Week 5 - Law of Treaties (I) Reservations PDF

Law of Treaties (I) Reservations Dr. Asier Garrido-Muñoz Academic year 24-25 Introduction This week discusses two aspects of the law of treaties: reservations and treaty interpretation. Ultimately, both address the very same issue of the flexibility of treaties Part 1 Reservations: Treaties à-l...

Law of Treaties (I) Reservations Dr. Asier Garrido-Muñoz Academic year 24-25 Introduction This week discusses two aspects of the law of treaties: reservations and treaty interpretation. Ultimately, both address the very same issue of the flexibility of treaties Part 1 Reservations: Treaties à-la-carte Case study (I) International Covenantupon Turkey – Declaration on Civil and Political Rights Accession The Republic of Turkey declares that it will implement the provisions of this Covenant only to the States with which it has diplomatic relations. 4 Case study (I) International Covenantupon Turkey – Declaration on Civil and Political Rights Accession Cyprus - Objection (…) this declaration amounts to a reservation. The Republic of Turkey declares that it This reservation creates uncertainty as to the will implement the provisions of this States Parties in respect of which Turkey is Covenant only to the States with which it undertaking the obligations (…) and raises doubt has diplomatic relations. as to the commitment of Turkey to the object and purpose of the said Covenant. The (…) Republic of Cyprus therefore objects to the reservation (…) This reservation or the objection to it shall not preclude the entry into force of the Covenant between the Republic of Cyprus and the 5 Republic of Turkey. Key questions regarding reservations Does it aim to exclude the operation of the treaty Is it valid? How to interpret a reservation? Who is affected by a reservation? Who answers the above questions? 6 Part 1: Reservations: Treaties ‘à-la-carte’ Content ▪ Definition ▪ Sources ▪ Conditions for validity ▪ Acceptance and objection ▪ Legal effects ▪ Interpretative declarations ▪ Withdrawal and formalities ▪ Reservations to HR treaties 1. Definition Article 2(d) VCLT ‘A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, where it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’ 8 1. Definition Article 2(d) VCLT ‘A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, where it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’ 9 Flexibility vs Integrity 2. Sources - Arts. 19-23 VCLT - ICJ Advisory Opinion: Reservations to the Convention on Genocide (1951) - ILC: Guide to Practice on Reservations to Treaties (2011) 11 Reservations to Genocide Convention First international decision on validity and legal effects Authoritative: predates the VCLT, but influenced the régime Flexibility: Enabled the ‘fragmentation’ of legal effects Integrity: Reference to ‘object and purpose’ Singularity of human right treaties: Humanitarian nature of the Genocide Convention 12 3. Conditions for Validity (art. 19 VCLT) - Reservation prohibited by the treaty (a) - Only specified reservations possible (b) - Incompatible with object and purpose of the treaty (c) 13 4. Acceptance and Objection General situations – art. 20.4 VCLT Acceptance – party to that Art. 20.4.c): acceptance treaty with respect to that state required (12 Objection – no general months) preclusion of entry into force 14 4. Acceptance and Objection Specially envisaged situations Authorised reservations Art. 20.1- Limited number of negotiating States/object and purpose 3 Constituent treaties IOs VCLT 15 5. Legal effects Exclusion or modification of the legal effects of certain provisions of the treaty in their application to that state 16 5. Legal effects Exclusion or modification of the legal effects of certain provisions of the treaty in their application to that state 17 In detail Art. 21 VCLT Reserving state Other party (not objecting) Modifies provisions of the treaty to the Modifies provisions of the treaty to the extent of the reservation extent of the reservation 18 In detail Art. 21 VCLT Reserving state Other party (not objecting) Modifies provisions of the treaty to the Modifies provisions of the treaty to the extent of the reservation extent of the reservation Reserving state Other party (objecting) Modifies provisions of the treaty to the Provisions do not apply to the extent of the extent of the reservation reservation 19 In detail Art. 21 VCLT Reserving state Other party (not objecting) Modifies provisions of the treaty to the Modifies provisions of the treaty to the extent of the reservation extent of the reservation Reserving state Other party (objecting) Modifies provisions of the treaty to the Provisions do not apply to the extent of the extent of the reservation reservation Reserving state Third states Modifies provisions of the treaty to the Does not modify the provisions of the treaty extent of the reservation inter se 20 6. Interpretative declarations Exclusion or modification of the legal effects of certain provisions of the treaty in their application to that state 21 6. Interpretative Declarations ICL’s Reservations to Treaties ‘A unilateral statement, however phrased or named, made by a State or Guideline an international organization, whereby 1.2 that State or that organization purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions.’ 22 Interpretative Declarations ICL’s Reservations to Treaties ‘The character of a unilateral Guideline statement as a reservation or as an 1.3 interpretative declaration is determined by the legal effect that its author purports to produce’ 23 Interpretative Declarations ICL’s Reservations to Treaties ‘The statement should be interpreted in Guideline good faith in accordance with the ordinary meaning to be given to its 1.4 terms, with a view to identifying therefrom the intention of its author, in light of the treaty to which it refers.’ 24 7. Withdrawal and formalities Check arts. VCLT 22 and 23 VCLT! 8. Reservations to Human Rights Treaties A sui generis régime? What is the problem with reservations to human righs treaties? 26 Workshop discussion - Can reservations be severed from a state’s acceptance? - Who decides? Is the decision binding on the reserving state? - Non-derogable provisions? - Reservations to individual complaints mechanisms? - Reservations to norms codifying customary rules - Reservations to norms reflecting jus cogens