RESERVATION TO TREATIES :
A reservation is defined in article 2 of the Convention as: “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”
WHY SHOULD WE ALLOW RESERVATION A TREATY ?
If we do not allow reservations to a treaty for some states, they will adhere to treaty otherwise they might reject entirely.
To some extent it is a means of encouraging harmony amongst states of widely differing social, economic and political systems, by concentrating upon agreed, basic issues and accepting disagreement on certain other matters.
ISSUE: If too may reservations to a treaty then it could seriously dislocate the whole purpose of the agreement and lead to some complicated inter-relationships amongst states.
RESERVATION V. OTHER INSTRUMENTS: Instrument such as understandings, political statements or interpretative declarations do not have the legal effect and no binding consequence is intended with regard to the treaty in question.
HOW CAN WE FIND OUT WHETHER A INTEPRETATIVE DECLARATION CONSTITUTES AS RESERVATION ? Check the substantive content + interpret in good faith with ordinary meaning + see intention of the state making the statement at that time.
HOW CAN A RESERVATION BE MADE BY A STATE ? GENERAL RULE : Reservations could only be made with the consent of all the other states involved in the process.
WHAT IF SOMEONE OBJECTS ? However, this restrictive approach to reservations was not accepted by the International Court of Justice in the Reservations to the Genocide Convention case.[ “ a state which has made and maintained a reservation which has been objected to by one or more 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” ] As per its opinion, regardless of some states objection, reservation can be made , however this reservation should not be incompatible with object and purpose of the treaty.
BASIC RULES OF RESERVATION :
Article 19 states the basic rule that a state may formulate a reservation unless:
a)The reservation is prohibited by the treaty
b)The treaty provides that only specified reservations may be made:
c)The reservation is incompatible with the object and purpose of the treaty (the compatibility test).
Even when a reservation is not prohibited under Article 19(a), (b) or (c), other contracting states can still object to it for any reason of law or policy.
EFFECT OF RESERVATIONS :
1.modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and
2.modifies those provisions to the same extent for that other party in its relations with the reserving state.
The UN Human Rights Committee told that ICCPR represented customary international law could not be the subject of reservations.
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