3 - Reservations to Treaties

Question 1

What is a ‘reservation’ to a treaty?

Answer 1

Unilateral acts by which states wish to modify or exclude part of a treaty.

Question 2

Why are reservations important?

Answer 2

Enable a State to participate in a treaty in which it would not be able to participate due to an unacceptable provision or provisions.

Question 3

Why do States enter reservations to a treaty?

Answer 3

In many cases the purpose of the reservation is merely to adjust the reserving State’s 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.

Question 4

What names could a reservation go by?

Answer 4

Entitled “reservation”, “declaration”, “understanding”, “interpretative declaration” or “interpretative statement”.

Question 5

Who can sign a reservation?

Answer 5

only the Head of State or Government or the MFA (or a person acting in that capacity or having delegated authority for that purpose issued by one of the above authorities) can formulate (i.e. sign) a reservation.

Question 6

When can reservations be formulated?

Answer 6

Upon signature, ratification, acceptance, approval, accession

Question 7

When are reservations not allowed?

Answer 7

• The reservation is prohibited by the treaty;
• The treaty provides that only specified reservations, which do not include the reservation in question may be made; or
• The reservation is incompatible with the object and purpose of the treaty

Question 8

What should the form of the reservation be?

Answer 8

It should be included in the treaty instrument. However, if separate must be signed by head of state or foreign minister.

Question 9

When can states make a reservation?

Answer 9

Court decided in Genocide Convention Case that reservations to treaties should be deemed permissible as long as they were consistent with the object and purpose of the treaty concerned

Question 10

How can one determine whether a proposed reservation is compatible with the object and purpose of a treaty?

Answer 10

4 different sorts of response

1) Acceptance - states expressly accepts
2) state remains silent - if silent for 12 months counts as acceptance
3) states may object to reservation but dont want to ruin relationship with other state so reservation still stands
4) reservation has no effect where they object and dont have interest in entering treaty relations with other state