Reservations: Universality Bought at a Price

In one line

A reservation is a unilateral statement by which a State purports to exclude or modify the legal effect of a treaty provision as it applies to that State, it is permitted unless prohibited or incompatible with the object and purpose of the treaty, and human rights treaties strain the general law because there is no reciprocity to police them.

The general law

The definition: 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 in their application to that State.

The rule: a reservation may be formulated unless it is prohibited by the treaty, unless the treaty permits only specified reservations not including this one, or unless it is incompatible with the object and purpose of the treaty.

The classical consequence: other States may object, and the treaty operates between the reserving State and each other State according to whether that State objected and whether it opposed entry into force between them.

Distinguish an interpretative declaration, which states how a State understands a provision without purporting to exclude or modify its effect. The distinction turns on substance rather than on the label, so a "declaration" that in fact excludes an obligation is a reservation.

Why human rights treaties are different

Three structural differences, and the first is the whole problem.

No reciprocity. In an ordinary treaty, a reservation reduces what the reserving State owes and what it is owed, so other parties have an incentive to police it. In a human rights treaty the obligations run to individuals, not between States, so no party loses anything by another's reservation and the incentive to object is weak.

Objections are rare and inconsistent. Few States object, objections are often not to entry into force, and the pattern of objecting is itself political.

And the classical consequence does not fit. Saying the treaty operates differently between the reserving State and each objector makes little sense where the beneficiaries are that State's own population.

The treaty bodies' response. The Human Rights Committee has taken the position that it is competent to assess the compatibility of a reservation with the object and purpose of the Covenant, and that an incompatible reservation is severable, so the State remains bound by the provision without the benefit of the reservation.

That position is contested by States, which argue that severance imposes an obligation the State never accepted, and an accurate answer records the disagreement rather than presenting the Committee's view as settled law.

What is incompatible

Reservations to non-derogable provisions are treated as strongly suspect, since a State cannot suspend those in an emergency and it would be odd for it to exclude them in normal times.