Treaties, Multilateral, Reservations

to
Thomas Giegerich

Content type: Product: Max Planck

Encyclopedia Entries Encyclopedia of Public
Article last updated: International Law [MPEPIL]
October 2010

Subject(s):
Customary international law — Unilateral acts — Codification — Right to non-discrimination — Economic,
social, and cultural rights — Vienna Convention on the Law of Treaties — Treaties, application — Object
& purpose (treaty interpretation and) — Treaties, invalidity, termination, suspension, withdrawal —
Treaties, reservations and declarations — Treaties, amendments and modification — Extraterritorial
application of treaties
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rüdiger Wolfrum.

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 A. Notion and Types of Reservations
1 According to Art. 2 (1) (d) Vienna Convention on the Law of Treaties (1969) (‘VCLT’) and Vienna
Convention on the Law of Treaties between States and International Organizations or between
International Organizations (‘VCLT-IO’), reservation means a unilateral statement, however phrased
or named, made by a State or by an international organization (International Organizations or
Institutions, External Relations and Co-operation; International Organizations or Institutions, General
Aspects) whereby it purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State or to that international organization (see also Treaties,
Amendment and Revision). This definition reflects the customary international law notion of a
reservation which differs from other declaration[s], eg interpretative declarations and
understandings (Treaties, Declarations of Interpretation), in that it expresses the intention of the
reserving State or international organization to modify its treaty obligations, an intention to be
ascertained through interpretation according to Arts 31 and 32 VCLT/VCLT-IO (Interpretation in
International Law). The distinctive criterion characterizing a reservation is the purported
modificatory legal effect of the declaration. While the name or title of the statement is one aspect to
be considered, its substance will be decisive, taking into account the circumstances and context
(Continental Shelf Arbitration [France v United Kingdom]). If a statement has thus been identified as
a reservation, its exact scope will also be ascertained pursuant to the rules of treaty interpretation.

2 Although being unilateral statements (Unilateral Acts of States in International Law; see also
Unilateralism/Multilateralism), reservations are aimed at creating bilateral legal relationships.
Pursuant to customary international law, as expressed in Art. 20 (4) (c), (5) VCLT/VCLT-IO, they will
therefore have their intended legal effects—see paras 18–26 below—only if at least one other
contracting party expressly or tacitly accepts them (Consent; Tacit Consent/Opting Out Procedure;
see also Acquiescence). Otherwise the reserving State will not become a party to the multilateral
treaty. While a reservation can thus be formulated unilaterally, it can be successfully made only
with the agreement of at least one other party. Technically, a reservation brings about a separate
treaty between the reserving party and all those other contracting parties that at least tacitly
accept its reservation. This separate treaty modifies the main treaty in their respective mutual
relationships in a reciprocal way (Reciprocity). Essentially the same holds true as expressed in Art.
21 (3) VCLT/VCLT-IO if a party objects to a reservation without opposing the entry into force of the
treaty in relation to the reserving party for this will render inapplicable, in their mutual relationship,
the provisions to which the reservation relates so that, as between them, the treaty enters into
force only in an abbreviated version (Treaties, Conclusion and Entry into Force).

3 The historical unanimity doctrine according to which a reserving State would become a party to
a modified multilateral treaty only if its reservation was accepted by all the other parties has thus
left a prominent trace in Art. 20 (4) (c) VCLT/VCLT-IO. This is a consequence of the principle of
consent embedded in the customary law of treaties with the effect that, in the words of the
International Court of Justice (ICJ), ‘no reservation can be effective against any State without its
agreement thereto’ (Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide [Advisory Opinion] [‘Reservations to the Convention on Genocide (Advisory
Opinion)’] 21; Genocide Convention, Reservations [Advisory Opinion]). However, the modern
system is more flexible than the traditional one, leaving the acceptance or rejection of reservations
to each contracting party individually and thus potentially leading to a fragmentation of the treaty
relationships (see also Fragmentation of International Law).

4 According to their goal one can distinguish reservations ratione materiae, modifying the
substance of the treaty obligations; reservations ratione temporis, modifying the temporal range of
the treaty obligations; and reservations ratione loci, modifying the geographical application of the
treaty (Treaties, Territorial Application). According to their target, reservations to substantive
provisions can be distinguished from reservations to procedural provisions/dispute settlement
clauses (Judicial Settlement of International Disputes) which purport to limit or exclude the

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 otherwise obligatory jurisdiction of international courts and tribunals, eg, Art. IX Convention on the
Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’) (International Courts
and Tribunals, Jurisdiction and Admissibility of Inter-State Applications) or treaty bodies, eg, Art. 5
Optional Protocol to the International Covenant on Civil and Political Rights (1966) (‘ICCPR’; Human
Rights). Sometimes States attach reservations to the declarations they make pursuant to optional
clauses—eg, Art. 14 International Convention on the Elimination of All Forms of Racial Discrimination
(‘CERD’) (Racial and Religious Discrimination)—whereby they recognize, but at the same time
restrict by their reservation, the competence of supervisory bodies. Thus Germany, when
recognizing the competence of CERD to consider communications from persons claiming to be
victims of racial discrimination, stated that the competence of CERD should not extend to matters
that were being or had been examined under another procedure of international investigation or
settlement. While these restrictive statements are not, technically, reservations because they
purport to modify the legal effect of a unilateral declaration and not a treaty, they raise analogous
problems because they affect the scope of the State’s treaty obligations and should therefore be
subject to analogous standards.

B. Purpose and Relation to Other Devices Modifying Effects of

Treaties
5 Normative multilateral treaties that codify and/or progressively develop customary international
law will attain their purpose only if a large number of States become parties (Codification and
Progressive Development of International Law). International practice uses several legal devices to
promote the widest possible acceptance of such treaties by alleviating the legal burdens that would
otherwise be imposed on contracting parties. These legal devices attempt to strike a balance
between the interests of the international community as a whole and the special interests of (some
of) its individual members. Among these devices are the pick and choose method, eg, Art. 20
European Social Charter; optional clauses, eg, Art. 14 CERD; optional protocols, eg, the Optional
Protocol to the ICCPR (‘OP-ICCPR’); and reservations. While promoting a treaty’s universality these
devices will inevitably affect its coherence and integrity, as they result in a considerable
diversification of treaty obligations, thereby counteracting the codificatory purpose of normative
multilateral treaties and perhaps even frustrating their essential legislative goal.

6 Of all these devices the reservation is the simplest and least disruptive. Its use does not require
any express authorization in the multilateral treaty. Reservations will also only split up the treaty
regime if and to the extent that States use them actively for this purpose. In contrast to this, in all
the other cases States must actively construct a coherent treaty regime, eg by ratifying optional
protocols, making parallel declarations pursuant to optional clauses or picking parallel provisions
from the available catalogue. As the existence of these other more disruptive treaty-modifying
devices indicates, however, States apparently do not consider reservations alone as a sufficient
safeguard against treaty obligations which they are politically unwilling or constitutionally unable to
accept: if the ICCPR had included a compulsory individual complaints procedure instead of
separating it out into an Optional Protocol, the ICCPR would probably have been ratified by a much
smaller number of States despite the possibility of entering a reservation against the procedure
(Human Rights, Individual Communications/Complaints; see also Individuals in International Law).

C. Legal Regime under the Vienna Convention on the Law of

Treaties and the Vienna Convention on the Law of Treaties
between States and International Organizations or between
International Organizations

1. Customary International Law Background and International Law

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 Commission’s Reconsideration
7 Starting out from and further developing the ICJ’s Advisory Opinion in Reservations to the
Convention on Genocide, the VCLT and the VCLT-IO establish a comprehensive—if incomplete—
regime on the admissibility of reservations, the reaction of other parties to them, their legal effects
and the procedure to be followed. Since 1993, the International Law Commission (ILC) has been
considering the topic ‘Reservations to Treaties’ on which Special Rapporteur Allain Pellet has so far
submitted 16 reports. In their eyes, the legal regime on reservations of the VCLT and the VCLT-IO
achieves a satisfactory balance between the objectives of preservation of the integrity of the treaty
and universality of participation in it. But the rules of the conventions require some further
elaboration which the ILC intends to provide through a future Guide to Practice containing
numerous guidelines. The rules of the Vienna Conventions are declaratory of customary
international law and will therefore henceforth be used as a reference. They are also residuary in
nature and will give way to more special provisions in the treaty to which the reservation relates.
The VCLT and the VCLT-IO make no provision for the succession of States or international
organizations in respect of reservations and objections thereto, and so these issues have been
partly regulated in Art. 20 Vienna Convention on Succession of States in respect of Treaties (State
Succession in Treaties; see also State Succession in Other Matters than Treaties). As this
convention has not entered into force one is referred back to the rules of customary international
law.

2. Making and Withdrawal of Reservations (Arts 22, 23 VCLT/VCLT-

IO)
8 Reservations must be formulated in writing and communicated to the Contracting States or
international organizations and other States or international organizations entitled to become
parties to the treaty, otherwise they will not be valid. The same applies to their withdrawal which
must, however, only be communicated to the other Contracting States or international
organizations (Case concerning Armed Activities on the Territory of the Congo [New Application:
2002] [Democratic Republic of the Congo v Rwanda] [Jurisdiction of the Court and Admissibility
of the Application] [ICJ, 3 February 2006] paras 41–44; Armed Activities on the Territory of the
Congo Cases). If a reservation is formulated at the signing of a treaty subject to ratification,
acceptance or approval, it must be formally confirmed by the reserving State or international
organization at ratification etc. Late reservations formulated by a party after having expressed its
consent to be bound by the treaty will only be valid if they are either permitted by the treaty or if
none of the other contracting parties objects. The power to formulate or withdraw a reservation at
the international level is determined by Art. 7 VCLT/VCLT-IO, irrespective of the internal power
distribution, pursuant to the constitution of the respective State or international organization (see
also Treaty Making Power).

3. Admissibility (Art. 19 VCLT/VCLT-IO)

9 As a corollary of State sovereignty, a reservation is admissible unless it comes within one of the
three exceptions listed in Art. 19 VCLT/VCLT-IO, being either contrary to an explicit or implicit
prohibition in the treaty as foreseen in Art. 19 (a) and (b) or incompatible with the object and
purpose of the treaty (Art. 19 (c) VCLT/VCLT-IO; Treaties, Object and Purpose). It is unclear
whether Art. 19 (a) VCLT/VCLT-IO generally includes implicit prohibitions—an interpretation that
would carry much uncertainty into the reservation regime—or whether in the absence of an explicit
prohibition reservations are only inadmissible if they are covered by either Art. 19 (b) VCLT/VCLT-
IO, which is quite narrow, requiring a treaty clause to the effect that specified reservations may be
made only—such as Art. 2 (1) Second Optional Protocol to the ICCPR, Aiming at the Abolition of the
Death Penalty—or Art. 19 (c) VCLT/VCLT-IO.

10 The object and purpose standard in Art. 19 (c) VCLT/VCLT-IO, originating from the ICJ’s

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 abovementioned Advisory Opinion in Reservations to the Convention on Genocide, is to protect
against destruction from within what has been paraphrased in the on-going debates within the ILC
as the core contents or basic structure or essential provisions indispensable to the general
architecture of the treaty which constitute its raison d’être and whose modification or exclusion
would seriously disturb the balance of the treaty. While this goal is clear the standard is difficult to
define and thus hard to apply objectively even if one appeals to the principle of good faith (bona
fide) and to common sense. The ILC in its commentary to the UN ILC ‘Draft Articles on the Law of
Treaties with Commentaries’ (1966) thus suggested that it was ‘in every case very much a matter
of the appreciation of the acceptability of the reservation by the other contracting States’ (at 207)
so that Art. 19 (c) VCLT/VCLT-IO had to be read in close conjunction with Art. 20 VCLT/VCLT-IO (see
para. 4 above). This is because treaties usually lack an obligatory procedure for the settlement of
disputes on the admissibility of reservations. If, however, there should be a court with compulsory
jurisdiction and the power to issue legally binding decisions—eg, the European Court of Human
Rights (ECtHR)—this court will also be the ultimate arbiter of the admissibility of reservations and it
will consider the reaction of other contracting parties as no more than persuasive authority.

11 A reservation whose vagueness and generality makes it impossible for the other contracting
parties to determine its scope—and thus also its compatibility with the treaty’s object and purpose
—will be incompatible with the object and purpose of the treaty, eg a reservation purporting to
exclude any legal effect of a treaty in so far as it is incompatible with whatever provision of the
reserving party’s internal law (International Law and Domestic [Municipal] Law). A reservation to a
treaty provision embodying a rule of customary international law, while not being inadmissible in
itself, will only have the effect of relieving the reserving State from the effects of a
‘conventionalization’ of that rule and not affect its binding nature as a customary norm. If, however,
the central purpose of the treaty is to codify, and thereby put beyond dispute, certain norms of
customary international law, reservations to the corresponding treaty provisions will be
inadmissible. And if a treaty provision embodies a peremptory norm of general international law (Ius
cogens) a reservation to it will be inadmissible, which is a consequence deriving mutatis mutandis
from the principle set forth in Art. 53 VCLT/VCLT-IO, in view of the contractual relationship
established between a reserving party and the other parties accepting its reservation.

12 A provision in a treaty relating to rules which are non-derogable in a state of emergency—eg,

the human rights provisions listed in Art. 4 (2) ICCPR (Emergency, State of; see also Necessity,
State of)—may be made subject to a reservation, provided that the provision does not embody a
ius cogens norm and that the reservation is otherwise compatible with the object and purpose of
the treaty. In making this assessment the decisive question will be if the parties have made the rule
non-derogable because of its importance or only because there was no need to derogate from it in
a state of emergency. Reservations to procedural provisions concerning the monitoring of treaty
implementation or dispute settlement are incompatible with the object and purpose of a treaty if
these provisions are so central to the efficacy of the substantive obligations of the contracting
parties that they constitute the raison d’être of the treaty which would lose its essential thrust
without them.

13 A reservation expressly or impliedly prohibited by the treaty cannot be saved on the pretext
that it was compatible with the treaty’s object and purpose. Conversely, a treaty provision which
expressly or implicitly authorizes reservations without reference to the object and purpose
standard—eg, Art. 57 European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950) (‘ECHR’)—can usually not be considered as exhaustive so that this standard will
apply additionally, either as a standard implicit in the treaty or as a supplementary standard of
customary international law.

4. Acceptance of or Objections to Reservations by Other contracting

parties (Art. 20 VCLT/VCLT-IO)

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 14 Except if a reservation is expressly authorized by a treaty as expressed in Art. 20 (1)
VCLT/VCLT-IO, the reserving State’s or international organization’s position as a party will depend
according to Art. 20 (4), (5) VCLT/VCLT-IO on the reaction of the other contracting parties: at least
one of them must accept the reservation either expressly or tacitly, by not objecting to it within 12
months, otherwise the act by which the reserving State or international organization has expressed
its consent to be bound by the treaty will not become effective. This is in accordance with the
principle of customary international law that a treaty will not come into being in the absence of an
agreement among the parties. The (tacit) acceptance of the reservation by another contracting
party will constitute the reserving State or international organization a party to the treaty in relation
to that other party with the treaty’s entry into force for those parties. An objection by another
contracting party to a reservation will not preclude the entry into force of the treaty as between the
objecting and the reserving State or international organization unless a contrary intention is
definitely expressed by the former. In the absence of such an expressed intention the objection will
only have the effect provided in Art. 21 (3) VCLT/VCLT-IO, rendering inapplicable the provisions
concerned as between the reserving and the objecting party to the extent of the reservation.

15 The flexible framework of Art. 20 (4), (5) VCLT leaves the decision whether to enter into a treaty
relationship with a reserving State or international organization to each contracting party. It
establishes a relative system of participation in a multilateral treaty that can result in the
fragmentation of treaty relations. There are, however, special rules in Art. 20 (2) and (3)
VCLT/VCLT-IO for certain categories of treaties (see paras 27–28 below).

16 A State or international organization need not state its legal or political reasons for raising an
objection against a reservation. It is free, for mere political reasons, to object even to a reservation
which is admissible pursuant to Art. 19 VCLT/VCLT-IO, except if it is expressly authorized by the
treaty. Contrary to the expectation voiced by the ICJ in Reservations to the Convention on
Genocide (Advisory Opinion), States do not appraise the reservations of other contracting parties
only according to the object and purpose standard.

17 For over 10 years, both the Council of Europe (CoE) and the European Union have been
systematically screening reservations so as to make co-ordinated responses possible (European
Community and Union, Party to International Agreements). The Committee of Ministers of the Council
of Europe on 18 May 1999 adopted Recommendation No R (99) 13 on Responses to Inadmissible
Reservations to International Treaties with a variety of model response clauses in the appendix, to
be used by the Member States ([1999] 20 HRLJ 278). In the interest of maintaining the international
rule of law, especially in the area of human rights, Member States of the Council of Europe relatively
often raise objections to reservations formulated by non-European States which they consider
inadmissible. On the other hand, the Committee of Ministers recommended, and a considerable
number of Member States made, a reservation to Art. 5 (2) (a) OP-ICCPR, to the effect that the
competence of the Human Rights Committee (‘HRC’) shall not extend to a communication if the
same matter has already been examined under another procedure of international investigation or
settlement. They thereby immunize decisions of the ECtHR against review by the HRC.

5. Legal Effects (Art. 21 VCLT/VCLT-IO)

(a) Admissible Reservations

18 A reservation established vis-à-vis another party in accordance with the substantive and
procedural requirements of Arts 19, 20 and 23 VCLT/VCLT-IO operates reciprocally between the
reserving party and the other party, modifying the treaty for both of them in their mutual
relationship to the extent of the reservation, but not for the other parties inter se. The legal effects
will be similar when a contracting party has objected to the reservation but not opposed the entry
into force of the treaty between itself and the reserving party. In this case, the provisions to which
the reservation relates do not apply at all in their mutual relationship to the extent of the

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 reservation.

19 The reciprocity rule that determines the legal effects of reservations, no matter if they are
accepted or objected to by another party, is geared to multilateral treaties with a synallagmatic
structure in which a party fulfils its obligations in a bilateral relation with one specific other party. It
is hardly appropriate for normative treaties which do not create a bundle of bilateral treaty
relationships but establish generally applicable erga omnes rules in the common interest of the
treaty community as a whole, eg human rights treaties (see paras 31–40 below; Obligations erga
omnes). While with regard to the former category of treaties, the reciprocity rule compels the
reserving party to pay a price for its reservation in the form of forgoing a reciprocal right, this
inhibitory mechanism is ineffective with regard to the latter.

(b) Inadmissible Reservations

20 The VCLT and the VCLT-IO do not expressly regulate the legal effects of reservations which are
inadmissible in the light of Art. 19 VCLT/VCLT-IO. These are not covered by Art. 21 VCLT/VCLT-IO,
as this article’s introductory clause makes clear, and will therefore not have the legal effects laid
down in this provision. As the contracting parties are the masters of the treaty it is theoretically
possible, if unlikely, that they may unanimously accept an inadmissible reservation, making it
admissible through an informal amendment to the treaty. The other legal issues raised by
inadmissible reservations have not yet found a clear answer.

21 In Reservations to the Convention on Genocide (Advisory Opinion), the ICJ stated that if a
reservation was incompatible with the object and purpose of the convention the reserving State
could not be regarded as being a party to it. The court thus assumed that an inadmissible
reservation would render this State’s ratification or accession ineffective in toto. It is a matter of
dispute whether the current general international law has adopted this ‘total invalidity’ solution. At
first sight, it seems to correspond to the general principle that a State or international organization
will not be bound by a treaty without its consent, for the reserving State or international
organization expressed its consent to become a party to the treaty only subject to the inadmissible
reservation. On the other hand, not becoming a party to the treaty is no less incompatible with the
express intention of the reserving State or international organization. The State’s or international
organization’s expression of consent is contradictory in itself, accepting the treaty while at the
same time purporting to reverse its terms in the case of Art. 19 (a), (b) VCLT/VCLT-IO or object and
purpose in the case of Art. 19 (c) VCLT/VCLT-IO.

22 From a policy standpoint, the ICJ’s strict solution is unsatisfactory because it eliminates any
serious legal risk for the reserving party which is tempted to safeguard its individual interests by
extensive reservations and expect nothing worse than ending up not being a party to the treaty. In
the interest of the integrity of multilateral normative treaties the parties should rather be induced to
use reservations cautiously. One inducement would come from a ‘partial invalidity’ solution which
would sever an inadmissible reservation from the party’s expression of consent to be bound by the
treaty, declare the former void and preserve the latter. The reserving State or international
organization would thus become a party to the treaty without the benefit of its inadmissible
reservation. It would bear the risk of formulating an inadmissible reservation which would induce it
carefully to avoid the pitfalls of Art. 19 VCLT/VCLT-IO. Even if it failed in this endeavour it could
usually denounce the treaty so that it would gain another chance to decide which aspect of its
contradictory expression of consent should prevail.

23 The legal uncertainty concerning the fate of ratifications with inadmissible reservations is
worsened by the absence of obligatory adjudication by a neutral instance. Undoubtedly the
depositary has no adjudicatory power, except in obvious cases. Accordingly, the United Nations
Secretary-General (United Nations [UN]; United Nations, Secretary-General), in his capacity as
depositary, communicates reservations and objections to all States concerned, leaving it to each of
them to draw legal consequences. But he will refuse to accept the deposit of an instrument

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 accompanied by a manifestly inadmissible reservation. This leaves the primary responsibility with
the other contracting parties which can raise objections and explain the legal consequences
envisaged by them.

24 Sometimes objecting States have, in accordance with the ‘total invalidity’ solution, opposed the
entry into force of the treaty between itself and the reserving State on the ground that the
reservation was inadmissible. Sometimes they have, in accordance with the ‘partial invalidity’
solution, expressly stated that an inadmissible reservation was invalid and thus the treaty
applicable in its entirety without the reserving State benefiting from its reservation. But as no
constant and uniform practice has developed in this respect one cannot definitely say that either of
the two alternative solutions is part of universal customary international law in general. A different
picture arises with regard to regional and universal human rights treaties with judicial or quasi-
judicial monitoring bodies which have followed the ‘partial invalidity’ solution (see paras 34–40
below).

(c) Withdrawal of Reservations and Objections (Art. 22 VCLT/VCLT-IO)

25 A withdrawal of a reservation will remove its legal effects, making the treaty operative in
relation to those parties that had objected to the reservation and opposed the treaty’s entry into
force, and making the treaty provision against which the reservation had been directed applicable
in relation to all parties.

26 The legal consequences of a withdrawal of an objection depends on the effect which the
objecting party has given it: if it is the normal minimum effect of Art. 21 (3) VCLT/VCLT-IO, the
withdrawal will henceforth make the treaty provision to which the reservation relates applicable
between the two parties. If it is the unusual maximum effect of Art. 20 (4) (b) VCLT/VCLT-IO, the
treaty will enter into force as between the objecting and reserving parties.

D. Special Categories of Treaties

1. Plurilateral Treaties (Art. 20 (2), (5) VCLT/VCLT-IO)

27 The traditional system of unanimity is retained for plurilateral treaties: when it appears from the
limited number of negotiating States and/or negotiating organizations and the object and purpose of
a treaty that the application of the treaty in its entirety between all the parties is an essential
condition of the consent of each one to be bound by the treaty, a reservation requires the express
or tacit acceptance by all the parties. If unanimous acceptance cannot be attained the reserving
State or international organization will not become a party to the treaty, which for this reason may
not enter into force at all, depending on its particular provisions. An example would be the Treaty
on the Final Settlement with respect to Germany of 1990 (Germany, Unification of) to which in fact,
however, no State has tried to make a reservation.

2. Constituent Instruments of International Organizations (Art. 20

(3) VCLT/VCLT-IO)
28 When a treaty is a constituent instrument of an international organization and unless it
otherwise provides, a reservation requires the express acceptance of the competent organ of that
organization, otherwise the reserving State or international organization will not become a member
(International Organizations or Institutions, Membership). The integrity of such a constituent
instrument outweighs other considerations because reservations can jeopardize its effective
implementation. This is why several of these instruments expressly—eg Art. XVI (5) WTO
Agreement (World Trade Organization [WTO])—or implicitly—eg the United Nations Charter—
prohibit reservations. For the others, the ILC wanted to leave it to the members of the organization,

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 acting through its competent organ (International Organizations or Institutions, Decision-Making
Bodies), to determine how far any relaxation of the integrity of the constitution was acceptable. One
of the few examples is the unanimous approval by the World Health Assembly of the reservation
which the US attached to its acceptance of the Constitution of the World Health Organization (‘WHO
Constitution’; World Health Organization [WHO]).

3. International Labour Organization’s Conventions and World

Health Organization’s International Health Regulations
29 As a rule, reservations to International Labour Organization (ILO) conventions are not permitted
because these are adopted by the International Labour Conference where each Member State is
represented not only by two government delegates, but also by one employer delegate and one
worker delegate. The conventions thus not being the exclusive domain of governments the latter,
exercising the state’s foreign relations power, should not be able to make reservations modifying
them all on their own (see also Foreign Relations Law).

30 According to Arts 21 and 22 WHO Constitution, the World Health Assembly has the power to
adopt health regulations by a majority vote which will be binding on all members except for such
members which ‘contract out’ by notifying the Director-General of rejection or reservations within a
certain period. Arts 88 and 89 International Health Regulations (1969) currently in force provide
special rules on the making and withdrawal of such reservations. According to the more elaborate
Arts 62 and 63 revised International Health Regulations (2005), which will enter into force in May
2007, reservations to these regulations shall not be incompatible with their object and purpose.
Even an evaluation procedure is established: if within six months at least one-third of the Member
States object to a reservation it will ultimately be for the majority of the World Health Assembly to
determine its compatibility with the object and purpose of the regulations. If the vote is negative, the
regulations will enter into force for the reserving State only after it withdraws its reservation.

4. Human Rights Treaties

(a) Application of the General Rules or Special Case?

31 Human rights treaties have seen an exceptionally high number of both reservations and
objections thereto on the grounds of their inadmissibility. It is questionable whether the rules on
reservations and objections of the VCLT/VCLT-IO provide an appropriate legal regime for this
category of treaties because these rules are based on the freedom of contracting parties to
formulate reservations while human rights treaties are intended to secure the minimum standard of
inalienable rights of man for all on earth (see also Human Rights, Treaties, Extraterritorial
Application and Effects). Furthermore, the regime of the VCLT and the VCLT-IO, being based on the
concept of reciprocity, presupposes treaties establishing a web of exchanges of mutual obligations
between the parties for their mutual benefit. Human rights treaties, however, primarily create
obligations of an objective character, being designed to protect individual rights in the interest of
humanity as a whole, and thus lend themselves neither to an evaluation of a reserving party’s
treaty membership by other contracting parties individually nor to a mutual release from treaty
obligations between reserving and objecting parties. Still, the ILC, in its Preliminary Conclusions on
Reservations to Normative Multilateral Treaties Find it in your Library including Human Rights
Treaties of 1997, considered the flexible rules of the VCLT/VCLT-IO as suited to the requirements
also of human rights treaties although it acknowledged that they gave rise to legal questions that
were not envisaged when the VCLT and the VCLT-IO were drafted, in view of the monitoring bodies
which many of them established (Human Rights, Treaty Bodies).

(b) Survey of Reservation Clauses in Human Rights Treaties

32 Four of the seven universal human rights treaties include reservation clauses. Art. 28

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 Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’;
Women,Rights of, International Protection) and Art. 51 Convention on the Rights of the Child
(Children, International Protection) prohibit reservations incompatible with the object and purpose of
the convention. Art. 28 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (‘CAT’; Torture, Prohibition of) provides that reservations to Art. 20 CAT
may be made without apparently excluding reservations to other articles. Art. 20 CERD is unique in
that it prohibits reservations incompatible with the object and purpose of the convention as well as
reservations the effect of which would inhibit the operation of a treaty body. It moreover provides
that a reservation shall be considered incompatible or inhibitive if at least two-thirds of the States
Parties object to it, which has never happened. The Genocide Convention (Genocide), the ICCPR
and the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) with no
reservation clauses of their own are subject to the object and purpose standard of customary
international law. It is an open question whether the seven universal human rights treaties form a
coherent whole so that a State is prevented from making a reservation to a provision of, for
example, CEDAW if it has not made a reservation to an analogous provision of, for example, ICCPR.

33 At the regional level, Art. 75 American Convention on Human Rights (1969) (‘ACHR’) refers to
the VCLT while the African Charter on Human and Peoples’ Rights (1981) is silent on the issue of
reservations. The elaborate Art. 57 ECHR provides that a State may only make a reservation in
respect of any particular provision of the convention to the extent that any law in force in its
territory is not in conformity with the provision. The reservation must contain a brief statement of
the law concerned. Reservations of a general character, ie, those which do not refer to a specific
provision of the ECHR or are worded in such a way that their scope cannot be defined, are
expressly forbidden. Art. 57 ECHR also applies to Protocols No 1, 4, 7, and 12 to the ECHR while Art.
4 Protocol No 6 and Art. 3 Protocol No 13 to the ECHR prohibit reservations. Art. 57 ECHR, which
was drafted before the ICJ issued its advisory opinion on reservations to the Genocide Convention,
is not exhaustive but leaves room for the application of the object and purpose test, but there are
no pertinent decisions of the ECtHR yet.

(c) Practice of Treaty Bodies

(i) Authority of Treaty Bodies in General

34 Most human rights treaties establish judicial or quasi-judicial monitoring bodies that are charged
with reviewing State reports on the implementation of their treaty commitments and optionally
considering State and/or individual complaints (Human Rights, State Complaints). These bodies
having an inherent authority to determine the scope of their jurisdiction, they must also have an
inherent authority to determine whether a statement qualifies as a reservation, whether it is a valid
reservation and what effects it has. Otherwise they would be unable to perform their functions, ie
deciding whether or not the reserving party has fulfiled its obligations with regard to the treaty
provision affected by its statement.

35 Whether a monitoring body’s opinion with regard to a reservation is legally binding on the
reserving party depends on whether the treaty in general gives it the power to issue binding
decisions, eg, Art. 46 ECHR, or only non-binding views, eg, Art. 5 (4) OP-ICCPR. At any rate such an
opinion will be highly authoritative. The reactions of the other parties to a reservation—their
acceptances or objections—provide guidance for the monitoring body, as subsequent practice in
the sense of Art. 31 (3) (b) VCLT/VCLT-IO, but do not disparage its inherent decision-making
authority.

(ii) European Court of Human Rights

36 The ECtHR will not consider a reservation ex officio but only if the respondent State invokes it.
Nor will it extend a reservation directed at a certain provision of the ECHR to any other provision
not expressly mentioned. In a series of judgments, the Court has strictly reviewed reservations by

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University of Groningen; date: 08 April 2016
 the substantive and procedural standards of Art. 57 (1) and (2) ECHR, even if no party had
objected when they were made. If found incompatible, a reservation will be declared invalid by the
ECtHR and severed from the ratification so that the reserving party will be bound by the convention
without benefiting from its reservation. This constant jurisprudence, starting with the judgment
Belilos v Switzerland, has been accepted by all parties to the ECHR.

(iii) Inter-American Court of Human Rights

37 In two advisory opinions—The Effect of Reservations on the Entry into Force of the American
Convention on Human Rights (Arts 74 and 75) Inter-American Court of Human Rights Series A No 2
(24 September 1982) and Restrictions to the Death Penalty (Arts 4 (2) and 4 (4) American
Convention of Human Rights) Inter-American Court of Human Rights Series A No 3 (8 September
1983)—the Inter-American Court of Human Rights (IACtHR) interpreted Art. 75 ACHR as referring to
Arts 19 (c) and 20 (1) VCLT/VCLT-IO. In expressly allowing all reservations that are compatible with
the convention’s object and purpose, reservations do not require any subsequent acceptance by
the other contracting States. Pursuant to Art. 74 (2) ACHR the Convention thus enters into force
also for a reserving State on the date of the deposit of its instrument of ratification or adherence.
The IACtHR interprets reservations in a manner that is most consistent with the object and purpose
of the ACHR, namely the protection of the basic rights of individuals, irrespective of their nationality,
both against the State of their nationality and all other Contracting States. It will therefore not extend
a reservation made to a certain article of the convention beyond its text to encompass another
article unless otherwise the reservation would make no sense.

38 The IACtHR has considered quasi-reservations to declarations by States recognizing its

jurisdiction which go beyond the conditions specifically permitted in Art. 62 (2) (1) ACHR as
incompatible with the object and purpose of the ACHR. Accordingly, it has dismissed preliminary
objections to its jurisdiction based on such inadmissible quasi-reservations, eg Case of Hilaire v
Trinidad and Tobago (Preliminary Objections) (Series C No 80 [1 September 2001]) relying on the
analogous jurisprudence of the ECtHR in Loizidou v Turkey (Preliminary Objections) (Series A No.
310; Loizidou Case) with regard to the optional clauses in Arts 25 and 46 ECHR in their original
version which were superseded by the entry into force of Protocol XI to the ECHR that made the
ECHR’s jurisdiction mandatory.

(iv) Human Rights Committee

39 Like the ECtHR, the HRC will consider a reservation only if a State Party invokes it. In its detailed
General Comment No 24 (52) relating to reservations of 2 November 1994 (GAOR 50th Session
Supp 40 vol I, 119–25) the HRC adopted the object and purpose standard for evaluating
reservations to the ICCPR and the First OP-ICCPR, giving it a fairly broad sweep. At the same time,
the committee emulated the ECtHR in claiming the exclusive power to decide on the admissibility of
reservations, declare inadmissible reservations void, ‘generally’ sever them from a State’s
declaration of consent to be bound by the treaty, and apply the covenant or protocol to the
reserving party without benefit of the reservation. But whereas the respective jurisprudence of the
ECtHR was accepted by the States Parties, France, the United Kingdom and the US objected to the
main propositions of General Comment No 24 (52), and in particular its adoption of the ‘partial
invalidity’ solution (GAOR 50th Session Supp 40 vol I, 104, 130, 126).

40 Irrespective of this criticism, the HRC has applied the reasoning of its General Comment No 24
(52) when considering States’ reports and individual communications. On this basis, the majority of
the HRC declared a communication by a prisoner under death sentence admissible (Death
Penalty), in disregard of a reservation to Art. 1 OP-ICCPR by which the State Party concerned had
excluded the committee’s competence to consider communications from this particular group of
complainants (UN Commission on Human Rights Rawle Kennedy v Trinidad and Tobago[decision
on Admissibility] [2 November 1999] UN CCPR/C/67/D/845/1999). The four dissenting committee
members pointed out that because a State Party to the ICCPR was free either to accept or not to

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University of Groningen; date: 08 April 2016
 accept the individual communication procedure established by the OP-ICCPR, it was also free to
accept it in part. After its reservation had been found incompatible with the object and purpose of
the OP-ICCPR and invalid, leaving it subject to the OP-ICCPR without qualification, Trinidad and
Tobago denounced the OP-ICCPR. To avoid such a reaction, both the Committee on the Elimination
of Racial Discrimination (Preliminary Opinion on the issue of reservations to treaties on human
rights [13 March 2003] CERD/C/62/Misc.20/Rev. 3 Find it in your Library) and the Committee on the
Elimination of Discrimination against Women have been more cautious in dealing with problematic
reservations, preferring to engage in a constructive dialogue with reserving States.

E. Evaluation and Prospects

41 The legal rules concerning reservations to multilateral normative treaties must bridge the
fundamental dichotomy between the universality and the integrity of these treaties, which amounts
to squaring the circle. While the flexible system introduced by the VCLT/VCLT-IO, and entered into
customary international law, seems most appropriate to accomplish the impossible, it has its price.
Its use of the reciprocity rule is questionable. It can also lead to the fragmentation of treaties and to
disputes about the admissibility and validity of reservations which cannot be settled unless there is
a mandatory procedure such as the one established by the ECHR. The guidelines and model treaty
clauses which the ILC is currently developing will help in bringing a greater degree of coherence to
the application of the VCLT regime, primarily at the universal level. The reservation regime
established by regional treaties and customary rules and authoritatively administered by judicial
bodies especially in Europe will stay ahead of the universal regime because of the greater
homogeneity of the States involved.

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May 1996) A/CN.4/477 and Add.1.
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April 1998) A/CN.4/491 and Add.1–6.
Special Rapporteur of the UN ILC Allain Pellet ‘Fourth Report on Reservations to Treaties’ (25
March 1999) A/CN.4/499.
Special Rapporteur of the UN ILC Allain Pellet ‘Fifth Report on Reservations to Treaties’ (29
March 2000) A/CN.4/508 and Add.1–4.
Special Rapporteur of the UN ILC Allain Pellet ‘Sixth Report on Reservations to Treaties’ (3
May 2001) A/CN.4/518 and Add.1–3.
Special Rapporteur of the UN ILC Allain Pellet ‘Seventh Report on Reservations to Treaties’ (5
April 2002) A/CN.4/526 and Add.1–3.
Special Rapporteur of the UN ILC Allain Pellet ‘Eighth Report on Reservations to Treaties’ (27
May 2003) A/CN.4/535 and Add.1.
Special Rapporteur of the UN ILC Allain Pellet ‘Ninth Report on Reservations to Treaties’ (27
May 2004) A/CN.4/544.
Special Rapporteur of the UN ILC Allain Pellet ‘Tenth Report on Reservations to Treaties’ (1
June 2005) A/CN.4/558 and Add.1–2.
Special Rapporteur of the UN ILC Allain Pellet ‘Eleventh Report on Reservations to Treaties’
(10 August 2006) A/CN.4/574.
Special Rapporteur of the UN ILC Allain Pellet ‘Twelfth Report on Reservations to Treaties’ (15
May 2007) A/CN.4/584 and Corr.1.
Special Rapporteur of the UN ILC Allain Pellet ‘Thirteenth Report on Reservations to Treaties’
(20 May 2008) A/CN.4/600.
Special Rapporteur of the UN ILC Allain Pellet ‘Fourteenth Report on Reservations to Treaties’
(2 April 2009) A/CN.4/614 and Corr.1 and Add.1.
Special Rapporteur of the UN ILC Allain Pellet ‘Fifteenth Report on Reservations to Treaties’
(31 March 2010) A/CN.4/624 and Add.1–2.
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(19 March 2010) A/CN.4/626 and Add.1.
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
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