The ILC’s Clever Compromise on the Validity of Reservations to Treaties

This post, adapted from our introduction to the symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties in the current issue of the EJIL, looks at one specific topic addressed by the ILC – the rules governing the validity of reservations and the consequences of invalidity. This is not only the most controversial and vexing of all of the issues addressed in the Guide, but also the one where the Guide makes it perhaps most important contribution. Here we not only have a meticulous analysis of a technical topic, but nothing short of an existential story of international law as a unified system as opposed to a set of fragmented sub-regimes. How so? When one reads Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect.

But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went (as exemplified most notably in Human Rights Committee’s General Comment No. 24), should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there manifestly are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation. Human rights protection would thus always be maximized.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation beckoned, and it needed to be resisted.

Professor Pellet and the ILC thus could not accept the ‘human rights are special’ argument. It was not just wrong; it was nonsensical, as the then Special Rapporteur puts it even today in his symposium piece. No true international lawyer, even a gentle, human rights-loving one, could accept its basic ideological premise. The impasse was seemingly insurmountable.

But time went by, and it was not wasted, but used for reflection and dialogue between the ‘generalists’ and the ‘human rightists’, including a series of meetings organized in Geneva between the ILC and human rights treaty bodies. Rather than harden, their respective positions evolved. While from the generalist perspective the specialty claim could never be accepted, there was still room for compromise. Perhaps it was the general regime itself that could be so interpreted – or adjusted – to accommodate the concerns of the other side, and this time not just for the benefit of human rights. And so we now have the Guide, in which Pellet so very cleverly succeeded in reconciling positions that before seemed irreconcilable. He and the ILC did so by making a series of crucial conceptual moves.

First, according to the Guide (sections 3 and 4, and particularly guidelines 4.3 and 4.5), Article 19 VCLT should be regarded as laying down objective criteria for the validity of reservations. Secondly, Articles 20-23 VCLT only deal with those reservations which are objectively valid under Article 19; they do not mention nor pertain to reservations which are in fact invalid. Thirdly, while states may object to reservations that they consider invalid, this is merely persuasive evidence of invalidity. In fact, objections only have real legal effect if they are made against reservations which are objectively valid. The objecting state may object for any reason whatsoever, simply because it does not want to accept the modified treaty bargain that the reserving state is offering. It does not need to be guided in making its objection by its appraisal of the reservation’s validity (contrary to what the ICJ indicated in its Reservations opinion). Fourthly, while the VCLT does not say what are the consequences of an invalid reservation, the only sensible option is to accept that such a reservation is null and void. Fifthly, however, saying that an invalid reservation is a nullity does not resolve the issue of the reserving state’s status as a party to the treaty. That will depend on the intention of the reserving state, which has a choice – either stay on as a party to the treaty without the benefit of the invalid reservation, or say that it no longer considers itself bound by the treaty. In so doing the reserving state will be acting under a rebuttable presumption that in case it says nothing it intends to remain a party.

Whether this is really the Vienna regime, ‘Vienna-plus,’ or something else entirely will, we imagine, be the object of some debate. But what seems to be beyond debate is that the Guide’s approach to the invalidity of reservations accommodates most of the human rights-inspired critique of Vienna without giving any ground to the idea of specialty. This is a general regime applying to all treaties, but it still moves from the inter-subjective approach in which state objections are paramount, it treats invalid reservations as nullities, and it allows them to be severed. Yet they can only be severed if the reserving state does not actively oppose its continued status as a party to the treaty. The Guide even acknowledges in guideline 3.2.1 that human rights bodies have the competence to assess the validity of reservations, but that this does not empower them to do more than they otherwise could, i.e. it would not suddenly make the Human Rights Committee’s views binding or formally equal to a judgment of the European Court of Human Rights. The Guide further strengthens the presumption that the reserving state intends to remain a party to the treaty without the benefit of its invalid reservation by indicating that the state should make its intentions known within a year of a treaty body expressing its views that the reservation is invalid (guideline 4.5.3.4). From silence, which would probably be more common than active opposition, one could infer acquiescence in the reservation’s demise.

This is, in short, a remarkable compromise. What remains to be seen, however, is whether the actors on all sides of the debate will be willing to go along with it. As with the Guide as a whole, only time will tell whether it will ultimately prove to be successful – in our view, there is reason to be optimistic.