Reservations and Declarations

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Reservations and Declarations
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Reservations
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• What Are Reservations?
• Unilateral statements made upon signature,
  ratification, acceptance, approval of or
  accession to a treaty.
• However phrased or named, any statement
  purporting to exclude or modify the legal effect
  of a treaty
• Entitled reservation, declaration,
  understanding, interpretative declaration or
  interpretative statement.
• (Article 2(1)(d) of the Vienna Convention
  1969)

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• Time for Formulating Reservations
• Article 19 VCLT A State may, when signing,
  ratifying, accepting, approving or acceding to a
  treaty, make a reservation unless
• (a) The reservation is prohibited by the
  treaty
• (b) The treaty provides that only specified
  reservations, which do not include the
  reservation in question, may be made or
• (c) The reservation is incompatible with the
  object and purpose of the treaty.
• Some countries have denounced treaties and
  reacceded
• in order to lodge reservations

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• Form of Reservations
• It is a limitation on the commitment undertaken.
• Must be included in the instrument of
  ratification, acceptance, approval or accession
  or be annexed to it.
• If separate, must be signed by the Head of State,
  Head of Government or Minister for Foreign
  Affairs
• or a person having full powers for that
  purpose issued by one of the above
  authorities.

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• Treaty Provisions
• Some treaties specifically prohibit reservations.
• E.g., Art. 120, ICC Statute
• Art. 18, Montreal Protocol
• If made upon simple signature it is merely
  declaratory
• must be formally confirmed in writing on
  ratification or acceptance.
• (Art. 23(2) Vienna Convention, 1969)
• Could be made on definitive signature
• Need not be confirmed later.

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Territorial Exclusion

• Some States exclude part of the territory from
  the application of treaties
• United Kingdom, Netherlands, Denmark, New Zealand
• Not consistent with art. 29 VCLT
• But treated as a regional practice
• Prof. Pellet does not endorse this approach.

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• The Depositarys Role
• 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, the depositary circulates the
  statement.
• If it excludes or modifies the legal effects of
  provisions of the treaty, the depositary will
  draw the attention of the State concerned to the
  issue
• will not circulate the unauthorised reservation.

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• Where, prima facie, there is no doubt
• if the declarant formally clarifies that the
  statement is not a reservation, the
  Secretary-General will formally receive the
  instrument in deposit
• Where prima facie determination is not possible,
  and doubts remain
• the Secretary-General may request a clarification
  
• In such case, the State is estopped from relying
  on the statement as a reservation.

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Reservations Not Permitted

• E.g., Montreal Protocol on Substances that
  Deplete the Ozone Layer, 1987
• China assumed responsibility for Macao in 1999
• Macao was considered to be developed entity under
  Portugal falling under art. 2, Montreal
  Protocol
• China declared that it will not extend art. 5 to
  Macao
• Art. 5 provided a phase out period for developing
  countries
• No objections

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Treaty Expressly Authorises Reservations

• Where a State formulates a reservation that is
  authorised, the Secretary-General informs the
  States concerned.
• Unless a translation or an in-depth analysis is
  required, such a notification is processed and
  transmitted by e-mail on the date of formulation.
• Such reservation does not require any subsequent
  acceptance by the States concerned.

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Treaty Is Silent on Reservations

• Where a treaty is silent on reservations and a
  State formulates a reservation,
• the depositary informs the States concerned.
• Such reservation should be consistent with art.
  19 VCLT
• Generally, in human rights treaties.
• Prof. Pellet discusses this case
• Supports the Secretary-General drawing the
  attention of States to a prohibited reservation.
• Not all States agree with proposal.

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Who Decides Whether a Reservation Is Permissible?

• Whether consistent with the object and purpose
• States parties?
• Human rights bodies?
• Depositary?
• A debate continues.
• The Secretary-General will continue with the
  current practice unless States agree otherwise.

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ICESCR

• Declaration which could be a reservation (where
  the treaty is silent).
• China made a declaration
• limiting the right of Hong Kong trade unions to
  confederate.
• Depositary did not pass judgment on this.
• Number of countries have objected.

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• Objections to Reservations
• Time for making objections
• Where a treaty is silent,
• States concerned have 12 months to object,
  beginning
• 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)
• An objection lodged after the end of the 12-month
  period is circulated as a communication.
• Notifications are circulated by e-mail.

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• ICCPR and CEDAW
• Many States have formulated reservations to the
  International Covenant on Civil and Political
  Rights, 1966, and the Convention on the
  Elimination of All Forms of Discrimination
  against Women, 1979.
• These reservations have attracted a wide range of
  objections.

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• Effect of Objections
• Effect of objections on entry into force
• 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.

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• 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, Head of Government or Minister for
  Foreign Affairs
• or a person having full powers for that purpose
  issued by one of the above authorities.
• The Secretary-General circulates a notification
  of a withdrawal.
• Objections can be withdrawn at any time also.
• Art. 22(3) VCLT a withdrawal of a reservation
  becomes operative only when a concerned State has
  been notified.

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• Late Reservations
• Formulating reservations after ratification,
  acceptance, approval or accession
• The Secretary-General circulates the reservation.
  
• Accepts the reservation in deposit only if no
  such State objects.
• On the basis of the need to receive unanimous
  acceptance.
• The Secretary-Generals practice deviates from
  the strict requirements of the Vienna Convention.

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• Time Limit for Objections
• 12 months from the date of the depositary
  notification.
• Originally 90 days.
• Same where a State withdraws an initial
  reservation and substitutes it with a new or
  modified reservation.
• Prof. Pellets report endorses the
  Secretary-Generals practice.

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• 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 Secretary-General circulates such
  modifications and grants the States concerned a
  specific period within which to object to them.
• In the past, the practice as depositary had been
  to stipulate 90 days.
• On 4 April 2000, it was advised that the time
  provided for objections to modifications would be
  12 months.

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Declarations

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• Interpretative Declarations
• A State may make a declaration about its
  understanding of a matter contained in or the
  interpretation of a particular provision in a
  treaty.
• Do not purport to exclude or modify the legal
  effects of a treaty.
• Some treaties specifically provide for
  interpretative declarations.

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• Optional and Mandatory Declarations
• Treaties may provide for States to make optional
  and/or mandatory declarations.
• These are legally binding.

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Optional Declarations

• Many human rights treaties provide for optional
  declarations.
• Relate to the competence of human rights
  commissions or committees.

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Mandatory Declarations

• Where a treaty requires States becoming party to
  make a mandatory declaration, the
  Secretary-General seeks to ensure that they make
  such declarations.
• Need to be signed by proper authorities.
• Some disarmament and human rights treaties.

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• Time for Formulating Declarations
• Declarations are usually deposited at the time of
  signature or at the time of deposit of the
  instrument of ratification, acceptance, approval
  or accession
• Sometimes, subsequently

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• Form of Declarations
• Normally need not be signed by a formal authority
  
• Preferably signed by the Head of State, Head of
  Government or Minister for Foreign Affairs
• or a person having full powers for that purpose
  issued by one of the above authorities.
• This practice avoids complications in the event
  of a doubt whether the declaration in fact
  constitutes a reservation
• Optional and mandatory declarations impose legal
  obligations on the declarant
• Must be signed by the Head of State, Head of
  Government or Minister for Foreign Affairs
• or by a person having full powers for that
  purpose.

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• Notification of Declarations by the
• Depositary
• The Secretary-General reviews all declarations to
  treaties that prohibit reservations
• to ensure that they are prima facie not
  reservations.
• Where a treaty is silent or authorises
  reservations, the Secretary-General makes no
  determination.
• The text is simply communicated to all States
  concerned
• States draw their own legal conclusions.

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• Objections to Declarations
• Where the treaty is silent on reservations
• States sometimes object to declarations relating
  to a treaty that is silent on reservations
• The Secretary-General circulates any such
  objection