Reservations and Declarations. Reservations What Are Reservations? Unilateral statements made upon...

Reservations and

Declarations

Reservations

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)

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

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.

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.

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.

The Depositary’s 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 State’s 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.

– 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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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-General’s practice deviates from the strict requirements of the Vienna Convention.

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. Pellet’s report endorses the Secretary-General’s practice.

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.

Declarations

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.

Optional and Mandatory Declarations

Treaties may provide for States to make optional and/or mandatory declarations.

– These are legally binding.

Optional Declarations

Many human rights treaties provide for optional declarations.

– Relate to the competence of human rights commissions or committees.

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.

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

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.

Notification of Declarations by theDepositary

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.

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