SYNOPISIS

Reservations to Multilateral Treaties: Current Trends in International Law

1. Introduction

The issue of Reservations to the multilateral treaties in International Law gained momentum when international law witnessed a shift from the trend of bilateralism to community interest. The first instance of Reservations was by Sweden, in formulation of the Final Act of the Vienna Congress in 1815, which further remarkably strengthened during the codification of the 1899 and 1907 Hague Convention on the Laws of War. Reservations exist basically to tailor the terms of the treaty according to the individual preferences of the State which facilitates the wider acceptance of the treaties by the State parties. However, the law of reservations to the multilateral treaties is accompanied by its own set of ambiguities and complexities. Prior to the Vienna Convention on the Law of Treaties there existed a “unanimity rule” which made the unanimous consent of all the contracting parties as an essential prerequisite for admitting a reservation. However, this traditional unanimity rule began to falter when the ICJ in its Advisory Opinion took up a more liberal approach and went on to state that the compatibility of a reservation with the object and purpose of the Convention must furnish the criterion for the attitude of  the other contracting parties towards the State making the reservations. Thus, there was a departure from the traditional unanimity rule. The modern regime dealing with the Reservations to multilateral treaties has been established by the Vienna Convention on the law of Treaties, 1969.

The power of making reservations to international treaties grows out of the principle of “sovereignty of states”, wherein States claim that they will not be bound with some particular provisions of treaty owing to their subjective reasons. On the other hand, the international treaties play a crucial role in regulating and maintaining the stability in international relations. In this context it is noteworthy that these multilateral treaties may lose their effectiveness if states make reservations to exclude or to modify the legal effect of certain provisions of the treaty. In the light of this the issue of Reservations to human rights treaties is currently amongst the most controversial issues in International Law. Human right treaties do not create reciprocal relationships between the State parties but rather create an objective regime of protection of human rights therefore Reservations to such treaties tend to dilute the very purpose of the treaty itself. The recent trends in international law places even the treaties for the protection of the environment also in the same category where any sort of reservations would render the entire treaty as ineffective. Therefore there is a growing need of a mechanism to regulate the law of reservations in a way which is not detrimental to the spirit of the treaty. Universality and integrity are two important goals which seem to be interrelated in an unfriendly balance, in which achieving one is necessarily at the expense of the other. To state it more specifically, Reservations are the price paid for achieving universality that is the wider acceptance of the treaties.

2. Research Problem

The issue of reservations to multilateral treaties has aroused much interest in the recent years where the established regime of Vienna Convention on the Law of Treaties, 1969 seems to tremble or even to collapse. The Vienna Convention on the Law of Treaties leaves the number of issues unaddressed and unclear. The first problem in the law of reservations is that whether to accept the position of the ICJ in the Convention on the Prevention and Punishment of the Crime of Genocide which stated that if the reservation is incompatible with the object and purpose of the Convention it shall not be regarded as a party to the Convention. Furthermore, Article 19 of the VCLT, 1969 lays down the object and compatibility test which again does not specify the competent body for the same. The same responsibility has been conferred on the Treaty monitoring bodies but their recommendations do not have a binding effect and thus such recommendations do not serve the purpose.

The second problem is that the provisions of VCLT on reservations are inappropriate for human rights treaties seeking to guarantee the minimum standard of inalienable rights for individuals present within the territory of contracting State. The argument for such problems is basically that at first, reservations to human rights treaties would be tantamount to reducing the standard of protection of human rights which is already very low. Secondly, the application of the reciprocity rule is not appropriate to human rights treaties because they are concluded to benefit individuals and not the contracting States. The same argument is now being raised for the environment protection treaties where a reservation is considered to dilute the very purpose of the treaty. On the other hand the recent trends in international law has shown complete adherence to commercial treaties for economic gains while the treaties aimed at protecting human rights and environment are accompanied by number of reservations. This brings to the forefront the dual stand taken by the States where on one hand they attach reservation taking incompatibility of international law with domestic law as the defence in case of human rights treaties and international environmental instruments while on the other hand in States ratify commercial treaties for economic gains without any sort of reservations. Not limited to this, States even enact legislations to bring domestic law in conformity with international law.

3. Existing Legal Situation

The Vienna Convention on the Law of Treaties, 1969 establishes the regime for governing the law on reservations to multilateral treaties in its provisions from Article 19 to 23 where the provisions on reservations in a particular treaty are left out. Article 2.1 (d) of the Convention defines the concept of reservations very clearly. Article 19 VCLT allows states to make reservations on certain conditions. A state can thus formulate a reservation if a) it is not prohibited by the treaty, or b) the treaty provides that only specified reservations may be made, and c) the reservation is not incompatible with the object and purpose of the treaty.[1]Article 20 VCLT regulates the acceptance as a relative condition for the validity of a reservation. The legal effects of reservations and objections are dealt with in article 21 VCLT, which gives detailed account of the treaty relations established on the basis of accepted reservations and reservations objected to. According to article 22 VCLT, the general rule is that a reservation or an objection may be withdrawn at any time, and without the consent of other states that have accepted the reservation earlier, if this was not agreed upon. The VCLT attaches no conditions to withdrawals, which is to stress the view that there is a general wish to see as many reservations as possible withdrawn.[2] The final Article of VCLT deals with the procedural aspects. Furthermore, The Guide to Practice on Reservations to Treaties was adopted by the International Law Commission at its sixty-third session, in 2011.

4. Literature Review

Manfred Lachs, “Multilateral Treaties. A Study in Treaty Law”, American Journal of International Law, Vol. 53, No. 2, 1959, pp. 477-479.

This article represents an elaboration and expansion of a series of lectures delivered by the author at the Academic de Droit International at The Hague in 1957 on the development and functions of multilateral treaties. In this the author tries to outline the main features of a legal theory of multilateral treaties, a class of international treaties comparatively new in the evolution of international intercourse, and exhibiting certain distinctive features placing them apart from the traditional category of bilateral treaties known since the dawn of history.

John King Gamble, “Reservations to Multilateral Treaties: A Macroscopic View of State Practice”, American Journal of International Law, Vol. 74, No. 2, 1980, pp. 372-394.

This article basically gives the overview of the concept of reservations and highlights the relevance of the reservations in the contemporary world on one hand and on the other hand it also throws light on the other edge of the sword whereby it exposes the drawbacks of this concept. The article further analyzes the State Practices to view overall magnitudes and trends in reservations. The article basically gives a factual analysis of the frequency of the reservations to multilateral treaties.

 Konstantin Korkelia, “New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights”, European Journal of International law, 2002.

This article highlights the legal effects to the reservations to human rights treaties with particular reference to the International Covenant on Civil and Political Rights. In the light of certain other controversial views on the legal effect of invalid reservations, the article draws some conclusions to best deal with reservations to human rights treaties with particular reference on the role of treaty supervisory organs to reservations.

Fitzmaurice M., “On the protection of Human Rights, the Rome Statute and Reservations to Multilateral Treaties” Singapore year Book of International Law and Contributors, Vol. 10, 2006, pp 133-173.

This article deals with the issues unresolved by the 1969 Vienna Convention on the Law of Treaties (VCLT), reservations and declarations to human rights treaties. This article also analyses in depth the general development of the institution of the reservations to treaties including the current work on this topic by the International Law Commission and the recent jurisprudence of the International Court of Justice.

Burra Srinivas, “India’s Reservations to Human Rights Treaties”, Indian Journal of International Law, Vol.44, No. 4, 2004.

This article gives a brief introduction of the concept of reservations in general and then substantially reviews the India’s policy on Reservations to multilateral treaties. India, like many other countries, does not have a specific policy of its own with regard to the making of reservations to treaties in general or to human rights treaties in particular. It also does not seem to make any clear distinction between reservations and declarations. India is a party to some of the important human rights treaties.  Apart from the two Covenants the other important human rights treaties India has either ratified or acceded to are, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, the Convention on the Elimination of All forms of Racial Discrimination, 1966, International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979, and the Convention on the Rights of the Child 1989. The article thus analyses India’s reservation policies to each of these Conventions.

Robert Jennings and Arthur Watts, Oppenheim’s International Law, Vol 1, Oxford University Press, New York, 2011.

The book gives a very elaborate description of the definition of Reservations as defined under the VCLT, 1969 and further gives insight into the customary international law as regards the practice of reservation is concerned. The book offers a very clear and analytical description of each of the provisions of the VCLT relating to reservations thereby making the law contained in VCLT pertaining to reservation crystal clear which helps not only in understanding the laws governing the concept of reservations but also in identifying the inherent lacunas and gaps in the contemporary regime of VCLT.

Malcolm D. Evans, International Law, Oxford University Press, New York, 2010.

The book highlights the difficulty of the law of reservations as contained in VCLT in applying to the human rights treaties. The author argues that the human rights treaties are not contractual in nature and they do not create rights and obligations between the States on the traditional basis of reciprocity. The book gives a comprehensive analysis of the problem of reservations to human rights treaties in the light of work done by the UN HRC Committee.

Harris David, Cases and Materials on International Law, Sweet & Maxwell, India, 2011.

The book is a remarkable contribution in understanding the jurisprudence developed by the International Court of Justice pertaining to the controversial issue of reservations to multilateral treaties and gives a picture of the State practices concerning the reservations to various human rights treaties and several other conventions. The book also throws light on the General Comment 24 on reservations to ICCPR.

Anthony Aust, Modern Treaty Law and Practice, Cambridge University Press, United Kingdom, 2013.

This book provides a detailed account of the law of treaties by exploring numerous precedents from treaties and other related documents. The book starts from the very basic of the concept of reservations and traces its entire history till as it stands today. The most striking feature is that how author tries to pen down the unresolved issued after analyzing the existing laws and regulations in place. The book also discusses the current trend of the reservations to human rights treaties but the author denies considering the human rights treaties as a special case. The author also offers certain solutions the problem of reservations wherein the primary way specified is to lay down the provisions of reservations in each treaty itself. Another approach suggested by the author is to permit reservations only in respect of the annexes to a treaty, or certain of them. The books also analyses the work of International Law Commission on reservations.

5. Scope and Objectives

Scope

The scope of this paper is to discuss the issue of reservations to the multilateral treaties as it has evolved tracing its historical roots and as it stands today including the current trends and the challenges that it is surrounded with. This paper would focus on the growing necessity of the reasons behind the adoption of the policy of reservation to multilateral treaties and will also cover the various legislations dealing with the evolvement of such policy, particularly covering the ICJ opinion on Genocide convention and the Vienna Convention of the Law of treaties, 1969. Furthermore, the paper would analyse the normative practices of the States concerning the reservations to multilateral treaties and their effect to the good faith obligations undertaken by the State. Finally, the paper would focus on the incompatibility of the existing law of reservations to face the current universal concerns of international law particularly human rights and the environmental concerns. The paper would also cover the jurisprudence developed by the International Court of Justice in relation to the issue of reservations to multilateral treaties.

Objectives:

The paper aims to fulfill the following objectives:

1. To understand the concept of Reservations to Multilateral Treaties in International Law while discussing its historical background and the reasons behind the growing relevance of such a policy.
2. To discuss the existing conventions and the laws that are in place today to govern and regulate Reservations to multilateral Treaties and to identify the lacunas and the inherent gaps in such laws and conventions.
3. To study the normative practices of the State relating to the Reservations to multilateral treaties in the light of various treaties and conventions to which Reservations has been made and the effect that it has had in fulfilling the object and purpose of the Treaty.
4. To analyse the current trends in the international law of the practice of Reservations while discussing the effect of reservations on various human rights treaties and other environmental law conventions.
5. Methodology and Chapterisation

The methodology adopted for the purpose of conducting research on this paper is purely doctrinal. The data has been collected from various primary and secondary sources comprising of various international law books, articles and other primary sources like treaties, conventions and reports of various organizations. It is purely an interpretative and analytical study.

For the purpose of convenience this paper has been divided into five chapters.

• The first chapter would basically deal with the introduction of the entire topic and would go on to identify the research problem and the existing legal scenario of the same.

• The second chapter would be descriptive which would introduce the concept of reservations to multilateral treaties in detail by tracing its historical roots and by further highlighting the reasons behind its growing relevance.

• The third chapter would discuss the existing laws and conventions that govern the reservation policies today particularly the Vienna Convention on the Law of Treaties. This chapter would also discuss the inherent lacunas in the law governing the reservations today and the challenges that it is surrounded with.

• The fourth chapter would discuss the normative practices of the State with regard to the practice of the reservations in the light of certain treaties and conventions to which reservations has been frequently made by the States and furthermore the effect such reservations have had in achieving the object and purpose of the particular treaty and conventions.

• The final chapter would throw light on the current trends in reservations to the multilateral treaties in international law with special emphasis on human right treaties and environment protection treaties.

• The concluding chapter would sum up the entire discussion in the chapters above and would contain certain possible recommendations for resolving the issues and challenges in the law governing the Reservations to multilateral treaties.

SELECT BIBLIOGRAPHY

Primary Sources

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1993

Convention on the Status of Refugees 1951

Guide to Practice on Reservation to Treaties, 2011

Havana Convention on Treaties, Feb. 1928

Indian Patent Amendment act, 2005

International Covenant on Civil and Political Rights

Report of the International Law Commission of its 3d session, 1951

Reports of the International Law Commission on the second part of its 17th session and on its 18th session, 1966

United Nations Charter 1945

Vienna Convention on the Law of Treaties, 1969

Work of Human Rights Committee and its General Comment No. 24

WTO Agreement 1995

Secondary Sources

Books

Aust Anthony,Modern Treaty Law and Practice, Cambridge University Press, United Kingdom, 2013.

Brownlie Ian, Principles of Public International Law, 7th Edn., Oxford University Press, New York, 2008.

Dixon Martin, McCorquodale Robert & Williams Sarah, Cases and Materials on International Law, 5th Edn., Oxford University Press, New York, 2011

Evans D. Malcolm, International Law, Oxford University Press, New York, 2010.

Harris David,Cases and Materials on International Law, Sweet & Maxwell, India, 2011.

Jennings Robert and Watts Arthur, Oppenheim’s International Law, Vol 1, Oxford University Press, New York, 2011.

Koczarowska Alina, Public International Law, Routledge Taylor and Francis Group, New York, 2010

Shaw Malcolm N, International Law, Cambridge University Press, Cambridge, 2011.

Articles

Alexander Gillespie, “Iceland’s Reservation at the International Whaling Commission”, European Journal of International Law, Vol. 15 No. 5, pp 977-988.

Ash Kristina, “U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence”, Northwestern Journal of International Human Rights, Vol 3 No. 1, 2005

Basheer Shamnad, “India’s tryst with trips: The Patents (amendment) Act, 2005”, The Indian Journal of Law and Technology, Volume 1, 2005, pp 16-45

Baylis A. Elena, “General Comment 24: Confronting the problem of Reservations to Human Rights Treaties”, Berkeley Journal of International Law, Vol. 17, No. 2, 1999. Pp 1-52.

Blay K N Samuel and Tsamenyi Martin, “Reservations and Declarations Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees”, International Journal of Refugee Law, 1990, pp 527-561.

Bydoon Maysa, “Reservations on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)” Based on Islam and its Practical Application in Jordan: Legal Perspectives”, Arab Law Quarterly, 2011, pp 51-69.

Coccia Massimio , “Reservation to Multilateral Treaties on Human Rights”, California Western International Law Journal, Vol 15, 1984, pp 4-47.

Devidal Pierrick, “Reservations, Human Rights Treaties in the 21st century: from Universality to Integrity”, University of Georgia Law, LLM Theses and Essays paper 10, 2003, pp 1-140

Ferreira GM and Snyman MP Ferreira, “The impact of treaty reservations on the establishment of an international human rights regime”, The Comparative and International Law Journal of Southern Africa , Vol. 38, No. 2  2005 , pp. 148-183.

Fitzmaurice M., “On the protection of Human Rights, the Rome Statute and Reservations to Multilateral Treaties” Singapore year Book of International Law and Contributors, Vol. 10, 2006, pp 133-173.

Gamble John King, “Reservations to Multilateral Treaties: A Macroscopic View of State Practice”, American Journal of International Law, Vol. 74, No. 2, 1980, pp. 372-394.

Goodman Ryan, “Human Rights Treaties, Invalid Reservations, and State Consent”, The American Journal of International Law , Vol. 96, No. 3 , 2002, pp. 531-560.

Grzybowski  Kazimierz , “Reservations to Multilateral Treaties”, The American Journal of International Law , Vol. 70, No. 3, 1976 , pp. 616-624..

Kearney Richard D.and Dalton Robert E.,  “The Treaty on Treaties”, The American Journal of International Law , Vol. 64, No. 3 , 1970 , pp. 495-561.

Keller Linda M., “The Convention on the Elimination of Discrimination against Women: Evolution and non-implementation worldwide”, Thomas Jefferson Law Review, 2005, pp 35-43.

Korkelia Konstantin,“New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights”, European Journal of International law, 2002, pp 437-477.

Lachs Manfred, “Multilateral Treaties. A Study in Treaty Law”, American Journal of International Law, Vol. 53, No. 2, 1959, pp. 477-479.

Lissitzyn Oliver J,“Efforts to Codify or Restate the Law of Treaties”, Columbia Law Review, Vol. 62, No. 7, 1962, pp. 1166-1205.

Owen Marjorie, “Reservations to Multilateral Treaties”, Yale Law Journal, Vol. 38, No. 8, 1929, pp. 1086-1114.

Pauw De Marijke, “Women’s rights: from bad to worse? Assessing the evolution of incompatible reservations to the CEDAW Convention”, Utrecht Journal of International and European Law, Vol. 29, No. 77, 2013, pp 51-65.

Redgwell Catherine,“Universality or Integrity? Some Reflections on Reservations To General Multilateral Treaties”, British Yearbook of International Law, 1994.

Riddle Jennifer, “Making CEDAW Universal: A Critique of CEDAW’S Reservation Regime under article 28 and the effectiveness of the reporting process”, The George Washington International Law Review, Vol. 34, 2006, pp 605-638.

Srinivas Burra, “India’s Reservations to Human Rights Treaties”, Indian Journal of International Law, Vol.44, No. 4, 2004, pp 1-32.

Wold Chris, “Implementation of Reservations Law in International Environmental Treaties: The Cases of Cuba and Iceland”, Colombia Journal of International Environmental Law and Policy, Vol 56, 2003, pp 54-118.

[1] Niina Anderson, “Reservations and Objections to Multilateral Treaties on Human Rights”, Faculty of Law, May 2011, p.14. , available at lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1555651&fileOId=1563727, visited on 24^th October, 2014

[2] Ibid.