The Vienna Convention contains general provisions on suspension and
termination of treaties, in particular Articles 54 to 62 VCLT.
Before I am going to discuss the infamous
Gabčíkovo-Nagymaros (pronunciation: Gab-chi-co-vah/ Nagee-marosh) case, I
will first make a disctinction between formal and substantive grounds
for termination or suspension of a treaty.
1.1. Formal grounds for termination or suspension of a treaty
The
formal grounds for termination of treaties is provided by articles 54
to 59 VCLT. These include termination in conformity with the provisions
of the treaty and termination by consent of all the parties after
consultation (art. 54) and termination or suspension of the operation of
the treaty implied by conclusion of a later treaty (art. 59).
1.2. Material grounds for termination
Articles 60 to 62 VCLT provide the substantive or material grounds for termination or suspension of a treaty. The ICJ affirms that the rules laid down by the Vienna Convention on
the Law of Treaties concerning termination of a treaty relationship
on account of breach, may in many respects be considered as a
codification of existing customary law on the subject (see the Namibia
Advisory Opinion of 1971, p. 47).
Note that articles 60-62 VCLT provide three options to justify unilateral termination of a treaty:
1. inadimplenti non est adimplendum;
2. force majeure;
3. rebus sic stantibus;
The first one being the actual "material breach" by the other contracting party.
2. Material grounds for termination or suspension of a treaty and Gabčíkovo-Nagymaros Does
Hungary's termination of the 1977 Treaty between Hungary and
Czechoslovakia, meet the requirements under Article 60 to 62 VCLT? This
is the main question in the G-N case, for Hungary invokes no less than
five grounds in an attempt to justify its unilateral termination of the
Treaty.
These grounds are, in no particular order: a state of
necessity, material breach of the treaty by Czechoslovakia,
impossibility of performance of the treaty, a fundamental change of
circumstances and the development of new norms of international
environmental law. Before I am going to discuss the state of necessity,
I will highlight the three material grounds that are covered by art.
60-62 VCLT.
2.1. Inadimplenti non est adimplendum (art. 60 VCLT)
A
material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating or suspending
the treaty, art. 60 (1). A material breach is, as follows from
art. 60(3)(a)(b):
a. a repudiation of the treaty not sanctioned by the present Convention;
b. the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
In the Gabĉikovo-Nagymaros case, the Court has to decide on whether Hungary's invocation of material breach by Czechoslovakia is justified:
It is up to the Court to decide, whether there has been a material breach, rather than just a grave breach:
The Court is of the view that it is only a material breach of the treaty
itself, by a State party to the treaty, which entitles the other party
to rely on it as a ground for terminating the treaty. The violation of
other treaty rules of general international law may justify the taking
of certain [counter]measures by the injured State, but it does not
constitute a ground for termination under the law of treaties (para
106);
Hungary, by its own conduct, had prejudiced its right to terminate the
Treaty; this would still have been the case even if Czechoslovakia, by
the time of the purported termination, had violated a provision
essential to the accomplishment of the object and purpose of the Treaty
(para 110).
The material breach must have taken place in order to justly invoke such breach:
Hungary's main argument for invoking a material breach of the Treaty was
the construction and putting into operation of Variant C [by
Czechoslovakia]. As the Court has found, Czechoslovakia violated the
Treaty only when it diverted the waters [...]. Czechoslovakia did not
act unlawfully in constructing the works that would lead to the putting
into operation of Variant C.
In the Court's view, the notification of termination by Hungary was
premature. No breach of the Treaty had yet taken place and Hungary was,
therefore, not entitled to invoke such breach as a ground for
termination (para 108).
Czechoslovakia has breached its treaty obligations, but only when
putting Variant C into operation (para 78 and 82). The preparations on
the territory of Czechoslovakia had not yet led to a material breach,
therefore, Hungary's invocation of a material breach by Czech. was
premature. Thus, the Court rejects the invocation of material breach/
inadimplenti by Hungary.
2.2 Supervening impossibility of performance (art. 61 VCLT) (force majeure/ Act of God)
As described by Article 61 VCLT, a party may invoke the impossibility of
performance as a ground for termination of a treaty, if the
impossibility results from the permanent disappearance or destruction of
an object, indispensable for the execution of the treaty. A temporary
impossibility is not sufficient for termination of the treaty. If the
impossibility of performance results from that party's own breach, the
ground of supervening impossibility may not be invoked (art. 61 (2)
VCLT). Judging the G-N case, this means that Hungary was not entitled to
invoke Article 61 para 1 VCLT, for the impossibility of performance
stems from Hungary's own "omission" (para 102-103). In other words, this
ground implies a mere "Act of God".
2.3. Rebus sic stantibus: fundamental change of circumstances (art. 62 VCLT)
A fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, which was completely unforeseen by the parties, may not be invoked, para 1, unless:
a. the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty;
b. the effect of the change is radically to transform the extent of obligations still to be performed.
You'll have noticed the essential grounds for invoking a fundamental
change of circumstances: the circumstances have to be fundamentally
different, compared to the original circumstances at the time of the
conclusion, and the change itself has to be completely unforeseen by
either of the parties. Minor changes that do not relate to the consent
to be bound or to the obligations to be performed, cannot justify the
invocation of a fundamental change. A de facto material breach may be
invoked.
In G-N, the Court recalls the Fisheries Jurisdiction case on Article 62
of the VCLT. As Hungary argued, the events which would have constituted a
fundamental change, were specified as profound changes of a political
nature, the Project's diminishing economic viability, the progress of
environmental knowledge and new norms of environmental law.
In the Court's view, the prevalent political conditions were
thus not so closely linked to the object and purpose of the Treaty, that
they constituted an essential basis for the consent of parties and, in
changing, radically altered the extent of obligations still to be
performed. The profitablity of the Project was not bound to such an
extent that the obligations of the parties would have radically
transformed as a result. The development of environmental knowlegde and
law cannot be said to have been completely unforeseen. The changed
circumstances advanced by Hungary are not of such a nature, that their
effect would radically transform the extent of the obligations to
accompish Project G-N. Article 62 of the VCLT is a clear indication that
the plea can only apply in exceptional cases (para 104).
3. State of necessity (art. 33 (now: 25) of the Draft Articles on State Responsibility)
Not under the scope of the VCLT, but under the scope of the
International Responsibility of States, the Court will consider the
question of whether there was a state of necessity which would have
permitted Hungary to suspend and abandon works that it was commited to
perform in accordance with the Treaty.
A state of necessity may be invoked if:
a. the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril;
b. the act did not seriously impair an essential interest of the State towards which the obligation existed.
In the G-N case, the Court considers, first of all, that the state of
necessity is a ground, recognized by customary internationa law for
precluding the wrongfulness of an act not in conformity with an
international obligation. Such ground can only be accepted on an
exceptional basis. The state of necessity can only be invoked under
certain strictly defined conditions which must be cumulatively
satisfied. The State concerned is not the sole judge of whether those
conditions have been met (para 51-52).
The Commission indicated that one should not, in [..] context,
reduce an "essential interest" to a matter only of the "existence" of
the State and that the whole case has to be judged in the light of the
particular case (para 53) (i.o. words: the existence has to be
objective) .
However serious the uncertainties might have been, they could not,
alone, establish the objective existence of a "peril" in the sense of a
component element of a state of necessity. The mere apprehension of a
possible peril could not suffice. The extremely grave and imminent peril
must have been a threat to the interest at the actual time (para 54).
Considering the situation at Nagymaros (Hungary), the Court notes
that the dangers were mostly of a long-term nature and, above all, that
they remained uncertain. The peril invoked by Hungary had already
materialized to a large extent for a number of years, so that it could
not, in 1989, represent a peril arising entirely out of the G-N Project.
Even if the construction of the G-N Project would have created serious
risks, Hungary had means available to it, other than suspension and
abandonment of the works, of responding to that situation (para 55).
However grave it might have been, it would accordingly have been
difficult to see the alleged peril as sufficiently certain and therefore
"imminent" in 1989 . Hungary should have resorted to other means in
order to respond to the dangers that it apprehended. In particular,
within the framework of the original Project, Hungary seemed to be in
position to control (para 56).
At the time of concluding the Treaty, Hungary was presumably aware
of the situation as then known, when it assumed its original
obligations. The Court cannot fail to note the positions taken by
Hungary after the entry into force of the 1977 Treaty. Hungary asked
that the works should go forward more slowly, then asked for the works
to be speeded up, only to suspend and abandon them three months later.
The conclusion is that Hungary would not have been permitted to rely
upon the state of necessity in order to justify its failure to comply
with its treaty obligations, as it had helped, by act or omission, to
bring it about (para 57).
zaterdag 25 februari 2017
Reservations to treaties: Advisory Opinion on the Genocide Convention
3. The Advisory Opinion of 28 May 1951 on the Genocide Convention
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
Let's take a closer look at the Advisory Opinion of 28 May 1951, on Reservations to the Convention on the prevention and punishment of the crime of genocide. The concerned actors are States to a multilateral treaty. The Court of Justice gives the impression that a multilateral treaty can be divided into multiple bilateral treaties, as it is up to States to decide whether they wish to enforce the treaty between certain other States.
The General Assembly raises the following questions:
I. Can the reserving State be regarded as being a party to the Convention, while still maintaining its reservation if the reservation is objected by one or more parties to the Convention, but not by others?
II. If the answer to question I is the affirmative, what is the effect of the reservation as between the reserving State and:
a. the parties which object to the reservations?
b. those which accept it?
III. What would be the legal effects as regards the answer to question I if an objection to a reservation is made:
a. by a signatory which has not yet ratified?
b. by a State entitled to sign or accede but which has not yet done so?
3.1. Answers
On Question I:
A State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention, but not by others, can be regarded as being a party to the Convention, if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be regarded as being a party to the Convention.
On Question II:
a. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;
b. If, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention.
On Question III:
a. An objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I, only upon ratification. Until that moment, it merely serves as a notice to the other State of the eventual attitude of the signatory State;
b. An objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal effect.
3.2. Conclusion
The Advisory Opinion seems somewhat dissatisfying. It is pretty much up to contracting States whether a reservation is deemed tolerable or not, regarding the object and purpose of the Convention- given that certain reservations are not excluded in the Convention itself. However, take a closer look at the Advisory Opinion and you will find the raison d'être of the convention, extensively described at page 22 to 25.
As page 24 reads:
" The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of States which adopted it, that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis".
4. Is a reservation to article IX of the Genocide Convention compatible with its object and purpose?
4.1. Armed Activities on the Territory of the DR of the Congo, Judgment, Jurisdiction of the Court and Admissibility of the Application, 3 February 2006
Abstract. The Republic of Rwanda requests the Court to declare that (1): the Court lacks jurisdiction over the claims brought against the Republic of Rwanda by the DR of the Congo. The Court is required to address only the questions of whether it is competent to hear the dispute [...] (para 13, 14). I am going to highlight the considerations of the utmost importance (regarding a reservation to art. IX of the Genocide Convention, sidelining the jurisdiction of the Court).
4.1.1. DR of the Congo vs. Rwanda: arguments on the jurisdiction of the Court
In the DRC's view, the finding of an "absence of a manifest lack of jurisdiction" could be interpreted as an acknowledgement by the Court that is has jurisdiction (para 23).
Rwanda argued in its Memorial that the jurisdiction of the Court under the Genocide Convention was excluded by its reservation to the entirity of Article IX (para 29).
4.1.2. The Court's considerations
The Court will begin by reaffirming that "the principles underlying the Genocide Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and that a consequence of that conception is "the universal character both of the condemnation of genocide and of the co-operation required in order to liberate mankind from such an odious scourge". Thus, the Convention enshrines rights and obligations "erga omnes". The mere fact that rights and obligations erga omnes may be at issue in a dispute, would not give the Court jurisdiction to entertain that dispute. The fact that a dispute relates to compliance with a norm of ius cogens character (peremptory norms of general international law) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute, that jurisdiction is always based on the consent of the parties (para 64).
The Court notes that is has already found that reservations are not prohibited under the Genocide Convention [refers to the 1951 Advisory Opinion on Reservations]. This legal situation is not affected by the fact that the Statute of the International Criminal Court, in its Article 120, does not permit reservations to that Statute, including provisions relating to the jurisdiction of the International Criminal Court on the crime of genocide. Thus, in the view of the Court, a reservation under the Genocide Convention would be permissible to the extent that such reservation is not incompatible with the object and purpose of the Convention (para 66).
Rwanda's reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention. The reservation of Rwanda in question, meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention, is not to be regarded as being incompatible with the object and purpose of the Convention (para 67).
As a matter to the law of treaties, when Rwanda acceded to the Genocide Convention and made the reservation in question, the DRC made no objection to it (para 68).
The Court concludes that, having regard to Rwanda's reservations to Article IX of the Genocide Convention, this Article cannot constitute the basis for the jurisdiction of the Court in the present case (para 70).
4.2. Joint Separate Opinion on "Armed Activities on the Territory of Congo"
The judges voted in favour of paragraph 128 of the Judgment on Congo vs. Rwanda. However, their joint separate opinion stresses that some issues do require further consideration.
With regards to paragraph 67 and 72, the judges consider that "..much will depend upon the particular convention concerned and the particular reservation. In some treaties, not all reservations to specific substantive clauses will necessarily be contrary to the object and purpose of the treaty. Some such reservations to particular substantive clauses may be of this character (ICCPR is mentioned). Conversely, a reservation to a specific "procedural" provision in a certain convention, could be contrary to the treaty's object and purpose. For example, the treaty bodies set up under certain United Nations conventions may well be central to the whole efficacy of those instruments ("at the heart of the convenant system")" (para 21).
It is, thus, not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention (para 29).
Reservations to treaties and the legal effects of either acceptance or objection by other States (part II)
2.3. Article 19 of the VCLT: different scenarios
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
The conditions for making lawful reservations to treaties
Do reservations diminish the object and purpose of a Treaty?
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "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".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").IUs
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "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".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").IUs
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