Article 15

Declaration on universal participation in the Vienna Convention on the Law of Treaties

The United Nations Conference on the Law of Treaties,

Convinced that multilateral treaties which deal with the codification and progressive development of international law, or the object and purpose of which are of interest to the international community as a whole, should be open to universal participation.

Noting that Articles 81 and 83 of the Vienna Convention on the Law of Treaties enable the General Assembly to issue special invitations to States whicharenotMembersoftheUnitedNationsoranyofthespecialisedagencies or of the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice, to become parties to the Convention,

1.Invites the General Assembly to give consideration, at its twenty-fourth session, to the matter of issuing invitations in order to ensure the widest possible participation in the Vienna Convention on the Law of Treaties;

2.Expresses the hope that the States Members of the United Nations will endeavour to achieve the object of this Declaration;

3.Requests the Secretary-General of the United Nations to bring this Declaration to the notice of the General Assembly;

4.Decides that the present Declaration shall form part of the Final Act of the United Nations Conference on the Law of Treaties.

Materials:

Proposed new article 5 bis

Minutes: OR 1968 CoW 69, 476; OR 1969 CoW 229 , 343 ; OR 1969 Plenary 181 .

Vienna Conference Vote: 61:20:26

Selected Literature:

I. Lukashuk, Parties to Treaties—the Right of Participation, RC 135 (1972 I) 231 .

The basis of this commentary was prepared by Alison Wiebalck.

	declaration on universal participation	225
	CONTENTS
		Paras.
A. Background ..........................................................................................		1
1.	Introduction ......................................................................................	1
2.	History ..............................................................................................	2
B. Interpretation of the Declaration ...................................................		3
C. Appreciation .........................................................................................		7

A. BACKGROUND
1. Introduction
The question of participation in treaties, multilateral treaties in particular,	1
came to the fore after 1945. There was a steep rise in the number of new
States, the numbers and activities of international organisations increased, and
the need arose for a response to more global needs such as nuclear contain-
ment—all spurring the need to participate in more treaties (as the principal
means of creating rights and obligations). However, di culties arose in the
context of the Cold War, inter alia, with the divided States of Germany,
Vietnam and Korea, since participation in treaties presupposed recognition
of these States.1
2. History
At the Conference in Vienna in the context of the discussion on Article 15	2
(q.v., N. 4), eleven States introduced a new Article 5bis on the question which
States were entitled to participate in a treaty (the “all States”-issue).2 In 1969
this provision was debated at length in the Committee of the Whole dur-

ing which time a further amendment was submitted by the same States and discussed.3 The first proposal was withdrawn and the second rejected on a

1	Reuter, Introduction N. 117.
2	Submitted by Algeria, Ceylon, Hungary, India, Mali, Mongolia, Romania, Syria, the then
	Ukrainian SSR, United Arab Republic and Yugoslavia, OR 1969 CoW 229, para. 1 (“[a]ll
	States have the right to participate in general multilateral treaties in accordance with the
	principle of sovereign equality”). See also Th. Schweisfurth, International Treaties and
	Third States, ZaöRV 45 (1985) 656 .

3Introduced by the Syrian delegation, ibid. 240, paras. 35 f (“[e]very State has the right to participate in a multilateral treaty which codifies or progressively develops norms of general

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roll-call vote.4 However, the Conference was urged to recognise the principle of universality along the lines of a Declaration as accepted, for instance, in connection with Article 52 (Article 52—Declaration, q.v.).5 In an attempt to overcome the deadlock on the “all States”-issue which threatened to call in question the whole Conference,6 a ten State-proposal introduced in a package deal a compromise which included Article 66 (q.v.), an Annex thereto (Article 66 —Annex, q.v.) and the present Declaration, This package deal was adopted by a not too narrow majority.7 The Conference went on to consider the final clauses where the “all States”- participation clauses were re-introduced but defeated, and the “Vienna-formula”-participation clauses adopted (Articles 81, N. 2).8 A similar discussion also arose in the context of the Preamble (q.v., N. 3). Finally, the Conference adopted the Declaration following a drafting change in the title of the declaration.9

Interestingly, the Declaration itself does not mention “all States”. Also, the Declaration confines itself to postulating universal participation in the Convention rather than in multilateral treaties as a whole. Patently, there is no relationship between the “all States”- proposal and the issue of the settlement of disputes (Articles 65–68, q.v.).10

B. INTERPRETATION OF THE DECLARATION

3The preambular paragraphs may be assessed as follows:

international law or the object and purpose of which are of interest to the international community of States as a whole”). For the debates see ibid. 229 , 343 .

4 By 52 votes against 32, with 19 abstentions, ibid. 240, para. 35, and 344, para. 10. 5 Statement in Vienna by the Spanish delegation, ibid. 237, para. 7.

6 See, e.g., the statements in Vienna by the delegations of Ceylon, OR 1969 Plenary 182, para. 22 (“rejection of the principle . . . would be a signal failure on the part of the Conference and might even make the entire convention unacceptable to some States”); and the then USSR, ibid. 185, para. 5 (“unless the principle of universality was embodied in the proposed new article . . . it would be unable to support the convention as a whole”).

7Submitted by Ghana, Ivory Coast, Kenya, Kuwait, Lebanon, Morocco, Nigeria, Sudan,Tunisia and Tanzania, ibid. 187 , paras. 26 ; adopted by 61 votes to 20, with 26 abstentions,

ibid. 193, para. 72.

8Ibid. 195 , paras. 86 . On subsequent developments, see Aust, Modern Treaty Law 115 f.

9Ibid. 203, para. 7. The declaration had initially been adopted under the title “Declaration on Universal Participation in and Accession to the Convention on the Law of Treaties”. The Drafting Committee took the view that the adjective “universal” could not be applied to “accession” for the later was but one of several means whereby a State could express its consent to be bound by a treaty. Accession in the title could, therefore, appear to exclude other means of expressing consent to be bound such as ratification; see the statement by

the Chairman of the Drafting Committee, Yasseen, ibid. 202, para. 5.

10 See Kearney/Dalton, AJIL 64 (1970) 549 ; Stanford, UTLJ 20 (1970) 19 .

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227

–first preambular para.: convinced that multilateral treaties which deal with the codification and progressive development of international law, or the object and purpose of which are of interest to the international community as a whole, should be open to universal participation. This para. emphasises the value of the principle of universality but does not extend to guaranteeing participation by all States in all multilateral conventions of interest to the international community as a whole.11

–second preambular para.: noting that Articles 81 and 83 of the Vienna Convention on the Law of Treaties enable the General Assembly to issue special invitations to States which are not Members of the United Nations or any of the specialised agencies or of the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice, to become parties to the Convention. Here, reference is made to Articles 81 and 83 (q.v.); in fact, this preambular para. reiterates Article 81.

Para. 1, containing the core of the Declaration, invites the General Assem-	4
bly to give consideration, at its twenty-fourth session, to the matter of
issuing invitations in order to ensure the widest possible participation in
the Vienna Convention on the Law of Treaties. The Declaration thus shifts
the onus of resolving the political “all States”-issue to the General Assembly,12
though the latter is not in any way committed.13
Since every Member of the UN had and has the right to raise any question at any ses-
sion of the General Assembly, in practice the vital part of the declaration added little
to a right that already existed.14
Para. 2 expresses the hope that the States Members of the United Nations	5
will endeavour to achieve the object of this Declaration. Thereby, the
Vienna Conference encouraged all States—whether they had voted for or

11See the statements by the delegations of Nepal, OR 1969 Plenary 199, para. 16 (“[a]lthough the declaration did not guarantee participation by all nations . . . it nevertheless emphasized the principle of universality”); and the then USSR, ibid. 198, para. 6 (“merely a feeble appeal to the United Nations”).

12See the statements by the Malaysian delegation, ibid. 201, para. 31 (“the Conference, having been convened by the General Assembly, should leave it to the General Assembly to decide which States should be invited to participate in the convention on the law of treaties”); Kearney/Dalton AJIL 64 (1970) 552 (“non-binding declaration on the right to accede to the Convention, which in e ect relegated the matter to the General Assembly”).

13Various delegations placed on record that their votes in favour of the Declaration in no way prejudiced the position of their Governments in the General Assembly in any future debate on the question of universal participation; see, inter alia, Italy, OR 1969 Plenary 194, para. 80; the UK (Sir Francis Vallat), ibid. 190, para. 38; the then USSR, ibid. 190, para. 41 (“no obligations whatsoever”); and the United Republic of Tanzania, ibid. 191, para. 47 (“very mild”).

14See the statement in Vienna by Blix of the Swedish delegation, ibid. 193, para. 70 (“although no immediate solution had been found for the problem of universal participation, an opportunity for such a solution in the General Assembly was o ered”).

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against the Declaration—to pledge their support for the issuing of invitations to all States to participate in the Convention.

In para. 3 the UN Secretary-General is invited to bring the Declaration to the notice of the General Assembly.

At the request of the UN Secretary-General, the Declaration was placed on the provisional agenda of the twenty-fourth session of the General Assembly (N. 4) and allocated to the Sixth Committee. The item was eventually deferred until 1971.15 By virtue of General Assembly Resolution 3233 (XXIX) of 12 November 1974, all States were invited to become parties to the Convention.

6According to para. 4, the Conference decided that the present Declaration should form part of the Final Act of the Conference on the Law of Treaties.

C. APPRECIATION

7The real issue in Vienna was that of the recognition of certain entities (N. 2).16 There was no serious opposition to the sentiment that the largest possible number of States should be able to become parties to general multilateral treaties, though there were certain divided States whose eligibility to participate as States was disputed. Whilst the advocates of “universality” promoted the concept of the sovereign equality of States,17 their counterparts argued, inter alia, that not every entity claiming to be sovereign was a State, and that as the issue was political it ought to be resolved by the General Assembly as the main political organ of the United Nations.

15Rosenne, Law of Treaties 161.

16See the statements in Vienna by Sinclair of the UK delegation, OR 1969 CoW 239, para. 29 (“the essence of the problem lay in the fact that the members of the international community of States had di ering views on the question of what territorial entities constituted States”); and in the ILC by Lachs, YBILC 1965 I 117, para. 3; Stanford, UTLJ 20 (1970) 26 (“[t]he essential issue at stake, of course, is recognition”).

17Statements in Vienna by the delegations of the then Ukrainian SSR, OR 1969 CoW 231, para. 15; Ceylon, ibid. 232, para. 25. See also Stanford, ibid. 20.

ZACHARIAS

Article 16

Exchange or deposit of instruments of ratification, acceptance, approval or acceptance

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:

(a)their exchange between the contracting States;

(b)their deposit with the depositary; or

(c)theirnotificationtothecontractingStatesortothedepositary,ifsoagreed.

Article 16 Echange ou dépôt des instruments de ratification, d’acceptation, d’approbation ou d’adhésion

A moins que le traité n’en dispose autrement, les instruments de ratifi cation, d’acceptation, d’approbation ou d’adhésion établissent le consentement d’un Etat à être lié par un traité au moment:

a)de leur échange entre les Etats contractants;

b)de leur dépôt auprès du dépositaire; ou

c)de leur notification aux Etats contractants ou au dépositaire, s’il en est ainsi convenu.

Artikel 16 Austausch oder Hinterlegung von Ratifikations-, Annahme-, Genehmigungsoder Beitrittsurkunden

Sofern der Vertrag nichts anderes vorsieht, begründen Ratifikations-, Annahme-, Genehmigungsoder Beitrittsurkunden die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, im Zeitpunkt

a) ihres Austausches zwischen den Vertragsstaaten;

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b)ihrer Hinterlegung bei dem Depositär oder

c)ihrer Notifikation an die Vertragsstaaten oder den Depositär, wenn dies vereinbart wurde.

ILC Draft 1966

Article 13—Exchange or deposit of instruments of ratification, acceptance, approval or accession

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:

(a)Their exchange between the contracting States;

(b)Their deposit with the depositary; or

(c)Their notification to the contracting States or to the depositary, if so agreed.

Materials:

Waldock Report I: Articles 11, 12, 14, 15 and 16.

Minutes: YBILC 1962 I 111 , 136 f, 237 , 257, 272 f.

ILC Draft 1962: Articles 15, 16.

Waldock Report IV: Articles 15, 16.

Minutes: YBILC 1965 I 80 , 252, 260 f, 282.

ILC Draft 1965: Article 15.

Minutes: YBILC 1966 I/2 272 f, 326, 343.

ILC Draft 1966: Article 13.

Minutes: OR 1968 CoW 96 f, 360; OR 1969 Plenary 23, 27 f.

Vienna Conference Vote: 99:0:1

Selected Literature:

F. Horchani, Article 16, in: Corten/Klein (eds.) 539 .

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	CONTENTS
		Paras.
A. History ................................................................................................		1
B. Interpretation of Article 16 ............................................................		2
C. Context ..............................................................................................		8
1.	Relationship to Other Provisions ......................................................	8
2.	Customary Basis of Article 16 ..........................................................	9
D. Appreciation .......................................................................................		10
A. HISTORY
Article 16 goes back to altogether six articles in Waldock Report I, pertaining			1
also to Article 17 (q.v., N. 2) and Articles 76–78 (q.v.).1 These were condensed
into two provisions in the ILC Report 19622 which in an isolated instance
were criticised for stating the “obvious”.3 In 1965 various descriptive elements
were deleted, others were transferred to Article 17.4 In Vienna, Article 13 of
the ILC Draft 1966 was adopted without any further change by 99 votes to
none, with one abstention.5
On the whole, the ILC and the Vienna Conference had little di culty with the content
of Article 16; the travaux préparatoires concern mainly the organisation of the various
provisions.
B. INTERPRETATION OF ARTICLE 16
Article 16 explains the procedures (or acts) whereby instruments of ratifica-			2
tion, acceptance, approval or accession (Articles 14–15, q.v.) establish the

1 Articles 11–16 of Waldock Report I, YBILC 1962 I 52–60. 2 Article 15 of the ILC Draft 1962, YBILC 1962 II 174 f.

3 Observation by the Japanese Government, Waldock Report IV, YBILC 1965 II 41.

4See, e.g., the proposal made during the deliberations in 1965 at YBILC 1965 I 260, para. 65.

5T he ILC Draft 1966 is reproduced at YBILC 1966 II 201, the provision having been adopted by the ILC by 17 votes to none, YBILC 1966 I 273, para. 76. In Vienna, two drafting amendments by Poland and Canada were referred to the Drafting Committee, but not pursued, OR Documents 129, subparas. 151(a) and (b); see the comment by Yasseen of the Drafting Committee in OR 1968 CoW 360, para. 95. The 1969 Conference briefly discussed the words “if so agreed” in para. (c) (N. 7), OR 1969 Plenary 27 f. The vote is at ibid. 28, para. 20.

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consent of a State to be bound by a treaty.6 It lists three alternative acts by which consent to be bound is established, namely the exchange (N. 5) or the deposit (N. 6) of the instruments, or notification to the contracting States or the depositary (N. 7).7 Often, one or more of these acts are mentioned in the treaty. Without them, the treaty has no e ect qua contractual obligation and has no binding force. Article 16 contains formal procedures and confirms the written nature of the treaties falling under the Convention (Article 2, subpara. 1[a], N. 15–17).8

Article 16 straddles Articles 14 and 15 (q.v.), on the one hand, and Article 24, para. 2 (q.v.; N. 8–10), on the other. From Articles 14 and 15 it transpires how the instruments of ratification, acceptance, approval or accession may express consent to be bound by a treaty. Article 16 explains the further requirements for such instruments to establish consent, namely their exchange, deposit or notification. Article 24, para. 2 further determines the moment of entry into force which may, or may not (depending on the treaty’s stipulation), coincide with the moment in Article 16 when all instruments have been exchanged, deposited or notified.

3Article 16 is residuary: States may at any time provide otherwise and envisage a special (and in particular informal) procedure.9 Para. (c) envisages the possibility of a further agreement (N. 7).

4Earlier ILC Drafts—for instance of 196510—suggested that the various instruments “become operative” by means of one of the three acts (N. 5–7). The present formulation—to establish the consent of a State to be bound by a treaty—was chosen as the more general formulation, since the proposal of 1965 would have required a precise description of the point in time when the instrument took e ect, or even the stipulation of a period of time after which the e ect took place.

6See the statement by the Belgian delegation in Vienna, OR 1969 Plenary 28, para. 19 (“dual purpose of setting out the procedures whereby instruments were communicated and at the same time determining the moment at which consent was established”); di erently Rosenne in the ILC, YBILC 1965 I 82, para. 32 (“the important element was not

the means or the procedure, but the time when the instrument became operative”).

7ILC Report 1966, YBILC 1966 II 201, para. 1. The alternative character of these acts is confi rmed by the “or” at the end of para. (b); see the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 27, para. 11, and 28,

para. 15.

8 Delbrück/Wolfrum III 555.

9ILC Report 1966, YBILC 1966 II 201, para. 2; Article 11, para. 3 of Waldock Report I, YBILC 1962 II 52.

10E.g., Article 15 of the ILC Draft 1965, YBILC 1965 II 161 (“[u]nless the treaty otherwise provides, instruments of ratification, accession, acceptance or approval become operative”); see Briggs in the ILC, YBILC 1966 I/2 325, para. 71; Waldock, ibid. para. 72; also Rosenne, YBILC 1966 I/2 273, para. 73 (who wished “a short interval before the exchange or deposit of instruments or a notification . . . took e ect”).

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Para. (a) states that the instruments mentioned (N. 2) may establish a State’s		5
consent to be bound by a treaty upon their exchange between the con-
tracting States.11 This is the traditional procedure for bilateral treaties,12 but
applies to all treaties.
According to para. (b), a State’s consent to be bound by a treaty is further		6
established upon the deposit of these instruments with the depositary (para.
[b]) as provided for in Article 77 (q.v.).13 As the Court confirmed in the Land
and Maritime Boundary (Cameroon/Nigeria) Case,14 the depositary’s subse-
quent information of other States is irrelevant for purposes of Article 16.15
Para. (c) provides for a less formal and more recent means for these instru-		7
ments to establish a State’s consent to be bound by the treaty, namely upon

their notification as in Article 78 (q.v.) to the contracting States or to the depositary.16 However, this act can only be chosen if it was so agreed by the contracting States. Para. (c) thus contains a second voluntary element (N. 2). Agreement may be expressed formally or informally, i.e., also tacitly.

The words “so agreed” very likely concern para. (c) alone. Thus, unless the treaty otherwise provides (N. 3), the acts in paras. (a) and (b) apply as residuary rules in all circumstances, whereas the act in para. (c) requires an additional agreement in order to become relevant within this residuary set of rules.17

11ILC Report 1966, YBILC 1966 II 201, para. 3. See the statement in Vienna by the Belgian delegation, OR 1969 Plenary 28, para. 18.

12Article 11, para. 3 of Waldock Report I, YBILC 1962 II 52. See Aust, Modern Treaty Law 105 (“normal only for bilateral treaties”), with further explanations as to the procedure (ceremony, venue of exchange etc.).

13ILC Report 1966, YBILC 1966 II 201, para. 3. See the statement in Vienna by the Belgian delegation, OR 1969 Plenary 28, para. 18. This possibility was originally envisaged solely for multilateral treaties; see Article 11, para. 3 of Waldock Report I, ibid. See Aust, Modern Treaty Law 106 (“normal practice for multilateral treaties”).

14ICJ Reports 1998 294, para. 31 (“the deposit of instruments of ratification, acceptance, approval or accession to a treaty establishes the consent of a State to be bound by a treaty . . . [T]he rules established in this sphere by the Vienna Convention correspond to the solution adopted by the Court in the case concerning Right of Passage over Indian Territory (India/Portugal) Case (1960) [ICJ Reports 1957 146]”).

15See extensively on this point the ILC Report 1966, YBILC 1966 II 201, paras. 1 ; the statement by Ruda in the ILC, YBILC 1965 I 82, para. 23.

16ILC Report 1966, ibid. para. 4. See the statements in Vienna by the Belgian delegation, OR 1969 Plenary 28, para. 18; and in the ILC by Waldock in the ILC, YBILC 1965 I 260, para. 67. But see Aust, Modern Treaty Law 106 (“best avoided in the interests of certainty and simplicity. It is hardly, if ever, now done”).

17Upon a question raised by the Belgian delegation in Vienna, OR 1969, Plenary 27, para. 10, the Expert Consultant, Sir Humphrey Waldock, did not consider these words “absolutely necessary . . . [I]f any ambiguity resulted from their inclusion, he thought they could be dispensed with”, ibid. 27 f, para. 11.

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C. CONTEXT

	1.	Relationship to Other Provisions
8	The relationship to Articles 14, 15 and 24 has been explained above (N. 2).
	Paras. (b) and (c) are complemented by Articles 77 and 78 (q.v.).
	2.	Customary Basis of Article 16

9In the ILC, paras. (a) and (b) of Article 16 were regarded as reflecting “traditional procedures”.18 There is no reason to doubt the customary nature of para. (c).

D. APPRECIATION

10Article 16 concerns a small but not unimportant step in the procedures leading to the conclusion and entry into force of treaties. It complements in particular Articles 11–15 (q.v.). The requirement of an additional agreement in para. (c) complicates the application of Article 16 (N. 7).

18Statement by Waldock in the ILC, YBILC 1965 I 260, para. 67. See also the Land and Maritime Boundary (Cameroon/Nigeria) Case, ICJ Reports 1998 294, para. 31, albeit mainly with regard to para. (b) (“general rule . . . reflected in [Article] 16”); see Horchani, Article 16, N. 4, in respect of the entire article.

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Article 17

Consent to be bound by part of a treaty and choice of differing provisions

1.Without prejudice to Articles 19 to 23, the consent of a State to be bound by part of a treaty is e ective only if the treaty so permits or the other contracting States so agree.

2.The consent of a State to be bound by a treaty which permits a choice between di ering provisions is e ective only if it is made clear to which of the provisions the consent relates.

Article 17 Consentement à être lié par une partie d’un traité et choix entre des dispositions di érentes

1.Sans préjudice des articles 19 à 23, le consentement d’un Etat à être lié par une partie d’un traité ne produit e et que si le traité le permet ou si les autres Etats contractants y consentent.

2.Le consentement d’un Etat à être lié par un traité qui permet de choisir entre des dispositions di érentes ne produit e et que si les dispositions sur lesquelles il porte sont clairement indiquées.

Artikel 17 Zustimmung, durch einen Teil eines Vertrags gebunden zu sein, sowie Wahl zwischen unterschiedlichen Bestimmungen

1.Unbeschadet der Artikel 19 bis 23 ist die Zustimmung eines Staates, durch einen Teil eines Vertrags gebunden zu sein, nur wirksam, wenn der Vertrag dies zulässt oder die anderen Vertragsstaaten dem zustimmen.

2.Die Zustimmung eines Staates, durch einen Vertrag gebunden zu sein, der eine Wahl zwischen unterschiedlichen Bestimmungen zulässt, ist nur wirksam, wenn klargestellt wird, auf welche Bestimmungen sich die Zustimmung bezieht.

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ILC Draft 1966

Article 14—Consent relating to a part of a treaty and choice of di ering provisions

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon:

1.Without prejudice to the provisions of Articles 16 to 20, the consent of a State to be bound by part of a treaty is e ective only if the treaty so permits or the other contracting States so agree.

2.The consent of a State to be bound by a treaty which permits a choice between di ering provisions is e ective only if it is made plain to which of the provisions the consent relates.

Materials:

Waldock Report I: Article 11.

Minutes: YBILC 1962 I 111 , 237 f, 257.

ILC Draft 1962: Article 15.

Waldock Report IV: Article 15.

Minutes: YBILC 1965 I 80 , 261 f, 282.

ILC Draft 1965: Article 16.

Minutes: YBILC 1966 I/2 326, 341.

ILC Draft 1966: Article 14.

Minutes: OR 1968 CoW 97, 360 f; OR 1969 Plenary 10.

Vienna Conference Vote: 99:0:0

Selected Literature:

C. Hillings, Article 17, in: Corten/Klein (eds.) 579 .

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	2
B. Interpretation of Article 17 ............................................................		3
1.	Scope ...............................................................................................	3
2.	Consent to be Bound by Part of the Treaty (Para. 1) .........................	4
3.	Treaties Permitting Choice of Di ering Provisions (Para. 2) ..............	6
C. Context ..............................................................................................		7
1.	Relationship to Other Provisions ......................................................	7
2.	Matters Not Dealt With ...................................................................	8
3.	Customary Basis of Article 17 ..........................................................	9
D. Appreciation ......................................................................................		10

A. BACKGROUND
1. Introduction
Traditionally, international law envisaged ratification solely of the entire	1
treaty.1 However, in the last fifty years international treaty law has become more

flexible and provides for treaties permitting partial ratification (e.g., the Revised General Act for the Pacific Settlement of International Disputes of 1949)2

1 See the Havana Convention on Treaties of 1928, AJIL 29 (1935) 1205 (“ratifi cation must . . . embrace the entire treaty”); Jennings/Watts N. 607.

2UNTS 71 102. See, e.g., Article 38: “[a]ccessions to the present General Act may extend: A. Either to all the provisions of the Act [chapters I, II, III and IV]; B. Or to those provisions only which relate to conciliation and judicial settlement [chapters I and II], together with the general provisions dealing with these procedures [chapter IV]; C. Or to those provisions only which relate to conciliation [chapter I] together with the general provisions concerning the procedure [chapter IV]”. Jennings/Watts, N. 607 at n. 7 (with further examples) regard this as a case of choosing between di ering provisions as in Article 17, para. 2; however, paras. A-C clearly distinguish between all provisions on the one hand, and parts of the treaty, on the other. In the ILC it was also pointed out that “the United States had ratified only certain parts of the treaty of Versailles [sc. insofar as it did not become a member of the League of Nations]—with serious political consequences”, Bartos, Chairman, YBILC 1965 I 84, para. 57.

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and even o ering a choice of di ering provisions. Such treaties concern mainly conventions dealing with technical or specialised matters.3

2. History

2In 1962 the ILC dealt with Articles 16 (q.v., N. 1) and 17 together.4 In 1965 it was agreed to formulate a separate article which led to Article 14 of the ILC Draft 1966.5 The latter underwent a small change in its title but otherwise attracted no debate at the 1968/1969 Vienna Conference and was adopted by 99 votes to none.6

B. INTERPRETATION OF ARTICLE 17

1. Scope

3It follows from the structure of Article 17 that the principle remains untouched according to which ratification shall comprise the entire treaty (N. 1). However, if all States concerned agree, a State may either consent to be bound by part of a treaty, as in para. 1 (N. 4–5), or, if the treaty so permits, even choose between di ering provisions within the treaty, as in para. 2 (N. 6).

3See, e.g., the Revised European Social Charter of 1996, CETS No. 163, stating in Part III, Article A (“Undertakings”): “to consider itself bound by at least six of the following nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; to consider itself bound by an additional number of articles or numbered paragraphs of Part II of the Charter which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or sixty-three numbered paragraphs”; the Labour Inspection Convention of 1947, ILO Treaties No. 96, Article 25: “1. Any Member of the International Labour Organisation which ratifies this Convention may, by a declaration appended to its ratification, exclude Part II from its acceptance of the Convention”. See Lachs in the ILC, YBILC 1962 I 112, para. 23; and Waldock, YBILC 1965 I 86, para. 92. See also the Convention on Conventional Weapons of 1980, UNTS 137 1342, requiring participating States’ consent to be bound by at least two of three Protocols, Aust,

Modern Treaty Law 83.

4First mentioned in Waldock Report I (Article 11) in the wider context of the procedure of ratification, YBILC 1962 II 52 f. See the ILC Draft 1962, ibid. 174 f, where for the first time in subparas. 1(b) and (c) of Article 15 the paragraphs of today’s Article 17 transpire. See also Waldock Report IV, YBILC 1965 II 41 ; the ILC Report 1966, YBILC 1966 II

201, para. 1.

5 YBILC 1965 I 261, para. 78; see Waldock, ibid. 86, para. 92.

6T here were no amendments at the Conference, OR Documents 130, para. 157. Immediately approved at OR 1968 CoW 97, para. 39, and 360 f, para. 98; adopted at OR 1969 Plenary 29, para. 24.

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239

Both cases concern partial consent which can be expressed by means of partial ratification, partial acceptance, partial approval or partial accession.7

Article 17 does not pronounce itself on the separability of treaty provisions as Article 44 (q.v.) does in respect of the invalidity, termination and suspension of the operation of a treaty. By envisaging consent to only part of a particular treaty, States obviously consider the particular provisions as being separable.8

2. Consent to be Bound by Part of the Treaty (Para. 1)
Para. 1 concerns the consent of a State to be bound by part of a treaty, i.e.,	4
to certain provisions or parts only. Such partial consent is e ective only if
the treaty so permits or the other contracting States so agree. Agreement
outside the treaty can be reached informally and at any stage of the treaty’s
life. If other States fail to agree or the treaty itself does not specify accordingly,
a State’s partial consent will not be e ective, i.e., operative, and the State will
not be bound by the treaty at all, unless it has given some other indication as
to its consent, for instance, to be bound by the entire treaty.9
Para. 1 further provides that it is without prejudice to Articles 19 to 23	5
(q.v.) concerning reservations. Thus, Article 17 reserves the possibility of

reservations, but does not expressly envisage a distinction between reservations and partial consent. Indeed, the di erence is not clear-cut. It can be said that para. 1 enables States collectively to agree to allow a particular State to accede to certain parts of a treaty only, whereas Articles 19–23 enable States to disagree with, and object to, the reservation of a particular State.10 In other words, a State which expresses its consent to be bound subject to reservations is extending its consent to the entire treaty with the exception of certain

7ILC Report 1966, YBILC 1966 II 201 f, para. 2. See Waldock Report I, YBILC 1962 II 53, para. 3 (“it is not admissible to select parts only of the treaty for ratification. Occasionally, however, treaties are found which expressly authorise States to ratify a part or parts

only of the treaty”).

8 See the statement in the ILC by Ago, YBILC 1965 I 84, para. 56.

9See the observation by the Swedish Government to the ILC in Waldock Report IV, YBILC 1965 II 42; the statements in the ILC by Ago, YBILC 1965 I 83, para. 41 (“[i]t would hardly be possible to coerce the will of the State by treating the ratification as applying to the whole treaty. What could be said, however, was that ratification did not become operative because it did not fulfill a necessary condition. The State could then deposit a new instrument if it wished the ratification to be valid”); Ruda, ibid. 81, para. 21; and its

Chairman, Bartos, ibid. 83, para. 48.

10Waldock in the ILC, YBILC 1962 I 116, para. 78; also in YBILC 1965 I 80, para. 6 (“[t]he e ect in practice might be substantially the same”); Ago, ibid. 84, para. 56 (“it would be a serious matter to provide for the possibility of partial ratification even where the treaty did not contemplate it, for that would o er a means of circumventing the clauses concerning reservations”).

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articles; whereas partial consent a priori only envisages part of the treaty.11 Finally, the conditions and procedures in para. 1 appear less elaborate and less strict than in Articles 19–23 which, conversely, permit States a certain degree of unilateral action.

The Revised General Act for the Pacific Settlement of International Disputes of 1949 (N. 1) expressly distinguishes between partial accession to the Revised General Act in its Article 38, and reservations thereto in Article 39 (which sets out exhaustively the content of all possible reservations in its subparas. 2[a]-[c]).

3. Treaty Permitting Choice of Di ering Provisions (Para. 2)

6As a special form of partial consent, para. 2 refers to a treaty which permits a choice between di ering provisions. Here, the State is confronted with various provisions and the treaty impels it to choose those by which it intends to be bound (as for instance in the European Revised Social Charter, N. 1). Now, the consent of the State to be bound by this treaty is e ective only if it is made clear to which of the provisions the consent relates.12 An initial expression of consent to be bound by the treaty which does not at the same time specify the State’s choice is therefore defective and, indeed, without e ect.13

The formulation “made clear” appears imprecise.14 It would indicate that informal, express or implied, means of informing the other parties are possible—as long as all other States eventually become aware which provisions will be binding on a particular State. This allows for the possibility of a subsequent explanation where, for instance, a State by an oversight failed to indicate which of the alternatives it preferred when depositing its instrument of ratification.15

11Statement in the ILC by Ago, YBILC 1965 I 84, para. 56; also Jennings/Watts N. 607.

12ILC Report 1966, YBILC 1966 II 202l, para. 3. In its observations to the ILC, the Government of Luxembourg suggested the term “alternative texts” instead of “di ering texts”, Waldock Report IV, YBILC 1965 II 41. The term “di ering” in Article 17 appears more pertinent since a State may choose to take over all provisions.

13See the statement in the ILC by its Chairman Bartos, YBILC 1965 I 261, para. 87; and Waldock, ibid. 262, para. 95.

14See also the formulation in Article 18, N. 15 (“made its intention clear not to become a party to the treaty”).

15See the statements in the ILC by its Chairman Bartos, ibid. 83, para. 51; and Tunkin, ibid. 261, para. 86.

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241

C.CONTEXT

1. Relationship to Other Provisions
The relationship between Article 17 and Articles 19–23 (q.v.) on reservations	7
has been described above (N. 5).
2. Matters Not Dealt With
Article 17 is to be distinguished from treaty provisions giving a State an option	8
which it is free to invoke or to decline, e.g., means of settling disputes arising
under a treaty.16 Furthermore, partial ratification must be distinguished from
the situation where a State aims at modifying a treaty while ratifying it. This
is equivalent to refusal of ratification coupled with a fresh o er which may
or may not be accepted. There is no obligation for the other parties to enter
into fresh negotiations.17
3. Customary Basis of Article 17
While the indivisibility of a treaty remains the principle, the exceptions in	9
para. 1 and—though more modern—in para. 2 appear to be generally accepted
and enjoy a customary basis.18
D. APPRECIATION
Common denominator of the di erent rules in Article 17 is that, exceptionally,	10
the State is not bound by the entire treaty—either because it has ratified only

certain parts (para. 1) or because the treaty o ers a choice of provisions (para. 2). These rules make sense and certainly merit inclusion in the Convention.19 The question arises whether Article 17, relating to a form of consent to be bound, should not have been placed before Article 16 which concerns one of the final stages in the treaty-making process.20

16Aust, Modern Treaty Law 107.

17Jennings/Watts N. 607.

18Waldock in the ILC, YBILC 1962 I 53 para. 3 (in respect of para. 1).

19Waldock, ibid. 74 (“[para. 1 was] good law”). Conversely, Tunkin considered that “[para. 2] ought to be dropped, as instances of alternative texts were rare and the practice should certainly not be encouraged. That being so, the best course was to keep silent”, YBILC 1965 I 80.

20See the structure employed by Jennings/Watts N. 607–608.

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Article 18

Obligation not to defeat the object and purpose of a treaty prior to its entry into force

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a)it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b)it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Article 18 Obligation de ne pas priver un traité de son objet et de son but avant son entrée en vigueur

Un Etat doit s’abstenir d’actes qui priveraient un traité de son objet et de son but:

a)lorsqu’il a signé le traité ou a échangé les instruments constituant le traité sous réserve de ratification, d’acceptation ou d’approbation, tant qu’il n’a pas manifesté son intention de ne pas devenir partie au traité; ou

b)lorsqu’il a exprimé son consentement à être lié par le traité, dans la période qui précède l’entrée en vigueur du traité et à condition que celle-ci ne soit pas indûment retardée.

Artikel 18 Verpflichtung des Nichtzuwiderhandelns gegen Ziel und Zweck eines Vertrags vor seinem Inkrafttreten

Ein Staat ist verpflichtet, sich aller Handlungen zu enthalten, die dem Ziel und Zweck eines Vertrags zuwiderlaufen, wenn:

a)der den Vertrag unterzeichnet hat oder vertragsbegründende Urkunden unter Vorbehalt der Ratifikation, Annahme oder Zustimmung ausgetauscht hat, bis er seine Absicht kundgetan hat, nicht Vertragspartei zu werden; oder

obligation not to defeat the object and purpose of a treaty 243

b)er sein Einverständnis, durch den Vertrag gebunden zu sein, ausgedrückt hat, in der Zeit bis zum Inkrafttreten des Vertrages unter der Voraussetzung, dass dieses Inkrafttreten nicht über Gebühr verzögert wird.

ILC Draft 1966

Article 17—Obligation of a State not to frustrate the object of a treaty prior to its entry into force

A State is obliged to refrain from acts calculated to frustrate the object of a proposed treaty when:

(a)It has agreed to enter into negotiations for the conclusion of the treaty, while these negotiations are in progress;

(b)It has signed the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty;

(c)It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Materials:

WALDOCK Report I: Articles 5, 9, 10 and 12.

Minutes: YBILC 1962 I 117, 212, 258, 286.

ILC Draft 1962: Article 16.

WALDOCK Report IV: Article 17.

Minutes: YBILC 1965 I 87 , 262 f, 282 f.

ILC Draft 1965: Article 17.

Minutes: YBILC 1966 I/2 292, 326, 341.

ILC Draft 1966: Article 15.

Minutes: OR 1968 CoW 97 , 361; OR 1969 Plenary 29.

Vienna Conference Vote: 102:0:0

Selected Literature:

B-K

L. Boisson de Chazournes/A.-M. la Rosa/M.M. Mbengue, Article 18, in: Corten/Klein (eds.) 589 ; P. Cahier, L’obligation de ne pas priver un traité de son objet et de son but avant son entrée en vigeur, in: Mélanges F. Dehousse (1979) I 31 ; J.S. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law ofTreaties, George Washington Journal of International Law and Economics, 25 (1991) 71 ; J.P. Cot, La bonne foi et la conclusion des traités, Revue Belge 4 (1968) 140 ; D.J. Devine, Le caractère indivisible de la Convention sur le Droit de la Mer et les implications de sa signature pour la Communauté Économique Européenne et ses États membres, RMC 1987 95 ; Ch.B. Fulda, Demokratie

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und Pacta sunt servanda (2003); H. Fujita, Provisional Observance of Unratified or Expired Treaties on Disarmament, Kansai University Review of Law and Politics, 10 (1989) 1 ; M.J. Glennon, The Senate Role in Treaty Ratification, AJIL 77 (1983) 257 ; J. Klabbers, How to Defeat a Treaty’s Object and Purpose Pending Entry Into Force: Towards Manifest Intent, Vanderbilt JTL 34 (2001) 283 .

M-V

P. McDade, The Interim Obligation Between Signature and Ratification: Issues Raised by the Recent Actions of Signatories to the Law of the Sea Convention With Respect to the Mining of the Deep Seabed, NILR 31 (1985) 5 ; W. Morvay, The Obligation of a State Not to Frustrate the Object of a Treaty Prior to its Entry into Force. Comments on Art. 15 of the ILC’s 1966 Draft Articles on the Law of Treaties, ZaöRV 27 (1967) 451 ; J. Nisot, L’article 18 de la Convention de Vienne sur le droit des traités, Revue Belge 6 (1970) 499; E. Orihuela Calatayud, Los tratados internacionales y su aplicacion en el tiempo: Consideraciones sobre el efecto inicial de las disposiciones convencionales (2004); M.A. Rogoff, The International Legal Obligations of Signatories to an Unratified Treaty, Maine LR 32 (1980) 263 ; Id., The International Legal Obligations of Signatories to an Unratified Treaty, in: The Law of Treaties (2004) 191 ; M.A. Rogoff/B.E. Gauditz, The Provisional Application of International Agreements, Maine LR 39 (1987) 29 ; E.T. Swaine, Unsigning, Stanford LR 55 (2003) 2061 ; R.F. Turner, Legal Implications of Deferring Ratification of Salt II, Virginia JIL 21 (1981) 747 ; M.P. van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, Georgetown LJ 93 (2005) 1185 .

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	3
B. Interpretation of Article 18 ............................................................		4
1.	Nature and Scope of Obligation .......................................................	4
2.	Principle ..........................................................................................	9
	a) Acts Defeating the Treaty’s Object and Purpose ............................	10
	b) Required Conduct .......................................................................	13
3.	Conditions (Paras. [a] and [b]) .........................................................	15
	a) Upon Signature of a Treaty (Para. [a]) ..........................................	15
	b) After Having Expressed Consent (Para. [b]) .................................	17
C. Context ..............................................................................................		18
1.	Relationship to Other Provisions ......................................................	18
2.	Matters Not Dealt With ...................................................................	19
3.	Customary Basis of Article 18 ..........................................................	20
D. Appreciation .......................................................................................		21

A. BACKGROUND
1. Introduction
Early case-law on the conduct of States in the sense of Article 18 was stimu-	1

lated by the legal position of the Versailles Treaty after its signature in 1919, but before its entry into force in 1920.1 In the Certain German Interests in Polish Upper Silesia Case, Poland had contended that Germany’s alienation of property on territory which was to fall under Polish sovereignty, violated obligations under the 1919 Treaty. The Court held that “Germany undoubtedly retained until the actual transfer of sovereignty the right to dispose of her property, and only a misuse of this right could endow an act of alienation

1See the von Bismarck and Schwerdtfeger Cases, AD 2 (1923/24) 80 f, and 81–83, respectively; on the history see Kolb, Bonne foi 184 . For early literature, see B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) 109 ; R. Bernhardt, Völkerrechtliche Bindungen in den Vorstadien des Vertragsschlusses, ZaöRV 17 (1957/58) 651 ; J. Nisot, La force obligatoire des traités signés non encore ratifiés, JDI 1930 878 ; McNair, Law of Treaties 199 , 203.

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with the character of a breach of the Treaty”.2 Occasionally, a treaty itself expressly stipulated obligations before its entry into force.3

2Article 18 finds its roots in Article 9 of the Harvard Draft on the Law of Treaties of 1935 which stated:

“under some circumstances . . . good faith may require that pending the coming into force of the treaty the States shall, for a reasonable time after signature, refrain from taking action which would render performance by any party of the obligations stipulated impossible or more di cult”.4

The respective commentary explained that the duty embodied in Article 9 was not of a legal kind and concerned “exceptional cases and special circumstances.”5

2. History

3In the ILC, elements of Article 18 were discussed by Brierly who drew from Article 9 of the Harvard Draft (N. 2) while concluding that the available materials were “of too fragmentary and inconclusive a nature to form the basis of international law”.6 Conversely, Lauterpacht and Fitzmaurice both assumed that pre-treaty obligations were of a legal nature.7 Waldock Report I took up the subject in 1962.8 The final ILC Report 1966 contained today’s paras. (a) and (b) which “appeared to be generally accepted”; in an additional paragraph, the Report stipulated the obligation for a State not to frustrate the object of a treaty “when . . . it has agreed to enter into negotiations for the conclusion of the treaty, while these negotiations are in progress”.9 This last clause attracted no support at the Vienna Conference in 1968 (N. 21),10 whereas paras. (a) and (b) found general approval and were only occasionally criticised as being too vague or constituting extralegal obligations.11 A proposal by the UK delegation to delete the entire provision was

2 PCIJ (1926) Series A no. 7, 30.

3Article 38 of the General Act of Berlin provided that, before its entry into force, “the signatories of this Act pledge themselves not to adopt any measure which would be contrary

to the stipulations of the said Act”. 4 AJIL 29 (1935) Supplement 778. 5 Ibid. 780 f.

6 Brierly Report II, YBILC 1951 II 73; 1953 II 54, para. 21; on the history, see also Klabbers, Vanderbilt JTL 34 (2001) 305 .

7 Lauterpacht Report I, YBILC 1953 II 108; Fitzmaurice Report I, 1956 II 113, 122. 8 Waldock Report I, YBILC 1962 II 39, 175; Waldock Report IV, 1965 II 43 .

9 ILC Report 1966, YBILC 1966 II 202.

10Deleted by 50 votes to 33, with eleven abstentions, OR 1968 CoW 106, para. 47.

11OR 1968 CoW 97 .

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rejected.12 In 1969 only a small change was made to the provision which was adopted by 102 votes to none.13

B. INTERPRETATION OF ARTICLE 18
1. Nature and Scope of Obligation
Article 18 refers in its title to a State’s obligation. The latter is, on the one hand,	4
of a contractual nature for States parties to the Convention. On the other,
Article 18 appears declaratory of customary law (N. 20), and the obligation
therefore also derives for all States from general international law.
While it may appear a petitio principii to refer in a legal norm to an “obli-	5

gation”, such reference can be explained with the controversy surrounding the respective legal basis of various precursors of Article 18. The Harvard Draft doubted the legal nature of such duties (N. 2), and various early ILC drafts merely stipulated an “obligation of good faith”.14 Indubitably, Article 18 gives concrete and normative meaning to the principle of good faith by protecting legitimate expectations which relations of this type generate among States.15

The travaux préparatoires disclose the prevailing view of States and within the ILC, namely that good faith was too imprecise a notion to serve in itself as a basis of legal obligation.16 As the Court found in the Border and Transborder Armed Actions (Nicaragua/Honduras) Case, “[good faith] is not in itself a source of obligation where none would otherwise exist”.17

12By 74 votes to 14, with six abstentions, the vote being taken by roll-call, OR 1968 CoW 105; OR Documents 131, para. 164(i); see the statement of Sir Francis Vallat of the UK delegation, ibid. 105, para. 44 (“unacceptable in its existing form”).

13OR 1969 Plenary 29. The change was based on an amendment of the Polish delegation, the words “has exchanged instruments constituting the treaty” were introduced in para. (a), OR 1969 Plenary 29, para. 26.

14E.g., the ILC Draft 1962, YBILC 1962 II 175; Waldock Report IV, YBILC 1965 II 45.

15See statements by the delegations of India, Netherlands, Poland and Iraq, OR 1969 CoW 98 .; Cot, Revue Belge 4 (1968) 155; Rogoff, Maine LR 32 (1980) 291 ; Müller, Vertrauensschutz 162 ; Zoller, Bonne foi 68 : Rosenne, Developments 149 at n. 9. This conclusion by the present author, which was expressed in Villiger, Customary International Law N. 469, is considered “surprising” by Klabbers, Vanderbilt JTL 34 (2001) 315.

16E.g., the discussion in 1965, YBILC 1965 I 87 ; inter alia Bartos, ibid. 262 f (“the obligation laid down in [Article 18] had its origin in the principle of good faith, but had since become a legal obligation”); Turner, Virginia JIL 21 (1981) 765 (“legally binding”).

17ICJ Reports 1988 105, para. 94.

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6The obligation under Article 18 arises in the situations mentioned in paras.

(a) and (b) (N. 15) prior to the treaty’s entry into force. It follows that it is unnecessary, and somewhat imprecise, to speak of a retroactive e ect of pacta sunt servanda (Article 26, q.v.) of the particular treaty,18 since Article 18 deals with situations where the treaty has not entered into force. Similarly, it cannot be postulated that Article 18 may only be invoked ex post facto after the treaty’s ratification or entry into force; this interpretation would render Article 18 meaningless, since it is uncertain upon signature whether or not a treaty will eventually enter into force.19

7Independently of Article 18 (and its declaratory nature, N. 20), States parties to the treaty awaiting its entry into force are in any event obliged to apply all those treaty rules which are declaratory of customary law (Issues of Customary International Law, N. 35). It follows that the functions of Article 18 are limited to non-declaratory rules of a treaty awaiting its entry into force.

8Finally, in the sense of a venire contra factum proprium it would appear that Article 18 cannot be invoked by those signatories or parties to a treaty which have themselves supported or acquiesced in the defeating “acts”.

2. Principle

9In a much criticised formulation,20 the opening sentence in Article 18 obliges a State to refrain from acts which would defeat the object and purpose of a treaty.

a) Acts Defeating the Treaty’s Object and Purpose

10The terms object and purpose correspond with those employed throughout the Convention (e.g., Preamble, N. 2; Article 31, N. 11–14). They refer to the reasons for which States parties or signatories concluded a treaty, and the continuing functions and raison d’être of the treaty.21 Since treaties often

18E.g., I. Lukashuk, The Principle pacta sunt servanda and the Nature of Obligation under International Law, AJIL 83 (1989) 513 ., 515 f. See the statement in Vienna by the Belgian delegation, CoW 1968 101, para. 57.

19See the statements in the ILC by Waldock, YBILC 1962 I 97, para. 13; Ago, ibid. 92, para. 61; Bartos, ibid. 93, para. 78; contra Castrén, ibid. 89, para. 14. Also Kolb, Bonne foi 208; Cahier, Mélanges Dehousse 33.

20See O’Connell, International Law I 224 (“the provision . . . is more rigid [than good faith] in that it omits the relevance of circumstances, more relaxed in that it relates the obligation only to the ‘object and purpose’”); Cahier, ibid. 35; Morvay, ZaöRV 27 (1967) 156; Müller, Vertrauensschutz 159.

21See the definition in the Reservations to Genocide Advisory Opinion, ICJ Reports 1951 27; Crnic-Grotic, Asian YBIL 7 (1997) 152 .

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have many purposes, Article 18 will also refer to the object and purpose of
individual treaty rules.22
A State’s act will defeat the treaty’s object and purpose if it renders meaning-	11
less subsequent performance of the treaty, and its rules.23 Other States would
not have concluded the treaty under the same conditions, had they known
that such acts would be undertaken. Of course, the mere failure to ratify a
treaty does not amount to such an “act”.24
Typical examples of acts which may defeat a treaty’s object and purpose	12
are:25

–a disarmament treaty obliges parties to reduce their armies by one third; before its entry into force, one signatory increases its army;26

–a treaty stipulates that a party imports particular goods from another party; before its entry into force, a signatory imports large quantities of goods from third States;27

–a State promises to deliver products of a forest or mine; before entry into force of the treaty, the State destroys the forest or mine.28

b)Required Conduct

Article 18 obliges a State to refrain from such conduct, thus envisaging 13 primarily a passive conduct of States. As the ILC pointed out in 2007 in the context of reservations, “[para. (a)] does not oblige a signatory State to respect

the treaty, but merely to refrain from rendering the treaty inoperative prior to its expression of consent to be bound”.29 However, comments in the ILC and subsequent State practice confirm that the object and purpose of Article 18 could indeed exceptionally call for active conduct, e.g., to maintain the pre-contractual status quo on which basis a treaty was concluded.30 Still, even

22Contra Klabbers, Vanderbilt JTL 34 (2001) 293.

23T hough not impossible, see the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 104, para. 26; versus Rogoff, Maine LR 32 (1980) 297 f; see the narrower interpretation by Aust, Modern Treaty Law 94 (“which would prevent it being able fully to comply with the treaty”); Turner, Virginia JIL 21 (1981 (“irreversible”).

24But see C.A. Bradley in ASIL Insight, May/June 2002 at 5, 9, with reference to the US administration’s refusal to ratify the Rome Statute of the International Criminal Court.

25See also the examples in Aust, Modern Treaty Law 119; Kolb, Bonne foi 183 f.

26See Lachs in the ILC, YBILC 1965 I 97, para. 39.

27Ago, ibid. 96, para. 29; the example given by Waldock, OR 1968 CoW 104, para. 26.

28Harvard Draft, AJIL 29 (1935) Supplement 782.

29See the Commentary to the Guideline 3.1.5 on the Incompatibility of a Reservation with the Object and Purpose of the Treaty, YBILC 2007 II/2 67, para. 2 (original italics); see also Articles 19–23—Subsequent Developments, N. 3.

30See the statement in the ILC by Lachs, YBILC 1965 I 97, para. 39; the written reply in 1980 by the Deputy Legal Advisor of the US Department of State, reproduced in AJIL 74 (1980) 933, according to which the obligation mentioned in Article 18 “could, in theory,

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a wider notion of a State’s conduct required under Article 18 cannot per se generate actual treaty obligations. Otherwise, the notion of a treaty’s entry into force would lose its legal relevance.

In the example mentioned in N. 12, where a signatory promises to deliver products of a forest or mine, a State would need to provide for the upkeep of the forest or mine so as not to jeopardize the production of goods stipulated in the treaty.

14Article 18 does not require that the acts defeating the object and purpose of a treaty are committed intentionally in bad faith (e.g., culpa in contrahendo).31 This need not be stated, since this provision, and indeed the Convention as a whole, is silent on the question of any responsibility of States for such acts (Article 73, q.v.).32

3. Conditions (Paras. [a] and [b])

a) Upon Signature of a Treaty (Para. [a])

15Para. (a) obliges a State to refrain from the “acts” (N. 10–12) if it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance, or approval. These terms are further explained in Articles 11–17 (q.v.). Thus, the State in question has not expressed its consent to be bound by a treaty (as in para. [b], N. 17) and is free at any time to make its intention clear not to become a party to the treaty, i.e., either by means of an express statement or through implied conduct,33 in which case Article 18 can no longer be invoked. This freedom of States does not diminish the value of Article 18, since the obligation extends as long as such intention has not become clear.34

necessitate preratification application of provisions, if any, where non-application from the date of signature would defeat the object and purpose of the treaty”; contra Rogoff, Maine LR 32 (1980) 297.

31Swaine, Stanford LR 55 (2003) 2071.

32See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 104, para. 27; Rogoff, ibid. 298 f; di erently Müller, Vertrauensschutz 162 at n. 110. An intention of bad faith cannot be deduced from the text of Article 18 (“acts which would defeat”), as compared with Article 15 of the ILC Draft 1966 (“acts tending to frustrate”). This change merely “tightens up the language”, Sinclair, Vienna Convention 43; statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1968 CoW 361, para. 101; Cot, Revue Belge 4 (1968) 157.

33T he ILC Draft 1962 required a State to have “signified that it does not intend to become a party”. The Malaysian amendment at the Conference, OR Documents 131 (suggesting “expressed its intention in the clearest terms”), was not adopted in Vienna.

34Per contra, the statement of the Iranian delegation in Vienna, OR 1968 CoW 101, para. 60; O’Connell, International Law I 224, for whom “it remains unclear if a breach of the Article can be alleged after the intention not to ratify has been made known, when the breach occurred before this date”.

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obligation not to defeat the object and purpose of a treaty 251

It follows that the obligation in Article 18 is dependent on the subjective 16 intention of the individual State not to become a party to the treaty, and on

the awareness of other States of this intention. An earlier draft of the ILC had envisaged a more objective test where the obligation was to be maintained for a “reasonable period of time”.35

Article 18 has been criticised as appearing contradictory in that a State may disclose its intention not to become a party to the treaty by committing “defeating” acts.36 This interpretation overlooks the purpose of Article 18 which is precisely that States avoid such acts and make their intentions clear by other means.

b) After Having Expressed Consent (Para. [b])

Para. (b) follows para. (a) in time and prohibits the relevant acts (N. 10–12) 17 after a State has expressed its consent to be bound by the treaty. The State

is bound by Article 18 pending the entry into force of the treaty (Article 24, q.v.). Contrary to para. (a) (N. 15), para. (b) does not provide that a State in this situation may withdraw from the obligations of Article 18 on its own accord. It envisages a more objective assessment of the reasonable expectations of all the contracting States. Thus, the obligation in Article 18 applies in para. (b) only for as long as, and to the extent that, the treaty’s entry into force is not unduly delayed. The period of time is relative, depending on the given circumstances.37 In other words, a State is no longer obliged to refrain from the relevant acts once a reasonable period of time has elapsed without the treaty having come into force. However, contrary to para. (a) (“made its intention clear”), para. (b) does not provide for the procedure, if any, required for the State to withdraw from its obligations under Article 18. One can nevertheless assume that, as in para. (a), a State may make its intention clear to withdraw from its obligations to refrain from defeating acts under Article 18 either by express statement or through implied conduct.38

35Article 9, subpara. 2(c) of Waldock Report I, YBILC 1962 II 46. Unreasonable postponement of ratification may also o er an indication as to the signatory’s intention, Müller, Vertrauensschutz 163.

36See the statement in Vienna by the French delegation, OR 1968 CoW 100, para. 45; Rogoff, Maine LR 32 (1980) 296 f; Verdross in the ILC, YBILC 1965 I 262, para. 99; the example cited by Swaine, Stanford LR 55 (2003) 2082 (i.e., at UNCLOS III the French delegate stated that “the most obvious way for a State to make clear its intention not to become a party to the treaty was for it to frustrate the object and purpose”).

37See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 29, para. 28. When Waldock Report IV introduced the figure of ten years, this was strongly criticised within the ILC, YBILC 1965 I 87 .

38But see Rosenne, EPIL 4 (2000) 935, in the context of Article 18: “once given, a State’s consent to be bound by a treaty cannot be withdrawn unless a reasonable period elapses without the treaty entering into force”. With respect, it is doubtful whether Article 18 expresses itself on the withdrawal of consent.

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C. CONTEXT

1. Relationship to Other Provisions

18Article 18 relates to a particular conduct of States prior to a treaty’s entry into force (N. 12). The provision goes less far than Article 25 (q.v.) concerning the provisional application of a treaty.39 It has also been argued above (N. 6) that Article 18 does not amount to a retroactive application of the rule pacta sunt servanda in Article 26.

2.Matters Not Dealt With

19The ILC originally envisaged a State’s obligation not to frustrate the object and purpose of a treaty also during negotiations of the treaty. The matter was dropped in Vienna (N. 3) and lies outside Article 18.40 The proposal attracted mainly negative reactions by States and most likely did not reflect customary law.41

3.Customary Basis of Article 18

20In 1966 the ILC generally considered that the provision leading to today’s Article 18 had a basis in customary law.42 Up to 1969, a substantial majority of States supported the provision which was adopted unanimously in Vienna (N. 3).43 The few instances of court and State practice after 1969 are su ciently consistent and constant.44 In view thereof, Article 18 may be considered declaratory of customary law.45

39See also the opinion of the US Department of State, AJIL 74 (1980) 933.

40Waldock Report V 1965 II 44, para. 1; OR 1968 CoW 106, paras. 47 ; the North Sea

Cases, ICJ Reports 1969 47; generally, Kolb, Bonne foi 199 f.

41But see Müller, Vertrauensschutz 161, versus Cahier, Mélanges Dehousse 32.

42E.g., the ILC Draft 1966, YBILC 1966 II 202, cited above, N. 2.

43See Governments’ observations in YBILC 1966 II 279 , and their statements at the Vienna Conference in 1968, OR 1968 CoW 97 . For Bindschedler of the Swiss delegation these provisions “conformed to general rules of international law”, ibid. 97, para. 5.

44See Court of the First Instance of the European Communities in Opel Austria GmbH v. Council of the European Union, ILR 113 (1999) 323; the US Department of State, referring to Article 18 as being “widely recognized in customary international law”, International Lawyer 6 (1972) 431; the summary of the US and former Soviet practice by Turner, Virginia JIL 21 (1981) 766 ; the Canadian Government in CYBIL 18 (1978) 366; the Swiss Government in SJIR 37 (1977) 150 f; the instances of practice mentioned by Kolb, Bonne foi 186 ; T. Treves, L’entrée en vigueur de la Convention des Nations Unies sur le droit de la mer et les conditions de son unilateralisme, AFDI 39 (1993) 850 , 865 f, and 869 f.

45Similarly Boisson de Chazournes/A.-M. la Rosa/M.M. Mbengue N. 21 (“l’article 18, alinéa a] reflète un principe de droit international”).

ZACHARIAS

obligation not to defeat the object and purpose of a treaty 253

It is true that authors have been more critical of Article 18. However, both O’Connell, who has argued that Article 18 “goes further than customary law would appear to go”,46 and Sinclair have studied the provision only against the backdrop of pre-ILC developments. Similarly, Cahier has insu ciently considered the measure of support of States which Article 18 commanded at the 1968/1969 Vienna Conference.48

D. APPRECIATION

Article 18 plays an important role in view of the backlog of many treaties which 21 have not entered into force, and where States have remained mere signatories

for a prolonged period of time.49 The period after a treaty’s signature and prior to its entry into force typically generates expectations among the States concerned which require protection. Article 18 circumvents the pitfalls of relying solely on good faith by elevating the required conduct of States to the level of a legal obligation which it defines precisely and clearly. Any resulting rigidity is compensated by the subjective assessment provided for in para. (a) (N. 16) and the more objective assessment in para. (b) (N. 17), both of which o er the necessary flexibility at this early stage of a treaty’s life.50

46International Law I 223; similarly Nisot, Revue Belge 6 (1970) 503.

47Vienna Convention 43; this author participated in the UK delegation in Vienna, which attempted to bring about deletion of the future Article 18 (N. 2).

48Mélanges Dehousse 37 and passim.

49Swaine, Stanford LR 55 (2003) 2085.

50See Kohen, RGDIP 104 (2000) 597 (“la solution finalement retenue nous paraît la plus judicieuse”); Aust, Modern Treaty Law 117 (“[t]he requirement in [a] is much easier to apply”).

ZACHARIAS

Section . Reservations

Article 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.

Article 19 Formulation des réserves

Un Etat, au moment de signer, de ratifier, d’accepter, d’approuver un traité ou d’y adhérer, peut formuler une réserve, à moins:

a)que la réserve ne soit interdite par le traité;

b)que le traité ne dispose que seules des réserves déterminées, parmi lesquelles ne figure pas la réserve en question, peuvent être faites; ou

c)que, dans les cas autres que ceux visés aux alinéas a) et b), la réserve ne soit incompatible avec l’objet et le but du traité.

Artikel 19 Anbringen von Vorbehalten

Ein Staat kann bei der Unterzeichnung, Ratifikation, Annahme oder Genehmigung eines Vertrags oder beim Beitritt einen Vorbehalt anbringen, sofern nicht

a)der Vertrag den Vorbehalt verbietet;

b)der Vertrag vorsieht, dass nur bestimmte Vorbehalte gemacht werden dürfen, zu denen der betre ende Vorbehalt nicht gehört, oder

c)in den unter lit. a) oder b) nicht bezeichneten Fällen der Vorbehalt mit Ziel und Zweck des Vertrags unvereinbar ist.

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ILC Draft 1966

Article 16—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 authorises specified reservations which do not include the reservation in question; or

(c)in cases where the treaty contains no provision regarding reservations, the reservation is incompatible with the object and purpose of the treaty.

Materials:

WALDOCK Report I: Articles 17, 18 and 19. Minutes: YBILC 1962 I 139 , 172 , 287 .

ILC Draft 1962: Article 18.

WALDOCK Report IV: Article 18.

Minutes: YBILC 1965 I 144 , 263 , 283.

ILC Draft 1965: Article 18.

Minutes: YBILC 1966 I/2 295, 326, 340.

ILC Draft 1966: Article 16.

Minutes: OR 1968 CoW 106 , 125 , 425 f; OR 1969 Plenary 28 .

Vienna Conference Vote: 92:4:7

Selected Literature:

A-C

S.S.Åkermark, Reservation Clauses in Treaties Concluded Within the Council of Europe, ICLQ 48 (1999) 479 ; D.R. Anderson, Reservations to Multilateral Conventions: A Re-Examination, ICLQ 13 (1964) 450 ; R. Baratta, Gli e etti delle riserve ai trattati (1999); Id., Should Invalid Reservations to Human Rights Treaties be Disregarded? EJIL 11 (2000) 413 ; R. Bindschedler, Treaties, Reservations, EPIL 4 (2000) 965 ; J. Bonet Perez, Las reserves a los tratados internacionales (1996); W. Bowett, Reservations to Non-Restricted Multilateral Treaties, BYBIL 48 (1976–1977) 67 ; C.A. Bradley/J.L. Goldsmith, Treaties, Human Rights, and Conditional Consent, UPLR 149 (2000) 399; I. Buffard/K. Zemanek, The “Object and Purpose” of a Treaty: An Enigma? Austrian RIEL 3 (1998) 311 ; F. Cede, European Responses to Questionable Reservations, in: W. Benedek et al. (eds.), Development and Developing International and European Law, Essays in Honour of K. Ginther (1999) 21 ; M. Coccia, Reservations to Multilateral Treaties on Human Rights, California WILJ 15 (1985) 1 ; G. Cohen-Jonathan, Les réserves à la Convention européenne des droits de l’homme: à propos de l’arrêt Belilos du 29 avril 1988, RGDIP 93 (1989) 272 ; J. Combacau, Logique de la validité contre logique de l’opposabilité dans la Convention de Vienne sur le droit des traités, in: Le droit international au service de la paix, de la justice et du développement. Mélanges

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259

M. Virally (1991) 195 ; F. Coulée, A propos d’une controverse autour d’une codification en cours: les réactions aux réserves incompatibles avec l’objet et le but des traités de protection des droits de l’homme, in: Libertés, justice, tolérance. Mélanges en hommage au doyen G. Cohen-Jonathan (2004) I 375.

D-H

C. Díaz Barrado, Reservas a la Convención sobre tratados entre estados: declaraciones, reservas y objeciones a las reservas, formuladas a la Convención de Viena sobre el Derecho de los tratados de 1969 (1991); R.W. Edwards, Reservations to Treaties, Michigan JIL 10 (1989) 362 ; G.M. Ferreira, The Impact of Treaty Reservations on the Establishment of an International Human Rights Regime, CILJ Southern Africa 38 (2005) 147; J.-F. Flauss, Note sur le retrait par la France des réserves aux traités internationaux, AFDI 32 (1987) 857 ; J.A. Frowein, Reservations and the International ordre public, in: J. Makarczyk (ed.), Theory of International Law at the Threshold of the 21st Century. Essays in Honour of K. Skubiszewski (1996) 403 ; G. Gaja, Reservations to Treaties and the Newly Independent States, ItalYBIL 1 (1975) 52 ; Id., Unruly Treaty Reservations, in: Le droit international à l’heure de sa codification. Etudes en l’honneur de R. Ago (1987) I 307 ; M.F. Gennarelli, Le riserve ai trattati internazionali (2001); Th. Giegerich, Treaties, Reservations. Addendum 1998, EPIL 4 (2000) 968 ; E. Göttling, Vorbehalte zu internationalen Verträgen in der sowjetischen Völkerrechtstheorie und Vertragspraxis (1967); R. Goodman, Human Rights Treaties, Invalid Reservations and State Consent, AJIL 96 (2002) 559 ; M. Heymann, Einseitige Interpretationserklärungen zu multilateralen Verträgen (2005); P. Hilpold, Das Vorbehaltsregime der Wiener Vertragsrechtskonvention, AVR 34 (1996) 376 ; F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties (1998); D.N. Hylton, Default Breakdown: The Vienna Convention on the Law of Treaties: Inadequate Framework on Reservations, Vanderbilt JTL 27 (1994) 419 .

I-K

P.H. Imbert, La question des réserves dans la décision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République française et le Royaume-Uni de Grande Bretagne et d’Irlande du Nord, AFDI 72 (1978) 29 ; Id., Les réserves aux traités multilatéraux (1979); J. King Gamble, Reservations to Multilateral Treaties: A Macroscopic View of State Practice, AJIL 74 (1980) 372 ; J. Klabbers, Accepting the Unacceptable? A New Nordic Approach to Reservations to Multilateral Treaties, Nordic JIL 69 (2000) 179 ; E. Klein, A Comment on the Issue of Reservations to the Provisions of the Covenant Representing (Peremptory) Rules of General International Law, in: Ziemele, Reservations 152 ; P.T.B. Kohona, Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations, AJIL 99 (2005) 433 ; K. Korkelia, New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights, EJIL 13 (2002) 437 ; R. Kühner, Vorbehalte zu multilateralen völkerrechtlichen Verträgen (1986); J. Kyongun Koh, Reservations to Multilateral Treaties: How International Doctrine Reflects World Vision, Harvard ILJ 23 (1982) 71 .

L-M

V. Lamm, The Multilateral Treaty Reservation Revisited, Acta Juridica Hungarica 47 (2006) 331 ; L. Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (1995); U. Linderfalk, On the Meaning of the “Object and Purpose” Criterion, in the Context of the Vienna Convention on the Law of Treaties, Article 19, Nordic JIL 72 (2003) 429 ; Id., Reservations to Treaties and Norms of jus cogens—a Comment on Human Rights Committee General Comment no. 24, in: Ziemele, Reservations 213 ; R.St.J. Macdonald, Reservations under the European Convention on Human Rights, RBDI 21

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(1988) 429 ; F. Majoros, Das aktuelle Problem der Gegenseitigkeit bei Vorbehalten: von der II. Haager Friedenskonferenz über die Wiener Vertragsrechtskonvention bis zur Resolution von Dijon (1981), Friedenswarte 66 (1986) 216 , and 67 (1987) 82 .; Id., Le régime de réciprocité de la Convention de Vienne et les réserves dans les Conventions de La Haye, JDI 101 (1974) 73 ; S. Marks, Reservations Unhinged: The Belilos Case Before the European Court of Human Rights, ICLQ 39 (1990) 300 ; E.K. Martens, Unzulässige Vorbehalte zur Menschenrechtskonvention. Anmerkungen zur Diskussion, in: J. Ipsen/E. Schmidt-Jortzig, Recht—Staat—Gemeinden, Festschrift für D. Rauschning (2001) 351 ; T.L. McDorman, Reservations and the Law of the Sea Treaty, Journal MLC 13 (1981) 481 ; D.M. McRae, The Legal E ect of Interpretative Declarations, BYBIL 49 (1978) 155 .

N-R

M.K. Nawaz, The International Law Commission’s Views on the Subject of Reservations to Multilateral Conventions, IJIL 1 (1960) 100 ; L.D.M. Nelson, Declarations, Statements and “Disguised Reservations” with Respect to the Convention on the Law of the Sea, ICLQ 50 (2001) 767 ; J. Nisot, Les réserves aux traités de la Convention de Vienne du 23 mai 1969, RGDIP 77 (1973) 200 ; A. Pellet, Article 19, in: Corten/Klein (eds.) 641 ; Id., La C.I.J. et les réserves aux traités—remarques cursives sur une révolution inachevée, in: Liber Amicorum Judge Sh. Oda (2002) 481 ; Id., Les réserves aux conventions sur le droit de la mer, in: La mer et son droit. Mélanges o erts à L. Lucchini et J.-P. Quéneudec (2003) 505 ; Cl. Pilloud, Reservations to the Geneva Conventions of 1949 (1977); C.L. Piper, Reservations to Multilateral Treaties: The Goal of Universality, Iowa LR 71 (1985) 295 ; J. Quel Lopéz, Las reservas a los tratados internacionales: un examen de la practica española (1991); C. Redgwell, Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties, BYBIL 64 (1993) 245 ; R. Riquelme Cortado, Las reservas a los tratados: lagunas y ambigüedades del Regimen de Viena (2004); J. Ruda, Reservations to Treaties, RC 146 (1975 III) 95 .

S

A.Sassi, General Reservations to Multilateral Treaties, in: T. Treves (ed.), Six Studies on Reservations, Communicazioni e Studi 22 (2002) 91 ; W. Schabas, Reservations to Human Rights Treaties: Time for Innovation and Reform, CYBIL 32 (1994) 39 ;

B.H.B. Schöpp-Schilling, Reservations to the Convention on the Elimination of all Forms of Discrimination against Women: An Unresolved Issue or (No) New Developments? In: Ziemele, Reservations 8 ; Th. Schweisfurth, Vorbehalte zu internationalen Verträgen unter besonderer Berücksichtigung der östlichen Vertragstheorie, Internationales Recht und Diplomatie 1970 II 46 ; 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 183 ; D. Shelton, State Practice on Reservations to Human Rights Treaties, CHRYB 1983 205 ; B. Simma, Reservations to Human Rights Treaties: Some Recent Developments, in: G. Hafner et al. (eds.), Liber amicorum I. Seidl-Hohenveldern (1998) 659 ; B. Srinivas, India’s Reservations to Human Rights Treaties, IJIL 44 (2004) 749 ; L. Sucharipa-Behrmann, The Legal E ects of Reservations to Multilateral Treaties, Austrian RIEL 1 (1996) 67 ; E.T. Swaine, Reserving, Yale JIL 31 (2006) 307 ;

R.Szafarz, Reservations to Multilateral Treaties, Polish YBIL 24 (1970) 293 .

T-Z

A. Tanzi, The Resumed Codification of the Law of Reservations to Treaties, in: T. Treves (ed.), Six Studies on Reservations, Communicazioni e Studi 22 (2002) 7 ; G. Teboul, Remarques sur les réserves aux conventions de codification, RGDIP 86 (1982) 679 ; Ch. Tomuschat, Admissibility and Legal E ects of Reservations to Multilateral

formulation of reservations

261

Treaties. Comments on Articles 16 and 17 of the ILC’s 1966 Draft Articles on the Law of Treaties, ZaöRV 27 (1967) 463 ; H.D. Treviranus, Vorbehalte zu mehrseitigen Verträgen—Wohltat oder Plage? GYBIL 25 (1982) 515 ; Y. Tyagi, The Conflict of Law and Policy on Reservations to Human Rights Treaties, BYBIL 71 (2000) 181 ; J. Verhoeven, Droit des traités, réserves et ordre public (jus cogens), JT 1994 765 ; S.M. Williams, Reflections on the Law of Treaties: Customary Law, Dispute Settlement, jus cogens, Reservations, in: P.B. Casella (ed.), Liber amicorum G. Do Nascimento e Silva (2000) 537 ; H.-D. Wolkwitz, Vorbehalte zu Kollektivverträgen (1968); K. Zemanek, Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties, in: J. Makarczyk (ed.), Essays in International Law in Honour of Judge M. Lachs (1984) 323 .

262	article
	CONTENTS
		Paras.
A. Background . .......................................................................................		1
1.	Introduction ....................................................................................	1
2.	History ............................................................................................	3
B. Interpretation of Article 19 ............................................................		6
1.	Scope ...............................................................................................	6
2.	Freedom to Make Reservations ........................................................	9
3.	Reservations Prohibited by the Treaty (Para. [a]) ..............................	10
4.	Specified Reservations Excluding Other Reservations (Para. [b]) ......	11
5.	Incompatibility With the Treaty’s Object and Purpose (Para. [c]) .....	12
C. Context ..............................................................................................		15
1.	Relationship to Other Provisions .....................................................	15

2.Matters Not Dealt With

(see Articles 19–23—Subsequent Developments)

3.Declaratory Nature of Article 19

(see Articles 19–23—Subsequent Developments)

D. Reservations to the Convention .....................................................

16

E.Proposals for Amendment

(see Articles 19–23—Subsequent Developments) F. Appreciation

(see Articles 19–23—Subsequent Developments)

A.BACKGROUND

1. Introduction

1 Two divergent views existed on the question to what extent States parties to a multilateral treaty were required to consent to a State’s reservation to the treaty in order for it to be e ective. The more traditional view required the acceptance of all States for the reservation to take e ect. If only one failed to accept, this would exclude the reserving State from the whole treaty and from any concomitant treaty relations with all other treaty parties. Thus, for the 1935 Harvard Draft, a State could only make a reservation “if all

other States . . . consent to its so doing; lacking such consent, the State desirous of making the reservation must either abandon that desire . . . or else

formulation of reservations	263
remain outside the treaty”.1 For the other, more recent “South American”
view, the refusal by one contracting State to accept a reservation created a
bilateral relationship: it excluded the operation of the treaty solely between
that party and the party making the reservation.2 However, the reserving
State remained a party to the treaty in respect of all other States accepting
the reservation.3
The subject of reservations to multilateral treaties lay at the heart of the		2

Court’s 1951 Reservations to Genocide Advisory Opinion. The background to the case concerned reservations made by certain States to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; when other States objected, the UN Secretary-General, following traditional practice (N. 1), informed the reserving States that they could not become parties to the Convention. In 1950 the UN General Assembly decided to request an advisory opinion from the Court. The latter did not accept the traditional doctrine when it replied to the various questions as follows:

“On Question I

(a)State which has made and maintained a reservation which has been objected to by one or more of the 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; otherwise, that State cannot be regarded as being a party to the Convention;

On Question II

(a). . . if a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is not a party to the Convention;

1 Commentary on Article 14, AJIL 29 (1935) Supplement 870. See on pre-ILC literature: H.W. Malkin, Reservations to Multilateral Conventions, BYBIL 7 (1926) 141; M. Owen, Reservations to Multilateral Treaties, Yale LJ 38 (1928–1929) 1086 ;

R.Genet, Les reserves dans les traités, Revue DISDP 10 (1932) 95 , 232 , 308; M.O. Hudson, Reservations to Multipartite International Instruments, AJIL 32 (1938) 330 ; C.G. Fenwick, Reservations to Multilateral Treaties, AJIL 45 (1951) 145 ; G. Fitzmaurice, Reservations to Multilateral Conventions, ICLQ 2 (1953) 1 ; A. Belaunde Moreyra, Las reservas a las convenciones multilaterales, Revista peruana de derecho internacional 14 (1954) 14 , 153 ; J. Bentz, La validité des réserves aux traités internationaux multilatéraux (1954); E. Vitta, Le riserve nei trattati (1957); K. Holloway, Les réserves dans les traités internationaux (1958); D. Kappeler, Les réserves dans les traités internationaux (sic) (1958); O. Schachter, The Question of Treaty Reservations at the 1959 General Assembly, AJIL 54 (1960) 372 ; R.P. Anand, Reservations to Multilateral Conventions, IJIL 1 (1960) 84 ; W.W. Bishop, Reservations to Treaties, RC 103 (1961 II) 245 . On this Section, Pellet, Article 19, N. 2 .

2 See the summary in Ruda, RC 146 (1975 III) 115 .

3Bindschedler, EPIL 4 (2000) 965 f; ILC Report 1966, YBILC 1966 II 203, para. 2; Yasseen in the ILC, YBILC 1962 I 161 para. 7. On the history, Sinclair, Vienna Convention 54 .

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(b). . . if, on the other hand, a party accepts the reservation as being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention;

On Question III

(a). . . an objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal e ect indicated in the reply to Question I only upon ratification. Until that moment it merely serves as a notice to the other State of the eventual attitude of the signatory State;

(b). . . an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so, is without legal e ect.”

2. History

3The first three ILC Rapporteurs did not in their proposals on reservations to treaties take over the principles elaborated by the Court (N. 2). Brierly Report II of 1951 proposed the strict unanimity rule.4 Lauterpacht Report II of 1954 also proceeded from the unanimity rule, though the Rapporteur softened its rigidity by proposing either the reservation’s acceptance by a two thirds majority of treaty parties or submitting the issue of the admissibility of reservations to a committee of negotiating States or to a chamber of the Court.5 Fitzmaurice Report I of 1956 reverted to the strict unanimity rule, subject to two minor qualifications.6

4In 1962 Waldock Report I placed its proposals on reservations within the framework set out by the Court in 1951 (N. 2).7 In the debate in 1962 a majority of the Commission accepted that, where the treaty was silent on the matter of reservations, the compatibility of the reservation with the treaty’s object and purpose provided a suitable criterion to determine the

4Brierly Report I is reproduced at YBILC 1951 II 1 ; see the Memorandum prepared by G. Amado, Reservations to Multilateral Conventions, YBILC 1951 II 17 . The ILC Report 1951 on reservations is reproduced at ibid. 125 . See also Rosenne, Developments 424 . On the travaux préparatoires generally, see Pellet Report I, YBILC 1995 II/1, paras. 12 ; Ruda, RC 146 (1975 III) 148 ; Sinclair, Vienna Convention

58 .

5Article 9 of the 1954 Report is at YBILC 1954 II 131 . See later on these proposals, Waldock in the ILC, YBILC 1962 I 143, para. 61 (“[a]dmirable as were Sir Hersch Lauterpacht’s ideas, they were inapplicable: the Commission had to face the realities of international life, one of which was that it was often not possible to include in treaties a jurisdictional clause for the handling of disputes, including disputes as to reservations”).

6Articles 37–40 of the Report are at YBILC 1956 II 115 f. The qualifications were: if a State did not object within three months, this amounted to implied consent; and once a treaty had been in force for five years, only actual parties to the treaty could e ectively

object to a reservation and thus bar the State from participating in the treaty. 7 Articles 17–19, YBILC 1962 II 60 .

formulation of reservations	265
legitimacy of the reservation. The ILC found it unnecessary to distinguish
any further between di erent kinds of multilateral treaties other than to
exempt from the general rule those concluded between a small number of
States (Article 20, para. 2, N. 5–6).8 In 1965 the proposal was put forward
and accepted in the ILC more or less as it stands today.9 T he final ILC
Report was adopted in 1966.10
In Vienna in 1968 States proposed numerous amendments which, on the		5
whole, concerned mainly the restructuring of the ILC draft articles.11 Most
States accepted the ILC’s basic approach to reservations (N. 4),12 and no

8See the ILC Report 1966, YBILC 1966 II 205, para. 10. The ILC Report 1962 is at YBILC 1962 II 175 , the debate in 1962 at YBILC 1962 I 139 , 172 , and 287. In the ILC, Tunkin criticised the provisions of Waldock Report I for being “too detailed for the purposes of a draft convention”, YBILC 1962 I 140, para. 16. Among those in the minority in favour of a unanimity rule were de Luna, ibid. 148, para. 18 (“the compatibility of the reservation with the object and purpose of the treaty . . . was unfortunately dependent on the subjective appreciation of States and therefore impossible to apply with any certainty in practice”); Castren, ibid. 149, para. 45 (“in the residual case where the treaty was silent on the subject of reservations, the consent of the parties was necessary for the reservation to have any e ect”); and Gros, ibid. 173, para. 15 (“[t]o convert law-making treaties into a series of di erent bilateral relationships was no contribution to the progressive development of international law”). See the summing up by Waldock, ibid. 158, para. 50, and 159, para. 54 (“his intention had been simply to reflect the existing practice and to put forward, in regard to the problem of reservations, proposals which would prove acceptable to States . . . His proposals . . . were an attempt to formulate a set of provisions which would have a chance of being accepted

by States”).

9See YBILC 1965 I 263 f, para. 1. Article 18 of Waldock Report IV is reproduced at YBILC 1965 II 45 , and Article 18 of the ILC Draft 1965 at YBILC 1965 II 161 f. The debate in 1965 is at YBILC 1965 I 144 , 263 , and 283. See critically Ago, YBILC 1965 I 151, para. 38 (“[a reservation] was a necessary evil, but still an evil, for what an instrument gained in scope through the number of signatory states, it lost in

depth from the fact that, as a result of the reservations to it, it stated fewer rules”).

10Articles 16–19 are at YBILC 1966 II 202 . The debate in 1966 is at YBILC 1966 I/2 295, 326, and 340.

11For instance, the then USSR proposed combining Articles 19 and 20; see OR Documents 133, subpara. 175(a). Various States proposed deleting subpara. (b), e.g. Colombia and USA, OR Documents 134, subpara. 177(iv)(a), and the Federal Republic of Germany, ibid. (b).

12T he debate is reproduced at OR 1968 CoW 106 , 125 , and 425 f, and at OR 1969 Plenary 28 . See the statement by the Japanese delegation, OR CoW 1969 110, para. 27 (“States had no inherent right to put forward whatever reservation they pleased”); the criticism of the ILC Draft 1966 by the then USSR delegation, ibid. 107, para. 2 (“cumbersome and occasionally contradictory”); the praise by the Swiss delegation, ibid. 111, para. 39 (“[t]he [Commission’s] system was realistic and in conformity with the present trend of international law”); and the summary by the Expert Consultant, Sir Humphrey Waldock, as to Article 19, para. (c), ibid. 126, para. 7 (“the debate seemed to have shown that . . . that criterion now met with very general acceptance”).

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amendments were adopted.13 In 1969 the Plenary voted for Article 19 with the large majority of 92 votes to four, with seven abstentions.14

Two changes made in Vienna to Article 16 of the ILC Draft 1966 leading to Article 19 of the Convention may be mentioned: In para. (b), instead of “the treaty authorises specified reservations”, it is now written “the treaty provides that only specified reservations . . . may be made” (N. 10); in para. (c), instead of “in cases where the treaty contains no provision regarding reservations”, it is now stated “in cases not falling under sub-paras. (a) and (b)” (N. 11).

B.INTERPRETATION OF ARTICLE 19

1.Scope

6As provided for in Article 2, subpara. (d) (q.v., N. 33–37), a reservation “purports to exclude or modify the legal e ect of certain provisions of the treaty in [its] application to that State”. The “provisions” of the treaty may constitute an entire article, or only a paragraph, or even only one or some words.15 Articles 19–23 apply to all treaties.16 However, reservations to a bilateral treaty amount in e ect to a new proposal for negotiations between the two parties concerning the terms of the treaty.17

The ILC’s 2007 Guideline 1.5.1 on Reservations to Bilateral Treaties provides that “[a] unilateral statement . . . by which [a] State . . . purports to obtain from the other party a modification of the provisions of the treaty . . . does not constitute a reservation within the meaning of the present Guide to Practice”.18

7In respect of multilateral treaties, reservations raise the di culty that one State may wish to accept the reservation whereas another objects to it.19 Article 19, in particular its para. (c), reflects the approach which the ILC and the Vienna Conference generally chose for Articles 19–23, namely,

13OR CoW 1968 135 f.

14T he vote is reproduced at OR 1969 Plenary 30, para. 35.

15Bowett, BYBIL 48 (1976–77) 85; see here also Article 44 on the Separability of Treaty Provisions (q.v.).

16But see the plurilateral treaties referred to in Article 20, para. 2 (q.v., N. 5–6).

17ILC Report 1966, YBILC 1966 II 203, para. 1. See Pellet Report I, YBILC 1995 II/1, para. 127, for whom there is here a “gap” in Articles 19–23 (“more irritating in theory than important in practice”); also the discussion in connexion with Article 22 (q.v.) in Vienna, OR 1969 CoW 37, in particular the question put by the President of the Conference, Ago, “whether . . . the procedures set out in the articles in Section 2 [on reservations] related only to multilateral treaties”, ibid. para. 22; and the reply by Yasseen, Chairman of the Drafting Committee, ibid. para. 37, that “he was not in a position to confirm”.

18YBILC 2007 II/2 51.

19ILC Report 1966, YBILC 1966 II 203, para. 1.

formulation of reservations	267
a certain flexibility in both making and objecting to reservations.20 In
principle, reservations are permitted (N. 9). More specifically, it cannot be
inferred from the absence in a treaty of any article providing for reserva-
tions that they are prohibited; rather, their admissibility depends on the
treaty’s object and purpose (N. 12–14) as well as on their acceptance by
the other parties (Article 20, N. 13).21
Reservations to multilateral treaties have di erent aims: (i) they may wish to exclude
certain provisions of the treaty, e.g., on the compulsory settlement of disputes;
(ii) they may aim to exclude the entire treaty, though only in respect of certain situ-
ations or territories; or (iii) they may intend to limit the e ects of certain provisions,
e.g., to the extent provided for by domestic legislation.22
The system of reservations in Articles 19–23 aims to encourage the largest possible
number of States to participate in a treaty and for the treaty to enter into force.23
This “advantage” has been criticised as it can lead to a fragmentation of the relations
under the treaty.24 However, if States fear the danger of a bilateralisation of relations
when negotiating a treaty, they are always free to insert an express prohibition against
reservations—either generally or in respect of specific provisions which they regard
as essential. The same consideration applies to the two further criticisms, i.e., (i) that
the non-reserving State may not have consented to the treaty if it had known that the
other State would only do so subject to a reservation; and (ii) that implementation
of the treaty is allegedly more onerous for the non-reserving States.25
Articles 19–23 o er important safeguards in that they are based on the		8
consensual character of treaties.26 No State can be bound without its con-

sent, because no reservation can be e ective towards another State without its agreement.27 It is this consensual character which enables two States to enter into a particular legal relationship as established by a reservation within the framework of a multilateral treaty.28

20Ruda, RC 146 (1975 III) 180 (“Article 19 is a very important, or even essential, element of the system adopted at Vienna”).

21ILC Report 1966, YBILC 1966 II 203 f, para. 4, and 207, para. 17; Waldock Report I, YBILC 1962 II 65, para. 9; Yasseen in the ILC, YBILC 1965 I 149 f, para. 20 (“essential point . . . that, in the case where the treaty was silent . . ., the reservation regarded as inadmissible had to be incompatible with the object and purpose of the treaty”).

22Extensively Kühner, Vorbehalte 193 .

23Lachs in the ILC, YBILC 1962 II 141, para. 32.

24See Castren in the ILC, ibid. para. 45 (“fifty signatures which established a collective regime of general scope were preferable to 105 signatures when fifty-five of them were subject to a variety of reservations which impaired the unity of the legal regime established by the treaty”); Briggs, ibid. 51, para. 69 (“universality would become fictitious”).

25Liu in the ILC, ibid. 167, para. 61; ILC Report 1966, YBILC 1966 II 206, para. 13.

26See the observation by the Expert Consultant, Sir Humphrey Waldock, in Vienna, OR 1968 CoW 126, para. 1.

27ILC Report 1966, YBILC 1966 II 203 f, para. 4.

28Tunkin in the ILC, YBILC 1962 I 158, para. 44.

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2. Freedom to Make Reservations

9In its opening sentence Article 19 states the general principle that a State may formulate a reservation. By virtue of their sovereignty, there is a presumption that States are free to make reservations (although they are not obliged to do so),29 unless one of the three situations mentioned in paras. (a), (b) and (c) prevails (N. 10–14).30 T he occasions upon which such a reservation may be made—i.e., when signing, ratifying, accepting, approving or acceding to a treaty—give a State the opportunity to express its consent to be bound by a treaty as set out in Articles 11–15 (q.v.).31 It follows that, after consent has been expressed by one of these means, it is no longer possible to make a reservation. The formulation of a reservation is governed by Article 23, para. 1 and must be in writing (q.v., N. 3). The right to formulate a reservation does not imply the right to participate in the treaty on the basis of the reservation.32 Also, by formulating the reservation, the latter has not yet been “made”, as other States may still object thereto.33

What are the consequences if the conditions in Article 19, paras. (a)–(c) (N. 10–14) are not complied with?34 In the case of paras. (a) and (b), it is understood that States a priori intended to reject acceptance of any reservation falling within these two categories. In the case of para. (c), failing a judicial settlement of the dispute, it is up to the other States parties to the treaties whether or not to regard the reservation as invalid, in particular, when considering whether to accept or object to these reservations (see Article 20, N. 10–12).

29Waldock Report I, YBILC 1962 II 65, para. 9; de Luna in the ILC, YBILC 1962 I 148, para. 24. See the ILC Report 2006, YBILC 2006 II/2 330, para. 5 (“[i]t is probably excessive to speak of a ‘right to reservations’”).

30ILC Report 1966, YBILC 1966 II 207, para. 17. See Waldock in the ILC, YBILC 1962 I 159, para. 57 (“[t]he freedom to make reservations applied only outside the terms of [paras. a and b])”.

31T hese means are also mentioned in Article 2, subpara. 1(d) (q.v., N. 33); for this reason, the reiteration is “no doubt superfluous . . . [but] not a su ciently serious drawback to merit rewriting the Vienna Convention”, ILC Report 2006, YBILC 2006 II/2 332, para. 9. The signature mentioned refers to a State’s definitive consent to be bound (Article 12, N. 9–10 and 25). The treaty may mention further occasions when a reservation may be formulated, Aust, Modern Treaty Law 154. See the ILC Report 1966, YBILC 1966 II 208, para. 3, according to which “a statement during the negotiations expressing a reservation is not, as such, recognised in Article [19] as a method of formulating a reservation and equally receives no mention in the present article”.

32Redgwell, BYBIL 64 (1993) 261 f; Kühner, Vorbehalte 122 f.

33ILC Report 2006, YBILC 2006 II/2 330 f, para. 6.

34See Tsuruoka in the ILC, YBILC 1962 I 151, para. 63; de Luna, ibid. 148, para. 26 (“no sanction was laid down”).

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269

3. Reservations Prohibited by the Treaty (Para. [a])

Paras. (a)–(c) provide for exceptions to the general rule, they state the 10 conditions within which a reservation is not permitted. Para. (a) sets out

the first case, namely when, the reservation is prohibited by the treaty itself. The parties negotiating the treaty expressly exclude reservations to certain provisions, or even to any reservation to the treaty, thereby insisting on its integrity.35 Therefore, any change in the text of the treaty would require an amendment according to Articles 39–41 (q.v.).36 In practice, such clauses remain exceptional. Whether the text of a treaty does in fact prohibit reservations, will depend on the interpretation of the treaty.37 Given the freedom of States to make reservations (N. 9), para. (a) does not allow implicit prohibitions (but see N. 11).

Human rights treaties often prohibit reservations,38 as do the Rome Statute of the International Criminal Court of 199839 and the UN Convention on the Law of the Sea of 1982.40 Interestingly, from the outset international labour conventions have not authorised reservations, although this is not expressly mentioned in the ILO Constitution.41

4. Specified Reservations Excluding Other Reservations (Para. [b])

Para. (b) provides a further exception to the freedom to make reservations. 11 In particular, a reservation is prohibited if the treaty provides that only specified reservations, which do not include the reservation in question, may be made. This amounts to a form of implicit prohibition: The treaty states that only certain reservations may be made to particular articles and

35See the observation by Sir Humphrey Waldock, Expert Consultant, in Vienna, OR 1968 CoW 126, para. 5; the ILC Report 1966, YBILC 1966 II 207, para. 17. Para.

(a)does not cover implicit or tacit prohibitions, ILC Report 2006, YBILC 2006 II/2 337, para. 6 (“only reservations expressly prohibited by the treaty”); Kühner, Vorbehalte 124 f. See Pellet, Article 19, N. 153 .

36See Article 17, subpara. 2(a) of Waldock Report I, YBILC 1962 II 60 (“unless the prior consent of all the interested States has been first obtained”).

37Aust, Modern Treaty Law 136.

38See, e.g., Article 21 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987 (“[n]o reservation may be made in respect of the provisions of this Convention”).

39Article 120 (“[n]o reservations may be made to this Statute”).

40Article 309 (“[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention”); see McDorman, Journal MLC 13 (1982) 481 .

41Personal email to the author from the International Labour Standards Department of the International Labour O ce in Geneva, dated 13 June 2007. This prohibition could also be seen as falling under para. (c) (N. 12–14).

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specifies them, for instance, reservations to certain of its provisions or to the treaty as a whole with respect to certain specific aspects42—and the reservation at issue is not directed towards this article for which reason it is prohibited.43 Whether such an implicit prohibition exists will again depend on the interpretation of the treaty.44 On the whole, this condition does not appear entirely satisfactory since the prohibition to make reservations relies on the silence in respect of certain articles as opposed to the express authorisation to make reservations in respect of other articles.45 Indeed, conclusions drawn from this silence may not necessarily reflect the intentions of the negotiating States.46

In this situation, the issue arises whether a reservation which is a priori prohibited under para. (b) is still permitted if it meets the requirements of para. (c) (N. 12–14). However, this would appear to go against the text of Article 19 itself—and this in two respects: (i) “or” as the last word of para. (b) makes it clear that paras. (b) and

(c) are alternatives; and (ii) the opening words of para. (c) clarify that the latter only applies in cases not falling under paras. (a) and (b) (italics added; see N. 12). Of course, the situation is again di erent if the treaty permits reservations to certain articles, and states in respect of other articles that reservations are possible as long as they meet the object-and-purpose-test of para. (c).47

Reservations admitted under para. (b) correspond to Article 20, para. 1 (q.v., N. 4) and do not require any subsequent acceptance by the other contracting States. Reservations also need not pass the additional test under para. (c) as to their compatibility with the treaty’s object and purpose (N. 12–14).48

42See Guideline 3.1.2 on the Definition of Specified Reservations of the ILC Report 2007, YBILC 2007 II/2 64 (“the expression ‘specified reservations’ means reservations that are expressly envisaged in the treaty to certain provisions of the treaty or to the treaty as a whole with respect to certain specific aspects”).

43See ILC Report 1966, YBILC 1966 II 207, para. 17; Article 17, subpara. 1(a)(ii) of Waldock Report I, YBILC 1962 II 60. See the examples mentioned in ILC Report 2006, YBILC 2006 II/2 337 , paras. 7 . See generally Pellet, Article 19, N. 159 .

44Aust, Modern Treaty Law 136; see the examples in Kühner, Vorbehalte 128.

45See Yasseen in the ILC, YBILC 1965 I 264, para. 11 (“the fact that a treaty authorized reservations to some of its clauses did not mean that reservations to other clauses were inadmissible”); per contra Waldock, ibid. para. 27 (“where a treaty authorized reservations to certain specific provisions, the natural implication was that those were the only provisions to which reservations were allowed”).

46See the observation by Sir Humphrey Waldock, Expert Consultant, in Vienna, OR 1968 CoW 126, para. 6 (“the presumption proposed by the Commission, that a treaty which allowed certain reservations implied that it prohibited others, did not necessarily represent the intentions of the parties in all cases”).

47E.g., Article 29, para. 1 of the Council of Europe Convention on Nationality of 1997, also mentioned ibid.

48Kühner, Vorbehalte 128.

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5. Incompatibility With the Treaty’s Object and Purpose (Para. [c])
Para. (c) is intended to cover reservations where the treaty is silent on the		12
matter,49 or where the treaty states, without further specification, that reser-
vations may be made.50 Para. (c) applies in cases not falling under paras.
(a) and (b), i.e., in respect of all those reservations which are not already
expressly prohibited by the treaty itself (N. 10) and are not implicitly pro-
hibited in view of reservations which are permitted to other articles in the
same treaty (N. 11).51 Thus, it is irrelevant whether reservations prohibited
under paras. (a) and (b) would in fact comply with para. (c).52
According to para. (c), a reservation will not be admitted if it is incompat-		13
ible with the object and purpose of the treaty. This test is an essential

part of the approach to reservations chosen by the Court in the Reservations to Genocide Advisory Opinion (N. 2).53 T he possibility that States accept reservations even though those reservations are incompatible with para.

(c) does not imply its redundancy (Article 20, N. 12). As the ILC has since confirmed, para (c) embodies “the most important of the criteria for determining the admissibility of reservations”.54 What is meant by a treaty’s object and purpose? As in Article 31 (q.v., N. 11), the terms are used as a combined whole and include a treaty’s aims, its nature and its end.55 A treaty may have many objects and purposes.56 One of them will certainly

49See ILC Report 1966, YBILC 1966 II 207, para. 17; the observation by Yasseen of the Drafting Committee in Vienna, OR 1968 CoW 415, para. 17 (“in order to ensure that no gap was left”). The ILC Draft 1966, YBILC 1966 II 202, had previously stated in this respect: “in cases where the treaty contains no provision regarding reservations”, but this was changed in Vienna (N. 5). See generally Pellet, Article 19, N. 172 .

50Bowett, BYBIL 48 (1976–1977) 71.

51Ago, YBILC 1965 I 264, para. 16 (“[w]here the parties had been careful to specify in the treaty the clauses to which it was permitted to make reservations, or those to which no reservations could be made, the compatibility test was unnecessary”); see also Hilpold, AVR 43 (1996) 401; Bowett, BYBIL 48 (1976–1977) 70 f.

52ILC Report 2006, YBILC 2006 II/2 352, para. 6.

53Yasseen of the Drafting Committee in Vienna, OR 1968 CoW 416 f, para. 18.

54ILC Report 1997, YBILC 1997 II/2 57, para. 1.

55See Guideline 3.1.5 on the Incompatibility of a Reservation with the Object and Purpose of the Treaty in the ILC Report 2007, YBILC 2007 II/2 66 (“if [the reservation] a ects an essential element of the treaty that is necessary to its general thrust, in such a way that the reservation impairs the raison d’être of the treaty”); Article 17, subpara. 1(a)(i) of Waldock Report I, YBILC 1962 II 60 (“excluded by the nature of the treaty”). See on the subject also Buffard/Zemanek, Austrian RIEL 3 (1998) 311 , 322 ; Linderfalk, Nordic JIL 72 (2003) 442 (“a reservation of a treaty is to be assessed against the rights and obligations, to which the treaty gives expression. Second, it is to be assessed against the telos [or teloi] of the treaty”; original italics); Tomuschat, ZaöRV 27 (1967) 474 (“flagrant contrast to the treaty”).

56See Tusuruoka in the ILC, YBILC 1966 I 326, para. 91 (“both singular and plural had the same meaning”).

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be to maintain the balance of rights and obligations created by the treaty.57 The objects and purposes may be determined by referring to the means of interpretation in Articles 31 and 32 (q.v.),58 among them the treaty’s title, its preamble, the text of the articles, any annexes, parallel or separate agreements, the travaux préparatoires, etc.59 Vague or general reservations appear incompatible with Article 19, para. (c) if they do not permit assessing their compatibility with the treaty’s object and purpose.60

Guideline 3.1.6 on the Determination of the Object and Purpose of the Treaty of the ILC Report 2007 reflects elements of Article 31 when it states in respect of Article 19, para. (c): “[t]he object and purpose of the treaty is to be determined in good faith, taking account of the terms of the treaty in their context. Recourse may also be had in particular to the title of the treaty, the preparatory work of the treaty and the circumstances of its conclusion and, where appropriate, the subsequent practice agreed upon by the parties”.61 In Vienna in 1969 the US delegation “understood the expression ‘object and purpose of the treaty’ in its broad sense as comprehending the origins and character of the treaty and the institutional structure within which the purpose of the treaty was to be achieved”.62

Thus, a reservation shall not run counter to a treaty’s fundamental principles.63 Typically, a reservation going against a treaty’s object and purpose would be one whereby a State ratifying the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 seeks to exclude torture from it.64 Equally, reservations aimed at preserving the integrity of internal law may go against a treaty’s object and purpose in view of their often undetermined and sweeping nature.65 In addition, reservations appear incompatible with a treaty reflecting jus cogens (Article 53, N. 23).66

57Treviranus, GYBIL 25 (1982) 520.

58Waldock in the ILC, YBILC 1962 I 159 para. 57 (“intentions of the negotiating States”).

59See also the ILC Commentary 2007 on Guideline 3.1.6 on the Determination of the Object and Purpose of the Treaty, YBILC 2007 II/2 78, para. 3.

60Guideline 3.1.7. on Vague or General Reservations, ILC Report 2007, ibid. 82 .

61Ibid. 77. See Pellet, Article 19, N. 187.

62OR 1969 Plenary 35, para. 3.

63See the observation of the Iraqi delegation in Vienna, OR 1968 CoW 117, para. 22.

64Aust, Modern Modern Treaty Law 137, with further examples; also Waldock in the ILC, YBILC 1962 I 143, para. 60 (“[the] Charter of the United Nations which, by its nature, was not open to reservations”). On the reservations of the former German Democratic Republic to the Convention, see Edwards, Michigan JIL 10 (1989) 391; G. Gornig/M. Ney, Die Erklärungen der DDR zur UN-Antifolterkonvention aus völkerrechtlicher Sicht, Juristen Zeitung 43 (1988) 1048 . See the UN Human Rights Committee in Kennedy v. Trinidad and Tobago, HRLJ 21 (2000) 21 (“exclude the competence of the Committee . . . with regard to . . . the entire Covenant for . . . prisoners under sentence of death. This does not . . . make it compatible with the object and purpose of the Optional Protocol”).

65See ILC Guideline 3.1.11, YBILC 2007 II/2 65 (“[a] reservation by which a State . . . purports to exclude or to modify the legal e ect of certain provisions of a treaty or of the treaty as a whole in order to preserve the integrity of specific norms of that State . . . may be formulated only insofar as it is compatible with the object and purpose of the treaty”).

66Verdross/Simma N. 731, n. 68.

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The treaty’s object and purpose as in para. (c) was one of the issues relating to the Court’s jurisdiction and the admissibility of application in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/Rwanda) Case. In respect of Rwanda’s reservation to Article IX of the 1951 Genocide Convention (N. 2), the Court found: “Rwanda’s reservation . . . bears on the jurisdiction of the Court and does not a ect substantive obligations relating to acts of genocide themselves under that Convention. In the circumstances of the present case, the Court cannot conclude that the reservation of Rwanda in question, which is meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfillment of the Convention, is to be regarded as being incompatible with the object and purpose of the Convention”.67

Assessing the admissibility of a reservation under para. (c), while appear- 14 ing a priori to be defined objectively, depends in the last resort on the appreciation by each treaty party itself and is as such a di cult exercise.68 This appreciation resurfaces in Article 20, para. 4 (q.v., N. 9–16), with which para. (c) is closely linked. In practice, a State wishing to object to

a reservation will often claim its incompatibility with the treaty’s object and purpose.69 Of course, the subjectivity inherent in this approach equally provides for considerable flexibility.70

Article 20, para. 2 of the International Convention on the Elimination of All Forms of Racial Discrimination of 1979 o ers an interesting solution when it states that “[a] reservation incompatible with the object and purpose of this Convention shall not be permitted . . . A reservation shall be considered incompatible or inhibitive if at least two thirds of the States Parties to this Convention object to it”.71

67ICJ Reports 2006, para. 67, with reference, ibid. para. 68 to previous cases. This was criticised by Judges Higgins, Kooijmans, Elaraby, Owada and Simma in a joint separate opinion, ibid.; see also the diss.op. of Judge Koroma, ibid.

68Aust, Modern Treaty Law 136. See Sir Humphrey Waldock, Expert Consultant in Vienna, OR 1968 CoW 126, para. 10 (“although the [ILC] had intended to state an objective criterion, the method of application proposed . . . was subjective, in that it depended on the judgment of States. But that situation was characteristic of many spheres of international law in the absence of a judicial decision”); de Luna in the ILC, YBILC 1962 I 148, para. 18 (“unfortunately dependent on the subjective appreciation of States and therefore impossible to apply with any certainty in practice”); Amado, ibid. 160, para. 64 (“[t]he compatibility test . . . was . . . impracticable”).

69ILC Report 1966, YBILC 1966 II 207, para. 17; Waldock in the ILC, YBILC 1962 I 159, para. 60.

70Piper, Iowa LR 71 (1985) 319.

71In the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/ Rwanda) Case, ICJ Reports 2006, para. 77, the Court noted that such an objection by two-thirds of the States Parties “had not been the case as regards Rwanda’s reservation in respect of the Court’s jurisdiction”.

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C. CONTEXT

1. Relationship to Other Provisions

15Articles 19–23 have to be read together as a combined whole. Article 20 (q.v.) is of particular relevance for Article 19. Thus, the formulation of a reservation is only one side of the coin; its legal e ect will depend on the reactions by the other treaty parties, in particular whether they accept or reject the reservation.72 It can be said that Article 19 concerns those cases where reservations are prohibited, and Article 20 those cases where reservations are permitted (Article 20, N. 2).73

Article 17, concerning Consent to be Bound by Part of a Treaty and Choice of Di ering Provisions, expressly states that it is “[w]ithout prejudice to Articles 19–23”, though the distinction between reservations and partial consent is not clear-cut (q.v.,

N.5).

2.Matters Not Dealt With

(see Articles 19–23—Subsequent Developments)

3. Customary Basis of Article 19

(see Articles 19–23—Subsequent Developments)

D. RESERVATIONS TO THE CONVENTION

16The Convention itself does not contain any clauses regulating whether and to what extent reservations can be made. Thus, reservations are in principle admissible, and there appears to be no logical di culty of “applying the Convention to itself” (Issues of Customary International Law, N. 24–27).74

It follows that reservations to the Convention have themselves to meet the conditions of Articles 19–23 and, in particular, the compatibility test

72ILC Report 1966, YBILC 1966 II 203, para. 1; see already ILC Report 1962, YBILC 1962 II 176, para. 1.

73Statement in Vienna by the Swedish delegation (Blix), OR 1968 CoW 117, para. 28.

74Sinclair, Vienna Convention 63 (“[t]he Vienna Conference decided, in full knowledge of the consequences”); per contra Sztucki, GYBIL 20 (1977) 284 (“the Convention regime of reservations cannot be regarded as also governing, on the strength of its legal force, the reservations to the Convention itself”). On the subject, Verhoeven, Essays Suy 196 . See also Aust, Modern Treaty Law 155, according to whom Article 20, para. 5 (q.v., N. 17) cannot apply to the Convention itself.

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275

of para. (c) (N. 12–14). Since 1969 many such reservations have been made (see Reservations and Declarations to the Convention and Objections Thereto).75

In 1969 in Vienna the Spanish delegation proposed introducing an amendment according to which “[n]o amendment is permitted to Part V of the present Convention”, considering in particular “that reservations to Part V of the Convention would be incompatible with the object and purpose of the Convention”.76 After a short discussion the amendment was rejected by 62 votes to nine, with 33 abstentions.77

E. PROPOSALS FOR AMENDMENT

(see Articles 19–23—Subsequent Developments)

F. APPRECIATION

(see Articles 19–23—Subsequent Developments)

75For a discussion on various reservations to the Convention and, in particular, the reaction of the United Kingdom hereto, see Sinclair, ibid. 63 .

76OR 1969 Plenary 195 f, paras. 93 f. The proposal was supported in particular by Blix of the Swedish delegation, ibid. 95 (“[h]e would have liked to see a clause prohibiting any reservation whatsoever to the Convention, but he realized that that would not have been acceptable to the majority”); conversely Rosenne of the Israeli delegation, ibid. para. 97, (“[the] substantive articles [Articles 19–23] in the Convention were perfectly adequate”): the then USSR delegation, ibid. para. 98 (“it was apparent from the Convention that reservations were generally permissible”). See also Sinclair, ibid. 79, n. 44.

77Ibid. para. 102. On the consequences of reservations to Article 66 and its Annex (q.v.) in respect of Part V of the Convention in general, see Kühner, Vorbehalte 196 .

Article 20

Acceptance of and objections to reservations

1.A reservation expressly authorised by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.

2.When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

3.When a treaty is a constituent instrument of an international organisation and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organisation.

4.In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:

(a)acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

(b)an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;

(c)an act expressing a State’s consent to be bound by the treaty and containing a reservation is e ective as soon as at least one other contracting State has accepted the reservation.

5.For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

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Article 20 Acceptation des réserves et objections aux réserves

1.Une réserve expressément autorisée par un traité n’a pas à être ultérieurement acceptée par les autres Etats contractants, à moins que le traité ne le prévoie.

2.Lorsqu’il ressort du nombre restreint des Etats ayant participé à la négociation, ainsi que de l’objet et du but d’un traité, que l’application du traité dans son intégralité entre toutes les parties est une condition essentielle du consentement de chacune d’elles à être liée par le traité, une réserve doit être acceptée par toutes les parties.

3.Lorsqu’un traité est un acte constitutif d’une organisation internationale et à moins qu’il n’en dispose autrement, une réserve exige l’acceptation de l’organe compétent de cette organisation.

4.Dans les cas autres que ceux visés aux paragraphes précédents et à moins que le traité n’en dispose autrement:

a)l’acceptation d’une réserve par un autre Etat contractant fait de l’Etat auteur de la réserve une partie au traité par rapport à cet autre Etat si le traité est en vigueur ou lorsqu’il entre en vigueur pour ces Etats;

b)l’objection faite à une réserve par un autre Etat contractant n’empêche pas le traité d’entrer en vigueur entre l’Etat qui a formulé l’objection et l’Etat auteur de la réserve, à moins que l’intention contraire n’ait été nettement exprimée par l’Etat qui a formulé l’objection;

c)un acte exprimant le consentement d’un Etat à être lié par le traité et contenant une réserve prend e et dès qu’au moins un autre Etat contractant a accepté la réserve.

5.Aux fins des paragraphes 2 et 4 et à moins que le traité n’en dispose autrement, une réserve est réputée avoir été acceptée par un Etat si ce dernier n’a pas formulé d’objection à la réserve soit à l’expiration des douze mois qui suivent la date à laquelle il en a reçu notification, soit à la date à laquelle il a exprimé son consentement à être lié par le traité, si celle-ci est postérieure.

Artikel 20 Annahme von Vorbehalten und Einsprüche gegen Vorbehalte

1.Ein durch einen Vertrag ausdrücklich zugelassener Vorbehalt bedarf der nachträglichen Annahme durch die anderen Vertragsstaaten nur, wenn der Vertrag dies vorsieht.

2.Geht aus der begrenzten Zahl der Verhandlungsstaaten sowie aus Ziel und Zweck eines Vertrags hervor, dass die Anwendung des Vertrags in seiner Gesamtheit zwischen allen Vertragsparteien eine wesentliche Voraussetzung für die

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Zustimmung jeder Vertragspartei ist, durch den Vertrag gebunden zu sein, so bedarf ein Vorbehalt der Annahme durch alle Vertragsparteien.

3.Bildet ein Vertrag die Gründungsurkunde einer internationalen Organisation und sieht er nichts anderes vor, so bedarf ein Vorbehalt der Annahme durch das zuständige Organ der Organisation.

4.In den nicht in den Absätzen 1 bis 3 bezeichneten Fällen und sofern der Vertrag nichts anderes vorsieht,

a)macht die Annahme eines Vorbehalts durch einen anderen Vertragsstaat den den Vorbehalt anbringenden Staat zur Vertragspartei im Verhältnis zu jenem anderen Staat, sofern der Vertrag für diese Staaten in Kraft getreten ist oder sobald er für sie in Kraft tritt;

b)schliesst der Einspruch eines anderen Vertragsstaats gegen einen Vorbehalt das Inkrafttreten des Vertrags zwischen dem den Einspruch erhebenden und dem den Vorbehalt anbringenden Staat nicht aus, sofern nicht der den Einspruch erhebende Staat seine gegenteilige Absicht eindeutig zum Ausdruck bringt;

c)wird eine Handlung, mit der die Zustimmung eines Staates, durch den Vertrag gebunden zu sein, ausgedrückt wird und die einen Vorbehalt in sich schliesst, wirksam, sobald mindestens ein anderer Vertragsstaat den Vorbehalt angenommen hat.

5.Im Sinne der Absätze 2 und 4 und sofern der Vertrag nichts anderes vorsieht, gilt ein Vorbehalt als von einem Staat angenommen, wenn dieser bis zum Ablauf von zwölf Monaten, nachdem ihm der Vorbehalt notifiziert worden ist, oder bis zu dem Zeitpunkt, wenn dies der spätere ist, in dem er seine Zustimmung ausgedrückt hat, durch den Vertrag gebunden zu sein, keinen Einspruch gegen den Vorbehalt erhebt.

ILC Draft 1966

Article 17—Acceptance of and objection to reservations

1.A reservation expressly or implicitly authorised by the treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides.

2.When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties.

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3.When a treaty is a constituent instrument of an international organisation, the reservation requires the acceptance the competent organ of that organisation, unless the treaty otherwise provides.

4.In cases not falling under the preceding paragraphs of this Article:

(a)acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force;

(b)an objection by another contracting State to a reservation precludes the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is expressed by the objecting State;

(c)an act expressing a State’s consent to be bound by the treaty and containing a reservation is e ective as soon as at least one other contracting State has accepted the reservation.

5.For the purposes of paragraphs 2 and 4 a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Materials:

WALDOCK Report I: Articles 18 and 19.

Minutes: YBILC 1962 I 139 , 172 , 221 , 252 , 287 .

ILC Draft 1962: Article 20.

WALDOCK Report IV: Article 20.

Minutes: YBILC 1965 I 145 , 166 , 265 (later Article 19).

ILC Draft 1965: Article 19.

Minutes: YBILC 1966 I/2 292 f, 326 f.

ILC Draft 1966: Article 17.

Minutes: OR 1968 106 , 125 , 416 f, 425 f; OR 1969 CoW 220 f; OR 1969 Plenary 30 .

Vienna Conference Vote: 83:0:17

Selected Literature (in addition to the literature mentioned in Article 19, q.v.):

A.M. Calamia, La disciplina delle obiezioni alle riserve e la Convenzione di Vienna sul diritto dei trattati, in: Studi in onore di G. Sperduti (1984) 3 ; L. Migliorino, Le obiezioni alle riserve nei trattati internazionali (1997); D. Müller, Article 20, in: Corten/ Klein (eds.) 797 .

280		article
		CONTENTS
			Paras.
A. Background ......................................................................................			1
1.	Introduction (see Article 19, N. 1–2)
2.	History ...........................................................................................		1
B. Interpretation of Article 20 .........................................................			2
1.	Scope ..............................................................................................		2
2.	Reservations Authorised by the Treaty (Para. 1) .............................		4
3.	Reservations to Treaties with Limited Number of States (Para. 2) ....		5
4.	Reservations to Constituent Instruments
	of International Organisations (Para. 3) .........................................		7
5.	General Rule on Acceptance and Objections (Para. 4) ..................		9
	a)	Position of Prohibited Reservations ...........................................	10
	b)	Acceptance of Reservations (Subpara. 4[a]) ...............................	13
	c)	Objections to Reservations (Subpara. 4[b]) ...............................	14
	d)	E ectiveness of Acceptance (Subpara. 4[c]) ..............................	16
6.	Tacit Acceptance and its Consequences (Para. 5) ...........................		17

C.Context

(see Articles 19–23—Subsequent Developments)

D.Proposals for Amendment

(see Articles 19–23—Subsequent Developments)

E.Appreciation

(see Articles 19–23—Subsequent Developments)

A. BACKGROUND

1. Introduction

(see Article 19, N. 1)

2. History

1 Article 20 goes back to Articles 18 and 19 of the Waldock Report I of 1962 (Article 19, N. 4).1 An important topic of the ensuing discussion in the ILC was the relationship between the incompatibility test in Article 19, para. (c) (q.v., N. 12–14) and the acceptance of a reservation in Article 20,

1 YBILC 1962 II 61 .

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281

subparas. 4(a) and (c) (N. 13, 16).2 A proposal was put forward which separated the application of the two notions.3 The text eventually proposed by the ILC in 1962 assumed that, if a State objected to a reservation, this precluded the entry into force of the entire treaty between itself and the reserving State.4 T hese topics resurfaced in 1965 in the ILC.5 Members who disapproved of the system of reservations chosen by the ILC specifically also disagreed with the substance of today’s Article 20, para. 4.6 The ILC Draft 1966 attracted various amendments in Vienna in 1968:7 the most important one to be adopted, proposed by the then USSR, altered the assumption in Article 20, subpara. 4(b) (N. 14) in that an objection to a reservation henceforth did not in itself preclude the entry into force of the treaty between the States concerned.8 (Subpara. 4[b] is therefore also called the “Russian clause”.) Conversely, proposals to have the possibility of a reservation being disallowed on the basis of collegiate disapproval (e.g., a majority of the treaty parties) were not successful.9 In 1969 the Plenary adopted Article 20 with the surprisingly convincing result of 83 votes to none, with 17 abstentions.10

Among the further changes made in Vienna to Article 17 of the ILC Draft 1966 leading to today’s Article 20 were:

2See, e.g., the observations by Tunkin, de Luna and Ago, YBILC 1962 I 225 . The minutes are reproduced at YBILC 1962 I 139 , 172 , 221 , 252 , 287 .

3Article 18bis, ibid. 252, para. 55; see Waldock, ibid. para. 56 (“[t]he main di culty in drafting the article had been to bring its provisions into line with the principle . . . that a reservation could be formulated if compatible with the object and purpose of the

	treaty”).
4	Article 20 of the ILC Draft 1962 is at YBILC 1962 II 176 . See subsequently Article
	20 of Waldock Report V, YBILC 1965 II 45 .
5	See, e.g., the observations by Tunkin, YBILC 1965 I 167, para. 37; and Tsuruoka
	ibid. 169, para. 68.
6	E.g., Briggs ibid. 268, para. 60. The minutes of the debate in 1965 can be found at
	YBILC 1965 I 145 , 166 , and 265 (here: Article 19).
7	T he ILC Draft 1966 is at YBILC 1966 II 202 . The minutes of the debate in 1966
	are at YBILC 1966 I/2 292 f, and 326 f.
8	OR Documents 133, subpara. 175(a). Interestingly, this amendment was first rejected
	in 1968, OR CoW 1968 135, para. 36, but later adopted in 1969, OR 1969 Plenary
	35, para. 79.

9See, e.g., the statement of the Irish delegation, OR 1968 CoW 123, para. 19. The US amendment, proposing that para. 3 include the words “but such acceptance shall not preclude any contracting State from objecting to the reservation”, OR Documents 135, subpara. 179(iv)(d), was first adopted, OR 1968 CoW 135, para. 32, and later withdrawn, ibid. 426, para. 14. Two amendments proposed by Switzerland (N. 11) and the US (N. 12), concerning the links between Articles 19 and 20, were referred to the Drafting Committee, though eventually not included. The debate in 1968 can be

found at OR 1968 CoW 106 , 125 , 416 f, and 425 f.

10OR 1969 Plenary 35, para. 82. The debate in 1969 is reproduced at OR 1969 CoW 220 f, and OR 1969 Plenary 30 .

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–in para. 1 the word “impliedly” was deleted from the phrase “expressly or impliedly authorised”;11

–in paras. 4 (opening sentence) and 5 the words “unless the treaty otherwise provides” were introduced; and in para. 3 these words were taken from the end to the middle of the sentence; and

–in para. 4 the words “if or when the treaty is in force for those States” were added.

B. INTERPRETATION OF ARTICLE 20

1.Scope

2Article 20 deals with the acceptance of and objections to reservations. To accept a reservation is to agree with its content, to object thereto is to disapprove of it.12 Implicitly, Article 20 relates to permitted reservations, whereas Article 19 concerns those which are prohibited (q.v., N. 10–14).13 Interestingly, Article 20 mentions neither one nor the other category expressly.14 The fundamental principle remains here as throughout Articles 19–23 that, in order for a reservation to be e ective, other States must in one or the other way have given their consent thereto for them to be bound. Paras. 1–3 deal with three specific situations (N. 4–7); for all other cases, para. 4 contains a general rule (N. 9–16); para. 5 assists in the calculation of time-limits (N. 17). Moreover, paras. 2 and 3 aim at protecting the integrity of the treaty at issue,15 whereas para. 4 may lead to a bilateralisation and even a fragmentation of treaty relations.16

It transpires that Article 20, subpara. 4(b) (N. 14–15) goes beyond the subject-matter of Article 20 which is the acceptance of and objections to reservations, and deals with the legal e ects of objections, a topic pertaining to Article 21 (q.v.).17

11See the amendments proposed by Switzerland, France and Tunisia, OR Documents 135, subpara. 179(ii)(b)–(d); adopted by 35 votes to 18, with twelve abstentions, OR 1968 CoW 135, para. 30.

12See the statement in Vienna by the French delegation, OR 1968 CoW 116, para. 14 (“acceptance and objection were the obverse and reverse sides of the same idea. A State which accepted a reservation thereby surrendered the right to object to it; a State which raised an objection thereby expressed its refusal to accept a reservation”).

13See the statement in Vienna by the Swedish delegation (Blix), OR 1968 CoW 117, para. 28.

14Possibly with the exception of para. 1 (“[a] reservation expressly authorised by a treaty”).

15See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 126, para. 8 (“[principle] of a collegiate decision”).

16See Briggs in the ILC, YBILC 1962 I 151, para. 71 (“if the reservation was admissible and 99 out of the 100 parties objected to it but one party accepted it, the State making the reservation would in e ect become a party to a bilateral treaty with the latter”).

17Statement in Vienna by the French delegation, OR 1968 CoW 116, para. 17.

acceptance of and objections to reservations	283
Article 20 refers to negotiating and contracting States. These terms are defined in
Article 2, subparas. (e) and ( f) (q.v.).
In principle, the provisions of the Convention do not constitute jus cogens.		3
Hence, the articles, among them Article 20, may at any time be abrogated
or complemented by the treaty parties among themselves. It is therefore
striking that Article 20 on three occasions (paras. 3, 4 and 5), i.e., more than
most other Convention provisions, expressly—and in fact unnecessarily—
makes exception for the case where the treaty (to which the reservation is
to be made) otherwise provides.18
2. Reservations Authorised by the Treaty (Para. 1)
Para 1 concerns the first and straightforward situation of a reservation which		4
is expressly authorised by the treaty at issue. (Implicit authorisation is
therefore insu cient.)19 It provides, perhaps unnecessarily so,20	that the

reservation does not require any subsequent acceptance by the other contracting States unless the treaty so provides.21 The other parties are considered as having all given their consent in advance to the reservation by postulating this in the treaty itself.22 Para. 1 corresponds to Article 19, para. (b) (q.v., N. 11), and indeed, the notion of an express authorisation here corresponds with that of a specified reservation there.23 It follows from the formulation in para. 1 that all other reservations which are not expressly authorised by the treaty and which are also not expressly prohibited

18I.e., in paras. 1 and 3–5 of Article 20. For examples of treaties which provide di erently, see Kühner, Vorbehalte 176 . See also the triple use of “unless the treaty otherwise provides” in Article 22 (q.v., N. 3).

19T he terms “implied authorisation” were originally employed in the ILC Draft 1966, but deleted in Vienna in 1968 (N. 1). See the statement by the Thai delegation, OR 1968 CoW 111, para. 47 (“reference to implied authorization in the treaty might . . . be interpreted as covering the provisions of sub-paragraph [c] of Article [19] on the compatibility test; a reservation which was impliedly authorized in the treaty would thus not need to comply with the compatibility test”).

20See the criticism by the French delegation in Vienna, OR 1968 CoW 116, para. 15 (“[if] the reservation was expressly authorized by the treaty [it] was unnecessary to state that such a reservation did not require acceptance”).

21See the ILC Report 1966, YBILC 1966 II 207, para. 18; the statement in Vienna by Cuendet of the Swiss delegation, OR 1968 CoW 111, para. 39. See the original double negative proposed in Article 18bis, subpara. 1(a) in the ILC, YBILC 1962 I 225, para. 61 (“acceptance of a reservation not excluded by the terms of a treaty is not required to establish its validity”).

22See Article 18, subparas. 1(a)(i) and 1(b) of Waldock Report I, YBILC 1962 II 61. For Kühner, Vorbehalte 149, it is a fiction that all States really approved the reservation.

23Waldock Report I, ibid. See also the Continental Shelf (UK/France) Arbitration, where the tribunal found that the reservations authorised were formulated “in quite general terms” and, therefore, not su ciently specified within the meaning of Article 20, para. 1”, ILR 54 (1979) 43, para. 39; Sinclair, Vienna Convention 75.

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(Article 19, para. [a], N. 10), fall to be examined under paragraphs 2–4 of Article 20.

Since States have consented to these reservations in advance, it follows that para. 1 excludes objections to these reservations. This is confirmed by the text of Article 20, subpara. 4(b) (N. 14–15) which envisages objections solely for reservations not falling under paras. 1–3.24

3. Reservations to Treaties with Limited Number of States (Para. 2)

5Para. 2 concerns the second specific situation where a reservation requires acceptance by all the parties. It contains a rare exception to the general principle that the Convention as a whole and Articles 19–23 in particular concern all treaties (Article 19, N. 6).25 Para. 2 deals with so-called plurilateral treaties where the obligations of the various parties are closely interrelated and compliance with the treaty obligations requires the participation of all States, not just one or some.26 Thus, for a reservation to require acceptance by all the parties, it must appear from the limited number of the negotiating States and the object and the purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty. Para. 2 “revives” the traditional unanimity rule (Article 19, N. 1); it preserves the integrity of the treaty and precludes the flexibility o ered to States elsewhere in para. 4 (N. 9–16).27 If even one State objects, the reservation remains ine ective.

24In Vienna, the French delegation unsuccessfully proposed to have this included in para. 1, OR 1968 CoW 116, para. 15 (“it should be stated that it could not be the subject of an objection”).

25See the ILC Report 1966, YBILC 1966 II 206, para. 14 (“the Commission . . . decided that there were insu cient reasons for making a distinction between di erent kinds of multilateral treaties other than to exempt from the general rule those concluded between a small number of States for which the unanimity rule is retained”).

26Statement by Waldock in the ILC, YBILC 1965 I 266, para. 41; the observation of the French delegation (Virally) in Vienna, OR 1968 CoW 22, paras. 16 ; Kühner, Vorbehalte 159 ; Feist, Kündigung 80. See the definition in Article 1, para. (d) in Waldock Report 1, YBILC 1962 II 31 (“‘Plurilateral treaty’ means a treaty participation in which is open to a restricted number of parties and the provisions of which purport to deal with matters of concern only to such parties”, original italics): the critieria mentioned by Szafarz, Polish YBIL 24 (1970) 304. Another term occasionally employed is that of “restrictive multilateral treaties”.

27See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1969 Plenary 34, para. 72; also OR 1968 CoW 126, para. 8 (“collegiate decision”); by the Swedish delegation (Blix), OR 1968 CoW 117, para. 30 (“remains of the old unanimity rule”); Ruda, RC 146 (1975 III) 186.

acceptance of and objections to reservations	285
Examples of such plurilateral treaties are: treaties concerning the economic integration
of member States; treaties between neighbouring States concerning common instal-
lations (e.g., the construction of a dam on a river shared by the States); or treaties
concerning the creation and running of common scientific research institutions.28
The limited number of the negotiating States to a treaty—as opposed, for		6

instance, to a “large group of States”29—is drafted in comparatively open terms in order to emphasise the second, cumulative condition in para. 2, namely the object and purpose of the treaty.30 The latter condition is of course also mentioned in Article 19, para. (c) (q.v., N. 12–14). The two provisions have to be applied successively. First, it has to be determined whether the reservation is not incompatible according to Article 19, para.

(c). Next, Article 20, para. 2, requires cumulatively that it must transpire from the treaty’s object and purpose (together with the limited number of States) that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty. In other words, States accepting the reservation under para. 2 have already (at least impliedly) accepted that the reservation is not incompatible with the treaty’s object and purpose according to Article 19, para. (c).31 The decisive point in para. 2 is that the equal application of the treaty by all States was precisely their reason for becoming a party.32

Para. 2 does not explain the manner in which States shall accept the reservation; thus, it need not be done expressly.33 Acceptance must be given at the time the reservation is made. States subsequently acceding to the treaty would appear tacitly to accept the reservations hitherto made to the treaty.34

28Kühner, Vorbehalte 163, gives examples mentioned in Vienna in 1968/1969. See also Aust, Modern Treaty Law 139, mentioning the Antarctic Treaty of 1959; Sinclair, Vienna Convention 79 at n. 40. But see critically Blix of the Swedish delegation in Vienna, OR 1968 CoW 117, para. 30 (“it might be asked whether a single concrete case could be found that satisfied all the prescribed conditions”).

29ILC Report 1966, YBILC 1966 II 207, para. 19. Article 20, para. 3 of the ILC Draft 1962 referred to a “small group of States”, YBILC 1962 II 176.

30See the ILC Report 1966, ibid. para. 2 (“Governments in their comments questioned whether the expression ‘a small group of States’ was precise enough to furnish by itself a su cient criterion of the cases excepted from the general rules of the flexible system”); Yasseen, YBILC 1962 I. 232 para. 37 (“the number of contracting parties was not the decisive factor in distinguishing between general and other multilateral treaties”). Feist, Kündigung 80, points out that even plurilateral treaties may aspire to universal membership.

31Kühner, Vorbehalte 163; Ruda, RC 146 (1975 III) 186; less determined Waldock in the ILC, YBILC 1965 I 267, para. 44.

32Kühner, ibid. 162; ILC Report 1966, YBILC 1966 II 207, para. 19 (“their intention that the treaty should be applied in its entirety between all the parties”).

33Kühner ibid. 165.

34But see Jennings/Watts 1246, n. 6 (“[i]t is unclear whether [para. 2] requires acceptance by all the parties at the time the reservation is made and by those States becoming

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4. Reservations to Constituent Instruments of International Organisations (Para. 3)

7The third specifi c situation in para. 3 pertains to treaties which are constituent instruments of an international organisation, i.e., as a rule their constitutions. Here, the reservation requires the acceptance of the competent organ of the organisation. As usual, the treaty may provide otherwise. As in para. 2 (N. 8), para. 3 again upholds the integrity of the treaty and forestalls its fragmentation, though here the acceptance by the States of the reservation is “transferred” to the competent organ of the organisation. This may be, e.g., the international organisation’s general assembly or its Director General. Para. 3 e ectively provides for a collegiate decision since in practice it will be a majority of the member States which—via the competent organ—accept the reservation.35

Article 20, para. 3 provides for a specific application of Article 5 (q.v.). For this reason, some delegations in Vienna considered the provision superfluous.36 Other delegations pointed out that Article 20, para. 3 also concerned the situation where a “constituent instrument had not yet come into force, so that no organs existed to approve the reservations”.37

8Since States have vested the power to accept (or refuse) reservations in the international organisation’s competent organ, they are no longer in a position individually to object to the reservation. Any objection must be voiced in the organisation’s general assembly.38

parties later, or only by those States parties at the time the reservation is made; the former involves practical di culties and uncertainty, while the latter pays scant respect to the nature of the integrity of the treaty as an essential condition”).

35See the ILC Report 1966, YBILC 1966 II 207, para. 20; the statements in Vienna by the Romanian delegation, OR 1968 CoW 116, para. 10; and by Sir Humphrey Waldock, Expert Consultant, ibid. 126, para. 8; Ruda, RC 146 (1975 III) 187. The “competent organ” is also referred to in Article 77, para. 2 (q.v., N. 13).

36See the statement in Vienna by the French delegation, OR 1968 CoW 116, para. 16 (“no special provision need be made for the constituent instruments of international organizations, since that case was dealt with in [Article 5] and in the special rules of each organization relating to the admission of members”); the Tunisian delegation, ibid. 111, para. 45 (“no need to state the obvious fact”).

37Briggs of the US delegation, ibid. 108, para. 10; see also the Swiss delegation, ibid. 111, para. 40; the ILC Report 1966, YBILC 1966 II 207, para. 20 (“[p]artially covered by the general provision in [Article 5]”).

38See Yasseen, Chairman of the Drafting Committee in Vienna, OR 1968 CoW 425, para. 8 (“paragraph 4[b] did not apply to an objection to a reservation that had been accepted by the competent organ of an international organization, since that type of objection came under paragraph 3”). For Kühne, Vorbehalte 175, the main aim of para. 3 is to confirm that subparas. 4(a) and (c) do not apply.

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287

A confirmation herefor can be found in the travaux préparatoires. In Vienna, the US delegation proposed an amendment to para. 3 according to which “such acceptance [i.e., by the constituent instrument] shall not preclude any contracting State from objecting to the reservation”.39 However, this amendment was rejected (N. 1)

5. General Rule on Acceptance and Objections (Para. 4)
As the opening sentence indicates, para. 4 concerns cases not falling under	9
the preceding paragraphs 1–3 (N. 4–8). Lying at the heart of Article 20,
and indeed at the centre of Articles 19–23, para. 4 provides the general
rules concerning acceptance of and objections to reservations to a treaty
where the specific rules of paras. 1–3 do not apply.40 At any time, the
treaty may provide otherwise (N. 3).
a) Position of Prohibited Reservations
While the rules in subparas. 4(a)-(c) are in themselves reasonably clear,	10
di culties of interpretation arise in that Article 20 makes no reference to
reservations which are prohibited (inadmissible) under Article 19 (N. 2).
In particular, it is disputed whether reservations prohibited for one of the
three reasons stated in Article 19, paras. (a)–(c) (q.v., N. 10–14) may be
accepted under subparas. 4(a) and (c) of Article 20 or, conversely, objected
to according to subpara. 4(b). (In respect of Article 20, paras. 1–3 it has
been argued that acceptance is implicit and objections are not possible,
N. 4, 6 and 8). Di culties arise not least as there is no compulsory settle-
ment of disputes in this respect;41 and where States do not submit to a
voluntary dispute settlement, they will themselves have to draw the neces-
sary conclusions as to whether reservations are prohibited under Article
19, paras. (a)–(c).
As regards the reservations prohibited by Article 19, paras. (a) and (b), the	11
argument that Article 20 is silent on the issue42 would appear to be set

aside by the consideration that States, by expressly prohibiting reservations to the treaty, had actually also intended to exclude their acceptance.43 As a

39OR Documents 135, subpara. 179(iv)(d).

40ILC Report 1966, YBILC 1966 II 207, para. 21.

41In particular not in Articles 65–68 (q.v.) which concern Part V of the Convention. See the statement in Vienna by Blix of the Swedish delegation, OR 1968 CoW 117, para. 32 (“that omission might be a source of disputes”).

42See the unsuccessful Swiss amendment in Vienna, OR Documents 136, subpara. 179(v)(c), proposing as the opening sentence in para. 4: “(i)n cases not falling under the preceding paragraphs of this article and unless the reservation is prohibited by virtue of Article (19), subparagraphs (a) and (b)”.

43See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 CoW 133, para. 2 (“a contracting State could not purport, under Article [20] to accept a reservation prohibited under Article [20], paragraph [a] or paragraph [b],

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result, reservations prohibited under Article 19, paras. (a) and (b) cannot be accepted under Article 20, subparagraphs 4(a) and (c)—and, of course, need not be objected to according to subparagraph 4(b).

12There remains the question concerning reservations which are inadmissible under Article 19, para (c) (q.v., N. 12–14), i.e., incompatible with the object and purpose of the treaty. Would it still be possible for a State to accept such a reservation? On the one hand, it has been argued that the purpose of Article 19, para. (c) is precisely to indicate to States that they should not accept such reservations.44 On the other, it has been pointed out that as long as there is no judicial determination of incompatibility (N. 10), States may take di erent views on the relationship of the reservation with the treaty’s object and purpose, and that for whatever political reasons they may wish to accept such a reservation in their relations with the reserving State. As a result, given the silence in Article 20, there is nothing to prevent a State from accepting such a reservation.45

The latter interpretation fi nds confi rmation in the travaux préparatoires, namely in the refusal of the Vienna Conference to accept the US amendment in Vienna aimed at establishing a link between Article 19, para. (c) and Article 20,

because, by prohibiting the reservation, the contracting States would expressly have excluded such acceptance”).

44Statements in Vienna by the Japanese delegation, OR 1968 CoW 110, para. 29 (“[u]nder the terms of Article [20], paragraph [c], a State might formulate a reservation incompatible with the object of the treaty and therefore in law invalid, yet that reservation could be accepted by another contracting State under Article [20, para. 4] and upheld as a legitimate reservation”); and by Ago in the ILC, YBILC 1962 I 228, para. 86 (“he . . . could not agree that any reservation automatically became valid upon its acceptance”); Aust, Modern Treaty Law 144 (“[i]t is most unlikely that Articles 20 and 21 were intended to apply to reservations which Article 19 says may not be made”); Horn, Reservations 121 (“an incompatible reservation under Article 19 [c] should be regarded as incapable of acceptance and as eo ipso invalid and without any legal e ect”). See also Bowett, BYBIL 48 (1976–77) 67 (on the di erence between the permissibility and opposability of a reservation; a wholly impermissible reservation cannot be accepted by another State according to subpara. 4 [a]), and generally Müller, Article 20, N. 117 .

45Ruda, RC 146 (1975 III) 190 (“[i]t is of course to be presumed that a State has no interest in accepting a reservation which conflicts with the object and purpose of the treaty, but such considerations may . . . be displaced, for example, in favour of political motivations; there is nothing to prevent a State accepting a reservation, even if such reservation is intrinsically contrary to the object and purpose of the treaty, if it sees fit to do so”); Sinclair, Vienna Convention p. 81 n. 78 (“the objective determination of whether a reservation is compatible with the object and purpose of the treaty is likely to be made ex post facto [and] occasions may well arise when a State ‘accepts’ a reservation subsequently found to be incompatible”); Tomuschat, ZaöRV 27 (1967) 476 (“the idea is not remote that para. 4 constitutes the general rule for all remaining cases and, consequently, even for prohibited reservations”).

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para. 4.46 In any event, States disagreeing with such acceptance of the reservation are always free to object thereto. This interpretation of Article 20 does not imply that Article 19, para. (c) is redundant.47 To the contrary, the compatibility test remains crucial in determining whether or not a reservation is prohibited, not least if there is to be a judicial determination of the matter.

b) Acceptance of Reservations (Subpara. 4[a])

Subpara. 4(a) of Article 20 concerns the acceptance of a reservation by 13 another contracting State. It has to be read together with subpara. 4(c)

(N. 16). Subpara. 4(a) provides that any such acceptance constitutes the reserving State a party to the treaty in relation to that other State.48

Acceptance of the reservation by one State lets the reserving State become a party to the treaty;49 it leads to bilateral treaty relations between the reserving and the accepting State,50 regardless of the position of other States. Acceptance may be express, in which case it will be in writing (Article 23, para. 1, N. 3), or tacit (which in practice is the rule), or even implied

46T he US amendment proposed to add in the opening sentence of para. 4 of Article 20: “unless the reservation is prohibited by virtue of Article [19]”, OR Documents 136, subpara. 179(v)(d). As the US delegation pointed out at the Conference, OR 1968 CoW 108, para. 11, “the proposal would preclude acceptance by another contracting State of a reservation prohibited by the treaty, and the test of incompatibility with the object or purpose of the treaty set out in subparagraph (c) of Article [20] would then be applicable to such acceptance or objection”. See the reply by Sir Humphrey Waldock, Expert Consultant, OR 1968 CoW 133, para. 2 (“[this proposal] would in e ect restate the rule already laid down in article [19]. It would not however carry the solution of the reservation problem any further and would still leave unsettled the question of who would decide whether a reservation was or was not incompatible with the object and purpose of the treaty”); the statement by Tunkin in the ILC YBILC 1962 I 227, para. 82 (“[i]n practice, the acceptance or non-acceptance of a reservation by states was determined by their views on whether or not the reservation passed the compatibility test”); Article 19, para. 1 of Waldock Report IV, YBILC 1965 II 50, para. 5 (“reservations may be proposed provided that they are compatible with the object and purpose of the treaty. In any such case the acceptance or rejection of the reservation shall be determined by the rules in the following paragraphs [of Article 20])”; Bartos in the ILC, YBILC 1962 I 163, paras. 28 f, in respect of the Convention on the Political Rights of Women of 1952.

47Contra Kühner, Vorbehalte 147, for whom Article 19, para. (c) is a mere formal compromise (“blosser Formelkompromiss”). See Sinclair of the UK delegation in Vienna, OR 1968 CoW 114, para. 74 (“the e ect of the compatibility test in paragraph [c] of Article [19] might be nullified”).

48See the ILC Report 1966, YBILC 1966 II 207, para. 21.

49See the statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968, CoW 137, para. 62. This is relevant, inter alia, for the question whether a ratification subject to a reservation counts towards the number of ratifications required for the treaty’s entry into force; see the Ceylon delegation, ibid. 136, para. 46.

50See the statement in Vienna by the Bulgarian delegation, ibid. 137, para. 55 (“bilateral bond”).

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(as in Article 20, paras. 1–3 and 5, respectively; N. 4, 6, 7 and 17).51 It has been argued above (N. 11–12) that contracting States may also accept reservations which are incompatible with the treaty’s object and purpose as in Article 19, para. (c), though not if they fall under Article 19, paras. (b) and (c). Other contracting States which disagree with the acceptance of a prohibited reservation may object thereto (N. 14–15), though they have no means of otherwise “punishing” the accepting State; in particular, their objection does not hinder the entry into force of the treaty as a whole.

Subpara. (a) provides these e ects if or when the treaty is in force for those States, i.e., the reserving and the accepting State.52 In other words, Article 20 still requires the usual conditions for the treaty’s entry into force. There will be no relations following the reservation and its acceptance as long as the treaty has not entered into force for each one of these States.

Once a reservation has been accepted, either expressly or tacitly, it is final and irreversible and cannot be subsequently altered53—except, of course, if the reservation is withdrawn according to Article 22, para. 1 (q.v., N. 4–5).

c) Objections to Reservations (Subpara. 4[b])

14Three elements transpire from subpara. 4(b): (i) it authorises in principle an objection by a contracting State to a reservation made to a treaty. The State thereby expresses its disapproval of, and refuses, the reservation. This must occur in writing (Article 23, para. 1, N. 3). In practice, such negative reactions to a reservation are the exception;54 (ii) it does not express itself prima facie on the e ects of such an objection. Impliedly, and if read together with Article 21, para. 3 (q.v., N. 8), it becomes clear that in such a case the treaty remains in force between the two States though the reserved provisions will not apply between the two States; (iii) the State filing an objection may, in addition and at the same time, indicate therein its definite expression to preclude the entry into force of the treaty as between the objecting and reserving State. Here, the State disagrees with the reservation and applies the strongest measure possible: that the treaty shall not enter into force between the two States. According to the principle in maiore minus, the objecting State only may wish to preclude the entry into force of part of the treaty. The State can do so unilaterally,

51Müller, Article 20, N. 35 ; Aust, Modern Treaty Law 155. See also the implied acceptance in the situations mentioned in paras. 1–3 (N. 4–8). It can be tacit or implied in para. 5 (N. 17).

52T he term “for those States” was introduced in Vienna, though it is not clear when; see OR 1969 CoW 220.

53Guideline 2.8.12 of Pellet Report XII, YBILC 2007 II/2 39, n. 57; see also Articles 19–23—Subsequent Developments, N. 3 .

54Treviranus, GYBIL 25 (1982) 520. See also Aust, Modern Treaty Law 139.

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a further agreement with the reserving State is not required.55 This e ect is not mentioned in Article 21 and only in the negative in Article 20, subpara. 4(b). This far-reaching intention must be definitely expressed, i.e., unequivocally, implicit acceptance is not possible.56

The recent ILC Guideline 2.6.1 on Definition of Objections to Reservations provides: “‘Objection’ means a unilateral statement, however phrased or named, made by a State . . . in response to a reservation to a treaty formulated by another State . . . , whereby the former State . . . purports to exclude or to modify the legal e ects of the reservation, or to exclude the application of the treaty as a whole, in relations with the reserving State”.57

Originally, the ILC Draft 1966 made the converse assumption by stating that “an objection by another contracting State to a reservation precludes the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is expressed by the objecting State” (italics added).58 Based on an amendment by the then USSR (N. 1) in Vienna, the assumption in subpara. 4(b) was reversed: the word “precludes” was altered to “does not preclude”.59 This has been criticised as disturbing the fragile compromise which the ILC wished to strike between the various views on reservations (Article 19, N. 1).60

55Statement by Rosenne in the ILC, YBILC 1965 I 10 (“[i]t would unnecessarily complicate matters to require a further agreement between the two States as to whether or not they wished to be in such treaty relations with each other”); contra Waldock, ibid. 173, para. 31 (“[s]urely the reserving State, if confronted with an objection couched in unacceptable terms, was entitled to refuse to be in treaty relations with the objecting State, even although the latter was willing”).

56Kühner, Vorbehalte 186 f. Contra Szafarz, BYBIL 3 (1970) 309, for whom an implied intention appears to su ce.

57ILC Report 2007, YBILC 2007 II/2 62 f.

58YBILC 1966 II 207, para. 21 (“[a]lthough an objection to a reservation normally indicates a refusal to enter into treaty relations on the basis of the reservation, objections are sometimes made to reservations for reasons of principle or policy without the intention of precluding the entry into force of the treaty between the objecting and the reserving States”).

59See the statements in Vienna by the Hungarian delegation, OR 1968 CoW 122, para. 13 (“it was more appropriate to consider that the objecting State would clearly express its views if it did not wish to enter into treaty relations with the reserving State. That reversal of the presumption would not a ect in any way the right of the objecting State to refuse to enter into treaty relations with the reserving State if it considered the reservation incompatible with the object and purpose of the treaty”); the Venezuelan delegation, OR 1969 Plenary 32, para. 51 (“preserved a proper respect for the principle of the sovereign equality of both the reserving and the objecting state”); also Zemanek, Some Unresolved Questions 329 .

60Kühner, Vorbehalte 182. For Sinclair, Vienna Convention 63, “the onus is now on the innocent party (that is to say, the objecting State) to declare publicly that it does not intend to have treaty relations with the reserving State; this is an onus which smaller States may find di cult to discharge when the reserving State is a powerful neighbour”.

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The formulation in subpara. 4(b): “precludes the entry into force of the treaty” (italics added) appears imprecise. As Briggs pointed out in the ILC, “an objection to a reservation did not preclude the entry into force of the treaty; rather, it precluded the application of the provisions of the treaty as between the objecting State and the reserving State”.61

15States may file objections against a reservation—with or without intending to preclude the treaty’s entry into force (N. 14)—for whatever reason they think fit,62 though often they will consider the reservation to be incompatible with the treaty’s object and purpose within the meaning of Article 19, para. (c) (q.v., N. 12–14). Of course, States are also free to object to a reservation which is not prohibited under Article 19.63 On the whole, since subpara. 4(b) does not stipulate reasons for filing the objection, it appears di cult to attempt to deduce from the objection itself the State’s reasons for filing it.64

d)E ectiveness of Acceptance (Subpara. 4[c])

16Finally, subpara. 4(c) of Article 20 provides that an act expressing a

State’s consent to be bound by the treaty and containing a reservation is e ective as soon as at least one other contracting State has accepted the reservation. This provision has to be read together with subpara. 4(a) to which it belongs (N. 13). A State’s consent for the entry into force of the treaty coupled with its reservation to the treaty are not e ective as long as other States have not accepted the reservation; other States can do so expressly or tacitly (as in para. 5, N. 17). Subpara. 4(c) thus determines the moment at which a reserving State may be considered as a State which has ratified, accepted or otherwise become bound by the treaty.65

61YBILC 1965 I 146, para. 41; Kühner, Vorbehalte 211 and n. 580.

62See the statements in Vienna by the UK delegation, OR 1968 CoW 114, para. 75 (“an objection could be made to a reservation on grounds other than the incompatibility of the reservation with the object and purpose of the treaty”); Sir Humphrey Waldock, Expert Consultant in Vienna, OR 1968 CoW 133, para. 3 (“could a contracting State lodge an objection other than that of incompatibility with the object and purpose of the treaty? The answer was surely Yes. Each contracting State remained completely free to decide for itself, in accordance with its own interests, whether or not it would accept the reservation”); and Tunkin in the ILC, YBILC 1965 I 26 (“[i]n certain circumstances . . . no more than a political declaration”).

63Aust, Modern Treaty Law 138 f.

64Redgwell, BYBIL 64 (1993) 277 (“[i]n the absence of a clear reference to incompatibility with the object and purpose of the Convention, it is not possible to interpret an objection to a reservation as ‘unacceptable’, unopposable’ etc., as indicating a finding of such incompatibility”).

65See on this ILC Report 1966, YBILC 1966 II 207, para. 21; ILC Report 1962, YBILC 1962 II 181, para. 23; the statements in Vienna by the Zambian delegation, OR 1968 CoW 129, para. 41 (“it was su cient for a single contracting State to have accepted

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6. Tacit Acceptance and its Consequences (Para. 5)

A State’s acceptance of the reservation for the purposes of paragraphs 2 17 and 4 (respectively, N. 5–6 and 13), in particular subpara. 4(a), may occur expressly, or tacitly, or impliedly. In any case the reserving State will become

a contracting party.66 Tacit acceptance is the subject-matter of Article 20, para. 5. Here, a reservation is considered to have been accepted by a

State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation. Moreover, the reservation shall be considered as having been accepted by the date on which the State expressed its consent to be bound by the treaty, whichever is later.67 As always, the treaty may provide otherwise

(N. 3). Notifications are dealt with in Article 78 (q.v.). Before such acceptance occurs, para. 5 does not envisage any e ects.68 T his time-limit of twelve months applies also to filing objections and expressing the “definite intention” in subpara. 4(b) (N. 14–15).69

The period of twelve months, which is also taken over in Guideline 2.8.2. of Pellet Report XII,70 may be considered “arbitrary”71 and generally too short, and it can be foreseen that the period may cause di culties in practice.72

a reservation for the reserving State to be considered a party to a multilateral treaty”); the Indian delegation, ibid. 128, para. 31.

66Aust, Modern Treaty Law 139.

67See the ILC Report 1966, YBILC 1966 II 208, para. 23 (“[t]hat the principle of implying consent to a reservation from absence of objection has been admitted into State practice cannot be doubted: for the Court itself in the Reservations to the Genocide Convention case spoke of ‘very great allowance’ being made in international practice for ‘tacit assent’ to reservations. Moreover, a rule specifically stating that consent will be presumed after a period of three, or in some cases six, months is to be found in some modern conventions”; original italics). The period of twelve months goes back to Article 18, subpara. 3(a) of Waldock Report I, YBILC 1962 II 61. See also Article 23, para. 2 (q.v., N. 4), and the notion of acquiescence and tacit acceptance in Article 45, para.

(b)(q.v., N. 8–9).

68See the question put by the Mexican delegation in Vienna, OR 1968 CoW 112, para. 64 (“[t]he provisions . . . did not make it clear whether the reserving State was or was not a party to the treaty during that period”).

69Kühner, Vorbehalte 186 f.

70On Tacit Acceptance of a Reservation Requiring Unanimous Acceptance by the Other States and International Organisations, YBILC 2007 II/2 37, n. 47; see also Articles 19–23—Subsequent Developments N. 3 .

71Ruda, RC 146 (1975 III) 184, who at 185 considers that “a more extensive period is preferable”.

72See here Aust, Modern Treaty Law 155.

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C. CONTEXT

(see Articles 19–23—Subsequent Developments)

D. PROPOSALS FOR AMENDMENT

(see Articles 19–23—Subsequent Developments)

E. APPRECIATION

(see Articles 19–23—Subsequent Developments)

Article 21

Legal effects of reservations and of objections to reservations

1.A reservation established with regard to another party in accordance with Articles 19, 20 and 23:

(a)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

(b)modifies those provisions to the same extent for that other party in its relations with the reserving State.

2.The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

3.When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Article 21 E ets juridiques des réserves et des objections aux réserves

1.Une réserve établie à l’égard d’une autre partie conformément aux articles 19, 20 et 23:

a)modifie pour l’Etat auteur de la réserve dans ses relations avec cette autre partie les dispositions du traité sur lesquelles porte la réserve, dans la mesure prévue par cette réserve; et

b)modifie ces dispositions dans la même mesure pour cette autre partie dans ses relations avec l’Etat auteur de la réserve.

2.La réserve ne modifie pas les dispositions du traité pour les autres parties au traité dans leurs rapports inter se.

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3.Lorsqu’un Etat qui a formulé une objection à une réserve ne s’est pas opposé

àl’entrée en vigueur du traité entre lui-même et l’Etat auteur de la réserve, les dispositions sur lesquelles porte la réserve ne s’appliquent pas entre les deux Etats, dans la mesure prévue par la réserve.

Artikel 21 Rechtswirkungen von Vorbehalten und von Einsprüchen gegen Vorbehalte

1.Ein gegenüber einer anderen Vertragspartei nach den Artikeln 19, 20 und 23 bestehender Vorbehalt

a)ändert für den den Vorbehalt anbringenden Staat im Verhältnis zu der anderen Vertragspartei die Vertragsbestimmungen, auf die sich der Vorbehalt bezieht, in dem darin vorgesehenen Ausmass und

b)ändert diese Bestimmungen für die andere Vertragspartei im Verhältnis zu dem den Vorbehalt anbringenden Staat in demselben Ausmass.

2.Der Vorbehalt ändert die Vertragsbestimmungen für die anderen Vertragsparteien untereinander nicht.

3.Hat ein Staat, der einen Einspruch gegen einen Vorbehalt erhoben hat, dem Inkrafttreten des Vertrags zwischen sich und dem den Vorbehalt anbringenden Staat nicht widersprochen, so finden die Bestimmungen, auf die sich der Vorbehalt bezieht, in dem darin vorgesehenen Ausmass zwischen den beiden Staaten keine Anwendung.

ILC Draft 1966

Article 19—Legal e ects of reservations

1.A reservation established with regard to another party in accordance with Articles 16, 17 and 18:

(a)modifies for the reserving State the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b)modifies those provisions to the same extent for such other party in its relations with the reserving State.

2.The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

legal effects of reservations and of objections to reservations 297

3.When a State objecting to a reservation agrees to consider the treaty as in force between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Materials:

Minutes: YBILC 1962 I 234, 253, 291 (Article 18ter).

ILC Draft 1962: Article 21.

WALDOCK Report IV: Article 21.

Minutes: YBILC 1965 I 171 , 270 , 284.

ILC Draft 1965: Article 21.

Minutes: YBILC 1966 I/2 327, 340.

ILC Draft 1966: Article 19.

Minutes: OR 1968 CoW 136 f, 416 f; OR 1969 Plenary 36, 159, 179 .

Vienna Conference Vote: 94:0:0

Selected Literature (in addition to the literature mentioned in Article 19, q.v.):

D. Müller, Article 21, in: Corten/Klein (eds.) 883 ; F. Parisi/C. Sevcenko, Treaty Reservations and the Economics of Article 21, para. 1 of the Vienna Convention, Berkeley JIL 21 (2003) 1 .

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	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction (see Article 19, N. 1–2)
2.	History ............................................................................................	1
B. Interpretation of Article 21 ............................................................		2
1.	Scope ..............................................................................................	2
2.	E ects of the Acceptance of a Reservation (Para. 1) ..........................	3
	a) E ects for the Reserving State (Subpara. 1[a]) .............................	4
	b) E ects for the Other States (Subpara. 1[b]) .................................	6
3.	Position of Other States inter se (Para. 2) ........................................	7
4.	E ects of an Objection to the Reservation (Para. 3) .........................	8

C.Context

(see Articles 19–23—Subsequent Developments)

D.Proposals for Amendment

(see Articles 19–23—Subsequent Developments)

E.Appreciation

(see Articles 19–23—Subsequent Developments)

A. BACKGROUND

1. Introduction

(see Article 19, N. 1–2)

2. History

1 In the course of the general debate on reservations in the ILC in 1962 (Article 19, N. 4), its Drafting Committee presented the new Article 18ter which became the basis for today’s Article 20—albeit without its para. 3.1 The article attracted virtually no debate, and indeed, throughout its history there appeared to be general consensus on paras. 1 and 2.2 Observations

1 YBILC 1962 I 234.

2I.e., only two drafting comments; see Cadieux and Bartos, ibid. paras. 64 f. The debate is reproduced ibid. 234, 253, and 291. Article 21 of the ILC Draft 1962 is at YBILC 1962 II 181.

legal effects of reservations and of objections to reservations 299

by Governments to the ILC in 1965 pointed out the need for para. 33 which was duly introduced in the ILC Draft 1965.4 The ILC Draft 1966 was subject to various amendments in 1968 at the Conference in Vienna, though none were formally accepted.5 The main change in para. 3 accommodated the decision at the Conference to amend Article 20, subpara. 4(b) (the so-called “Russian clause”, q.v., N. 1).6 There was little debate in 1968 and 1969,7 and Article 21 was roundly adopted by 94 votes to none.8 After adoption, however, the debate was reopened upon a four-State-request;9 this led to the final change, i.e., adding the words to para. 3: “the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation”.10

Among the further changes made in Vienna to Article 19 of the ILC Draft 1966 leading to today’s Article 21 were:

–in subpara. 1(a) the words were added: “in its relations with that other party” (N. 4–5);

–in subpara. 1(b), instead of “such other party”, the words were added: “that other party” (N. 6);

–in para. 3, instead of “agrees to consider the treaty as in force between itself and the reserving State”, Article 21 now reads: “has not opposed the entry into force of the treaty between itself and the reserving State” (N. 8–9).

3	See the observations by the Governments of Japan and the US to the ILC, Waldock
	Report IV, YBILC 1965 II 55; the ILC Report 1966, YBILC 1966 II 209, para. 2.
4	Article 21; see YBILC 1965 II 162; the debate is at YBILC 1965 I 171 , and 270
	(para. 3 was introduced at ibid. 270, para. 94), and 284. The article was first entitled:
	“Legal E ect of Reservations”, though the ILC Draft 1962 changed it to “The Applica-
	tion of Reservations”; by 1965, the title was again “Legal E ects of Reservations”; see
	Ruda, YBILC 1965 I 172, para. 11.

5For the various amendments, e.g., by France to redraft the entire text, see OR Documents 139 f; they were either referred to the Drafting Committee or withdrawn. Article 19 of the ILC Draft 1966 is at YBILC 1966 II 208 f; the debate in 1966 is at YBILC

1966 I/2 327, and 340.

6See the amendments by then Czechoslovakia, USSR, and Syria, OR Documents 140, subpara. 199(iv).

7See OR 1969 CoW 136 f, 416 f; and OR 1969 Plenary 36, 159 and 179 . The new extended title was introduced in 1969, OR 1969 Plenary 159 f. Note that also the

	order between today’s Articles 21 and 23 was reversed.
8	OR 1969 Plenary 36, para. 10.
9	By the Netherlands, India, Japan and the then USSR, OR 1969 Plenary 179 , paras.
	54 . See the criticism by the Canadian delegation about the procedure, ibid. 180, para.
	58 (“most unusual”).

10See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, ibid. 181, para. 2. The history of para. 3 at the conference is summarised by Ruda, RC 146 (1975 III) 197 ; also Sinclair, Vienna Convention 76 (“confused debate”).

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B.INTERPRETATION OF ARTICLE 21

1.Scope

2In respect of a reservation which has been accepted, paras. 1 and 2 of Article 21 set out the rules concerning the legal e ects in respect of (i) the reserving State; (ii) the accepting State; and (iii) other States. (N. 3–7). Para. 3 sets out the e ects following an objection to the reservation (N. 8–9).11

2. E ects of the Acceptance of a Reservation (Para. 1)

3Para. 1 encompasses reservations established with regard to another party in accordance with Articles 19, 20 and 23, i.e., reservations which have been accepted by one or more States (Article 20, subpara. 4[a], N. 13).

The reference to the various articles recalls that the reservation shall not be prohibited (Article 19, q.v.), that it has been accepted or objected to (Article 20, q.v.), and that the procedures of Article 23 (q.v.) have been complied with.12 T he fact that Article 20 is mentioned together with Article 19 confirms that reservations prohibited according to Article 19, para. (c), may still be accepted according to Article 20, subpara. 4(a) (Article 20, N. 10–12).

a) E ects for the Reserving State (Subpara. 1[a])

4Subpara. 1(a) explains the e ects of the acceptance of a reservation from the point of view of the reserving State. The reservation 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. The treaty is in force, though the reserving State is exempted vis-à-vis the accepting State from the provisions of the treaty to which the reservation relates.13

While subpara. 1(a) only refers to the modification of the provisions of the treaty, clearly it also covers their e ects, as confirmed by Article 2, subpara. 1(d) (q.v., N. 33–37).

5By referring to modification (rather than “exclusion” as, for instance in the definition of a reservation in Article 2, subpara. 1[d]), subpara. 1(a) may appear to imply that the treaty provision at issue could in certain cases, despite the reservation, still be applied, albeit in some modified form. However, the words “to the extent of the reservation” confirm that the

11ILC Report 1966, YBILC 1966 II 209, para. 1; Aust, Modern Treaty Law 143 f. See Redgwell, BYBIL 64 (1993) 261 (“the clear intent and meaning of Article 21 . . . is intended to govern the legal e ect of all reservations and of objections to reservations under the preceding two Articles”).

12Article 18ter of the ILC Draft 1962 (N. 1) still referred to “[a] reservation established as valid in accordance with the provisions” (italics added), YBILC 1962 I 234.

13See Article 18ter, ibid.

legal effects of reservations and of objections to reservations 301
e ect of the modification only goes as far as the reservation itself and is
therefore that of exclusion.14
b) E ects for the Other States (Subpara. 1[b])
Subpara. 1(b) concerns the e ects of a reservation from the point of view	6
of a State which has accepted the reservation. Such acceptance modifies
those provisions to the same extent for that other party in its relations
with the reserving State. This reflects the consensual nature of the relations
between the reserving and the accepting State.15 Above all, subpara. 1(b) is
governed by the principle of reciprocity.16 Any other State party accepting
the reservation is entitled to the same exemption from the provisions of
the treaty in its relations with the reserving State.17
As with all rules of the Convention (except concerning jus cogens), it is possible
to derogate from Article 21, though it is interesting to note that this is not stated
here—as opposed, for instance, to the triple formulation in Article 22 (q.v., N. 3).
For instance, States accepting the reservation may not insist on reciprocity. Of course,
certain reservations cannot by their very nature be applied reciprocally, e.g., territorial
clauses in a treaty.18 The e ects of such reservations on customary law are discussed
elsewhere (Issues of Customary International Law, N. 36–42).
3. Position of Other States inter se (Para. 2)
Para. 2 of Article 21 confirms that a reservation operates only in the rela-	7
tions between the reserving and the accepting State, it does not a ect the

rights or obligations of the other parties among themselves, since they have not accepted the reservation as a term of the treaty in their mutual relations.19 Thus, the reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. The reservation remains res inter alios acta. This rule may seem unnecessary.20 However, its position

14Sinclair, Vienna Convention 76 f.

15Aust, Modern Treaty Law 143 (“each is only bound to the extent to which it has agreed to be bound”).

16See the ILC Report 1966, YBILC 1966 II 209, para. 1 (“[a] reservation operates reciprocally between the reserving State and any other party”); Ruda, RC 146 (1975 III) 196 f (“to be exempt from an international obligation presupposes also the loss of the corresponding rights. Inequality of rights under a treaty cannot be presumed. In other words, the reserving State cannot demand the application of the clause excluded by the reservation, but other parties may not impose on the reserving State the obligations excluded by the reservation.”); Verdross/Simma N. 733, para. 5. See here Majoros, JDI 101 (1974) 73 ; and Id., Friedenswarte 66 (1986) 216 , and 67 (1987) 82 .

17See Article 18ter of the ILC Draft 1962 (N. 1), YBILC 1962 I 234.

18See on these points, Kühner, Vorbehalte 199 , 201 .

19Article 18ter of the ILC Draft 1962 (N. 1), YBILC 1962 I 234; ILC Report 1966, YBILC 1966 II 209, para. 1.

20See the statement by Tunkin in the ILC, YBILC 1965 I 172 para. 19; Waldock, YBILC

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article

in Article 21 appears essential, as it reflects the relativity of the legal e ects of reservations21 and is precisely the consequence of the Court’s 1951 Reservations to Genocide Advisory Opinion (Article 19, N. 2).

4. E ects of an Objection to the Reservation (Para. 3)

8Para. 3 of Article 20 deals with the e ects of objections to a reservation to a treaty and as such complements Article 20, subpara. 4(b) (q.v., N. 14–15). That provision covers mainly objections intended to preclude the treaty’s entry into force (in which case there will be no treaty relations at all between the reserving and the accepting State), whereas para. 3 relates to another situation, namely when a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State. In such a case, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.22 T hese e ects occur without any further action by the reserving State.23 T he provisions to which the reservation relates—the words, paragraphs or articles of the treaty—which do not apply as between the two States will be determined by the regular means of interpretation (Articles 31 and 32, q.v.).24

In the Continental Shelf (UK/France) Arbitration the tribunal neatly circumscribed these e ects as follows: “the combined e ect of the French reservations and their rejection by the United Kingdom . . . is neither to render the Article [6 of the Geneva Continental Shelf Convention] inapplicable in toto, as the French Republic contends, nor to render it applicable in toto, as the United Kingdom primarily contends. It is to render the Article inapplicable between the two countries to the extent, but only to the extent, of the reservations; and this is precisely the e ect envisaged in such cases by Article 21, paragraph 3 of the [Convention] and the e ect indicated by the principle of mutuality of consent”.25

In 1969 in Vienna the President of the Conference, Ago, phrased these e ects as follows: “if a State made a reservation a ecting a provision of a treaty and another

1965 II 174, para. 41 (“paragraph 2 might be regarded as repetitive but it probably should be retained”).

21Ruda, RC 146 (1975–III) 197.

22ILC Report 1966, YBILC 1966 II 209, para. 2. In Vienna, the text of para. 3 was rephrased to accommodate the change of assumption made in Article 20, subpara. 4(b) (q.v., N. 14).

23But see the doubts raised in Waldock Report IV, YBILC 1965 II 55, para. 2 (“[i]s a reserving State obliged to recognize the establishment of treaty relations with the State which has rejected its reservation?”); Rosenne in the ILC, YBILC 1965 I 10 (“[i]t would unnecessarily complicate matters to require a further agreement between the two States as to whether or not they wished to be in such treaty relations with each other”).

24Bowett, BYBIL 48 (1976–77) 86.

25First Award, ILR 54 (1979) 52, para. 61; Sinclair, Vienna Convention 75 f.

legal effects of reservations and of objections to reservations 303

State objected to the reservation without saying that it was opposed to the treaty’s entry into force, the treaty entered into force between the two States, except for the

provision to which the reservation had been made”.26
It has been argued that the “modifying” e ect in subpara. 1(a) amounts to	9

the exclusion of the provision at issue in the relations between the reserving and the accepting State (N. 5). Para. 3, by stating that the provisions to which the reservation relates do not apply, appears equally exclusionary. The issue arises whether there is any di erence at all between the e ects for the reserving State, as in para. 1 (N. 5), and the e ects for the objecting State as in para. 3.27

However, as Kühner has pointed out, the essential di erence lies therein that in the case of the acceptance of a reservation, there is a contractual relation between the States based on consensus, whereas in the case of an objection, the situation in respect of the provisions at issue is as if no treaty had been concluded.28

C. CONTEXT

(see Articles 19–23—Subsequent Developments)

D. PROPOSALS FOR AMENDMENT

(see Articles 19–23—Subsequent Developments)

E. APPRECIATION

(see Articles 19–23—Subsequent Developments)

26OR 1969 Plenary 181, para. 6. See the reaction thereto by Yasseen, Chairman of the Drafting Committee, ibid. para. 7 (“the President’s interpretation was correct”). At ibid. 10, he added: “where, for example, a reservation formulated by a State a ected only the first three paragraphs of an article, only those three paragraphs would not operate as between the reserving State which had raised an objection [recte: “as between the reserving State and the State which had raised an objection] to that reservation without opposing the entry into force of the treaty”; see on this printing error, Ruda, RC 146 (1975 III) 199.

27See Ruda, ibid. 200 (“ultimately the legal e ects of an objection and an acceptance of a reservation are identical, when the treaty remains in force between the objecting and reserving States”); Sinclair, Vienna Convention 76 f; the discussion in Müller, Article 21, N. 52 ; Kühner, Vorbehalte 212 (with an example, ibid. 217).

28Kühner, ibid. 217.

Article 22

Withdrawal of reservations and of objections to reservations

1.Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.

2.Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time.

3.Unless the treaty otherwise provides, or it is otherwise agreed:

(a)the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State;

(b)the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation.

Article 22 Retrait des réserves et des objections aux réserves

1.A moins que le traité n’en dispose autrement, une réserve peut à tout moment être retirée sans que le consentement de l’Etat qui a accepté la réserve soit nécessaire pour son retrait.

2.A moins que le traité n’en dispose autrement, une objection à une réserve peut

àtout moment être retirée.

3.A moins que le traité n’en dispose ou qu’il n’en soit convenu autrement:

a) le retrait d’une réserve ne prend e et à l’égard d’un autre Etat contractant que lorsque cet Etat en a reçu notification;

b) le retrait d’une objection à une réserve ne prend e et que lorsque l’Etat qui a formulé la réserve a reçu notification de ce retrait.

withdrawal of reservations and of objections to reservations 305

Artikel 22 Zurückziehen von Vorbehalten und von

Einsprüchen gegen Vorbehalte

1.Sofern der Vertrag nichts anderes vorsieht, kann ein Vorbehalt jederzeit zurückgezogen werden; das Zurückziehen bedarf nicht der Zustimmung eines Staates, der den Vorbehalt angenommen hat.

2.Sofern der Vertrag nichts anderes vorsieht, kann ein Einspruch gegen einen Vorbehalt jederzeit zurückgezogen werden.

3.Sofern der Vertrag nichts anderes vorsieht oder sofern nichts anderes vereinbart ist,

a)wird das Zurückziehen eines Vorbehalts im Verhältnis zu einem anderen Vertragsstaat erst wirksam, wenn dieser Staat eine Notifikation des Zurückziehens erhalten hat;

b)wird das Zurückziehen eines Einspruchs gegen einen Vorbehalt erst wirksam, wenn der Staat, der den Vorbehalt angebracht hat, eine Notifikation des Zurückziehens erhalten hat.

ILC Draft 1966

Article 20—Withdrawal of reservations

1.Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.

2.Unless the treaty otherwise provides, or it is otherwise agreed, the withdrawal becomes operative only when notice of it has been received by the other contracting States.

Materials:

Minutes: YBILC 1962 I 234, 253, 258, 291 (Article 19).

ILC Draft 1962: Article 22.

WALDOCK Report IV: Article 22.

Minutes: YBILC 1965 I 174 , 272 f, 284 f.

ILC Draft 1965: Article 22.

Minutes: YBILC 1966 I/2 327, 340.

ILC Draft 1966: Article 20.

Minutes: OR 1968 CoW 138, 417; OR 1969 Plenary 36 , 159 f.

Vienna Conference Vote: 98:0:0

Selected Literature (in addition to the literature mentioned in Article 19, q.v.):

A. Pellet, Article 22, in: Corten/Klein (eds.) 935 .

306	article
	CONTENTS
		Paras.
A. Background ........................................................................................		1
1.	Introduction (see Article 19, N. 1–2)
2.	History ............................................................................................	1
B. Interpretation of Article 22 ............................................................		2
1.	Scope ...............................................................................................	2
2.	Other Provisions in the Treaty ..........................................................	3
3.	Withdrawal of a Reservation (Para. 1) ..............................................	4
4.	Withdrawal of an Objection (Para. 2) ..............................................	6
5.	E ects of the Withdrawal of a Reservation or an Objection
	(Subparas. 3[a] and [b]) ...................................................................	7

C.Context

(see Articles 19–23—Subsequent Developments)

D.Proposals for Amendment

(see Articles 19–23—Subsequent Developments)

E.Appreciation

(see Articles 19–23—Subsequent Developments)

A. BACKGROUND

1. Introduction

(see Article 19, N. 1–2)

2. History

1 During the ILC debate on reservations in 1962 (Article 19, N. 4) a new article was introduced on the withdrawal of reservations (though not of objections).1 The few comments concerned the moment when the withdrawal would take e ect, and that until then States were entitled to assume that the reciprocity of rights and obligations would continue.2 Despite a lengthy discussion in 1965 concerning the time which States needed to

1Article 19, YBILC 1962 I 234, para. 67. The debate in 1962 can be found at YBILC 162 I 234, 253, 258, and 291.

2See Bartos, ibid. 238, paras. 68 and 70, also ibid. 253, para. 73; Article 22 of the ILC Draft 1962, YBILC 1962 II 181 f.

withdrawal of reservations and of objections to reservations 307

adjust their internal law upon the withdrawal of a reservation, the ILC did not consider it necessary to include a specific time-limit (N. 11).3 The ILC Draft 1966 again only dealt with the withdrawal of reservations.4 In 1969 an amendment was proposed in Vienna introducing today’s para. 2 and subpara. 3(b) on objections.5 Article 22 was adopted by 98 votes to none.6

B. INTERPRETATION OF ARTICLE 22
1. Scope
States enjoy considerable flexibility when making reservations and objections	2

thereto; this is mirrored in Article 22 in the possibility of withdrawing reservations and objections to reservations. States do withdraw their reservations—perhaps not frequently, but at least regularly—as indeed, they are encouraged to do.7

States withdraw reservations for di erent reasons, for instance, in response to objections from other States, or because conditions have changed. Thus, after the fall of the Berlin Wall in 1989, several States from Eastern Europe withdrew their reservations to the Convention as regards Article 66 (q.v.) and the settlement of disputes.8

3See the comments by Waldock, YBILC 1965 I 175, para. 48; and ibid. 175, and by Tsuruoka, Amado, Rosenne and Tunkin. This was in reaction to the submissions by the UK Government to the ILC in 1965, Waldock Report IV, YBILC 1965 II 55 f, in which it had been suggested that States should be allowed a reasonable time (e.g., three months) before becoming bound by any new obligations resulting from the withdrawal (see N. 11). The debate in 1965 is at YBILC 1965 I 174 , 272 f, and 284 f;

see Article 22 of the ILC Draft 1965, YBILC 1965 II 162.

4Article 20, YBILC 1966 II 209. The debate in 1966 is at YBILC 1966 I/2 327, and 340.

5See the statement by the Hungarian delegation, OR 1969 Plenary 36 f, paras. 13 ; the amendment was adopted ibid. 38, para. 37, by 93 votes to none, with three abstentions. The amendments proposed in Vienna in 1968 concerned mainly textual matters, OR Documents 141, and were referred to the Drafting Committee, though none were accepted; see Yasseen, Chairman of the Drafting Committee, OR 1969 CoW 417, para. 37. The debate in Vienna is at OR 1968 CoW 138, 417; and OR 1969 Plenary 36 ,

	159 f.
6	OR 1969 Plenary 38, para. 41.
7	See Waldock in the ILC, YBILC 1965 I 273, para. 24 (“he had heard of no actual
	di culty arising in the application of a treaty from a State’s withdrawal of its reserva-
	tion”). The ILC Guideline 2.5.3 on the Periodic Review of the Usefulness of Reservations
	provides that “States . . . which have made one or more reservations to a treaty should
	undertake a periodic review of such reservations and consider withdrawing those which
	no longer serve their purpose”, YBILC 2007 II/2 59.

8See here Aust, Modern Treaty Law 156. Two examples: (i) on 6 May 1994 Bulgaria notified the UN Secretary-General that it was withdrawing its reservation made upon

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2. Other Provisions in the Treaty

3Article 22 mentions at the outset of each of its three paragraphs that the treaty may provide otherwise. The necessity of such clauses has

been discussed elsewhere (Article 20, N. 3).9 T he ILC included them as a reminder and “in order to forestall unexpected situations for the other parties of the treaty”.10

3. Withdrawal of a Reservation (Para. 1)

4Para. 1 states the general rule that a reservation may be withdrawn at any time.11 The withdrawal must be in writing (Article 23, para. 4, q.v.). As a general reminder,12 it is added that the consent of a State which has accepted the reservation is not required for the withdrawal. This resolves a longstanding dispute as to the role of the accepting States upon withdrawal of a reservation.13 Indeed, treaty parties are presumed to wish a reserving State in the long term to give up its reservations.14 In any event, express consent to withdrawal would be impractical since most acceptances are given tacitly (see Article 20, N. 13).15

5Since Article 22, para. 1 authorises States to withdraw a reservation as a whole, they are also free to withdraw it in part. In maiore minus. The e ect must be one of limiting the reservation; a modification or extension of the

accession with regard to Article 66, para. (a) (q.v., N. 11); (ii) on 15 March 2007 Guatemala informed the UN Secretary-General that it withdrawing its reservations made with regard to Articles 11 and 12 (q.v., N. 24); see also Reservations and Declarations to the Convention and Objections Thereto.

9In Vienna, the Swiss delegation (Cuendet) considered that para. 3 would be “further qualified” by the words “unless the treaty otherwise provides”, OR 1969 CoW, 138, para. 65. See also Pellet, Article 22, N. 24 (“la répétition de la formule . . . paraît

superfétatoire et n’ajoute rien au texte”).

10Chairman Bartos, YBILC 1965 I 285, para. 70.

11See the ILC Report 1966, YBILC 1966 II 209, para. 1 (“the preferable rule is that . . . the reserving State should always be free to bring its position into full conformity with the provisions of the treaty as adopted by withdrawing its reservation”). This rule is confirmed by the ILC Guideline 2.5.1 on the Withdrawal of Reservations: “[u]nless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State . . . which has accepted the reservation is not required for its withdrawal”, YBILC

2007 II/2 59.

12 T his part of para. 1 is reminiscent of a code (Issues of Customary International Law, N. 21–27); see the discussion in Villiger, Customary International Law 139 .

13ILC Report 1966, YBILC 1966 II 209, para. 1; see the discussion in Ruda, RC 146 (1975–III) 201.

14ILC Report 1966, ibid. See the statement by Bartos (Chairman) in the ILC, YBILC 1965 I 50 (“he had never come across a case where a State had protested against the withdrawal of a reservation by another State”).

15Aust, Modern Treaty Law 156.

withdrawal of reservations and of objections to reservations 309

reservation is not possible, since reservations may in principle only be made upon expressing consent to be bound by a treaty (Article 19, N. 9).16

The recent ILC Guideline 2.5.10 on the Partial Withdrawal of a Reservation provides that “[t]he partial withdrawal of a reservation limits the legal e ect of the reservation and achieves a more complete application of the provisions of the treaty, or of the treaty as a whole, to the withdrawing State . . . The partial withdrawal of a reservation is subject to the same formal and procedural rules as a total withdrawal and takes e ect on the same conditions”.17

4. Withdrawal of an Objection (Para. 2)
Para. 2 corresponds to para. 1 (N. 3–4) by providing that also an objec-	6
tion to a reservation may be withdrawn at any time. It is irrelevant here
whether or not the State making the objection thereby opposed the entry
into force of the treaty vis-à-vis the reserving State as in Article 20, sub-
para. 4(b) (q.v., N. 14). The withdrawal of the objection, which is rare in
practice,18 must also be in writing (Article 23, para. 4, q.v.). The reserving
State need not consent to the withdrawal.19
The objection may also be withdrawn in part (N. 5). For instance, a State may with-
draw its intention to oppose the entry into force of the treaty vis-à-vis the reserving
State as in Article 20, subpara. 4(b) (q.v., N. 14), while maintaining the objection as
such as in Article 21, para. 3 (q.v., N. 8); or it may limit its objection by accepting
the reservation in respect of certain parts, but not of others.
5. E ects of the Withdrawal of a Reservation or an Objection
(Subparas. 3[a] and [b])
Para. 3 deals with the e ects of the withdrawal of a reservation or an objec-	7
tion. At the outset, there is a reminder (again in fact unnecessarily so, N. 3)
that the treaty may otherwise provide and also that the parties may
otherwise agree, which they may do expressly or even impliedly inter se.
Subparas. 3(a) and (b) are drafted in parallel terms and contain the same	8
principles concerning the notification of the withdrawal of reservations
and objections thereto.20 Thus,

16Pellet, Article 22, N. 67, on the “aggravation de la portée d’une reserve”; Aust ibid. (“it is possible also to modify or even replace a reservation, provided the result is to restrict its e ect”).

17YBILC 2007 II /2 62.

18Ruda, RC 146 (1975 III) 202; Kühner, Vorbehalte 231.

19See the statement in Vienna by the UK delegation, OR 1969 Plenary 38, para. 31; Ruda, ibid. 201 (“because [the reservation] stands as an o er which has not been accepted”).

20See also Article 78 on Notifications and Communications.

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article

(a)in respect of a reservation, its withdrawal becomes operative in relation to another contracting State only when notice of it has been received by that State;

(b)in respect of an objection, its withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation.

9The withdrawal of the reservation or the objection thereto takes e ect in relation to the other contracting State (N. 8, i.e., respectively: the accepting or the reserving State) only when it has received notification thereof.21 In the case of a reservation, the burden lies in particular on the reserving State since it derogated from the provisions of the treaty in the first place, and the accepting State cannot be made responsible for any conduct which it committed—in ignorance of the withdrawal of the reservation—contrary to the treaty to which the reservation relates.22 Mutatis mutandis, the same burden falls on the objecting State vis-à-vis the reserving State.

While the withdrawal is usually transmitted via the depositary,23 subparas. 3(a) and

(b) provide an exception to the rule stated in Article 78 paras. (b) and (c) (q.v., N. 10) according to which the date of the receipt by the depositary is irrelevant here.24

10Subparas. 3(a) and (b) do not express themselves on the e ects of withdrawal.25 However, the following e ects transpire e contrario from Articles 20 and 21 (q.v.):

(i) if a State withdraws a reservation, the latter no longer exists, and the treaty enters fully into force between the formerly reserving and the accepting State;26

21ILC Report 1966, YBILC 1966 II 209, para. 2 (in respect of reservations).

22Ibid. See the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/Rwanda) Case, ICJ Reports 2006 21, para. 41 (“[i]t is a rule of international law, deriving from the principle of legal security and well established in practice, that, subject to agreement to the contrary, the withdrawal by a contracting State of a reservation to a multilateral treaty takes e ect in relation to the other contracting States only when they have received notification thereof. This rule is expressed in Article 22, paragraph 3[a] of the [Convention]”, original italic).

23Aust, Modern Treaty Law 156. See ILC Guideline 2.1.6 on the Procedure for Communication of Reservations, YBILC 2007 II/2 54, according to which, if there is a depositary, it will be to him that communications concerning a reservation shall be communicated.

24Ruda, RC 146 (1975 III) 202.

25Ibid.; on the topic also Kühner, Vorbehalte 231 f. In this respect, Szafarz, Polish YBIL 24 (1970) 314, has located a “loophole” in Article 22; also Pellet, Article 22, N. 79. See furthermore ILC Guideline 2.5.11 on the E ect of a Partial Withdrawal of a Reservation, YBILC 2007 II/2 62.

26T his is subject to any other reservations in the treaty. See here the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 CoW 417, para. 42; the ILC Draft 1966, YBILC 1966 II 209, para. 1 (“the reserving State should always

withdrawal of reservations and of objections to reservations 311

(ii) if a State withdraws a reservation, the treaty enters fully into force between the formerly reserving and the objecting State;27

(iii) if the objecting State withdraws its objection, including any opposition to the treaty’s entry into force, this corresponds to an acceptance of the reservation, and the latter takes full e ect.28 T his may well correspond with the reserving State’s withdrawal of the reservation;29

(iv) if the objecting State only withdraws its opposition to the entry into force of the treaty while maintaining its objection, “the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation”, as provided for in Article 21, para. 3 (q.v., N. 8).

Finally, the question arises whether the accepting State should be granted a 11 certain period of time to adjust to the withdrawal of a reservation, or the reserving State to react to the withdrawal of an objection—for instance,

in order to adjust its internal law to the new situation. Subparas. 3(a) and

(b) purposely leave this open. As the ILC explained in the Commentary to its Draft of 1966:

“even in the absence of such a provision, if a State required a short interval of time in which to bring its internal law into conformity with the situation resulting from the withdrawal of the reservation, good faith would debar the reserving State from complaining of the di culty which its own reservation had occasioned”.30

C. CONTEXT

(see Articles 19–23—Subsequent Developments)

be free to bring its position into full conformity with the provisions of the treaty as adopted”).

27See on (i) and (ii) ILC Guideline 2.5.7 on the E ect of Withdrawal of a Reservation which provides in para. 1: “[t]he withdrawal of a reservation entails the application as a whole of the provisions on which the reservation has been made in the relations between the State . . . which withdraws the reservation and all the other parties, whether they had accepted the reservation or objected to it”; and in para. 2: “[t]he withdrawal of the reservation entails the entry into force of the treaty in the relations between the State . . . which withdraws the reservation and a State . . . which had objected to the reservation and opposed the entry into force of the treaty between itself and the reserving State . . . by reason of that reservation”, YBILC 2007 II/2 60 f.

28Bowett, BYBIL 48 (1976–77) 87 f; Pellet, Article 22, N. 77.

29Ruda, RC 146 (1975 III) 202.

30YBILC 1966 II 209, para. 2. See also Waldock in the ILC, YBILC 1965 I 273, para. 24 (“such a clause would unduly complicate the situation and . . . in practice, any difficulty that might arise would be obviated during the consultations in which the States concerned would undoubtedly engage. Moreover, he had heard of no actual di culty arising in the application of a treaty from a State’s withdrawal of its reservation”); Ruda, ibid.

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D. PROPOSALS FOR AMENDMENT

(see Articles 19–23—Subsequent Developments)

E. APPRECIATION

(see Articles 19–23—Subsequent Developments)

Article 23

Procedure regarding reservations

1.A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty.

2.If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.

3.An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.

4.The withdrawal of a reservation or of an objection to a reservation must be formulated in writing.

Article 23 Procédure relative aux réserves

1.La réserve, l’acceptation expresse d’une réserve et l’objection à une réserve doivent être formulées par écrit et communiquées aux Etats contractants et aux autres Etats ayant qualité pour devenir parties au traité.

2.Lorsqu’elle est formulée lors de la signature du traité sous réserve de ratification, d’acceptation ou d’approbation, une réserve doit être confirmée formellement par l’Etat qui en est l’auteur, au moment où il exprime son consentement à être lié par le traité. En pareil cas, la réserve sera réputée avoir été faite à la date à laquelle elle a été confirmée.

3.Une acceptation expresse d’une réserve ou une objection faite à une réserve, si elles sont antérieures à la confirmation de cette dernière, n’ont pas besoin d’être elles-mêmes confirmées.

4.Le retrait d’une réserve ou d’une objection à une réserve doit être formulé par écrit.

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Artikel 23 Verfahren bei Vorbehalten

1.Ein Vorbehalt, die ausdrückliche Annahme eines Vorbehalts und der Einspruch gegen einen Vorbehalt bedürfen der Schriftform und sind den Vertragsstaaten sowie sonstigen Staaten mitzuteilen, die Vertragsparteien zu werden berechtigt sind.

2.Wenn der Vertrag vorbehaltlich der Ratifikation, Annahme oder Genehmigung unterzeichnet und hierbei ein Vorbehalt angebracht wird, so ist dieser von dem ihn anbringenden Staat in dem Zeitpunkt förmlich zu bestätigen, zu dem dieser Staat seine Zustimmung ausdrückt, durch den Vertrag gebunden zu sein. In diesem Fall gilt der Vorbehalt als im Zeitpunkt seiner Bestätigung angebracht.

3.Die vor Bestätigung eines Vorbehalts erfolgte ausdrückliche Annahme des Vorbehalts oder der vor diesem Zeitpunkt erhobene Einspruch gegen den Vorbehalt bedarf selbst keiner Bestätigung.

4.Das Zurückziehen eines Vorbehalts oder des Einspruchs gegen einen Vorbehalt bedarf der Schriftform.

ILC Draft 1966

Article 18—Procedure regarding reservations

1.A reservation, an express acceptance of a reservation, and an objection to a reservation must be formulated in writing and communicated to the other States entitled to become parties to the treaty.

2.If formulated on the occasion of the adoption of the text or upon signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.

3.An objection the reservation made previously to its confirmation does not itself require confirmation.

Materials:

WALDOCK Report I: Articles 17, 18 and 19.

Minutes: YBILC 1962 I 139 , 172 , 287 .

ILC Draft 1962: Articles 18 and 19.

WALDOCK Report IV: Articles 18 and 19.

procedure regarding reservations

315

Minutes: YBILC 1965 YBILC 1965 I 144 , 268 (Article 20), 284.

ILC Draft 1965: Article 20.

Minutes: YBILC 1966 I/2 293, 327, 340.

ILC Draft 1966: Article 18.

Minutes: OR 1968 CoW 124 f, 416; OR 1969 Plenary 36 f, 159.

Vienna Conference Vote: 90:0:0

Selected Literature (in addition to the literature mentioned in Article 19, q.v.):

A. Pellet, Article 23, in: Corten/Klein (eds.) 971 .

316		article
		CONTENTS
			Paras.
A. Background ........................................................................................			1
1.	Introduction	(see Article 19, N. 1–2)
2.	History ............................................................................................		1
B. Interpretation of Article 23 ...........................................................			2

C.Context

(see Articles 19–23—Subsequent Developments)

D.Proposals for Amendment

(see Articles 19–23—Subsequent Developments)

E.Appreciation

(see Articles 19–23—Subsequent Developments)

A. BACKGROUND

1. Introduction

(see Article 19, N. 1–2)

2. History

1 Throughout its preparatory drafting, Article 23 attracted little debate. In 1962 the procedures were discussed in the context of today’s Articles 19 and 20 (see Article 19, N. 4). In 1965 a new article was put forward which provided the basis for today’s Article 23.1 The ILC Draft of 1966 underwent some changes in Vienna in 1968; in particular, para. 4 was introduced.2 Article 23 was adopted by 90 votes to none.3

1For the debate in 1965, see YBILC 1965 I 144 , and 268 (Article 20), 284. Article 20 of the ILC Draft 1965 is at YBILC 1965 II 162.

2See the proposal of the Drafting Committee, OR 1968 CoW 416, para. 24. In 1969 Yasseen, the Chairman of the Drafting Committee, explained the new para. 4 at OR 1969 Plenary 159, para. 9. The amendments proposed in Vienna were mainly of a textual nature and referred to the Drafting Committee, see OR Documents 138 ; for the minutes of the Conference, see OR 1968 CoW 124 f, and 416; and OR 1969 Plenary 35 f, and 159. Article 18 of the ILC Draft 1966 is reproduced at YBILC 1966 II 208; the debate in 1966 is at YBILC 1966 I/2 293, 327, and 340.

3 OR 1969 Plenary 35 f, para. 4.

		procedure regarding reservations	317
B. INTERPRETATION OF ARTICLE 23
Article 23 goes beyond its title. It relates not only to the procedure regard-				2
ing reservations, but also to the procedures concerning the formulation
and acceptance of, and the objections to, reservations.4 As the opening
sentence of Article 21 confirms (q.v., N. 3), Article 23 is a prerequisite
for a reservation to produce e ects.5 Even if this is not stated in Article
23, the procedures therein may, as always, be altered in the treaty itself or
among the parties inter se (Article 20, N. 3).6
Para. 1 provides for the general procedure which consists of two parts: (i)				3
a reservation must be formulated in writing;7 and (ii) once formulated,
it shall be communicated to the contracting States and other States
entitled to become parties to the treaty. The same procedures apply to
an express acceptance of a reservation and an objection to a reservation.
The tacit acceptance of a reservation (which is the rule, see Article 20, N.
13)8 does not fall under Article 23. These communications usually occur
via the depositary (Article 78, N. 3).9
Para. 2 concerns the particular situation where during the preparatory phases				4
of a treaty a reservation has been informally announced or expressed, e.g.,
during the negotiations. Even if recorded in the minutes, this cannot su ce
to qualify formally as a reservation. Rather, Article 23 requires in addi-
tion that, if formulated when signing the treaty subject to ratification,
acceptance or approval, a reservation must be formally confirmed by the
reserving State when expressing its consent to be bound by the treaty.10
Formal confirmation shall be in writing.11 In other words, once the State
commits itself to be bound definitely, it should also express its final view
as regards the reservation.12 As para. 2 sets out, the timing is important:
the reservation shall be considered as having been made on the date
of its confirmation.13 Once confirmed, the reservation has been “made”,
4	ILC Report 1966, YBILC 1966 II 208, para. 1.
5	Aust, Modern Treaty Law 153.
6	Contra Kühner, Vorbehalte 237 (“keinen dispositiven Charakter”).
7	See the ILC Guideline 2.1.1 on the Written Form, YBILC 2007 II/2 52 (“[a]reservation
	must be formulated in writing”).
8	ILC Report 1966, YBILC 1966 II 208, para. 2.

9Reservations must be communicated in writing; see the ILC Guidelines 2.1.5 on the Communication of Reservations, and 2.1.6 on the Procedure for the Communication of Reservations, YBILC 2007 II/2 54.

10ILC Report 1966, YBILC 1966 II 208, paras. 3.

11See the ILC Guidelines 2.2.1 and 2.2.2, YBILC 2007 II/2 55.

12Ibid., para. 4.

13Confirmation is not necessary if the treaty expressly provides that a State may make a reservation upon signing the treaty; see ILC Guideline 2.2.3 on Reservations Formulated Upon Signature When a Treaty Expressly so Provides, YBILC 2007 II/2 55 f.

318

article

that moment corresponding with the definition in Article 2, subpara. 1(d) (q.v., N. 33–37). This date is relevant for the time-limit in Article 20, para. 5 (q.v., N. 17).14 If the reservation has not been confirmed, it will not be considered as having been made, it is void.

If a State expresses its consent to be bound solely by means of a signature according to Article 12 (q.v.), or of an exchange of instruments constituting the treaty as in Article 13 (q.v.), a further confirmation is unnecessary, and para. 1 applies (N. 3).15

5Para. 3 avoids excessive formalism by stating that the express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.16

The sequence of events envisaged in para. 3 is as follows: (i) a State makes an informal reservation (N. 4); (ii) other States expressly accept or make an objection (a priori also only provisionally so); (iii) the reserving State then confirms its reservation (N. 4); (iv) the express acceptance or the objection need not also be confirmed.

6Finally, para. 4 requires that the withdrawal of a reservation or of an objection to a reservation must be formulated in writing.17 It is not possible to give up a reservation or an objection informally, e.g., impliedly by means of conduct although, as always, States may inter se agree to proceed di erently.18 Para. 4 was introduced in Vienna in 1969 “in order to avoid any misunderstanding”.19

Contrary to para. 1 (N. 3) which envisages communication to “the contracting States and other States entitled to become parties to the treaty”, the withdrawal of the reservation or the objection in para. 4 must be notified solely to the other contracting State, i.e., respectively: the accepting and the reserving State (see Article 22, subparas. 3[a] and [b], q.v., N. 8).20

14See on these points Kühner, Vorbehalte 236 f; Aust, Modern Treaty Law 154.

15Kühner, ibid.

16ILC Report 1966, YBILC 1966 II 208, para. 5.

17Article 23, para. 4 was referred to by the Court in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo/Rwanda) Case, ICJ Reports 2006 21, para. 41.

18On implied conduct, see Bowett, BYBIL 48 (1976–77) 87.

19See the statement in Vienna by Yasseen, Chairman of the Drafting Committee, OR 1969 Plenary 159, para. 9.

20Kühner, Vorbehalte 235 f.

procedure regarding reservations

319

C. CONTEXT

(see Articles 19–23—Subsequent Developments)

D. PROPOSALS FOR AMENDMENT

(see Articles 19–23—Subsequent Developments)

E. APPRECIATION

(see Articles 19–23—Subsequent Developments)