Derogations and Reservations in International Law

by

Malgosia Fitzmaurice, Agnes Rydberg

• LAST MODIFIED: 25 August 2021
• DOI: 10.1093/obo/9780199796953-0223

Introduction

The topic of reservations and derogations is a complex issue in treaty law. Reservations define the content and extent of a legal obligation for a party to a treaty. They thereby allow states to accommodate their specific interests in the framework of multilateral treaties. The starting point for any examination of reservations is the 1969 Vienna Convention on the Law of Treaties (VCLT). According to the definition contained in Article 2(1)(d) VCLT, 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 to modify the legal effect of certain provisions of the treaty in their application to that State.” Some unresolved and controversial issues in treaty law include the legal effects of objections to reservations, the legal effect of impermissible reservations, and the legal status of interpretative declarations. The VCLT does not address the notion of derogations. Typically, in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, states may take measures derogating from their obligations under certain treaties to the extent strictly required by the exigencies of the situation. This is provided that such measures are not inconsistent with their other obligations under international law. Specific clauses which lay down specific procedures on derogations are usually incorporated in human rights treaties. However, it is unclear under what precise circumstances a state may derogate from its treaty obligations, or what procedure is to be followed in this regard. The concepts of reservations and derogations have been of interest for many years, not least in the context of human rights treaties. In this article, the main focus is on reservations to and derogations from multilateral treaties. Historical Background of Reservations to Treaties Prior to the 1969 VCLT gives a historical overview of the development of the regime of reservations to treaties prior to the adoption of the 1969 VCLT. Reservations Under the Regime of the 1969 VCLT addresses reservations under the 1969 VCLT regime. Legal Effects of and Procedure Regarding Reservations deals with the legal effects of permissible reservations. Legal Effects of Impermissible Reservations addresses the legal effects of invalid reservations, and Reservations to Human Rights Treaties addresses reservations to human rights treaties. Practice of Human Rights Bodies on Reservations to Human Rights Treaties looks at some approaches of human rights bodies with respect to reservations to human rights treaties. Interpretative Declarations addresses the issue of interpretative declarations, and 2011 ILC Guide to Practice on Reservations discusses the 2011 Guide to Practice on Reservations to Treaties. Lastly, Derogations deals with the notion of derogations, with a particular emphasis on derogations from norms ius cogens and human rights treaties.

Historical Background of Reservations to Treaties Prior to the 1969 VCLT

Prior to the 1951 International Court of Justice (ICJ) Advisory Opinion on Reservations to the Genocide Convention, there were two regimes governing reservations to treaties: (i) the League of Nations; and (ii) the Pan-American Union. Fitzmaurice and Merkouris 2020 recognizes that under the League of Nations, in its role as a depositary of treaties, only reservations that were accepted by all contracting parties to a treaty were permissible, known as the unanimity rule. Otherwise, it treated both the reservations and the signatures or ratifications to which they were attached as null and void. Malkin 1926 argued that this rule, at the time, was accepted in western Europe. The Pan-American Union adopted a different, more flexible approach, according to which a treaty was considered to be in force as between a reserving state party and other states parties that accepted the reservation. However, it was not considered to be in force between a reserving state and states parties that did not accept the reservation. As Swaine 2020 points out, this school, in similarity with the unanimity rule, was also based on consent. The modern approach to reservations is derived from the 1951 ICJ Advisory Opinion on Reservations to the Convention on Genocide. This convention did not contain any provisions relating to reservations. Nevertheless, states appended reservations to their consent to be bound by this convention. The principal features of the ICJ’s Advisory Opinion were that the Pan-American approach was followed but modified in a manner which entailed that treaty relations existed between the reserving and objecting state if, according to the objecting state, the reservation made was compatible with the object and purpose of the Genocide Convention. As such, the Court moved the law forward from a rigid system requiring unanimous acceptance of reservations by all parties to the treaty, to a more flexible one that would accommodate differences between states and facilitate the objective of acquiring a broad a membership of multilateral treaties. Imbert 1978 assesses the practice of the ICJ on reservations to multilateral treaties, particularly since its 1951 Advisory Opinion on Reservations to the Genocide Convention. Bishop 1961 addresses the reason for the then increasing growth of reservations and provides a definition of the concept of reservations prior to the adoption of the 1969 VCLT. Fitzmaurice 1953 and Ruda 1963 likewise discuss the practice and rules on reservations to multilateral treaties prior to the 1969 VCLT.

• Bishop, W. W. “Reservations to Treaties.” Recueil des cours de l'Académie de Droit International de la Haye 103 (1961): 245–341.

  Bishop analyzes the state of law regulating reservations prior to the entry into force of the 1969 VCLT and provides a definition of this concept. The author also argues that the then growth of reservations resulted from increasing popular control over the ratification of treaties.

• Fitzmaurice, Gerald. “Reservations to Multilateral Conventions.” International and Comparative Law Quarterly 2 (1953): 1–26.

  DOI: 10.1093/iclqaj/2.1.1

  Fitzmaurice discussed the practice and rules on reservations prior to the adoption of the 1969 VCLT, with a particular emphasis on reservations to multilateral treaties. He analyzed both the complexity of such reservations, as well as their formulation and acceptance or rejection.

• Fitzmaurice, Malgosia, and Panos Merkouris. Treaties in Motion: The Evolution of Treaties from Formation to Termination. Cambridge, UK: Cambridge University Press, 2020.

  DOI: 10.1017/9781108863407

  The authors discuss the development of the regimes of reservations to treaties, including the regimes under the League of Nations and the Pan-American Union. The regime under the League of Nations favored the unanimity rule, whereas the flexibility principle permeated the Pan-American Union regime. The groundbreaking event in the practice of reservations was the well-known Advisory Opinion of the ICJ on the Reservations to the Genocide Convention, introducing the object and purpose criterion to the permissibility of reservations.

• Imbert, P-H. Les réserves aux traités multilatéraux: évolution du droit et de la pratique depuis l’avis consultatif donné par la Cour internationale de Justice le 28 mai 1951. Paris: Pedone 1978.

  Imbert offers an insight of the practice of the International Court of Justice with respect to reservations to multilateral treaties since the 1951 Advisory Opinion on Reservations to the Genocide Convention.

• International Court of Justice. Advisory Opinion on Reservations to the Convention on Genocide. ICJ Reports 1951.

  In this case, the ICJ laid down that in circumstances where a treaty is silent on the issue of reservations, a state may attach a reservation insofar the reservation is compatible with the object and purpose of the treaty. See p. 15.

• Malkin, H. M. “Reservations to Multilateral Conventions.” British Yearbook of International Law 7 (1926): 141.

  In this article, Malkin examines, at the time, contemporary state practice, and concludes that the rule of unanimity, at the time, was the accepted rule in western Europe.

• Peters, J. K. “Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision.” Harvard International Law Journal 23 (1982–1983): 72.

  Peters examines the evolution of the doctrine of reservations in the 20th century and explores how the successive versions of the doctrine reflect the changing conception of multilateral conventions. He illustrates how treaty law introduced a clash between two opposing views; one view of a world composed of autonomous states versus an integrated world order. The analysis shows how each version of five doctrines of reservations represents a new balance struck between two competing conceptions of multilateral conventions.

• Ruda, J. M. “Las reservas a las convenciones multilaterales.” Revista de derecho internacional y ciencias diplomáticas 12 (1963): 7–85.

  Ruda revisits the rules on reservations to multilateral treaties prior to the codification of such rules in the 1969 VCLT.

• Swaine, Edward T. “Treaty Reservations.” In The Oxford Guide to Treaties. Edited by Duncan B. Hollis, 285–308. Oxford: Oxford University Press, 2020.

  Swaine argues that presumption that all other states had to agree to the conditions of a state’s consent to be bound by a multilateral treaty, i.e., the unanimity rule, stemmed directly from the consensual nature of treaty-making. The Pan-American system was also consensual in nature; states needed to accept a reservation for it to be effective against them, and if they objected, no relations under the treaty would be established between the reserving and objecting states.