LAWS2250 Lecture Notes - Lecture 5: Exogeny, European Court Of Human Rights, International Covenant On Civil And Political Rights
Reservations to treaty
Different types of treaties
a. Law-making treaty
b. Treaty-contract:
oBilateral state
oBetween small group of parties
oIf a state wanted to make a reservation, all states had to agree!
c. Genocide Convention Case:
oWhat rules should apply to reservations of treaties to broad-multilateral
law making treaty
Rules on reservation
d. Art2.1 VCLT
e. A reservation is a reservation however it is named
f. Statement whereby states purports to modify the legal effect of certain
provision of a treaty in their application to the reserving state
g. Reservations may be made unless excluded in art19 of the VCLT
Reservations to treaties: What? Why? How?
VCLT Art 2 Use of terms (H&S 653)
1.(d) "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 to modify the legal effect of certain provisions of the treaty in
their application to that State; …
VCLT Art 19 Formulation of reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty .
h. States don't accept particular obligations of a treaty
i. It is a clear reservation
Reservations to treaties: what?
PAPUA NEW GUINEA Reservations on Accession to 1951 Refugees Convention
"The Government of Papua New Guinea in accordance with article 42 paragraph 1 of the
Convention makes a reservation with respect to the provisions contained in articles 17 (1), 21,
22 (1), 26, 31, 32 and 34 of the Convention and does not accept the obligations stipulated in
these articles.“
Article 17 Wage-earning employment
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The Contracting State shall accord to refugees lawfully staying in their territory the most
favourable treatment accorded to nationals of a foreign country in the same circumstances, as
regards the right to engage in wage earning employment.
Article 21 Housing
As regards housing, the Contracting States, …, shall accord to refugees lawfully staying in
their territory treatment as favourable as possible and, in any event, not less favourable than
that accorded to aliens generally in the same circumstances.
Article 22 Public education
1. The Contracting States shall accord to refugees the same treatment as is accorded to
nationals with respect to elementary education.
j. Some states tend to make a reservation through 'declaration'
k. Declaration: it is permissible, it is not permissible for states to call something a
reservation but it is a reservation
Reservations to treaties: what? Declarations
ILC Guide Guide to Practice on Reservations to Treaties
1.2 Definition of interpretative declarations
“Interpretative declaration” means a unilateral statement, however phrased or named, made
by a State or an international organization, whereby that State or that organization purports to
specify or clarify the meaning or scope of a treaty or of certain of its provisions.
BELILOS v. SWITZERLAND (ECtHR, H&S 662-4)
l. Provides test for whether statement is a reservation: ‘however phrased or
named’ ie does not have to be called a ‘reservation’, often not – depends on effect. :
watch out for ‘declarations’
m. Declaration will be treated as reservation if ‘disguised’ reservation:
distinguish between reservations and declarations of understanding intended to set out
clearly what the treaty really means rather than altering its terms
n. Ms Belilos argued that the rejection of her appeal against a decision of a
Municipal Police Board to fine her for taking part in an unauthorised demonstration was not
compatible with Art. 6 of the European Convention on Human Rights (ECHR), which
enshrines the right to a hearing by an independent and impartial tribunal established by law.
o. Swiss Declaration: ‘The Swiss Federal Council considers that the guarantee of
fair trial in Art. 6 of the Convention, in the determination of ... any criminal charge against
the person in question is intended solely to ensure ultimate control by the judiciary over the
acts or decisions of the public authorities relating to ... the determination of such a charge.’
p. ‘… [T]o establish the legal character of … a declaration, one must look behind
the title given it and … determine the substantive content. In the present case. It appears that
Switzerland meant to remove certain categories of proceedings from the ambit of Article 6(1)
and to secure itself against an interpretation of that Article which t considered to be too
broad.’
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q. Therefore the Court considered the Declaration as being a reservation and
went on to consider whether it was a permissible reservation under Art 64 of the ECHR
which prohibits ‘a reservation of a general character" ‘[by which] is meant a reservation
couched in terms that are too vague or broad for it to be possible to determine their exact
meaning and scope’.
r. The substantive content of the declaration to decide if it was reservation
s. The court decided it was too broad
t. The reservation cannot be too broad or vague
u. Must look at the title and the substantive content: what does the statement
actually do
v. Switzerland was trying to modify exclude the legal impact of the relevant
provision of the convention
UNCLOS: Philippines ‘Understanding made upon signature and confirmed upon ratification’:
‘The signing of the Convention by the Government of the Republic of the Philippines shall
not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines
under and arising from the Constitution of the Philippines; ...
The provisions of the Convention on archipelagic passage through sea lanes do not nullify or
impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not
deprive it of authority to enact legislation to protect its sovereignty, independence, and
security;
w. Philippines attempted to say our own constitution prevails over the UNCLOS
x. Philippine attempted to call a statement of understanidng
UNCLOS Philippines ‘Understanding’
Australian objection
Australia considers that [the] declaration made by the Republic of the Philippines is not
consistent with article 309 of the Law of the Sea Convention, which prohibits the making of
reservations. ...
The declaration of the Republic of the Philippines asserts that the Convention shall not affect
the sovereign rights of the Philippines arising from its Constitution, its domestic legislation
and any treaties to which the Philippines is a party. This indicates, in effect, that the
Philippines does not consider that it is obliged to harmonise its law with the provisions of the
Convention. By making such an assertion, the Philippines is seeking to modify the legal
effect of the Convention's provisions.
y. Reservation v declaration v statement of understanding : have to be
careful that certain declarations or understanding may be reservation
VCLT Art 19 Formulation of reservations (H&S 656-7)
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate
a reservation unless:
(a) the reservation is prohibited by the treaty [ICC, UNCLOS no reservations; Art 57 ECHR
prohibits reservations of a general character];
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Document Summary
If a state wanted to make a reservation, all states had to agree! What rules should apply to reservations of treaties to broad-multilateral law making treaty. Rules on reservation d. e. f. provision of a treaty in their application to the reserving state g. A reservation is a reservation however it is named. Statement whereby states purports to modify the legal effect of certain. Reservations may be made unless excluded in art19 of the vclt. Vclt art 2 use of terms (h&s 653) 1. (d) 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 to modify the legal effect of certain provisions of the treaty in their application to that state; . States don"t accept particular obligations of a treaty. Papua new guinea reservations on accession to 1951 refugees convention.
