Reservations to Treaties: Genocide Opinion and the VCLT

A state may wish to join a multilateral treaty while excluding or modifying some of its provisions. It does this by a reservation. Reservations allow wide participation but can undermine the treaty's unity. This note explains what a reservation is, how the law moved from unanimity to the compatibility test in the Genocide Convention opinion, the rules in Articles 19 to 23 of the Vienna Convention, the special problems of human rights treaties, and India's practice.

1. Meaning

Article 2(1)(d), VCLT. 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.
Interpretative declaration. A statement that only clarifies how a state understands a provision, without changing its legal effect; what matters is substance, not label, so a declaration that in fact modifies obligations is a reservation.
Bilateral treaties. A reservation to a bilateral treaty is in effect a proposal to renegotiate it.

2. From Unanimity to Compatibility

Unanimity rule. Under League of Nations practice, a reservation was valid only if accepted by all parties; otherwise the reserving state could not become a party.
Pan-American practice. A more flexible system let a reserving state be a party with those states that accepted its reservation.
Reservations to the Genocide Convention, advisory opinion, 1951. A state that has made a reservation objected to by some parties but not others can be regarded as a party if the reservation is compatible with the object and purpose of the Convention; each party decides compatibility for itself, and an objecting party may regard the reserving state as not a party; the Court stressed the humanitarian purpose of the Convention and the aim of wide participation.

3. When a Reservation Is Permitted

Article 19 of the Vienna Convention

Figure 1: Article 19 of the Vienna Convention

4. Acceptance, Objection and Effect

Articles 20 and 21

Figure 2: Articles 20 and 21

Unanimity cases, Article 20(2). Where the number of negotiating states is limited and application of the treaty in its entirety is essential, every party must accept the reservation.
Constituent instruments, Article 20(3). A reservation to the constitution of an international organisation requires acceptance by its competent organ.
Tacit acceptance, Article 20(5). A reservation is treated as accepted by a state that raises no objection within twelve months of being notified, or by the date it consents to be bound, whichever is later.
Reciprocity, Article 21(1). An accepted reservation modifies the provisions for the reserving state and, to the same extent, for the other party in its relations with the reserving state.
Withdrawal and form, Articles 22 and 23. A reservation may be withdrawn at any time; reservations, acceptances and objections must be in writing.
Armed Activities (DRC v Rwanda), 2006. Rwanda's reservation to Article IX of the Genocide Convention, excluding ICJ jurisdiction, was not incompatible with the Convention's object and purpose.

5. Human Rights Treaties

The problem. Human rights treaties create obligations towards individuals, not reciprocal exchanges between states, so the reciprocity in Article 21 fits them poorly, and few states object.
General Comment No. 24, 1994. The Human Rights Committee claimed the power to decide whether a reservation to the ICCPR is compatible with its object and purpose, and said an incompatible reservation would normally be severed, leaving the state bound without it.
Belilos v Switzerland, 1988. The European Court of Human Rights treated a Swiss interpretative declaration as an invalid reservation and held Switzerland bound by the Convention without it.
ILC Guide to Practice, 2011. The International Law Commission's Guide to Practice on Reservations to Treaties provides that a state making an invalid reservation is presumed to be a party without the benefit of the reservation, unless it has shown a contrary intention.

6. India's Practice

Examples of India's reservations and declarations

Figure 3: Examples of India's reservations and declarations

India has made reservations and declarations to several human rights treaties, including the ICCPR and CEDAW, often to protect constitutional positions such as the scope of self-determination and the autonomy of personal laws, and to exclude compulsory ICJ jurisdiction.

⚠ Exam trap

A reservation excludes or modifies legal effect; an interpretative declaration only clarifies, and substance decides which it is. The Genocide Convention opinion (1951) replaced unanimity with the object and purpose test, now Article 19(c). Silence for twelve months means acceptance (Article 20(5)). An objection does not prevent treaty relations unless the objecting state definitely says so (Article 20(4)(b)). Invalid reservations to human rights treaties are often severed (Belilos, 1988; ILC Guide, 2011).

7. Frequently Asked Questions

Can a state make a reservation to a bilateral treaty?

Not in the true sense. A reservation to a bilateral treaty amounts to a proposal to change its terms, which takes effect only if the other party agrees, in which case the treaty is effectively renegotiated.

What happens if no state objects to a reservation?

Under Article 20(5), a state that raises no objection within twelve months after notification, or by the date it consents to be bound if later, is considered to have accepted the reservation.

8. Related Topics

Topic 13: Law of Treaties I. Conclusion and consent.
Topic 15: Law of Treaties III. Interpretation.
Topic 45: Specialised Human Rights Conventions. CEDAW and India's status.