Reservation to Treaties

Definition: –

VCLT, sec 2(d) – (d) “Reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State

• Principle : sovereignty of State

• Effect : modify the provision of treaty

• Principally, State making reservation can do so only with the consent of other parties, otherwise the whole object of treaty might be impaired
• Art 19 – Formulation of reservation

• State may formulate the reservation (while signing, ratifying, accepting, approving or acceding)

• Art. 20 : Acceptance and Objection to Reservation – Expressly authorized : no requirement of subsequent acceptance – I O – reservation to be accepted by competent organ of IO .
• These provisions of VCLT only apply to multilateral treaties (a reservation to a bilateral treaty is impossible)

• four questions that must be addressed: – is the statement properly characterised as a reservation? [Art. 2(1)(d)] – is the reservation permissible? – what is the effect of the reservation in terms of participation in the treaty? – what is the effect of the reservation in terms of the applicable provisions of the treaty?

• Statement – amounting as reservation ?

– necessary to distinguish a reservation from declaration (which is intended to influence the interpretation of treaty) from a mere political statement • Belilos v Switzerland (1988) 10 EHRR 466, paras. 40-49. • The ECtHR held that the statement amounted to reservation.

Limitation on Reservation
• Generally permitted (art. 19) unless – Expressly prohibited by treaty – Reservation is incompatible with object and purpose of treaty

• Expressly prohibited by the treaty – reservation is impermissible (art. 19a) – General reservation prohibition (19a) • Rome Statute of the International Criminal Court, 1998Art. 120: ‘No reservations may be made to this Statute.

’ • ILO Conventions (but can be conditionally ratified)

• Conv. On Damage caused by foreign aircraft to third parties on the surface, 1952 – Specific Reservation prohibition (19b)

• Geneva Convention on the Continental Shelf 1958, Art. 12: ‘At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1 to 3 inclusive.’

– Reservation is incompatible with object and purpose of treaty (19c)

• The Convention follows the Advisory Opinion of the International Court of Justice on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (I.C. J. Reports 1951, p. 15)

• HRC, GC 24 (1994) • Armed Activities on the Territory of the Congo (Congo v Rwanda), (Jurisdiction and Admissibility) 2006 ICJ

• Nepal Treaty Act – Sec 2(c) – “Reservation” means a declaration made by any party while signing a multilateral treaty or ratifying, acceding to, accepting or approving such a treaty, – that any provision of the treaty shall not be applicable to it and this term also includes the declaration made by any party in order to explain its position in respect to such provision.
• Entry into force (Art. 24) – Agreed by states – If no provision, force as soon as consent is established.