Convention 1969)

Who can formulate a reservation?

In the S-Gs practice, only the Head of State

or Government or the MFA (or a person
acting in that capacity or having delegated
authority for that purpose issued by one of
the above authorities) can formulate (i.e.
sign) a reservation.
A reservation is a limitation on the
commitment undertaken by a state.
Only the same authorities who can
undertake a treaty action can formulate a
reservation (The same applies to
withdrawals and modifications to
reservations).

When can reservations be

formulated?

Upon signature, ratification, acceptance,

approval, accession, etc., unless:

The reservation is prohibited by the treaty;

The treaty provides that only specified
reservations, which do not include the
reservation in question may be made; or
The reservation is incompatible with the
object and purpose of the treaty (VCLT,
article 19).

Reservation made on signature

If made upon simple signature it is merely

declaratory.
o

Must be formally confirmed in writing upon ratification,

acceptance, or approval.

If made on definitive signature, it need not

be confirmed later.

1969)

(Art. 23(2), Vienna Convention,

Form of Reservations

It is a limitation on the commitment undertaken

by the State.
Must, therefore, be included in the instrument of
ratification, acceptance, approval or accession or
be annexed to it.
If separate, it must be signed by the Head of
State or Government or MFA (or a person acting
in that capacity or having delegated authority for
that purpose issued by one of the above
authorities).

The Depositarys Role

When reservations are made, the depositary must

determine whether such a reservation should be
accepted upon signature or upon deposit of an
instrument.
If a declaration or statement is made, the depositary
must make a prima facie determination as to whether
the declaration or statement is in fact a reservation.
What does the treaty say? Either the treaty is silent as
to reservations, or has provisions relating to
reservations.
If the treaty has provisions relating to reservations, the
depositary is guided by the relevant provisions of the
treaty itself.

Reservations Prohibited

Where a treaty expressly prohibits reservations:

The depositary makes a preliminary legal assessment

whether a statement constitutes a reservation.
If it has no bearing on the States legal obligations, and is
not therefore a reservation, the S-G will formally
receive the statement in deposit and circulate it.
The S-G will not circulate an unauthorised reservation.
Where the S-G requests a clarification and the state
confirms the absence of a reservation, the State is
estopped from relying on the statement as a reservation.

Examples

Some treaties specifically prohibit all

reservations, for example:

Statute of the International Criminal Court (art.

120);
Many disarmament treaties deposited with the S-G
(Comprehensive Nuclear-Test-Ban Treaty, Chemical
Weapons Convention, Anti-Personnel Mines
Convention);
Most environmental treaties deposited with the SG (Montreal Protocol, Kyoto Protocol, Rotterdam
Convention, Stockholm Convention, Cartagena
Protocol, etc.)

Examples

Other treaties prohibit certain

reservations, for example:

UN Convention on the Law of the Sea,

pursuant to its article 309, states that
no reservations may be made to the
Convention unless expressly permitted
by other articles of this Convention.

Territorial Exclusions
Are they reservations?

Some States exclude parts of the territory from the

application of treaties:

For example, United Kingdom, Netherlands, Denmark, New

Zealand and, in some instances, China.
In most cases non-metropolitan territories (except China).

Not consistent with art. 29 VCLT

But is treated by the Secretary-General as a regional

practice.
No objections by other States.
These States continue to engage in this practice.

Why?

Compliance with domestic legal procedures which may

require consultations with the territory concerned.

Treaty Expressly Authorises

Reservations

Where a State formulates a

reservation that is authorised, the SG circulates the reservation to the
States concerned.
Such reservation does not require
any subsequent acceptance by the
States concerned.

Treaty authorizes only specified

reservations

According to VCLT, article 19(b) a reservation

is allowed unless the treaty provides that only
specified reservations, which do not include
the reservation in question, may be made.
Many treaties deposited with the S-G authorize
reservations with regard to settlement of
dispute procedures and are otherwise silent as
to reservations.
Does this mean that all other reservations are
prohibited?
No the S-Gs practice in this regard is to
interpret the above provision narrowly, and will
accept other reservations in deposit.

Treaty is silent on reservations

Where a treaty is silent on reservations and a State

formulates a reservation, the depositary informs the
States concerned.
The depositary does not make a judgement in this
regard (whether compatible with object and
purpose).
His role is to accept the reservation in deposit, to
communicate it to all States concerned, and leave
it to each State to draw the legal consequences
from such reservations.
Unless a state objects within 12 months, it is
presumed to have accepted the reservation.

Who decides whether a reservation

is consistent with the object and
purpose?

Whether consistent with the object and purpose:

Given the complexity of todays treaties, identifying the

object and purpose can be difficult.
Human rights bodies?- Have tried to take over this role.
Criticized by States.
Depositary?
For now no.
Pellet and some States see a role for the depository.
States Parties?
A debate continues.
The Secretary-General will continue with the current practice
unless States agree otherwise.

Case Study ICESCR

Declaration which could be a reservation (where

the treaty is silent).
China made a declaration on becoming party
to the ICESCR limiting the right of Hong Kong
trade unions to confederate.
Depositary did not pass judgment on this and
circulated the declaration.
A number of countries have objected noting
article 8 (1)(a) of the Covenant.

Objections to Reservations

Only States which are signatories or parties to a

treaty may object to a reservation;
Where a reservation has been circulated, States
concerned have 12 months to object, beginning

An objection lodged after the end of the 12-month

period is circulated as a communication.

on the date of the depositary notification or

on the date on which the State expressed its consent to be
bound by the treaty (See art. 20 (5) VCLT)

The legal effect is uncertain but may have a political

effect.

Many States have made reservations to CEDAW,

which have attracted a wide range of objections.

Effect of Objections

An objection does not preclude the entry into force

of the treaty ... unless a contrary intention is definitely
expressed by the objecting State.

To avoid uncertainty, an objecting State specifies whether its

objection precludes the entry into force.

If a State does not object to a reservation made by

another State, it is deemed to have tacitly accepted the
reservation.
An objection need not be signed by one of the
recognized authorities.
As with reservations, only concerned States (signatories
and parties) are competent to pass upon the legal effect
of an objection. The S-G will circulate objections by
non-contracting
or
signatory
States
as
communications since they are of no legal effect.

Examples of Objections-CEDAW

Austria is of the view that the exclusion of such

an important provision of non-discrimination is not
compatible with object and purpose of the
Convention. Austria therefore objects to this
reservation. This position, however, does not
preclude the entry into force in its entirety of the
Convention between Saudi Arabia and Austria.
The Government of Finland therefore objects to
the above-mentioned reservations made by the
Government of the Federated States of Micronesia
to the Convention. This objection does not preclude
the entry into force of the Convention between
Micronesia and Finland. The Convention will thus
become operative between the two states without
Micronesia benefiting from its reservations.

Late Reservations

Formulating reservations after ratification,

acceptance, approval or accession:
The S-G circulates such reservations, and accepts
them in deposit only if none of the States concerned
object.
The S-Gs practice deviates from the strict
requirements of the VCLT.
Practical solution based on the fact that States have
an inherent right to modify treaty relations and such
modification must receive unanimous acceptance.
Alternative would be denunciation. S ome States
have denounced treaties and re-acceded in order to
lodge reservations. This approach has been
criticised by other States.

Time Limit for Objections

to Late Reservations

States have 12 months from the date

of the depositary notification within
which to object to a late reservation.
Same where a State withdraws an
initial reservation and substitutes it
with a new or modified reservation.

Withdrawal of a Reservation

A State may withdraw its reservation completely or partially at

any time.
The consent of the States concerned is not necessary.
Must be formulated in writing and signed by the Head of
State or Government or MFA (or a person acting in that
capacity or having delegated authority for that purpose issued by
one of the above authorities).

A withdrawal of a reservation becomes operative only when a

concerned State has received notification of the withdrawal by
the reserving State (VCLT, Art. 22(3)).
Objections can be withdrawn at any time also.
The
withdrawal of an objection becomes operative only when
notice of it has been received by the reserving State (Need
not be signed).

Modifications to Reservations

An existing reservation may be modified

so as to result in a partial withdrawal or
to create new exemptions.

A modification of the latter kind has the

nature of a new reservation.
The S-G circulates such modifications and
grants the States concerned 12 months
within which to object to them.

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Copyright 2005 by the United Nations. All

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