Swaine on Treaty Reservations

Professor Edward Swaine at the University of Pennsylvania has just posted a great article on treaty reservations entitled Reserving. It is available for download here. His central thesis is that treaty reservations benefit non-reserving states, often in ways that are unappreciated. Here is the abstract:

The law of treaty reservations – which enables states to ask that their multilateral obligations be tailored to their individual preferences – has been controversial for over fifty years, and is at present subject to pitched battles within (and between) the International Law Commission and numerous other international institutions. There is broad agreement that existing scheme under the Vienna Convention on the Law of Treaties involves a sharp tradeoff between honoring the unalloyed consent of non-reserving states (that is, those agreeing to the treaty as originally negotiated, which may object to proposed reservations) and respecting the conditioned consent of reserving states; moreover, it is thought to decisively favor the latter, leading to a surplus of treaty reservations and a paucity of objections to them. The ambiguities that pervade the Convention are said to play a supporting role. Whatever their cause, it is thought, such ambiguities tend to disadvantage non-reserving states; the straightforward solution is to resolve those ambiguities, preferably by making reservations harder to pull off.

This approach is seriously flawed. In fact, the law of treaty reservations – understood as reflecting, rather than surmounting, its frustrating ambiguities – plausibly serves the interests of its supposed victims, the non-reserving states, perhaps even to a greater degree than for inveterate reservers. Treaty reservations not only increase the breadth of treaty participation, but permit agreement on broader commitments than would otherwise be possible. These effects inure to the benefit of reserving and non-reserving states alike. But deeper commitments, coupled with reservations, also establish a reliable, low-cost mechanism for providing information on reserving states, something facilitated by the existing scheme’s eccentricities. Those same eccentricities also enable non-reserving states to reserve their own judgment regarding the acceptability of reservations, and thus shift risk control back (somewhat) in their favor.

There is much that could be said about the article. I liked his discussion about reservations and human rights treaties. “Even critics of reservations concede some contribution to developing broader participation, and officials in human rights regimes actually encourage states that are on the fence to explore the possibility of employing reservations…. Even the Rome Statute for the International Criminal Court, which prohibits reservations, illustrates their potential virtue, since that prohibition contributed to the U.S. decision to stay out of the treaty and thereby deprived the regime of a valuable participant. The U.S. case may be exceptional, but it suggests that reservations may be especially significant to participation by states in which the power to ratify treaties is divided.” I think this is a very interesting, although well-known point. Allowing reservations increases membership, and prohibiting reservations may lead important states on the fence to opt out. As Swaine notes, a middle approach could also be adopted, in which certain treaty provisions could not be subject to reservation. He cites the Convention on Cybercrime as an example.

Swaine identifies other benefits to non-reserving states, including benefits that are often ignored. One such benefit is information gathering. He writes, “in formulating a reservation, a state indicates at least one regard in which it cannot meet … the treaty’s original terms, in the course of divulging private information about its preferences. The information may be incomplete, of course, as to why the state has that preference, or how keenly its preference is felt…. Still, such information might otherwise have been unavailable to non-reserving states, or too costly for them to obtain.”

There is much more in Swaine’s article than can be highlighted in this brief post. Check it out.