The Oxford Guide to Treaties Symposium: What Happens if a Treaty Reservation is Invalid?

[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.]

Professor Duncan Hollis’ magisterial new book, The Oxford Guide to Treaties, collects an enormously useful amount of up-to-the-minute scholarship on myriad pressing questions of international treaty law. Its publication comes at a particularly opportune moment, as the International Law Commission’s (ILC’s) Guide to Practice on Reservations to Treaties was finalized by the Commission in 2011, and is currently on the calendar for action next year by the U.N.’s Sixth Committee and General Assembly.

The chapter on Reservations to Treaties, by Professor Ed Swaine, a former Counselor on International Law in the Office of the Legal Adviser, addresses one of the thorniest issues in the already complicated area of reservations – namely, the effect of objections to so-called “invalid” reservations.  For good reason, Professor Swaine does not attempt to resolve this contentious issue definitively in his chapter, as it remains subject to differing and contested views among States.

But the penultimate draft of the ILC Guide provided that “[w]hen an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified.” (emphasis added).  Simply put, under this approach a State that has made a reservation that is later deemed “invalid” could nevertheless be bound by the treaty without the benefit of the reservation it took pains to assert.  For good reason, this proposal drew a raft of vigorous comments from States at the annual Sixth Committee discussion in 2010.

The final draft of the ILC Guide has largely maintained the same approach, although happily giving somewhat more deference to the intent of the reserving State. According to current section 4.5.3, “[t]he status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty.” (emphasis added) But the presumption is clear: “Unless the author of an invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State … without the benefit of the reservation.”

On its face, this approach makes little sense and smacks of unfairness.  As the United States has consistently noted, it is difficult to square this approach with the bedrock principle of treaty law that States are bound only to those obligations they affirmatively consent to undertake.  Reservations, which allow States to condition the scope of their consent, are a well-established and critical feature of international treaty law. If a State’s condition to consent is later deemed invalid because it is incompatible with a treaty’s object and purpose, it makes little sense to pretend after the fact that the reserving nation de facto gave the broader, unconditioned consent that it expressly chose to withhold in the first place.

The Vienna Convention on the Law of Treaties (VCLT) rules on reservations are admittedly opaque.  But acknowledging that States are only bound to their treaty commitments with their genuine consent offers a far more workable framework for addressing reservations that are later characterized as invalid by another State.  For example, when the U.S. objected to Pakistan’s reservations to the Convention Against Torture (CAT) and International Covenant on Civil and Political Rights (ICCPR), we took the position that the totality of those reservations was incompatible with the object and purpose of the treaties.  Yet we nevertheless chose to maintain –consistent with VCLT Art. 21.3–treaty relations with Pakistan, except to the extent of their reservations. In short, severing an invalid reservation from a treaty is not like severing an unconstitutional clause from a piece of legislation. A fair-minded observer still must determine the scope of the reserving nation’s genuine consent to the treaty’s provisions, and make a good faith effort to respect both the party’s actual consent and its effort to carve out exceptions to that consent through particular reservations.

The ILC’s Guide to Reservations is sure to foster ongoing debate among international lawyers. It is the work of what the Statute of the ICJ, Article 38 calls, “the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of [international] law.”  But as that debate, and others, unfold, it will be a blessing to have Professor Hollis’ Oxford treaty volume, whose chapters –also authored by distinguished publicists with their own legal views–consistently give us a thoughtful, useful starting point –and counterpoint –for thinking through  this and many other knotty treaty questions.