IV. MAKING TREATIES THE VCLT WAY

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IV. MAKING TREATIES THE VCLT WAY

• 1. Accrediting Negotiators
• 2. Negotiation and Adoption
• 3. Signature
• 4. Ratification
• 5. Accession
• 6. Entry into Force
• 7. Registration and publication
• 8. Pacta Sunt Servanda
• 9. Relation with internal law

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V. RESERVATIONS

• 1. What is a reservation?
• 2. When may a reservation be made?
• 3. Acceptance of and objection to reservations
• 4. Legal effect of reservations and of objections
  to reservations

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1. WHAT IS A RESERVATION?

• "reservation' means a unilateral statement,
  however phrased or named, made by a State when
  signing, ratifying, accepting, approving, or
  acceding to a treaty, whereby it purports to
  exclude or modify the legal effect of certain
  provisions of the treaty in their application to
  that State." (Article 2, VCLT)

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• This is not a simple matter to determine.
  Consider the following declaration by Djibouti to
  the 1989 Convention on the Rights of the Child
• The Government of Djibouti shall not consider
  itself bound by any provisions of articles that
  are incompatible with its religion and its
  traditional values.
• Reservation or declaration? Is it compatible with
  the object and purpose of the Convention?

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• Interpretation both of the treaty text and of the
  purported reservation required
• Is the unilateral statement a Declaration or a
  Reservation?
• If the former, is it a "Mere Interpretative
  Declaration" or a "Qualified Interpretative
  Declaration (McRae)?

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• What the "reserving" State chooses to call the
  statement is not determinative of its legal
  status, as Article 2 VCLT indicates ("howsoever
  phrased or named")
• Finlands objections to the United States'
  reservations, understandings and declarations to
  the ICCPR "recall that under international treaty
  law, the name assigned to a statement whereby the
  legal effect of certain provisions of a treaty is
  excluded or modified, does not determine its
  status as a reservation to the treaty.
  Understanding (1) pertaining to Articles 2, 4 and
  26 of the Covenant is therefore considered in
  substance to constitute a reservation... which
  is incompatible with the object and purpose of
  the Covenant, as specified in Article 19(c) of
  the Vienna Convention on the Law of Treaties."

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2. WHEN MAY A RESERVATION BE MADE?

• Express stipulation by States in the Treaty
  itself, that is, a reservations clause
• or
• if the treaty itself is silent on reservations,
  then the residual rules of the Vienna Convention
  will apply

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A. EXPRESS STIPULATION

• 1. isolation of particular articles from
  reservations
• At the time of signature, ratification or
  accession, any State may make reservations to the
  convention other than to Articles 1 to 3
  inclusive. (Article 12(1), 1958 Geneva
  Convention on the Continental Shelf)
• 2. only specified reservations may be made
• "Any of the States mentioned hereafter may, at
  the time of signature or when depositing its
  instrument of ratification or acceptance of the
  Convention, declare that it reserves the right
  not to apply the provisions of Annex 3 of Annex
  I Italy, The Netherlands. (Article 7, 1972
  European Convention on the Place of Payment of
  Money Liabilities)

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• 3. general prohibition of reservations "No
  reservation or exceptions may be made to this
  Convention unless expressly permitted by other
  articles of the Convention. (Article 309, 1982
  United Nations Convention on the Law of the Sea)
• 4. collective or third party determination of
  validity"A reservation incompatible with the
  object and purpose of this Convention shall not
  be permitted, nor shall a reservation the effect
  of which would inhibit the operation of any of
  the bodies established by this Convention be
  allowed. A reservation will be considered
  incompatible or inhibitive if at least two-thirds
  of the State Parties to this Convention object to
  it. (Article 20(2), 1966 International
  Convention on the Elimination of All Forms of
  Racial Discrimination (CERD))

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B. THE RESIDUAL RULES OF THE VIENNA CONVENTION

• If the treaty is silent as to reservations, then
  the Vienna Convention rules will apply. These
  are contained in Article 19, which provides
• "A State may, when signing, ratifying, accepting,
  approving or acceding to a treaty, formulate 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) in cases not falling under subparagraphs (a)
  and (b), the reservation is incompatible with the
  object and purpose of the treaty."

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• Sometimes there is not a great deal of difference
  between A (express stipulation) and B (VCLT)
  where States explicitly stipulate for wording the
  same as that contained in Article 19(c) VCLT
• "A reservation incompatible with the object and
  purpose of the Convention shall not be
  permitted.(Article 28(2) CEDAW see also Article
  51(2) Child Convention)
• See Reservations to the Genocide Convention Case
  (1951)

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3. OBJECTIONS TO RESERVATIONS

• States are free to object to validly made
  reservations on whatever grounds they wish
• In theory it is only validly made, or permissible
  reservations, which are subject to the rules on
  the opposability of reservations under Article 20
  VCLT
• By far the most common response by States to
  reservations is silence, which has the same
  effect as explicitly accepting the reservation
  after the lapse of 12 months from notification of
  the reservation (Art. 20(5))

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• If a State chooses to object to a reservation, it
  has two choices
• 1. It may object to the reservation, but
  consider the reserving State a party to the
  treaty
• or
• 2. it may object to the reservation AND indicate
  that, as between itself and the reserving State,
  it does not consider the reserving State a party
  to the treaty (Art. 20(4)(b) VCLT).

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1. object to reservation alone

• "In the view of the Government of Finland this
  reservation by Indonesia to the 1989 Child
  Convention is subject to the general principle
  of treaty interpretation according to which a
  party may not invoke the provisions of its
  internal law as justification for failure to
  perform a treaty. For the above reason the
  Government of Finland objects to the said
  reservation. However, the Government of Finland
  does not consider that this objection constitutes
  an obstacle to the entry into force of the said
  Convention between Finland and the Republic of
  Indonesia." (Note that Finland provides reasons
  for its objection, though not legally obliged to
  do so)

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2. object to reservation AND to entry into force

• The United Kingdom objects to the reservation
  entered by the Government of Syria in respect of
  the Annex to the VCLT and does not accept the
  entry into force of the Convention as between the
  United Kingdom and Syria.

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4. LEGAL EFFECT OF RESERVATIONS AND OF OBJECTIONS
TO RESERVATIONS

• (i) Legal effect of reservations which are
  accepted modifies the provisions of the treaty
  to the extent of the reservation (Article 21(1)
  VCLT)
• (ii) Legal effect of objections to reservations
  the provision to which the reservation relates
  does not apply as between the reserving and
  objecting State, to the extent of the reservation
  (Article 21(3) VCLT)

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• What difference is there between accepting or
  rejecting a reservation, particularly where it
  purports to exclude a treaty provision?
• UK/France Delimitation of the Continental Shelf
  Award (Channel Arbitration 1977)
• UK objection to French reservation to Art. 6
  Geneva Convention on the Continental Shelf 1958
• UK argued severance of the reservation France,
  severance of the article
• Tribunal applied VLCT qua CIL (Art. 6 not
  applicable to extent of the reservation)

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• (i) There are no treaty relations between the
  objecting and reserving States.
• Arguably this is the intention of the Vienna
  Convention in its two-stage test of formulating
  permissible reservations (Article 19) and the
  opposability of valid reservations to other
  contracting Parties (Article 20).

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• (ii) The treaty is in force between the objecting
  and reserving States, but the provision to which
  the offending reservation attaches is severable.
• This is a radical solution with the undesirable
  effect of, in essence, giving effect to the
  incompatible reservation where it purports to
  exclude the provision to which it applies in any
  event.
• Rejected in Channel Arbitration (1977)

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• (iii) the treaty is in force between the
  objecting and reserving States, but the offending
  reservation is severable.
• This was the approach of the European Court of
  Human Rights in the Belilos Case, and has been
  advocated by the Human Rights Committee of the
  International Covenant on Civil and Political
  Rights in its General Comment No. 24(52).

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State Practice Inconsistent

• The practice of States demonstrates considerable
  confusion regarding the legal consequences of an
  objection to a reservation as incompatible with
  the object and purpose of the treaty. Why?
• 1. ambiguities and gaps in the VCLT
• 2. failure of reservations clauses expressly to
  stipulate the legal consequences of objection to
  a reservation as incompatible with the object and
  purpose of a treaty.

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• "At the time of ratification of the International
  Covenant on Civil and Political Rights ... the
  United States of America expressed a reservation
  relating to article 6, paragraph 5, of the
  Covenant, which prohibits the imposition of the
  death penalty for crimes committed by persons
  below 18 years of age. France considers that this
  United States reservation is not valid, inasmuch
  as it is incompatible with the object and purpose
  of the Convention. Such objection does not
  constitute an obstacle to the entry into force of
  the Covenant between France and the United
  States." (emphasis added)

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• (i) There are no treaty relations between the
  objecting and reserving States.
• (ii) The treaty is in force between the objecting
  and reserving States, but the provision to which
  the offending reservation attaches is severable.
• (iii) the treaty is in force between the
  objecting and reserving States, but the offending
  reservation is severable.

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• Is a fourth possibility therefore open to States?
  To object to a reservation as invalid/impermissib
  le/incompatible, but nonetheless not object to
  the entry into force of the convention as between
  itself and the reserving State?
• What is the legal effect of such objection?
• What is the legal effect of the reservation?

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ILCs work on reservations 1994-

• considers general treaty regime applicable to
  human rights treaties
• stresses residual character of VCLT rules and the
  ability to tailor individual treaty reservations
  regimes
• ILC work not designed to amend/modify the VCLT
  but rather to establish guidance on the
  application of the existing rules

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LECTURE OUTLINE RECAP.

• 1. INTRODUCTION
• 2. SOURCES OF TREATY LAW
• 3. WHAT IS A TREATY?
• 4. MAKING TREATIES
• 5. CASE STUDY ON RESERVATIONS
• 6. INTERPRETATION
• 7. AMENDMENT AND MODIFICATION
• 8. GROUNDS FOR CHALLENGE
• 9. TERMINATION

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VI. INTERPRETATION

• There are today three main schools of thought on
  the subject, which could conveniently be called
  (i) the "intention of the parties" or "founding
  fathers" school (ii) the "textual" or "ordinary
  meaning of the words" school and (iii) the
  "teleological" or "aims and objectives" school.
  The ideas of these schools are not necessarily
  exclusive of one another, and theories of treaty
  interpretation can be constructed (and indeed are
  normally held) compounded of all three."
  (Fitzmaurice, (1951) 28 B.Y.I.L. 1)

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ARTICLES 31 32 VCLT

• Art. 31 general rule of interpretation combines
  elements of all three
• Subjective intention of the parties
• Objective textual meaning
• Teleological object and purpose
• Good faith interpretation requirement and
  principle of effectiveness (Corfu Channel 1949
  Reparations Case 1949 Libya v Chad 1994Certain
  Expenses of UN 1962)

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• Articles 31 32 considered reflective of CIL
  (e.g. Libya v Chad 1994 Qatar v Bahrain 1995
  applied by other tribunals e.g. WTO DSB)
• In addition to the context, the subsequent
  agreement of the parties (e.g. LOSC 1994
  Implementation Agreement) subsequent practice
  establishing agreement of parties as to treaty
  meaning and applicable relevant rules of
  international law shall be taken into account

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• Article 32 a supplementary means of
  interpretation
• recourse to preparatory work of the treaty and
  the circumstances of its conclusion to confirm
  Article 31 meaning or where application of
  Article 31 produces an ambiguous or obscure
  meaning OR manifestly absurd or unreasonable
  result
• practical difficulties cf. Article 11(4) 1972
  World Heritage Convention

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• The WHC requires the consent of States parties to
  list properties of outstanding universal value
  (cultural and natural heritage)
• the Convention establishes a Fund (for
  assistance) and a World Heritage Committee
• Article 11(4) establishes a List of World
  Heritage in Danger. The final sentence states
  The Committee may at any time, in case of urgent
  need, make a new entry in the Danger List and
  publicise such entry immediately.

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• Does this empower the Committee to list property
  as in danger without the consent of the state in
  whose territory that property is situated?
• Difference of view amongst the States Parties
• UNESCO Doc WHC-02/CONF.202/8 (24 May 2002) offers
  a legal opinion on inscription suggesting consent
  not required based on Art. 31 VCLT though
  acknowledges that IF supplementary means of
  interpretation employed (preparatory work of the
  Convention) this appears to suggest that consent
  is required.

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• Evolutive approach to treaty interp?
• That is, should the intertemporal rule of treaty
  interpretation (where treaty interpreted by
  reference to law when treaty was drafted) always
  be applied?
• 1997 Gabcikovo-Nagymaros (Danube Dam) case para.
  141 (new norm of sustainable development) WTO
  Appellate Body Report in Shrimp/Turtle Case 1998

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VII. AMENDMENT AND MODIFICATION

• General AMENDMENT rule is the agreement of the
  parties Art. 39
• Special rules for amending multilateral treaties
  Art. 40
• MODIFICATION inter se Art. 41

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VIII. GROUNDS FOR CHALLENGE

• 1. Invalidity
• 2. Non-compliance with a municipal law
  requirement
• 3. Error (Temple of Preah Vihear 1962)
• 4. Fraud and Corruption
• 5. Coercion (Czechoslovakia 1939)
• 6. Jus Cogens

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IX. TERMINATION

• 1. Pursuant to Treaty
• 2. Express or Implied Agreement
• 3. Unilateral denunciation?
• 4. Termination for reasons recognised at law
• 5. Consequences of termination

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Pursuant to the terms of the treaty

• Example of US withdrawal in 2001 from the
  Anti-Ballistic Missile Treaty Article XV Each
  Party shall, in exercising its national
  sovereignty, have the right to withdraw from this
  Treaty if it decides that extraordinary events
  related to the subject matter of this Treaty have
  jeopardized its supreme interests. (emphasis
  added)

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4. Termination for reasons recognised at law

• A. Material Breach (Art. 60)
• B. Impossibility of Performance (Art. 61)
• C. Fundamental Change of Circumstances
  (Art. 62)
• (Arts. 60-62 cil according to ICJ in
  Gabcikovo-Nagymaros Dam Case 1997)
• D. Lapse or desuetude?
• E. New rule of jus cogens (Art. 64)