Reservations

and
Declarations
Reservations
 What Are Reservations?

 Unilateral statements made upon signature, ratification,

acceptance, approval of or accession to a treaty.
• However phrased or named, any statement purporting to
exclude or modify the legal effect of a treaty
• Entitled “reservation”, “declaration”, “understanding”,
“interpretative declaration” or “interpretative statement”.

(Article 2(1)(d) of the Vienna Convention 1969)

 Time for Formulating Reservations

 Article 19 VCLT: A State may, when signing, ratifying, accepting,

approving or acceding to a treaty, make 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) The reservation is incompatible with the object and
purpose of the treaty.

 Some countries have denounced treaties and reacceded

• in order to lodge reservations
 Form of Reservations

 It is a limitation on the commitment undertaken.

 Must be included in the instrument of ratification, acceptance,

approval or accession or be annexed to it.

 If separate, must be signed by the Head of State, Head of

Government or Minister for Foreign Affairs
or a person having full powers for that purpose
issued by one of the above authorities.
 Treaty Provisions

 Some treaties specifically prohibit reservations.

• E.g., Art. 120, ICC Statute
• Art. 18, Montreal Protocol

 If made upon simple signature it is merely declaratory

– must be formally confirmed in writing on ratification or
acceptance.
(Art. 23(2) Vienna Convention, 1969)

 Could be made on definitive signature

– Need not be confirmed later.
 Territorial Exclusion

 Some States exclude part of the territory from the application of

treaties
– United Kingdom, Netherlands, Denmark, New Zealand

 Not consistent with art. 29 VCLT

– But treated as a regional practice

 Prof. Pellet does not endorse this approach.

 The Depositary’s Role

 Where a treaty expressly prohibits reservations:

• the depositary makes a preliminary legal assessment

whether a statement constitutes a reservation.

– If it has no bearing on the State’s legal obligations,

the depositary circulates the statement.

– If it excludes or modifies the legal effects of

provisions of the treaty, the depositary will draw the
attention of the State concerned to the issue
» will not circulate the unauthorised reservation.
– Where, prima facie, there is no doubt

– if the declarant formally clarifies that the statement

is not a reservation, the Secretary-General will
formally receive the instrument in deposit

– Where prima facie determination is not possible, and doubts

remain

– the Secretary-General may request a clarification

» In such case, the State is estopped from relying
on the statement as a reservation.
 Reservations Not Permitted

E.g., Montreal Protocol on Substances that Deplete the

Ozone Layer, 1987

 China assumed responsibility for Macao in 1999

 Macao was considered to be developed entity under Portugal –
falling under art. 2, Montreal Protocol
 China declared that it will not extend art. 5 to Macao
Art. 5 provided a phase out period for developing countries
 No objections
Treaty Expressly Authorises Reservations

 Where a State formulates a reservation that is authorised, the

Secretary-General informs the States concerned.

– Unless a translation or an in-depth analysis is required, such

a notification is processed and transmitted by e-mail on the
date of formulation.

– Such reservation does not require any subsequent

acceptance by the States concerned.
 Treaty Is Silent on Reservations

 Where a treaty is silent on reservations and a State formulates a

reservation,
– the depositary informs the States concerned.
• Such reservation should be consistent with art. 19 VCLT
– Generally, in human rights treaties.

 Prof. Pellet discusses this case

– Supports the Secretary-General drawing the attention of
States to a prohibited reservation.
• Not all States agree with proposal.
 Who Decides Whether a Reservation Is
Permissible?

 Whether consistent with the object and purpose

– States parties?
– Human rights bodies?
– Depositary?

 A debate continues.

 The Secretary-General will continue with the current practice

unless States agree otherwise.
 ICESCR

 Declaration which could be a reservation (where the treaty is

silent).

– China made a declaration

• limiting the right of Hong Kong trade unions to
confederate.

– Depositary did not pass judgment on this.

– Number of countries have objected.

 Objections to Reservations

 Time for making objections

– Where a treaty is silent,

• States concerned have 12 months to object, beginning
– on the date of the depositary notification or
– on the date on which the State expressed its consent
to be bound by the treaty
(See art. 20 (5) VCLT)

– An objection lodged after the end of the 12-month period is

circulated as a “communication”.

– Notifications are circulated by e-mail.

 ICCPR and CEDAW

– Many States have formulated reservations to the

International Covenant on Civil and Political Rights, 1966,
and the Convention on the Elimination of All Forms of
Discrimination against Women, 1979.

• These reservations have attracted a wide range of

objections.
 Effect of Objections

 Effect of objections on entry into force

– An objection “… does not preclude the entry into force
of the treaty ... unless a contrary intention is definitely
expressed by the objecting State”
• To avoid uncertainty, an objecting State specifies whether its
objection precludes the entry into force.

– If a State does not object to a reservation made by

another State, it is deemed to have tacitly accepted the
reservation.

– An objection need not be signed by one of the

recognized authorities.
 Withdrawal of a Reservation

 A State may withdraw its reservation completely or partially

at any time.
– The consent of the States concerned is not necessary.
– Must be formulated in writing and signed by the Head of
State, Head of Government or Minister for Foreign Affairs
• or a person having full powers for that purpose issued by one of
the above authorities.
– The Secretary-General circulates a notification of a
withdrawal.

 Objections can be withdrawn at any time also.

– Art. 22(3) VCLT: a withdrawal of a reservation becomes
operative only when a concerned State has been notified.
 Late Reservations

Formulating reservations after ratification, acceptance,

approval or accession

– The Secretary-General circulates the reservation.

– Accepts the reservation in deposit only if no such State

objects.
• On the basis of the need to receive unanimous
acceptance.

– The Secretary-General’s practice deviates from the strict

requirements of the Vienna Convention.
 Time Limit for Objections

 12 months from the date of the depositary notification.

– Originally 90 days.

 Same where a State withdraws an initial reservation and

substitutes it with a new or modified reservation.

 Prof. Pellet’s report endorses the Secretary-General’s practice.

 Modifications to Reservations

 An existing reservation may be modified so as to result in a

partial withdrawal or to create new exemptions.
– A modification of the latter kind has the nature of a new
reservation.
– The Secretary-General circulates such modifications and
grants the States concerned a specific period within
which to object to them.

 In the past, the practice as depositary had been to stipulate

90 days.

 On 4 April 2000, it was advised that the time provided for

objections to modifications would be 12 months.
Declarations
 Interpretative Declarations

 A State may make a declaration about its understanding of a

matter contained in or the interpretation of a particular
provision in a treaty.

– Do not purport to exclude or modify the legal effects of a

treaty.

– Some treaties specifically provide for interpretative

declarations.
 Optional and Mandatory Declarations

 Treaties may provide for States to make optional and/or

mandatory declarations.

– These are legally binding.

 Optional Declarations

 Many human rights treaties provide for optional declarations.

– Relate to the competence of human rights commissions or

committees.
 Mandatory Declarations

– Where a treaty requires States becoming party to make a

mandatory declaration, the Secretary-General seeks to
ensure that they make such declarations.

• Need to be signed by proper authorities.

• Some disarmament and human rights treaties.

 Time for Formulating Declarations

– Declarations are usually deposited at the time of signature

or at the time of deposit of the instrument of ratification,
acceptance, approval or accession

» Sometimes, subsequently
 Form of Declarations
 Normally need not be signed by a formal authority

 Preferably signed by the Head of State, Head of Government or

Minister for Foreign Affairs
– or a person having full powers for that purpose issued by one of
the above authorities.
– This practice avoids complications in the event of a doubt
whether the declaration in fact constitutes a reservation

 Optional and mandatory declarations impose legal obligations

on the declarant
– Must be signed by the Head of State, Head of Government
or Minister for Foreign Affairs
» or by a person having full powers for that purpose.
 Notification of Declarations by the
Depositary

 The Secretary-General reviews all declarations to treaties that

prohibit reservations
– to ensure that they are prima facie not reservations.

 Where a treaty is silent or authorises reservations, the

Secretary-General makes no determination.
– The text is simply communicated to all States concerned
• States draw their own legal conclusions.
 Objections to Declarations

 Where the treaty is silent on reservations

– States sometimes object to declarations relating to a

treaty that is silent on reservations

– The Secretary-General circulates any such objection