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  • Manvee Kumar Saidha

Reservation in International Treaties: A Double-Edged Sword?

This article is authored by Manvee Kumar Saidha, a fourth-year student pursuing B.A., LL.B. (Hons.) at School of Law, Christ University.

Introduction


Reservation, in general parlance, is the decision of a State to not abide by some of the provisions of a treaty upon ratification. In other words, it is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that State. The term is defined under Article 2.1 (d) of the Vienna Convention on Law of Treaties, 1969 (VCLT) to mean “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Other apropos provisions have been accommodated in Section 2 of the VCLT under Articles 19 to 23.


The introduction of this provision may be extrapolated from the fact that ‘free consent’ and ‘good faith’ have been identified as universally recognized principles, which guide international treaty law. However, some Articles, to counter the ‘carte blanche’ that reservation might offer, establish certain inherent restrictions. For instance, Article 19 provides that reservation is permissible except in cases where - the treaty itself prohibits it, the treaty permits only certain reservations not including the one intended by the State, or where the reservation sought is incompatible with the very object and purpose of a treaty. Article 20enumerates the situations wherein subsequent acceptance by other contracting parties is required for reservation. Intentions aside, the provision of reservation itself remains dubious in international law and in this light, the article analyses the intriguing conundrum that it presents. The author argues that while reservation has its benefits, it also acts as an impediment to an already fragile international law regime – thereby making reservation a ‘double edged sword’.


Reservations: an invitation to involve?


The chief motivation that the recourse of reservation offers is that it affirms the self-determining nature of State participation. As Professor Bishop emphasized, “the fundamental basis remains, that no state is bound in international law without its consent to the treaty. This is the starting point for the law of treaties, and likewise for our international rules dealing with reservations.” Further, the other reasons that States employ reservation involve socio-political and economic inclinations. To illustrate, in case of dualist nations, a State may have constraints with respect to their domestic law. This includes hesitation on two accounts – firstly, where there is a procedural or substantive conflict with the municipal law; or secondly, where States maintain higher standards of civil and political rights as compared to that provided in the treaty and do not wish to lower their standards for the sake of uniformity. Thus, reservation affords a State the opportunity to resolve a judicial dichotomy, if any, and proceed with ratification.


Another extension of this flexibility is that greater State participation can be secured. This is implicit from the key prerogative that reservation offers, i.e. exclusion. Mindful of the fact that each nation differs in variety of ways – social, political, religious, economic, etc. – it is only obvious that as opposed to a rigid scheme of obligations, States are likely to lend greater cooperation where a constructive-balance can be achieved between domestic and international interests. This optimistic reflection of reservation is based on the assumption that contracting States are desirous of implementing the object of a Convention, and in reservation, they are guided by the compatibility (or its lack thereof) with their respective domestic interests. This thereby enhances State participation by allowing parties to induce obligations in an accommodative and acceptable manner. In the long run, this translates to greater contribution towards international efforts.


Reservations: delaying, deviating and debilitating international law?


Au contraire, when a party exercises reservation while signing a Treaty, it dilutes the essence of the treaty while simultaneously complicating inter-state reciprocity. This is so because while the provision is meant be a safe harbor for genuine legal incompatibilities, there can be no distinction drawn for when reservations are made on account of show of economic power or political manipulation. International relations are dynamic and diplomatic communications are likely to affect the way treaties are perceived by a State. Intangible determinantssuch as strategic benefits, reputational costs, comparative politico-legal circumstances and position relative to non-reserving states – all factor into a State’s consideration, of which reservation becomes a consequence. Another unpleasant consideration is that (as it is) international law lacks a secure sanction. Every aspect of this regime – from the ratification of a treaty to being bound by the International Court of Justice’s (“ICJ”) jurisdiction is driven by will and consent. Without going into the merits of a consent dependent system, the additional liberty to ‘pick and choose’ suitable provisions through reservation simply dilutes the pith of any treaty.


It also becomes pertinent to note Linda Keller’s observations at this juncture, which explain how States use reservations as a means to achieve various (other) ends, and become parties to conventions without truly obligating themselves to achieving the stated goal. Various scholars, for instance, recognize that the International Human Rights Regime stands threatened by the numerous exclusions made by parties, which primarily present the issue of limitation of human rights obligations. Moreover, when a party chooses to reserve certain provisions, it initiates a rather vicious and time-consuming cycle of events. This is because from the point of departure itself a series of events – constituting objection, justification, validation by other contracting parties, legal objections (if any) and proceedings – delay the implementation of multilateral treaties. And till the point where such contradiction is resolved and at least one other contracting State or contracting organization accepts the reservation (the decision of which is again shadowed by political reactions to the reservation made), the party is not rendered a ‘contracting party’. Portugal, in its Governmental Comment observed that this practice could represent at least a twelve month delay. In certain cases, such as in case of the Mahakali Treaty, reservations have also lead to differences in understanding provisions thereby resulting in non-implementation despite decades of enforcement. Prolonged periods lost in such procedural dissensions


The case of Loizidou vs Turkey may be noted here. Though predominantly known for European Court of Human Right’s decision to hold that the reservations made by the parties was not in consonance with the Convention for Protection of Human Rights and Fundamental Freedom; another point can be emphasized in the present context –s the fact that this case was first referred to in 1993, while the judgment was delivered only five years later i.e. in 1998. Even when India made a reservation with respect to ICJ’s jurisdiction to hear disputes in reference to the Genocide Convention, it restricted the very administrative aspect that intended to uniformly subject States to ICJ’s jurisdiction. Though one may argue that monopoly in competence to adjudicate was not the ‘object and purpose’ of the treaty, and the reservation is therefore valid; the provision served an undeniably significant purpose by ensuring that at least the adjudicating authority would be pre-determined in case of violations. This would in turn shift focus to resolving the larger question of human right violations in a timely manner. However, now, in the hypothetical event that a dispute arises, every such reservation made will invite unnecessary fall-out and generate deadlocks, before the deliberations move to actual justice delivery.


Conclusion


From a purely calculative standpoint, it is certainly more desirable if a treaty attracts greater participation, albeit the detail that it may only be partial. However, the author wishes to argue that the present-day scenario is such that an all or none approach is required. With rising globalization and international-dependability, comes the need for greater cross-border cooperation and compromise. Looming issues – be it environmental, nuclear, or socio-political – all demand uniform adherence to, and implementation of, International Law. Fraudulently motivated reservations will only create more procedural issues in an already complex web of multilateral treaty agreements.


To conclude, another point of Professor Bishop’s lectures may be iterated at this point to appreciate the ambiguous standing – “When we try to evaluate the institution of reservations as a part of the treaty-making process, we must agree that they can serve a very useful purpose despite the complications and annoyances they introduce.... Much can be said for the mechanism of reservations as a means to get partial agreement where total agreement proves impractical or impossible, and partial agreement seems worthwhile …”. Considering the fact that international law lacks absolute sanction, the provision of reservation will continue to remain a necessary evil. To ensure strengthened participation and consequent positive outcomes, the international community must find ways to work around the provision itself. In this hope, Article 19 can be applied generously, the economics of incentive can be actively used to ensure unadulterated participation and grassroot transactions, i.e. diplomatic communications, can be strengthened.

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