Law

The Law regarding Reservations in International Law

Reservations in International Law are statements made by a country unilaterally, intending to either modify the legal effect of, or completely exclude a particular provision from the treaty, as regards the reserving country. They are usually a reflection of the reserving country’s concerns as regards the treaty, allowing it to be a member while at the same time addressing its own concerns.

One of the earliest cases where the issue of reservations came up was in the Convention for the Prevention and Punishment of Genocide, 1948. Some countries objected to the reservations, while others asserted their right to them and the United Nations General Assembly unable to reach a conclusion, referred the matter to the International Court of Justice for its advisory opinion. The main issues that needed to be resolved as regards reservations were two- fold- firstly, the status of the reserving country as regards the convention in a situation where some opposed the reservation, and second, if the reserving country was still a party, then its relation with states both that had an objection to the reservation, and those that did not.

This blog post will look at the Court’s opinion on the matter, and at the ultimate decision taken by the General Assembly based on this opinion. It will also look at some of the problems associated with the present law on the subject, with the example of a specific treaty to back it up.

The Court’s Opinion:

The Court had to, in this case, balance two distinct interests, one was the state’s right to not be bound by a treaty that it had not expressly consented to, and the second related to the integrity of the convention itself. A multilateral treaty was the result of hours of negotiation and no one party was allowed to change it, without the agreement of all of the remaining States (the traditional view).

The main factor that the Court took into account was the object of the Convention, which was to make genocide, which is a denial of recognition to an entire section of people and that shocks the conscience of the entire human community, a crime under the International Law. Since, the principles embodied in the convention were such that were generally considered obligatory by all nations of the world, even in the absence of a binding legal obligation, the Court deduced that the scope of the Convention was meant to be universal. Thus, in the Court’s opinion, it was the intention of the United Nations and all the states that had negotiated the convention that it have as many member states as possible, even if they had minor disagreements with particular provisions of the Convention. It however, concluded that such disagreements and the subsequent power to alter the legal obligation as regards the provision could only be exercised in the event of the reservation being compatible with the object and purpose of the convention, which could only be decided on a case- to- case basis. Also, incompatibility had to be pointed out and objected to by one or more parties to the convention; in case no one did, the reserving party would continue to be a party to the convention along with the reservation, irrespective of the fact that the reservation went against the object and principle of the convention.  As regards the second point, since no state could be forced into being bound by a reservation it had not consented to, each state could decide for itself whether it considered the reserving state to be a party to the Convention.

Some judges of the Court however, disagreed with the majority decision, because in their opinion, the integrity of the convention could not be sacrificed at the altar of universality. The consent of every single party to the Convention needed to be taken into account to decide whether or not to exclude the reserving state from it, because it would be wrong to go against the wishes of a party who had consented to the treaty unconditionally, as opposed to one who was trying to modify it after the entire negotiation process was done with. Also, according to these dissenting judges, the majority opinion that had been rendered would only go towards encouraging more reservations, which would not bode well for treaties in general.

The General Assembly accepted this opinion as the binding law on this subject and this is the rule that has been followed as regards reservation ever since.

Problems Associated with the Present Law:

The main issue that is faced with the law regarding reservations is deciding whether the reservation violates the object and purpose of the treaty or convention or not. A case in point here is of USA’s reservations as regards the Genocide Convention. The two reservations that were made were- firstly, that in any dispute involving USA, its specific consent would have to be sought before taking the matter to the ICJ (Article IX) and secondly, that the USA constitution would override the provisions of the Genocide Convention (a position made all the more clear by the US Supreme Court decision in Reid v Covert). What this would mean essentially is that there would be no enforcement mechanism in case of any breach by USA, since it would obviously refuse to subject itself to the scrutiny of the ICJ in such a situation. Also, taking into consideration the rules of reciprocity, even USA would have to take the other party to the dispute’s permission as regards the jurisdiction of the USA and the other states’ constitutions would also override the convention provisions in their interactions with USA. Multiple states argued that the reservation was such that was inconsistent with the object and purpose of the convention and rendered it essentially worthless.

Netherlands recalled a declaration that it had made on the occasion of its accession to the treaty, in which it had clearly stated that it did not consider any party making a reservation as regards Article IX to be a party to the treaty. As regards the second reservation, it stated that the reservation had made the obligations of USA as regards the treaty uncertain. Also, Article 27 of the Vienna Convention expressly prohibits a state from invoking the provisions of its internal law as justification for its failure to perform its duties under a treaty, which was also the objection raised by Iceland.

UK had a problem with both the reservations as well, saying that it did not recognize reservations to Section IX and that the second reservation made the obligations of USA as regards the treaty unclear.

USA eventually dropped its reservation with respect to Article IX due to all the pressure and criticism that it received.

The second problem relates to reservations in human rights treaties specifically, where the states share a common interest and it is very hard to have reservations that are somehow not incompatible with the object and purpose of the treaty in question. The saving grace is that some human rights monitoring bodies can give binding decisions, such as was given by the European Court of Human Rights in the Belilos case. In this case, the Court decided that regardless of the fact that the reservation made by Switzerland was an invalid one, it would continue to be bound by the treaty, including the provision that it had made a reservation against, in its original form.

Suggestions:

Considering the rise in the number of states making reservations in international treaties, the International Law Commission has made suggestions as to how the above issues could be resolved and some of these were:

  1. Including the provisions for making reservations to the treaty in the treaty text itself
  2. Clarifying the object and purpose of the treaty in the treaty text
  3. Facilitating dialogue between the reserving and the objecting states
  4. Giving monitoring bodies the power to decide the admissibility of the reservation made.

By: Shubhi Goyal, NALSAR University of Law, Hyderabad

References:

Janis & Noyes, International Law Cases and Commentary, (5 ed., West Academic Publishing)

http://legal.un.org/ilc/documentation/english/a_cn4_491.pdf

https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf

https://www.britannica.com/topic/reservation-international-law

https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf

http://www.preventgenocide.org/law/convention/reservations/

http://www.icj-cij.org/docket/index.php?sum=276&p1=3&p2=4&case=12&p3=5

http://www.serendipity.li/more/genocide.html

http://everything2.com/title/Declarations+and+Reservations+to+the+Genocide+Convention

http://www.academia.edu/6738622/The_ILC_s_Clever_Compromise_on_the_Validity_of_Reservations_to_Treaties

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