International Treaties and Reservations to Them

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Introduction Treaty is an international agreement between states or international organisations. Besides that, it is also one of the sources of international law because in a treaty parties can include rules and law on various aspects. In order to have a proper guidance on law regarding treaties, the Vienna Convention on Law of Treaties (VCLT) was formed and came into force on 27th January 1980.

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Thus, under the VCLT, it laid down the all the regulations from entering a treaty until end of a treaty. Nevertheless, the controversial issue in this research is on the rules on reservation. Even though reservation was allowed by the VCLT but in certain circumstance, such reservation is invalid. Hence, in this research, we will be looking into the reservation of treaties and what kind of reservation is deemed invalid. What is Reservation? The meaning of reservation is provided under Article 2(1)(d) of the VCLT[1]. It states that, “Reservation means 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.” Therefore, by making a reservation to the treaty, the State can avoid itself from being bound by certain provisions of the treaty or it can change the legal effect of certain provisions. For instances, State A and B enter into a treaty on various agricultural trade between them but State A made a reservation not to trade on rubber because of certain reason. Hence, this will make other States not bound to State A on that clause. It is further provided in Article 19 of the VCLT on the circumstances whereby a reservation cannot be formulated if the treaty explicitly prohibits it or it is expressly stated in the treaty that only certain reservation can be made. Additionally, any reservation made but incompatible with the object and purpose of the treaty will fail. Therefore, a State can only make a reservation that is not prohibited by the treaty, reserve on the reservations specified in the treaty or the reservation made is consistent with the object and purpose of the treaty. Such reservations are vital because it promotes the give and take principle that able to persuade others to comply especially in a multilateral treaties situation. For instance, reservation on the Article 36(6) of the Statute of the International Court of Justice that allows court to determine which disputes fall within its jurisdiction. This clause maybe undesirable for many states but via reservation it was later on ratified by most countries. Additionally, Article 23 of the VCLT further laid down the procedure regarding the reservations. According to Article 23(1), a reservation have to be formulated in writing and communicated to the contracting states and other states who are parties to the treaty.

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