Treaty Reservations

Swaine, Edward T

doi:10.1093/law/9780199601813.003.0012

Chapter

11 Treaty Reservations

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https://doi.org/10.1093/law/9780199601813.003.0012

Pages

277–301

Published:

July 2012

Extract

Introduction

Given the common wisdom that the subject of treaty reservations is among the most complicated in treaty law,¹ the relevant law defies easy summary; indeed, a chapter-length treatment can only discuss the most prominent issues and note others of a more incidental character. That said, it is easy enough to provide an orientation in the basic rules of the 1969 Vienna Convention on the Law of Treaties (VCLT). The subject is mostly uncontroversial. While reservations, by definition, seek unilaterally to compromise a State’s treaty obligations,² States are nonetheless presumptively free to propose them. Generally they do so to adapt the treaty to domestic legal and political circumstances in matters that are usually of keen local (and, happily, minimal international) interest.

The VCLT rules also make clear, however, that the right to make reservations is not unfettered. States are not supposed to propose reservations when doing so is proscribed by a treaty, either because of the way that treaty addresses reservations or because the reservation is incompatible with the treaty’s ‘object and purpose’. Other States may also object to a proposed reservation. But if a State proposes a reservation, and another State does not object within twelve months, the reservation will modify the treaty as between them. A State that does object may do so on any basis, and if it wishes, may specify that the treaty will not enter into force as between it and the reserving State. Barring such a specification, however, a State’s objection establishes relations on the basis of the entire treaty minus the reserved-to provision(s).

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Contents

11 Treaty Reservations