ReservationsandDeclarationsinMultilateralTreatiesCapacity

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1、Reservations and Declarations in Multilateral TreatiesCapacity-building Workshop on Treaty Law and Practice and the Domestic implementation of treaty obligationsWuhan,China13-17 October 2009By:Ms.Annebeth Rosenboom Chief,Treaty Section,Office of Legal Affairs United Nations1ReservationsoWhy are rese

2、rvations important?oWhat are reservations?How are they different from declarations?oWho can formulate reservations?oWhen can reservations be formulatedoForm of reservationsoThe Depositarys RoleoObjectionsoLate ReservationsoWithdrawal and Modification of reservations2Why are reservations important?oR

3、eservations enable a State to participate in a treaty in which it would not be able to participate due to an unacceptable provision or provisions.oMultilateral treaties are the result of meticulous negotiations-with many concessions and compromises.oIn many cases the purpose of the reservation is me

4、rely to adjust the reserving States obligations under the treaty to conform to its domestic law where,for political,cultural or social reasons,it is not feasible or desirable to change the law.oMany States make reservations.3What are reservations?oUnilateral statements,however phrased or named,purpo

5、rting to exclude or modify the legal effect of certain provisions of a treaty in their application to the reserving State.oMay be entitled“reservation”,“declaration”,“understanding”,“interpretative declaration”or“interpretative statement”.(Article 2(1)(d)of the Vienna Convention 1969)4How are reserv

6、ations different from declarations?oThe title does not matter only the effect.oStates will at times submit to the depositary statements called declarations or interpretive declarations.oIf the“Declaration”excludes or modifies the legal effect of certain provisions of a treaty in their application to

7、 the State in question,it is a reservation.oWe will not change the title,however,in the depositary notification.5Who can formulate a reservation?oIn the UN SGs practice,only the Head of State or Government or the MFA(or a person acting in that capacity or having delegated authority for that purpose

8、issued by one of the above authorities)can formulate(i.e.,sign)a reservation.oA reservation is a limitation on the commitment undertaken by a State.If a reservation is separate or annexed to an instrument of ratification or accession,it must be signed by the Head of State or Government or MFA(or a p

9、erson acting in that capacity or having delegated authority for that purpose issued by one of the above authorities).oThe same standard applies to withdrawals and modifications to reservations.6When can reservations be formulated?oUpon signature,ratification,acceptance,approval,accession,etc.,unless

10、:nThe reservation is prohibited by the treaty;nThe treaty provides that only specified reservations,which do not include the reservation in question may be made;ornThe reservation is incompatible with the object and purpose of the treaty(VCLT,article 19).7Reservation made on signatureoIf made upon s

11、imple signature it is merely declaratory.oMust be formally confirmed in writing upon ratification,acceptance,or approval.oIf made on definitive signature,it need not be confirmed later.(Art.23(2),Vienna Convention,1969)8The Depositarys RoleoWhen reservations are made,the depositary must determine wh

12、ether such a reservation should be accepted upon signature or upon deposit of an instrument.oIf a declaration or statement is made,the depositary must make a prima facie determination as to whether the declaration or statement is in fact a reservation.oWhat does the treaty say?Either the treaty is s

13、ilent as to reservations,or has provisions relating to reservations.oIf the treaty has provisions relating to reservations,the depositary is guided by the relevant provisions of the treaty itself.9Reservations ProhibitedoWhere a treaty expressly prohibits reservations:nThe depositary makes a prelimi

14、nary legal assessment whether a statement constitutes a reservation.nIf it has no bearing on the States legal obligations,and is not therefore a“reservation”,the SG will formally receive the statement in deposit and circulate it.nThe UN SG will not circulate an unauthorised reservation.nWhere the SG

15、 requests a clarification and the State confirms the absence of a reservation,the State is estopped from relying on the statement as a reservation at a later date.10ExamplesoSome treaties specifically prohibit all reservations,for example:Statute of the International Criminal Court;Many disarmament

16、treaties deposited with the SG(Comprehensive Nuclear-Test-Ban Treaty,Chemical Weapons Convention,Anti-Personnel Mines Convention);Most environmental treaties deposited with the SG(Montreal Protocol,Kyoto Protocol,Rotterdam Convention,Stockholm Convention,Cartagena Protocol,etc.)11Treaty Expressly Au

17、thorises ReservationsoWhere a State formulates a reservation that is authorised,the SG circulates the reservation to the States concerned.oSuch reservation does not require any subsequent acceptance by the States concerned.12Treaty authorizes only specified reservationsoAccording to VCLT,article 19(

18、b)a reservation is allowed unless the treaty provides that only specified reservations,which do not include the reservation in question,may be made.oMany treaties deposited with the SG authorize reservations with regard to settlement of dispute procedures and are otherwise silent as to reservations.

19、oDoes this mean that all other reservations are prohibited?oNo the SGs practice in this regard is to interpret the above provision narrowly-will accept other reservations in deposit.13Treaty is silent on reservationsoWhere a treaty is silent on reservations and a State formulates a reservation,the d

20、epositary informs the States concerned.nThe depositary does not make a judgement in this regard(whether compatible with object and purpose).nHis role is to accept the reservation in deposit,to communicate it to all States concerned,and leave it to each State to draw the legal consequences from such

21、reservations.nUnless a State objects within 12 months,it is presumed to have accepted the reservation.14Who decides whether a reservation is consistent with the object and purpose?oWhether consistent with the object and purpose:nGiven the complexity of todays treaties,identifying the object and purp

22、ose can be difficult.nHuman rights bodies?-Have tried to take over this role.This has been criticized by States.nDepositary?For now,no.The Special Rapporteur of the International Law Commission,Mr.Pellet,and some States see a role for the depository.nStates Parties?oA debate continues.nThe SG will c

23、ontinue with the current practiceunless States agree otherwise.15Objections to ReservationsoOnly States which are signatories or parties to a treaty may object to a reservation.oWhere a reservation has been circulated,States concerned have 12 months to object,beginning oon the date of the depositary

24、 notification or oon the date on which the State expressed its consent to be bound by the treaty(See art.20(5)VCLT)oAn objection lodged after the end of the 12-month period is circulated by the depositary as a“communication”.oMay be a political decision by States to wait until after 12 months16Effec

25、t of Objections oAn objection“does not preclude the entry into force of the treaty.unless a contrary intention is definitely expressed by the objecting State”.nTo avoid uncertainty,an objecting State specifies whether its objection precludes the entry into force.oIf a State does not object to a rese

26、rvation made by another State,it is deemed to have tacitly accepted the reservation.oAn objection need not be signed by one of the recognized authorities.oAs with reservations,only concerned States(signatories and parties)are competent to pass upon the legal effect of an objection.The SG will circul

27、ate“objections”by non-contracting or signatory States as“communications”since they are of no legal effect.17Examples of Objections-CEDAWoAustria is of the view that the exclusion of such an important provision of non-discrimination is not compatible with object and purpose of the Convention.Austria

28、therefore objects to this reservation.This position,however,does not preclude the entry into force in its entirety of the Convention between Saudi Arabia and Austria.oThe Government of Finland therefore objects to the above-mentioned reservations made by the Government of the Federated States of Mic

29、ronesia to the Convention.This objection does not preclude the entry into force of the Convention between Micronesia and Finland.The Convention will thus become operative between the two states without Micronesia benefiting from its reservations.18Late ReservationsoFormulating reservations after rat

30、ification,acceptance,approval or accessionnThe SG circulates such reservations,and accepts them in deposit only if none of the States concerned object.nThe SGs practice deviates from the strict requirements of the VCLT.nPractical solution based on the fact that States have an inherent right to modif

31、y treaty relations and such modification must receive unanimous acceptance.nAlternative would be denunciation.Certain States have denounced treaties and re-acceded in order to lodge reservations.This approach has been criticised by other States.An example is the case of the International Covenant on

32、 Civil and Political Rights.19Time Limit for Objections to Late ReservationsoStates have 12 months from the date of the depositary notification within which to object to a late reservation.oSame where a State withdraws an initial reservation and substitutes it with a new or modified reservation.oIf

33、there is an objection,the proposed late reservation fails and is not accepted in deposit.oAs with timely reservations,an objection lodged after the end of the 12-month period is circulated by the depositary as a“communication”.oMay be a political decision by States to wait until after 12 months20Wit

34、hdrawal of ReservationsoA State may withdraw its reservation completely or partially at any time.nThe consent of the States concerned is not necessary.nMust be formulated in writing and signed by the Head of State or Government or MFA(or a person acting in that capacity or having delegated authority

35、 for that purpose issued by one of the above authorities).oA withdrawal of a reservation becomes operative only when a concerned State has received notification of the withdrawal by the reserving State(VCLT,Art.22(3).oIn practice,notice is provided by a depositary notification and the date of the de

36、positary notification is deemed the date of constructive notice.21Withdrawal of ObjectionoObjections can be withdrawn at any time also.oThe withdrawal of an objection becomes operative only when notice of it has been received by the reserving State.In practice,notice is provided by a depositary noti

37、fication(CN)and the date of the depositary notification is deemed the date of constructive notice.oA withdrawal of an objection does not need to be signed by one of the 3 authorities.22Modifications to ReservationsoAn existing reservation may be modified so as to result in a partial withdrawal or to

38、 create new exemptions.nA modification of the latter kind has the nature of a new reservation.nThe SG circulates such modifications and grants the States concerned 12 months within which to object to them.23Copyright NoticeoCopyright 2009 by the United Nations.All rights reserved.Printed in the United States of America.No part of this publication may be reproduced,stored in a retrieval system,or transmitted in any form by any means,i.e.,electronic,mechanical,photocopying,recording,or otherwise,without the written permission of the United Nations.24