IV. MAKING TREATIES THE VCLT WAY

1. Accrediting Negotiators 2. Negotiation and Adoption 3. Signature 4. Ratification 5. Accession 6. Entry into Force 7. Registration and publication 8. Pacta Sunt Servanda 9. Relation with internal law

V. RESERVATIONS

1. What is a reservation? 2. When may a reservation be made? 3. Acceptance of and objection to

reservations 4. Legal effect of reservations and of

objections to reservations

1. WHAT IS A RESERVATION?

• "`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 modify the legal effect of certain provisions of the treaty in their application to that State." (Article 2, VCLT)

This is not a simple matter to determine. Consider the following declaration by Djibouti to the 1989 Convention on the Rights of the Child:

“[The Government of Djibouti] shall not consider itself bound by any provisions of articles that are incompatible with its religion and its traditional values.”

Reservation or declaration? Is it compatible with the object and purpose of the Convention?

• Interpretation both of the treaty text and of the purported reservation required

• Is the unilateral statement a Declaration or a Reservation?

• If the former, is it a "Mere Interpretative Declaration" or a "Qualified Interpretative Declaration” (McRae)?

What the "reserving" State chooses to call the statement is not determinative of its legal status, as Article 2 VCLT indicates ("howsoever phrased or named")

Finland’s objections to the United States' reservations, understandings and declarations to the ICCPR "recall that under international treaty law, the name assigned to a statement whereby the legal effect of certain provisions of a treaty is excluded or modified, does not determine its status as a reservation to the treaty. Understanding (1) pertaining to Articles 2, 4 and 26 of the Covenant is therefore considered in substance to constitute a reservation... [which] is incompatible with the object and purpose of the Covenant, as specified in Article 19(c) of the Vienna Convention on the Law of Treaties."

2. WHEN MAY A RESERVATION BE MADE?

• Express stipulation by States in the Treaty itself, that is, a reservations clause

or

• if the treaty itself is silent on reservations, then the residual rules of the Vienna Convention will apply

A. EXPRESS STIPULATION 1. isolation of particular articles from

reservations “At the time of signature, ratification or accession, any State may make

reservations to the convention other than to Articles 1 to 3 inclusive.” (Article 12(1), 1958 Geneva Convention on the Continental Shelf)

2. only specified reservations may be made "Any of the States mentioned hereafter may, at the time of signature or

when depositing its instrument of ratification or acceptance of the Convention, declare that it reserves the right not to apply the provisions

of Annex 3 of Annex I: Italy, The Netherlands.” (Article 7, 1972 European Convention on the Place of Payment of Money Liabilities)

• 3. general prohibition of reservations "No reservation or exceptions may be made to this Convention unless expressly permitted by other articles of the Convention.” (Article 309, 1982 United Nations Convention on the Law of the Sea)

4. collective or third party determination of validity"A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by this Convention be allowed. A reservation will be considered incompatible or inhibitive if at least two-thirds of the State Parties to this Convention object to it.” (Article 20(2), 1966 International Convention on the Elimination of All Forms of Racial Discrimination (CERD))

B. THE RESIDUAL RULES OF THE VIENNA CONVENTION

If the treaty is silent as to reservations, then the Vienna Convention rules will apply. These are contained in Article 19, which provides:

"A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate 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) in cases not falling under subparagraphs (a) and (b), the

reservation is incompatible with the object and purpose of the treaty."

Sometimes there is not a great deal of difference between A (express stipulation) and B (VCLT) where States explicitly stipulate for wording the same as that contained in Article 19(c) VCLT:

"A reservation incompatible with the object and purpose of the Convention shall not be permitted.”(Article 28(2) CEDAW; see also Article 51(2) Child Convention)

See Reservations to the Genocide Convention Case (1951)

3. OBJECTIONS TO RESERVATIONS States are free to object to validly made reservations on

whatever grounds they wish

In theory it is only validly made, or permissible reservations, which are subject to the rules on the opposability of reservations under Article 20 VCLT

By far the most common response by States to reservations is silence, which has the same effect as explicitly accepting the reservation after the lapse of 12 months from notification of the reservation (Art. 20(5))

If a State chooses to object to a reservation, it has two choices:

1. It may object to the reservation, but consider the reserving State a party to the treaty;

or 2. it may object to the reservation AND indicate that, as

between itself and the reserving State, it does not consider the reserving State a party to the treaty (Art. 20(4)(b) VCLT).

1. object to reservation alone "In the view of the Government of Finland this

reservation [by Indonesia to the 1989 Child Convention] is subject to the general principle of treaty interpretation according to which a party may not invoke the provisions of its internal law as justification for failure to perform a treaty. For the above reason the Government of Finland objects to the said reservation. However, the Government of Finland does not consider that this objection constitutes an obstacle to the entry into force of the said Convention between Finland and the Republic of Indonesia." (Note that Finland provides reasons for its objection, though not legally obliged to do so)

2. object to reservation AND to entry into force

“The United Kingdom objects to the reservation entered by the Government of Syria in respect of the Annex to the [VCLT] and does not accept the entry into force of the Convention as between the United Kingdom and Syria.”

4. LEGAL EFFECT OF RESERVATIONS AND OF OBJECTIONS TO

RESERVATIONS

(i) Legal effect of reservations which are accepted: modifies the provisions of the treaty to the extent of the reservation (Article 21(1) VCLT)

(ii) Legal effect of objections to reservations: the provision to which the reservation relates does not apply as between the reserving and objecting State, to the extent of the reservation (Article 21(3) VCLT)

What difference is there between accepting or rejecting a reservation, particularly where it purports to exclude a treaty provision?

UK/France Delimitation of the Continental Shelf Award (Channel Arbitration 1977)

UK objection to French reservation to Art. 6 Geneva Convention on the Continental Shelf 1958

UK argued severance of the reservation; France, severance of the article

Tribunal applied VLCT qua CIL (Art. 6 not applicable to extent of the reservation)

(i) There are no treaty relations between the objecting and reserving States.

Arguably this is the intention of the Vienna Convention in its two-stage test of formulating permissible reservations (Article 19) and the opposability of valid reservations to other contracting Parties (Article 20).

(ii) The treaty is in force between the objecting and reserving States, but the provision to which the offending reservation attaches is severable.

This is a radical solution with the undesirable effect of, in essence, giving effect to the incompatible reservation where it purports to exclude the provision to which it applies in any event.

Rejected in Channel Arbitration (1977)

(iii) the treaty is in force between the objecting and reserving States, but the offending reservation is severable.

• This was the approach of the European Court of Human Rights in the Belilos Case, and has been advocated by the Human Rights Committee of the International Covenant on Civil and Political Rights in its General Comment No. 24(52).

State Practice Inconsistent The practice of States demonstrates considerable

confusion regarding the legal consequences of an objection to a reservation as incompatible with the object and purpose of the treaty. Why?

1. ambiguities and gaps in the VCLT; 2. failure of reservations clauses expressly to

stipulate the legal consequences of objection to a reservation as incompatible with the object and purpose of a treaty.

• "At the time of ratification of the International Covenant on Civil and Political Rights ... the United States of America expressed a reservation relating to article 6, paragraph 5, of the Covenant, which prohibits the imposition of the death penalty for crimes committed by persons below 18 years of age. France considers that this United States reservation is not valid, inasmuch as it is incompatible with the object and purpose of the Convention. Such objection does not constitute an obstacle to the entry into force of the Covenant between France and the United States." (emphasis added)

(i) There are no treaty relations between the objecting and reserving States.

(ii) The treaty is in force between the objecting and reserving States, but the provision to which the offending reservation attaches is severable.

(iii) the treaty is in force between the objecting and reserving States, but the offending reservation is severable.

Is a fourth possibility therefore open to States? To object to a reservation as invalid/impermissible/incompatible, but nonetheless not object to the entry into force of the convention as between itself and the reserving State?

What is the legal effect of such objection? What is the legal effect of the reservation?

ILC’s work on reservations 1994-

considers general treaty regime applicable to human rights treaties

stresses residual character of VCLT rules and the ability to tailor individual treaty reservations regimes

ILC work not designed to amend/modify the VCLT but rather to establish guidance on the application of the existing rules

LECTURE OUTLINE RECAP.

1. INTRODUCTION 2. SOURCES OF TREATY LAW 3. WHAT IS A TREATY? 4. MAKING TREATIES 5. CASE STUDY ON RESERVATIONS 6. INTERPRETATION 7. AMENDMENT AND MODIFICATION 8. GROUNDS FOR CHALLENGE 9. TERMINATION

VI. INTERPRETATION• There are today three main schools of thought on

the subject, which could conveniently be called (i) the "intention of the parties" or "founding fathers" school; (ii) the "textual" or "ordinary meaning of the words" school; and (iii) the "teleological" or "aims and objectives" school. The ideas of these schools are not necessarily exclusive of one another, and theories of treaty interpretation can be constructed (and indeed are normally held) compounded of all three." (Fitzmaurice, (1951) 28 B.Y.I.L. 1)

ARTICLES 31 & 32 VCLT Art. 31 “general rule of interpretation”

combines elements of all three Subjective: intention of the parties Objective: textual meaning Teleological: object and purpose Good faith interpretation requirement and

principle of effectiveness (Corfu Channel 1949; Reparations Case 1949; Libya v Chad 1994;Certain Expenses of UN 1962)

Articles 31 & 32 considered reflective of CIL (e.g. Libya v Chad 1994; Qatar v Bahrain 1995; applied by other tribunals e.g. WTO DSB)

In addition to the context, the subsequent agreement of the parties (e.g. LOSC 1994 Implementation Agreement); subsequent practice establishing agreement of parties as to treaty meaning ; and applicable relevant rules of international law shall be taken into account

Article 32 a supplementary means of interpretation

recourse to preparatory work of the treaty and the circumstances of its conclusion to confirm Article 31 meaning or where application of Article 31 produces an ambiguous or obscure meaning OR manifestly absurd or unreasonable result

practical difficulties: cf. Article 11(4) 1972 World Heritage Convention

The WHC requires the consent of States parties to list properties of outstanding universal value (cultural and natural heritage)

the Convention establishes a Fund (for assistance) and a World Heritage Committee

Article 11(4) establishes a “List of World Heritage in Danger”. The final sentence states: “The Committee may at any time, in case of urgent need, make a new entry in the [Danger List] and publicise such entry immediately.”

Does this empower the Committee to list property as in danger without the consent of the state in whose territory that property is situated?

Difference of view amongst the States Parties UNESCO Doc WHC-02/CONF.202/8 (24 May 2002)

offers a legal opinion on inscription suggesting consent not required based on Art. 31 VCLT though acknowledges that IF supplementary means of interpretation employed (preparatory work of the Convention) this appears to suggest that consent is required.

Evolutive approach to treaty interp? That is, should the intertemporal rule of treaty

interpretation (where treaty interpreted by reference to law when treaty was drafted) always be applied?

1997 Gabcikovo-Nagymaros (Danube Dam) case para. 141 (new norm of sustainable development); WTO Appellate Body Report in Shrimp/Turtle Case 1998

VII. AMENDMENT AND MODIFICATION

General AMENDMENT rule is the agreement of the parties: Art. 39

Special rules for amending multilateral treaties: Art. 40

MODIFICATION inter se: Art. 41

VIII. GROUNDS FOR CHALLENGE

1. Invalidity 2. Non-compliance with a municipal law

requirement 3. Error (Temple of Preah Vihear 1962) 4. Fraud and Corruption 5. Coercion (Czechoslovakia 1939) 6. Jus Cogens

IX. TERMINATION

1. Pursuant to Treaty 2. Express or Implied Agreement 3. Unilateral denunciation? 4. Termination for reasons recognised

at law 5. Consequences of termination

Pursuant to the terms of the treaty

Example of US withdrawal in 2001 from the Anti-Ballistic Missile Treaty Article XV: “Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests.” (emphasis added)

4. Termination for reasons recognised at law

A. Material Breach (Art. 60) B. Impossibility of Performance (Art. 61) C. Fundamental Change of

Circumstances (Art. 62)

(Arts. 60-62 = cil according to ICJ in Gabcikovo-Nagymaros Dam Case 1997)

D. Lapse or desuetude? E. New rule of jus cogens (Art. 64)