Reservations and Declarations

1. Reservations and Declarations

2. Reservations

3. 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)

4. 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

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. ICCPR and CEDAW • Many States have formulated reservations to the International Covenant on Civil and Political Rights, 1966, and the Convention on theElimination of All Forms of Discrimination against Women, 1979. • These reservations have attracted a wide range of objections.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. Declarations

23. 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.

24. Optional and Mandatory Declarations • Treaties may provide for States to make optional and/or mandatory declarations. • These are legally binding.

25. Optional Declarations • Many human rights treaties provide for optional declarations. • Relate to the competence of human rights commissions or committees.

26. 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.

27. 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

28. 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.

29. 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.

30. 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