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RESERVATIONS AS UNILATERAL ACTS? EXAMINING THE INTERNATIONAL LAW COMMISSION'S APPROACH TO RESERVATIONS

  • Pok Yin S. Chow (a1)

Abstract

The law of unilateral acts and the law of treaties are generally considered to be two distinct areas of international law. While the former governs the effect of unilateral undertakings by States, the latter governs, inter alia, the formation, interpretation, termination, and suspension of treaties. In 2011, the International Law Commission (ILC) concluded a two-decade study on reservations. One of its most remarkable insights is the argument that reservations ought to be considered ‘unilateral acts’. Thus, certain rules pertaining the law of unilateral acts ought to apply to reservations. This article critically examines the ILC's novel proposal as well as its attempt to provide answers to contemporary questions on reservations through conceptualizing reservations as unilateral acts.

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1 See Gamble, JK Jr, ‘Reservations to Multilateral Treaties: A Macroscopic View of State Practice’, (1980) 74 AJIL 372, 383–91; see also Edwards, RW, ‘Reservations to Treaties’ (1989) 10 MichJInt'lL 362 ; Shelton, D, ‘State Practice on Reservations to Human Rights Treaties’ (1983) CanHumRtsYB 205 ; Galbraith, J, ‘Treaty Options: Towards a Behavioral Understanding of Treaty Design’ (2013) 3(2) VaJInt'lL. 309 .

2 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, 1951 ICJ Rep 15.

3 ibid 18.

4 (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (Vienna Convention).

5 Anderson, DR, ‘Reservations to Multilateral Conventions: A Re-examination’ (1964) 13 ICLQ 450 .

6 See eg Pellet, A, ‘Article 19’ in Corten, O and Klein, P (eds), The Vienna Conventions on the Law of Treaties: A Commentary vol 1 (Oxford University Press 2011) 405, 425.

7 See eg Baratta, R, ‘Should Invalid Reservations to Human Rights Treaties be Disregarded?’ (2000) 11(2) EJIL 413, 415–16.

8 Bowett, DW, ‘Reservations to Non-Restricted Multilateral Treaties’ (1976–77) 48 BYBIL 67 ; Koh, JK, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’ (1982) 23 HarvInt'lLJ 71 .

9 McCall-Smith, KL, ‘Severing Reservations’ (2014) 63(3) ICLQ 599 .

10 For an account of the background to the Guide to Practice, see Pellet, A, ‘The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur’ (2013) 24(4) EJIL1061.

11 ILC ‘Guide to Practice on Reservations to Treaties’ (2011) UN Doc A/66/10, para 75 (Guide to Practice and Commentary).

12 The Commentary to the Guide to Practice makes multiple references to reservations as unilateral acts. For example the Commentary to the Guide to Practice notes that: ‘[s]ince reservations are unilateral acts, the Commission based itself on the guidelines for interpreting such acts contained in the Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, which it adopted in 2006’. See Guide to Practice and Commentary (n 11) 374, 467–468.

13 Art 1(d), Vienna Convention. The definition of a reservation under art 1(d) of the Vienna Convention has arguably attained the status of customary international law; see English Channel Arbitration (1979) 18 ILM 397 ; Temeltasch v Switzerland (1982) DR 31; Belilos v Switzerland ECtHR Ser A (1988) vol 132, para 46.

14 cf Brownlie, I, Principles of International Law (7th edn, Oxford University Press 2008) 612–13, the validity of a reservation ‘is determined on a contractual and not a unilateral basis’.

15 The Yearbook of the International Law Commission 1997, Vol II, Pt Two, UN Doc A/CN/Ser.A/1997/Add.1 (Part 2), 65, paras 203–204. The ILC Working Group on the Unilateral Acts of States remarked that: ‘The Working Group bore in mind that, in the process of treaty formation, amendment, execution, termination, etc., States carry out acts which, prima facie, are unilateral in character when viewed in isolation (for example, accession, denunciation, reservation, withdrawal). The Group nonetheless considered that the characteristics and effects of such acts are governed by the law of treaties and do not need to be dealt with further in the context of the new study proposed.’ In other words, from the point of view of the Working Group, reservations, being a specific type of unilateral act, should be governed by the law of treaties lex specialis.

16 Guide to Practice and Commentary (n 11) 91; Lijnzaad, L, Reservations to the UN-Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff Publishers 1995) 38 , ‘Whereas the drafting of treaties tends to be an increasingly multilateral process; the expression of consent to be bound remains a unilateral act’; Zemanek, K, ‘Unilateral Legal Acts Revisited’ in Wellens, K (ed), International Law, Theory and Practice: Essays in Honour of Eric Suy (Martinus Nijhoff Publishers 1998) 209, 210, ‘[t]he consent to be bound by a multilateral convention is expressed by a unilateral act, such as signature, ratification or accession, not by concurring wills’.

17 In the words of the ILC, although reservations are unilateral acts, they are ‘non-autonomous’ and do not generate exogenous effect. See Guide to Practice and Commentary (n 11) 470.

18 ibid 467–8.

19 Genocide Convention Advisory Opinion (n 2) 24; Lijnzaad (n 16) 66; Coccia, M, ‘Reservations to Multilateral Treaties on Human Rights’ (1985) 15 CalWInt'lLJ 1, 26–7.

20 Brownlie (n 14) 612–13; The origins of the Pan-American practice could be traced to the Havana Convention of 29 February 1928. For an analysis, see Pellet (n 6) 410.

21 (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.

22 Genocide Convention Advisory Opinion (n 2) para 24.

23 ibid.

24 O'Brien, J, International Law (Routledge 2001) 337 .

25 Genocide Convention on Advisory Opinion (n 2) para 24; Morris, M, ‘Few Reservations about Reservations’ (2000) 1 Chicago Journal of International Law 341, 343.

26 Art 19(3), Vienna Convention.

27 Art 20(4)(a) ibid.

28 Art 21(1)(a) ibid.

29 Wei, S, ‘Reservations to Treaties: Some Practical Issues’ (1997) 7 AsianYrbkIntlL 105, 118; Swaine, ET, ‘Reserving’ (2016) 31 YaleJIL 307, 315–16; Koh (n 8) 76.

30 An objection to a reservation will not preclude a reserving State from becoming a party to the treaty if the reservation is accepted by another State, unless the treaty specifies unanimous consent as a requirement, or where it concerns a multilateral treaty with a limited number of negotiating States in accordance with art 20(2) of the Vienna Convention. Art 20(4)(c) of the Vienna Convention provides that ‘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’.

31 See VR Cedeno, Second Report on Unilateral Acts of States, UN Doc A/CN.4/500 (1999) para 38; ILC, Report of the Working Group, UN Doc A/CN.4/L.588 (1999) para 10.

32 Eckart, C, Promises of States under International Law (Hart Publishing 2012) 38 .

33 ibid 40; Nuclear Tests (New Zealand v France), Judgment, 1974 ICJ Rep 267 (Nuclear Tests Case); Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali), Judgment of 22 December 1986, 1986 ICJ Rep 573 (Frontier Dispute Case) at paras 43, 44; at present, there is ‘no all-encompassing uniform and precise definition of unilateral acts’. One primary obstacle to defining unilateral acts is the debatable legal basis upon which unilateral acts derives its legally binding character, ie whether it derives from the voluntary nature of the act, the principle of estoppel, or the principle of good faith (upon which a certain level of trust or reliance has been placed on the act by another party). Nevertheless, it is clear that a unilateral act strictly defined in international law is one that is capable of bringing about a unilateral effect. In particular, a unilateral act concerns a unilateral undertaking to international obligations. See Zemanek (n 16) 210; McNair, A, The Law of Treaties (Oxford University Press 1961) 486–7; A Weingerl, ‘Definition of Unilateral Acts of States’ (2004) <http://www.esil-sedi.eu/sites/default/files/Weingerl_0.PDF>; The 2006 Guiding Principles on Unilateral Declarations defines unilateral acts stricto sensu as ‘those taking the form of formal declarations formulated by a State with the intent to produce obligations under international law’.

34 United Nations Conference on the Law of Treaties, Official Records, vol III, at 265; Triska, J and Slusser, R, The Theory, Law and Policy of Soviet Treaties (Stanford University Press 1962) 86 .

35 Lijnzaad (n 16) 31.

36 ibid. ‘[t]he main difference between the socialist doctrine and the traditional doctrine concerned the appreciation of the unilateral character of reservations. Both doctrines held different views on the contractual nature of treaty law and the emphasis put on sovereignty as the sacred core of the state's international existence.’

37 Coccia (n 19) 26–8; arts 1(d) and 21 of the Vienna Convention. The definition of a reservation in the Vienna Conventions prescribes that a reservation is a statement unilaterally made. The effect of the reservation, however, depends on the addressee. In principle, a reservation is operative between the corresponding States only if expressly or tacitly accepted. cf The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, 24 September 1982, Inter-AmCtHR (Ser. A) No.2 (1982) paras 37–38 (Effect of Reservations on the Entry into Force of IAmCHR), where the Inter-American Court of Human Rights concluded that owing to the unique characteristics of human rights treaties in general and the Inter-American Convention on Human Rights in particular, ‘reservations compatible with the object and purpose of the Convention, do not require acceptance by the State Parties… [these reservations] enter into force… as of the moment of their deposit’.

38 Lijnzaad (n 16) 32.

39 ibid 65. Another way of describing reservations is that reservations are only unilateral acts in form (ie they are ‘unilateral statements’ made from one State to another) but not in substance.

40 See (n 33).

41 Goodman, C, ‘Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 AustYBIL 43, 48; Lijnzaad (n 16) 30; Orakhelashvili, A, The Interpretation of Acts and Rules in Public International Law (Oxford University Press 2008) 466 .

42 ILC ‘Report of the Working Group on Unilateral Acts of States’ (1997) UN Doc A/CN.4/L.543.

43 VR Cedeno, Fourth Report on Unilateral Acts of States, UN Doc A/CN.4/519, 24–25, paras 108–109.

44 Nuclear Tests Case (n 33); Case Concerning the Frontier Dispute (n 33) para 39.

45 Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, United Nations, Reports of International Arbitral Awards, vol XVIII, paras 54–55, at 39–40; Lijnzaad (n 16) 32.

46 Fitzmaurice, G, ‘ The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and other Treaty Points ’ (1957) 33 BYBIL 203, 230.

47 Coccia (n 19) 26–8; An exception to this principle is elaborated in Effect of Reservations on the Entry into Force of IAmCHR (n 37), where the Inter-American Court of Human Rights came to the conclusion that acceptance of a reservation not prohibited by the Inter-American Convention of Human Rights is not a pre-requisite for entry into force.

48 Art 19, Vienna Convention.

49 Art 20 ibid.

50 Art 21 ibid.

51 Aust, A, Modern Treaty Law and Practice (Cambridge University Press 2000) 117–18; This observation corresponds to the first limb of the ICJ's Genocide Convention Advisory Opinion, i.e. a State cannot become party to a treaty, if a reservation is incompatible with the object and purpose of the treaty.

52 See Villiger, ME, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill 2009) 262, 268 ; Pellet, A, ‘Article 22’ in Corten, O and Klein, P (eds), The Vienna Conventions on the Law of Treaties: A Commentary vol 1 (Oxford University Press 2011) 568, 572.

53 Case concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (United Kingdom v France), Decision, 30 June 1977, (1977) 54 ILR 6. In this case, the arbitral panel decided that an objection to a reservation renders a treaty article ‘inapplicable as between the two countries to the extent, but only to the extent, of the reservations’ as reflected in art 21(3) of the VCLT on the basis of the principle of mutuality of consent. It is well established that in its treaty relations a State cannot be bound without its consent and that consequently no reservation can be effective against any State without its agreement thereto. See Genocide Convention Advisory Opinion (n 2).

54 International law distinguishes between acts that would entail legal consequences and acts that would not. See Nuclear Tests Case (n 33) 267, ‘not all unilateral acts imply obligation’; Goodman (n 41) 53.

55 cf Weingerl (n 33) 4.

56 Frontier Dispute Case (n 33) para 39, ‘it all depends on the intention of the State in question’. In Nuclear Tests, the ICJ stressed that ‘not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by interpretation of the act.’ Nuclear Tests Case (n 33) 267; Goodman (n 41) 55.

57 Legal Status of Eastern Greenland, Judgment of 5 April 1933, PCIJ Series A/B No 53, 71. In the case Legal Status of Eastern Greenland, after a series of conversations in which Denmark evinced her willingness to extend political and economic monopoly over Eastern Greenland, Norway's Minister of Foreign Affairs’ reply was that it will ‘not make any difficulties’ for the Danish government for so doing: ‘The Court considers it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.’

58 Nuclear Tests Case (n 33) para 46.

59 ibid para 43, ‘It is from the actual substance of these statements and the circumstances attending their making, that the legal implications of these acts must be deduced’; Frontier Dispute Case (n 33) para 40, ‘in order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred.’

60 This position could be traced to the case law of the PCIJ. See SS Lotus (France v Turkey), Judgment of 7 September 1927, PCIJ, Series A No 10, 18; Nuclear Tests Case (n 33) para 47; However, note that the idea which all unilateral acts should be interpreted in a restrictive manner was disagreed by learned scholars. See eg Fitzmaurice, M and Elias, O, Contemporary Issues in the Law of Treaties (Oxford University Press 2005) 222 .

61 See also Nuclear Tests Case (n 33); ILC Draft articles on unilateral acts and commentary thereto, ILC Report 2006, 377, ‘A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner.’

62 Nuclear Tests Case (n 33) para 47. Nevertheless, in situations where intention is clear, there is no need to resort to a restrictive interpretation. See Phosphates in Morocco (Italy v France) Judgement of 14 June 1938, 1938 PCIJ (Series A/B), No 71, 10, at 23–24.

63 Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment of 19 December 2005, 2005 ICJ Rep 168.

64 cf Csatlós, E, ‘The Legal Regime of Unilateral Act of States’ (2010) 7 Miskolc Journal of International Law 33, 56. Csatlós  argued that the formulation of a reservation is ‘not a legal act per se’ because the act alone does not create a legal relationship.

65 In the words of art 20 of the Vienna Convention, a reservation is ‘an act expressing a State's consent to be bound by the treaty [subject] to the reservation’.

66 Art 19, Vienna Convention.

67 The important role that consent plays in the context of reservations is reflected in the ILC's definition of a reservation in 1962 by Sir Humphrey Waldock, which stipulated that ‘“Reservation” means a unilateral statement whereby a State, when signing, ratifying, acceding to or accepting a treaty, specifies as a condition of its consent to be bound by the treaty a certain term which will vary the legal effect of the treaty in its application between that State and the other party or parties to the treaty.’ This definition was subsequently replaced because it was thought that although a reservation accompanies consent to be bound, it is not necessarily the case that the reservation is a condition sine qua non of consent. Waldock, H, ‘First Report on the Law of Treaties’ (1962) 2 UNYBILC 27, 31–2.

68 For a discussion, see ILC ‘Summary Record of the 2855th Meeting’ (2005) UN Doc A/CN.4/2855, paras 30–38, available at <http://legal.un.org/ilc/documentation/english/summary_records/a_cn4_sr2855.pdf>.

69 E Suy, Actes unilatéraux, 30, cited in Eckart (n 32) 59–60.

70 Eckart (n 32) 60.

71 ibid.

72 A Pellet, Third Report on Reservations to Treaties, UN Doc A/CN.4/491, paras 120–121.

73 Guideline 1.1, Guide to Practice and Commentary.

74 See text accompanying (nn 41–53).

75 For example, in the Guide to Practice and Commentary, ‘Statements purporting to discharge an obligation by equivalent means’ is referred to as ‘[a] unilateral statement formulated by a State or an international organization … by which that State or that organization purports to discharge an obligation pursuant to the treaty in a manner different from, but considered by the author of the statement to be equivalent to that imposed by the treaty’ (emphasis added).

76 Similarly, the Working Group made sure that the concept of unilateralism is embedded in the definitions of the various types of interpretive declarations amounting to reservations.

77 Guideline 1.1.5, Guide to Practice and Commentary.

78 Guide to Practice and Commentary (n 11) 53.

79 ibid 53–5.

80 Villiger (n 52) 301.

81 See text accompanying (nn 47–53).

82 Art 21, Vienna Convention.

83 Aust (n 51) 129, ‘The rules in Article 21 on the legal effects of reservations refer to reservations “established” in accordance with Articles 19, 20, 23, and it is hard to see how one could validly establish a reservation when it is prohibited by Article 19.’ See Kearney, RD and Dalton, RE, ‘The Treaty on Treaties’ (1970) 64 AJIL 495, 512.

84 cf Baratta (n 7) 413, 422, international law is yet ‘unable to construct a customary rule identifying invalid reservations to human rights treaties as ineffective acts’.

85 Bowett (n 8); Swaine (n 29) 315.

86 Art 21 of the Vienna Convention provides that a reservation can entail its purported effect only if ‘established’ in accordance with art 19; B Simma and GI Hernandez, ‘Legal Consequences of an Impermissible Reservation to Human Rights Treaty: Where do we Stand?’ in Cannizzaro, E, The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 60, 62.

87 Milanovic, M and Sicilianos, L, ‘Reservations to Treaties: An Introduction’ (2013) 24(4) EJIL 1055 . An example of this could be found in Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, (2006) ICJ Rep 6, para 77, where the DRC alleged that the Rwanda's reservation to the CERD was incompatible with the objects and purpose of the CERD. After concluding that Rwanda's reservation was validly made, the Court remarked specifically that DRC had not objected to Rwanda's reservation at the time it was made. cf Klabbers, J, ‘Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties’ (2000) 69 NordicJInt'lL 179 .

88 See eg Guidelines 1.1.1 to 1.1.6 and 1.3.3 on the formulation of reservations (and 2.1.5 on the communication of reservations); Guidelines 2.6 to 2.6.12 on the objections to a reservation and Guidelines 2.8 to 2.8.12 on the acceptance of reservations; Swaine (n 29) 314–17.

89 Guideline 4.5.1., Guide to Practice and Commentary.

90 ibid 4.5.2.

91 ibid 3.3.3.

92 Coccia (n 19) 33–4; Lijnzaad (n 16) 96.

93 cf Swaine (n 29) 307, 317; see ILC, Report on State Responsibility, Report of the ILC on the UN General Assembly, Draft Articles on State Responsibility [1979] 2 UNYBILC 113, ‘there is no doubt that if the consent is given only after the commission of the act (ex post facto), it will simply amount to a waiver of the right to assert responsibility and the claims arising therefrom. But, with such a waiver, the wrongfulness of the prior act remains.’

94 Ruda, JM, ‘Reservations to Treaties’ (1975-III) 146 Hague Academy of International Law, Collected Courses 95, 200, ‘ultimately the legal effects of an objection and an acceptance of a reservation are identical, when the treaty remains in force between the objecting and reserving States’; see Guide to Practice and Commentary (n 11) 288.

95 Art 20(4)(b), Vienna Convention.

96 Art 20(5) ibid.

97 Genocide Convention Advisory Opinion (n 2) 23; See eg France, Norway, Denmark, Sweden, Netherlands v Turkey, ECommHR, Decision No 9942/82, para 39, ‘The Commission finds that the general principle of reciprocity in international law and the rule, stated in Article 21, para.1 of the Vienna Convention on the Law of Treaties, concerning bilateral relations under a multilateral treaty do not apply to the obligations under the European Convention on Human Rights, which are “essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties”.’

98 Bourguignon, HJ, ‘The Belilos Case: New Light on Reservations to Multilateral Treaties’ (1989) 29 VaJInt'lL 347, 369. Moreover, States may wish to avoid offending parties that have political and economic ties. They may also wish to ‘avoid having scrutiny directed back at themselves’. Sherman, EF Jr., ‘The US Death Penalty Reservation to the International Covenant on Civil and Political Rights: Exposing the Limitations of the Flexible System Governing Treaty Formation’ (1994) 29 TexInt'lLJ 69, 81.

99 Other examples include a general reservation made by the US to the Genocide Convention which stated that ‘nothing in the Convention requires or authorises legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States’. Assessment of the reservation seems to require extensive knowledge on US Constitutional Law. Furthermore, it seems to require addressee States to pre-empt every situation which may fall within the scope of the reservation in order to object to it. See Aust (n 51) 120–1; Swaine (n 29) 318; Sinclair, I, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press 1984) ch 3, 63; Hylton, DL, ‘Default Breakdown: The Vienna Convention on the Law of Treaties: Inadequate Framework on Reservations’, (1994) 27 VandJTransnat'lL 419, 439.

100 HRC General Comment No 24, ‘General Comment on Issues Relating to Reservations made upon Ratification or Accession to the Convention or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant’ UN Doc CCPR/C/21/Rev.1/Ad.6 (1994) para 17 (HRC General Comment No 24).

101 See eg art 20(2) of the UN Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195, providing, inter alia, that, ‘[a] reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties objection to it’.

102 Interpretation of the Greco-Turkish Agreement of December 1st, 1926, (1928) PCIJ Series B, No 16, 20.

103 Nottebohm Case (Preliminary Objections) [1952] ICJ Rep 111, 119. The quoted passage refers specifically to art 36(6) of the Statute of the ICJ, ‘In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.’

104 HRC General Comment No 24, para 20; note, however, that other treaty bodies have taken a more reserved stance on this issue. See ‘The Practice of Human Rights Treaty Bodies with Respect to Reservations to International Human Rights Treaties’ UN Doc HRI/MC/2005/5 (13 June 2005).

105 Baratta (n 7) 416; cf Aust (n 51) 123.

106 See Pellet (n 6) 405, 422; For example Imbert, argued that the European Commission on Human Rights and the ECtHR do not have the jurisdiction to declare reservations invalid. Imbert, P-H, Les réserves aux traités multilatéraux (Pédone 1978).

107 Guideline 3.2, Guide to Practice.

108 Guideline 3.2.1, Guide to Practice.

109 See Temeltasch v Switzerland (1982) DR 31, 120, 145, para 65; Belilos v Switzerland [1988] ECHR 4. Here, the ECtHR invoked arts 19 (providing that the Court was established to ensure observance of the engagements undertaken by States to the Convention), 45 (providing that the Court has jurisdiction over the interpretation and application of the Convention) and 49 (providing the Court has jurisdiction to determine its own jurisdiction), to establish its competence in assessing permissibility. In Loizidou, art 19 of the ECHR was invoked in a similar manner to establish competence. Loizidou v Turkey [1995] ECHR 10.

110 HRC General Comment No 24, para 18.

111 Fisheries Jurisdiction (Spain v Canada) Jurisdiction of the Court (1952) ICJ Rep 454 (Fisheries Jurisdiction) para 46, a declaration of acceptance is ‘a unilateral act of State sovereignty’.

112 Declarations of acceptance of the compulsory jurisdiction of the Court (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America)), Jurisdiction and Admissibility, Judgment, (1984) ICJ Rep 418, para 59.

113 Fisheries Jurisdiction (n 111) para 46.

114 ibid.

115 This view was adopted by the ILC in its Commentary on the Guide to Practice: ‘The Commission is aware that the statements in question are of a different nature from those of reservations and declarations. Formulated unilaterally in connection with a treaty text, they nonetheless have important common features, and it would seem necessary to take account of the Court's warning in interpreting unilateral statements made by a State or an international organization in connection with a treaty with a view to determining its legal nature.’

116 Case of Certain Norwegian Loans [1957] ICJ Rep 9, Separate Opinion of Judge Sir Hersch Lauterpacht (Norwegian Loans Case).

117 ibid 56.

118 Interhandel Case (Switzerland v US) [1959] ICJ Rep 6, 77–78, 93. The case concerned the interpretation of the US declaration accepting the compulsory jurisdiction of the ICJ. The declaration was drafted to the effect that it subjected the ICJ's jurisdiction to the right of the State ‘to determine in each case the existence of the obligation to resort to judicial or arbitral settlement’. President Klaestad and Judge Armand-Ugon, upon deciding that the reservation was invalid, reflected upon the true intention of the reserving State in considering the legal consequences of the invalid reservation. Both judges thought that the US reservation was invalid but severable. For an analysis, see Bourguignon (n 98); Goodman (n 41) 532.

119 See eg Lijnzaad (n 16) 55.

120 Simma and Hernandez (n 86) 84.

121 Moreover, there are multiple reasons why a State entered a reservation that is incompatible with the object and purpose of the treaty, including inadvertent miscalculations, given that the object and purpose of a treaty is often difficult to ascertain. For a detailed explanation on the difficulties in ascertaining the object and purpose of a treaty, see eg Buffard, I and Zemanek, K, ‘The “Object and Purpose” of a Treaty: An Enigma?’ (1998) 3 Austrian Review of International & European Law 311 ; Jonas, DS and Saunders, TN, ‘The Object and Purpose of a Treaty: Three Interpretive Methods’ (2010) 43(4) VandJTransnat'lL 565 ; Furthermore, a reservation may be rendered impermissible owing to the evolving development of a jus cogens norm. See Linderfalk, U, ‘Reservations to Treaties and Norms of Jus Cogens: A Comment on Human Rights Committee General Comment No. 24’ in Ziemele, I (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony and Reconciliation (Martinus Nijhoff Publishers 2004) 213 ; LeBlanc, LJ, ‘Reservations to the Convention on the Rights of the Child: A Macroscopic View of State Practice’ (1996) 4 Int'lJChildRts 357, 378–9.

122 This should be contrasted with State practices, including a considerable number of Nordic States, which aim at objecting to a reservation that they deem incompatible with the object and purpose of the treaty, yet considering reserving States bound by the treaty (thereby achieving a ‘super-maximum effect’). See M Scheinin, ‘Reservations to the International Covenant on Civil and Political Rights and its Optional Protocols – Reflections on State Practice’ <http://www.nuigalway.ie/sites/eu-china-humanrights/seminars/ds0411i/martin%20scheinin-eng.doc>; see also Klabbers (n 87).

123 Bowett (n 8) 75–6, ‘In principle, the will which ought to prevail is the will to accept the treaty’; WA Schabas, ‘Reservations to the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child’ (1997) 3 William & Mary Journal of Women and the Law 79, 109; Simma and Hernandez (n 86) 82; Lijnzaad (n 16) 57, 58. When viewed as a unilateral act, judicial support for this position could further be found in Nuclear Test case, ‘[j]ust as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration’. See Nuclear Test Case (n 33) para 49.

124 Loizidou v Turkey [1995] ECHR 10, Preliminary Objections, para 95.

125 Belilos v Switzerland [1988] ECHR 4, para 60.

126 Weber v Switzerland [1990] ECHR 13.

127 Loizidou v Turkey [1995] ECHR 10, Preliminary Objections, para 95.

128 For an analysis on the legal precedents and justification of HRC's General Comment No 24, see Baylis, EA, ‘General Comment 24: Confronting the Problem of Reservations to Human Rights Treaties’ (1999) 17(2) BerkeleyJInt'lL 277 .

129 HRC General Comment No 24, para 18.

130 Rawle Kennedy v Trinidad and Tobago, UN Doc CCPR/C/57/D/845/1999 (31 December 1999) (emphasis original).

131 Guideline 4.5.3, Guide to Practice.

132 The Guide to Practice and Commentary distinguishes a range of categories of the guidelines covering ‘a wide range of obligatoriness and have very different legal values’, one of which is a category of guidelines which are ‘simply recommendations and are meant only to encourage’. See Introduction, Guide to Practice and Commentary.

133 See text accompanying (nn 122–127).

134 Buffard and Zemanek (n 121).

135 Schabas (n 123).

136 Greig, DW, ‘Reciprocity, Proportionality, and the Law of Treaties’ (1994) 34 VaJInt'lL 295, 328, noting that the Vienna Convention ‘give[s] an unacceptable advantage to a reserving state’.

137 See eg Klabbers (n 87).

138 In addition, Simma and Hernandez eloquently observe that:

A presumption of severability finds its root in the consent of states taken as a whole. Because a reservation incompatible with the object and purpose of a human rights treaty would, if successful, ipso facto, constitute a fundamental change to the treaty, it follows logically that the ability of states to restrict the scope of their consent relating to the core purposes of the treaty would do violence to the consent of all other state parties. As recognized in the Advisory Opinion on Reservations to the Genocide Convention ‘[i]t is well established that in its treaty relations a State cannot be bound without its consent. […] none of the contracting parties is entitled to frustrate or impair, by means of unilateral decisions or particular agreements, the purpose and raison d'etre of the convention’… a presumption of severability… removes human rights instruments from the grip of the bilateral paradigm and places them into an objective but equally, consensualist, framework.

Simma and Hernandez (n 86) 81.

139 Simma, B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours de l'Académie de Droit International 217, 296–7. See also HRC General Comment No 24, para 17. Note, however, that the lack of reciprocity does not apply to all human rights treaties nor all human rights obligations. A notable exception would be the minority treaties concluded during the times of the League of Nations. Another example is where there could in fact be reciprocity concerns the extraterritorial application of human rights treaties.

140 Some States may even consider such reviews as hostile acts.

141 Lijnzaad (n 16) 6; A Seibert-Fohr, ‘The Potentials of the Vienna Convention on the Law of Treaties with Respect to Reservations to Human Rights Treaties’ in Ziemele, Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict Harmony or Reconciliation (n 121) 183, 194.

142 For an excellent account of the arguments in favour of a special regime, see eg Korkelia, K, ‘New Challenges to the Regime of Reservations under the International Covenant of Civil and Political Rights’ (2002) 13 EJIL 437 .

143 Seibert-Fohr (n 141).

144 The purpose of interpretation varies slightly with different school of thoughts, including textualists, subjectivists and teleologists. For an overview see eg ME Villiger, ‘The Rules on Interpretation: Misgivings, Misunderstandings, Miscarriage? The “Crucible” Intended by the International Law Commission’ in Cannizzaro, The Law of Treaties Beyond the Vienna Convention (n 86) 105–22.

145 Brownlie (n 14) 631; The tension between textual interpretations and approaches which seek to honour the intention of parties reflect what Koskenniemi's describes as an ‘oscillation between subject and approaches’ in many aspects of international legal theory. Nevertheless, McNair eloquently summarized that crucial to all interpretative work in existing practice is to give effect to the manifest intention of the parties ‘expressed in the words used by them in the light of the surrounding circumstances’; see Koskenniemi, MA, ‘Theory: Implications for the Practitioner’ in Allot, P et al. (eds), Theory and International Law: An Introduction (BIICL 1991) 345 ; McNair, Law of Treaties (n 33) 365–6; PM Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’ in Cannizzaro, The Law of Treaties Beyond the Vienna Convention (n 86) 123, 126–31; For more on intent, see Klabbers, J, The Concept of Treaty in International Law (Kluwer Law International, 1996) 6595 .

146 Land and Maritime Boundary between Cameroon and Nigeria (2002) ICJ Rep 303 para 59.

147 Anglo-Iranian Oil Co Primary Objection, Judgment, (1952) ICJ Rep 107.

148 Fisheries Jurisdiction (n 111) paras 48 and 49.

149 See (n 65).

150 Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ (ser.A/B) No 53 (Apr 5) 69.

151 Boyce et al. v Barbados, Inter-AmCtHR (Ser. C) No 169 (2007) para 15.

152 Restrictions to the Death Penalty (Arts 4(2) and 4(4) of the American Convention on Human Rights), Advisory Opinion OC-3/83, 8 September 1983, Inter-AmCtHR (Ser. A) No 3 (1983) para 64.

153 Orakhelashvili (n 41) 466–7.

154 Rawle Kennedy v Trinidad and Tobago, UN Doc CCPR/C/67/D/845/1999 (31 December 1999) para 17.

155 Belilos v Switzerland, 132 EurCtHR (ser. A) (1988).

156 Jennings, R and Watts, A, Oppenheim's International Law vol 1 (9th edn, Longman 1995) 1242 , ‘[s]ince a reservation is a unilateral act by the party making it, evidence from that party's internal sources regarding the preparation of the reservation is admissible to show its intention in making the reservation’.

157 Fisheries Jurisdiction (n 111) para 49.

158 Anglo-Iranian Oil Co Primary Objection, Judgment, (1952) ICJ Rep 107, para 107.

159 Weber v Switzerland [1990] ECHR 13, para 36.

160 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on Human Rights), Advisory Opinion OC-3/83, September 8, 1983, Inter-AmCtHR (Ser. A) No. 3 (1983) 63–64.

161 Fisheries Jurisdiction (n 111) para 49. For a justification on why certain rules applicable to reservations on declarations of acceptances should analogously apply to reservations to treaties, see text accompanying (nn 111–115).

162 Guide to Practice and Commentary (n 11) 468.

163 Guideline 4.2.6, Guide to Practice.

164 Note that, unlike art 31(1) of the Vienna Convention, Guideline 4.2.6 does not mention the ‘ordinary meaning’ of the terms. Art 31(1) of the Vienna Convention provides that: ‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’

165 Brownie (n 14) 641–2, ‘While the principle applied by the Court – that a unilateral declaration may have certain legal effects … when the declaration is not directed to a specific state or states but is expressed erga omnes, as here, the detection of an intention to be legally bound, and of the structure of such intention, involves very careful appreciation of the facts.’

166 Rawle Kennedy v Trinidad and Tobago, UN Doc CCPR/C/57/D/845/1999 (31 December 1999) para 17. For an analysis of HRC's decision, see McGrory, G, ‘Reservations of Virtue? Lessons from Trinidad and Tobago's Reservation to the First Optional Protocol’ (2001) 23(3) Hum RtsQ 769 .

167 Fisheries Jurisdiction (n 111) para 46; ‘The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court's jurisdiction.’

168 Guide to Practice and Commentary (n 11) 470.

169 Restrictions to the Death Penalty (Arts 4(2) and 4(4) of the American Convention on Human Rights), Advisory Opinion OC-3/83, September 8, 1983, Inter-AmCtHR (Ser. A) No 3 (1983) para 65.

170 See text accompanying (nn 59–63).

171 Effect of Reservations on the Entry into Force of IAmCHR (n 42) para 29.

172 cf Fisheries Jurisdiction (n 111) para 43. In arguing that a reservation on the declaration of acceptance of the ICJ's compulsory jurisdiction should be interpreted narrowly, Spain invoked the concept of contra proferentem and argued that where ambiguity arises, a reservation should be interpreted against the reserving State because a reserving State shall not be allowed to undermine the Court's compulsory jurisdiction while accepting it. One may similarly argue that a State shall not be allowed to undermine the effectiveness of a human rights treaty in providing human rights safeguards and guarantees, and thus should be interpreted narrowly. Nevertheless, the concept of contra proferentem was rejected by the ICJ in the case. There is currently no settled principle yet as to how reservations in human rights treaties ought to be interpreted. Studies on the issues seem pertinent.

173 Guide to Practice and Commentary (n 11) 471, ‘The question therefore arises of whether, by their nature, human rights treaties require the application of specific principles of interpretation. It goes without saying that the answer to this question far exceeds the scope of the present Guide to Practice.’

The author is indebted to Dr Phil CW Chan, Dr Eric C Ip, Dr Eva Kassotti, Dr Adamantia Rachovitsa and Dr Pei-lun Tsai for their insightful comments on a previous draft and also to the anonymous reviewers for their thoughtful suggestions. The author would like to thank Laura Graham and Dr Ying Khai Liew for their comments on language. Any errors or omissions remain my own.

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