Reservations
and
Declarations
By Palitha T.B. Kohona
Reservations
Why Are Reservations
Important?

Enable a state to participate in a treaty in which it
would not be able to participate due to an unacceptable
provision or provisions.

But treaties are the result of meticulous negotiations
–take a long time to negotiate
-the common denominating factors are explored
-many concessions made
- compromises achieved.

Would it be a reflection of a lack of good faith to lodge a
reservation?
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”.

States make formal statements at the time of signature,
ratification, accession, etc.
-Usually, such statements do not pose a problem.
-They are usually clear.

But problems arise when there is a lack of clarity.
(Article 2(1)(d) of the Vienna Convention 1969)
Who can formulate a
reservation?

In the Secretary-General’s practice, only the Head of State or
Government or the Foreign Minister
- (or someone acting in that position or exercising delegated
powers).
o A reservation is a limitation on the commitment undertaken by a
state.
o Only the same authorities who can undertake a treaty action can
formulate a reservation.
o The SG also will not allow a permanent representative to lodge a
reservation.

Exception: some permanent representatives who possess
general full powers (such as the UK and China) can lodge
reservations.
 The Special Rapporteur also endorses this approach.
 Recognizes it as a practice of the particular depositary.
Reservation made on
signature

If made upon simple signature it is merely
declaratory.
o Must be formally confirmed in writing on ratification or
acceptance.

If made on definitive signature, it need not be
confirmed later.
(Art. 23(2), 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.
 In order to comply with this, some countries have denounced
treaties and reacceded
• in order to lodge reservations.
 This approach has been criticised by other countries.
Form of Reservations

It is a limitation on the commitment undertaken by the State.

Must, therefore, be included in the instrument of ratification,
acceptance, approval or accession or be annexed to it.

If separate, it 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 on Reservations

Some treaties specifically prohibit
reservations.
• E.g., Art. 120, ICC Statute
• Art. 18, Montreal Protocol
Territorial Exclusions –
Are they Reservations?

Some States exclude parts of the territory from the application
of treaties:
– For example, United Kingdom, Netherlands, Denmark, New
Zealand and, in some instances, China.
– In most cases non-metropolitan territories (except China).

Not consistent with art. 29 VCLT
– But is treated by the Secretary-General as a regional
practice.
- No objections by other states.
- These states continue to engage in this practice.
– Why?
 Compliance with domestic legal procedures.
 These require consultations, which would take time.

Prof. Pellet does not endorse this approach.
The Depositary’s Role
 He has to exercise his role impartially.
– The S-G has also sought to avoid controversy.
 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.
 The depositary is guided by the Treaty itself.
– Where the Secretary-General requests a clarification and the
state confirms the absence of a reservation
» the State is estopped from relying on the
statement as a reservation.
– Such statement not being a reservation, the SecretaryGeneral will formally receive the instrument in deposit
 and circulate it.
Case Study
E.g., Montreal Protocol on Substances that Deplete the
Ozone Layer – China made a declaration in 1999 on
Macao returning to China
 China assumed responsibility for Macao in 1999
- Macao was considered to be developed entity under
Portugal – falling under art. 2, Montreal
Protocol
- Art.2 allowed a shorter time period for developed
countries to phase out ozone depleting
substances.
- China being a developing country had a longer period
for
the phase out under art. 5.
 China declared that it will not extend art. 5 to Macao
 Art. 18 prohibits reservations
- after much consultation China’s statement was
circulated.
 No objections were received.
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
• Should be consistent with the object and purpose
• Unless a state objects within 12 months, it is presumed
to have accepted the reservation.
– Generally, in human rights treaties

Prof. Pellet discusses this issue
– This presumption is a problem for many small states.
– Supports the Secretary-General drawing the attention of
States to a prohibited reservation.
– Some smaller states have endorsed this proposal
– Many foreign ministries do not have the resources to
examine reservations.
Not all States agree with proposal.

Who Decides Whether a Reservation Is
Consistent With the Object and Purpose?

Whether consistent with the object and purpose:
– Human rights bodies?- Have tried to take over this role.
– Criticized by states.
– Depositary?
– Pellet and some states see a role for the depository.
– States Parties?

A debate continues.
– The Secretary-General will continue with the current practice
unless States agree otherwise.

There may be a compromise.
– Human rights bodies could draw the attention of states to a
difficult reservation.
– States themselves will decide to object.
Case Study – ICESCR

Declaration which could be a reservation (where the treaty is
silent).
– China made a declaration on becoming party to the ICESCR
• limiting the right of Hong Kong trade unions to
confederate.
– Depositary did not pass judgment on this and circulated the
declaration.
– A number of countries have objected.
Objections to Reservations

Time for making objections:
– Where a treaty is silent, and a reservation has been
circulated:
• 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”.
• The legal effect is uncertain but may have a political
effect.
– Notifications are circulated by e-mail and paper format
Case Study – ICCPR and CEDAW
 Many States have formulated reservations to the
• International Covenant on Civil and Political
Rights, 1966
• 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 acting in that capacity or having delegated authority
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:
– Although not consistent with art.19, the Secretary-General
circulates such reservation.
– Accepts the reservation in deposit only if no such State
objects:
• On the basis that
- States have an inherent right to modify treaty relations
- But such modification must receive unanimous
acceptance.
– The Secretary-General’s practice deviates from the strict
requirements of the Vienna Convention.
Time Limit for Objections
to Late Reservations

12 months from the date of the depositary notification.
– Originally 90 days.
● Was inadequate for states to complete their analyses and
informal consultations
● Some states may have used this approach to sneak in
reservations

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.
– Declarations are statements that 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.
Must be signed by Head of State, Government, MFA.
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 depending on the
treaty provisions.
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 acting in that capacity or exercising delegated 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.

But 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 acting in that capacity or exercising delegated
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.
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
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