MZUMBE UNIVERSITY

FACULTY OF LAW

PROGAMME: LLB- II

SUBJECT: PUBLIC INTERNATIONAL LAW

CODE: LAW 229

LECTURER : MR. I. MGETA

TYPE OF TASK: GROUP ASSIGNMENT

DATE OF SUBMISSION: 5TH JULY, 2021

GROUP No. 3

STREAM: A

S/No. NAMES REGISTRATION NUMBER

01. ANTONI AUGUST MASSAWE 11301047/T.19
02. DENIS BERNARD MWASHA 11301103/T.19
03. DOREEN ALLY ALLY 11301090/T.19
04. ADIL THOMAS RAMAAT 11301027/T.19
05. BARAKA WILLIAM 11301011/T.19
06. ABDUL HIJA MOHAMED 11301026/T.19
07. ASHA GODA 11301044/T.19
QUESTION NO 8
1. Answer the following questions:
a. What is reservation to a treaty? What is the difference between reservation and
understanding/declaration to a treaty?
b. Countries A, B and C concluded an international treaty. There is no explicit ban to
make reservations. Country D wishes to join but it wants to make a reservation.
Country A accepted the reservation, country B accepted D joining the treaty but
does not accept the reservation; country C does not accept such a reservation to
the treaty and insist that if D wants to enter the treaty it must withdraw the
reservation.
Is there a treaty between A and D, B and D, C and D? How is the reservation affecting each of
the treaty relationships between D and each of the others – A, B, C?
 WORK OUTLINE
Scope of the Question
INTRODUCTION
 Meaning of reservation
 Meaning of declarations
MAIN DISCUSSION
 The differences between reservation to treaty and declaration
CONCLUSION
REFERENCES
Scope of the question

The question demand us to discuss on the meaning of reservation to treaty and show the
differences between the reservation to treaty and declaration thereafter to look on the illustration
and to identify if there is an agreement between the state In the illustration given. In answering
the question, we show what the reservation means from various authorities in the introductory
part, in the main discussion we explain the difference between the reservation and declaration
and then we show the agreement on reservation regards on the illustration given, there after
conclusion.

INTRODUCTION

Meaning of reservation to treaty.

A) The meaning of reservation to treaty;

Reservation is a declaration by a state made upon signing or ratifying a treaty that the state
reserves the right not to abide by certain provisions of the treaty. Reservations are formally
defined in Article 2.1(d)1 to means ‘a unilateral statement, however phrased or named, made by
a state or by an international organization when signing, ratifying, formally confirming,
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 or to that
organization.’

Reservation means is a unilateral statement by a state, excluding or varying the legal effect of
certain provisions of the treaty as they are applied to that state. 2The capacity of a state to make
reservations to an international treaty illustrates the principle of sovereignty of states, whereby a
state may refuse its consent to particular provisions so that they do not become binding upon it.
Where a state is satisfied with most of the terms of a treaty, but is unhappy about particular
provisions, it may, in certain circumstances, wish to refuse to accept or be bound by such
provisions, while consenting to the rest of the agreement. An agreement between two parties
cannot exist where one party refuses to accept some of the provisions of the treaty. 3To make a
‘reservation’ to a bilateral treaty therefore amounts to a request for a modification. The treaty
1
Vienna Convention on the Law of Treaties of the 1969
2
Ghormade. V. ():Public International Law at pg. 162
3
Shaw, M. (2008) international law 7th ed. Cambridge United Kingdom: Cambridge university press. At pg. 914
cannot be binding unless and until the other state accepts. The reservations regime of the
Convention is therefore inapplicable.4Articles 19-235 govern the process of making and
withdrawing reservations. Generally, it outlines, among other things, that:
• Reservations cannot be incompatible with the object and purpose of the treaty.
• A treaty may also prohibit reservations for some or all of the treaty's provisions.
• Other states may object to a reservation.
• A reservation may also be withdrawn at a later date.
• Reservations and objections must be in writing.
Some treaties expressly forbid reservations. (The Law of the Sea Convention is an
example.)Reservations are then impermissible.6 You can‘t make them. Unless the agreement
forbids reservations, they are permissible. Reservations are always impermissible if they go to
the very heart of the agreement.

Some reservations are permissible, but would be objectionable to the other signatory states.
Reservations have the effect of turning one agreement into many different agreements.
Reservation must meet the following elements that are They must be in writing, They must be
communicated to the other parties, They are only binding on the other parties if the other parties
accept the reservation, Acceptance will happen by default if they don‘t reply within 12 months.
Declaration (understanding) to the treaty this means merely clarify the states position and do not
purport to exclude or modify the legal effect of a treaty.

The capacity of a state to make reservations to an international treaty illustrates the principle of
sovereignty of states, whereby a state may refuse its consent to particular provisions so that they
do not become binding upon it. 7 On the other hand, of course, to permit a treaty to become honey
combed with reservations by a series of countries could well jeopardize the whole exercise. It
could seriously dislocate the whole purpose of the agreement and lead to some complicated inter-
relationships amongst states. This problem does not arise in the case of bilateral treaties, since a
reservation by one party to a proposed term of the agreement would necessitate a renegotiation.
Meaning of Declarations;
4
Aust. A. (2005) A handbook of international law. New York. Cambridge university press
5
Vienna Convention on the Law of Treaties of the 1969
6
Ghormade. V. ():Public International Law at pg. 164
7
Shaw. M, (2008). International Law. 6th ed. United States of America; Cambridge University Press, New York p.g
 Sometimes states make "declarations" as to their understanding of some matter or as to the
interpretation of a particular provision. Unlike reservations, declarations merely clarify the state's
position and do not purport to exclude or modify the legal effect of a treaty. Usually, declarations
are made at the time of the deposit of the corresponding instrument or at the time of signature.

The term "declaration" is used for various international instruments. However, declarations are
not always legally binding. The term is Declaration deliberately chosen to indicate that the
parties do not intend to create binding obligations but merely want to declare certain aspirations.
An example is the 1992 Rio Declaration. Declarations can however also be treaties in the generic
sense intended to be binding at international law. It is therefore necessary to establish in each
individual case whether the parties intended to create binding obligations. Ascertaining the
intention of the parties can Declaration be a difficult task. Some instruments entitled
“declarations" were not originally intended to have binding force, but their provisions may have
reflected customary international law or may have gained binding character as customary law at
a later stage. Such was the case with the 1948 Universal Declaration of Human Rights.
Declarations that are intended to have binding effects could be classified as follows:
a. A declaration can be a treaty in the proper sense. A significant example is the Joint
Declaration between the United Kingdom and China on the Question of Hong Kong of 1984.

b. An interpretative declaration is an instrument that is annexed to a treaty with the goal of

interpreting or explaining the provisions of the latter.

c. A declaration can also be an informal agreement with respect to a matter of minor importance.

d. A series of unilateral declarations can constitute binding agreements. A typical example is

declarations under the Optional Clause of the Statute of the International Court of Justice that
create legal bonds between the declarants, although not directly addressed to each other. Another
example is the unilateral Declaration on the Suez Canal and the arrangements for its operation
issued by Egypt in 1957 which was considered to be an engagement of an international character.
 Distinctions between reservations and declarations

Reservations must be distinguished from other statements made with regard to a treaty
that are not intended to have the legal effect of a reservation, such as understandings, political
statements or interpretative declarations8. While declarations are merely the commitments of
states to the treaty as they provide for their willingness to be bound with the treaties.

Reservations are usually binding to the parties to the treaties as provided under article 20
of the Vienna convention on treaties when the parties express their consent to be bound by the
treaty or after having no objection to the reservation by the end of the period of twelve month
after being notified while declaration are not always legally binding as the term declaration is
used to indicate that parties do not intend to create binding obligations but merely want to
declare certain aspiration to the treaty but sometimes they can be binding depending on the
circumstance. Examples of such declarations which are binding may be regarded as examples of
State Practice: “the Resolution on Prohibition of the Use of Nuclear Weapons for War
Purposes”, “the Declaration on Granting of Independence to Colonial Countries and Peoples”,
“the Declaration on Permanent Sovereignty over Natural Resources” and “the Declaration of
Legal Principles Governing Activities of States in the Exploration and Use of Outer Space”.

PART B

I. Is there a treaty between A and D;

Yes there is a treaty .This is according to article 20 (4) (a) of the Vienna conversions on the law
of treaties9, which provides as long as the other contracting party to the treaty agrees to the
reservation of the reserving party or state then there is a full agreement between them resulting to
the existence of a treaty.
The effect of the reservation on the treaty relationship between A and D is that; there will be a
modification of the relation between the reserving state that is D and with that other party that is
A the provision of the treaty to which the reservation is made as stipulated under article 21(1) of

8
Shaw. M, (2008). International Law. 6th Ed. New York: Cambridge University Press. pg. 915
9
Vienna Convention on the Law of Treaties of the 1969
 the Vienna Convention on the Law of Treaties 10. An example of this was provided by the Libyan
reservation to the 1961 Vienna Convention on Diplomatic Relations with regard to the
diplomatic bag, permitting Libya to search the bag with the consent of the state whose bag it
was, and insist that it be returned to its state of origin. Since the UK did not object to the
reservation, it could have acted similarly with regard to Libya’s diplomatic bags.

I) Is there a treaty between B and D; according to the Vienna Convention on the Law of Treaties
of 1969, article 20(4)(b) it can be concluded that yes there is a treaty between B and D, as from the
article it provides that when a state objects to a reservation this does not mean that it prevents the
reserving state the entry into force of the treaty unless it expressly provides for the contrary
intention for the objection and according to the scenario is that B did accepted D to join the treaty
but did not accept the reservation and did not provide contrary intention expressly hence not limiting
D from entry into force of the treaty, this creates an agreement between them but a partial agreement
of entering into a treaty but the reservation cannot operate.

The effect of the reservation to the treaty relationship between B and D is that the
reservation provision will not apply between the two states to the extent of the reservation; this is
stipulated under article 21(3) of the Vienna Convention on the Law of Treaties 11. An example of this
effect was seen in the provision which was applied by the arbitration tribunal in the Anglo-French
Continental Shelf12 case, where it was noted that, the combined effect of the French reservations and
their rejection by the United Kingdom is neither to render article 6 [of the Geneva Convention on
the Continental Shelf, 1958] inapplicable in total, as the French Republic contends, nor to render it
applicable in total, as the United Kingdom primarily contends. It is to render the article inapplicable
as between the two countries to the extent of the reservations. By summiting the effects to
reservation among country B and D is that it is not binding to the parties.

III) Is there a treaty between C and D?

Also according to country C and D there is no treaty between them in accordance to article 20 (4) (b)
of the Vienna Convention on the law of treaties 13 because country C objected D’s reservation to the

10
ibid
11
Vienna Convention on the Law of Treaties of the 1969
12
54 I.L.R. 6, 18 I.L.M. 397
13
Vienna Convention on the Law of Treaties of the 1969
treaty and also defiantly expressed a contrary intention to the reservation by clearing stating that “it
does not accept such a reservation to a treaty and insist that if D wants to enter the treaty it must
withdraw the reservations. Thus there is on any legal effects between the countries because there is
no treaty among them

The treaty relationship among countries A, B and C is that, the reservation does not modify
the provisions of the treaty for the other parties to the treaty as between themselves as stipulated
under article 21(2) of Vienna Convention on the law of Treaties14.

CONCLUSION

Reservation of treaty it also include the Reasons which include: a state or international organization
may wish to be a party to an international agreement while at the same time not yielding on certain
substantive points believed to be against its interests. A State or international organization may wish
to be a party to an international agreement while at the same time not binding itself to certain
procedural obligations, such as compulsory settlement of disputes in the form specified in a
compromiser clause. A State may wish to assure that its treaty obligations are compatible with
peculiarities of its local law. A State may want to preclude a treaty's application to subordinate
political entities in a federal system or to foreign territories for which the State would otherwise have
international responsibility. It is to be noted that unless the treaty provides otherwise, a reservation
can be withdrawn at any time, and the consent of a state which has previously accepted the
reservation is not required for its withdrawal. Unless the treaty otherwise provides, or it is otherwise
agreed, the withdrawal of a reservation becomes operative in relation to another contracting State
only when notice of the withdrawal has been received by that State.

14
Vienna Convention on the Law of Treaties of the 1969
 REFERENCES

CONVENTION

Vienna Convention on the Law of Treaties of the 1969

CASES

Delimitation of the Continental Shelf (United Kingdom v. France), 54 I.L.R. 6, 18 I.L.M. 397

BOOKS

Aust. A. (2005) A handbook of international law. New York. Cambridge university press books

Ghormade. V. ():Public International

Shaw. N.W.(2008), International Law, 6Ed, Cambridge University Press. New York.