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. 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. If it were made upon simple signature, it would be regarded as mere declaratory. Therefore, writing is crucial. Article 23(2) further states that the reservation must also be formally confirmed by the reserving State when it express its consent to be bound by the treaty and the reservation will be regarded as having been made on the date of confirmation. Whereas Article 23(3) provides that an express acceptance of, or objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. Lastly, Article 23(4) further provides that the withdrawal of, or objection to, a reservation must also be formulated in writing. Thus, we can see that the VCLT generally recognised reservation on treaties but had set exception when reservation cannot be made. Nevertheless, the exceptions have been formulated too wide and at instances even parties to the treaties agreed that such provisions can be reserve but it was rejected because it affects the human rights. The United States reservation to international covenant on Civil and Political Rights (ICCPR) International Covenant on Civil and Political Rights (ICCPR)[2] is an early United Nations treaty that “guarantees a broad spectrum of civil and political rights.”[3] President Carter signed the ICCPR on 5 October 1977 but was only ratified by the United States fifteen years later in 8th September 1992. The United States has made five reservations[4] to ICCPR on the issue of prohibition of war propaganda,[5] capital punishment,[6] cruel, inhuman or degrading treatment,[7] criminal penalties[8] and juveniles.[9] Nevertheless, many countries objected to the second reservation made as Article 6 of the ICCPR stated that “sentence of death may be imposed only for the most serious crimes”[10] and “shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”[11] Instead, the United States reserved the right to imposed death penalty on those below eighteen years of age. It is argued that the reservation made by The United States is against Article 4 of the ICCPR where it prohibits derogation from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18. By reservation, the right to use death penalty to persons under the age of eighteen contravenes the major object and purpose of the covenant that provides for the right to life.[12] Article 19 of the Vienna Convention on the Law of Treaties stated that “a State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless… the reservation is incompatible with the object and purpose of the treaty. Therefore, as the reservation to inflict a cruel and inhumane punishment is against the object and purpose of the ICCPR to give adequate legal protection for human rights, the reservation by the United States would be invalid.[13] The Australia reservation on Convention on the rights of the child (CROC) Australia had made reservation on several treaties related to subject matter of human rights. One of them is Convention on the rights of the child (CROC) which came into force on 2nd September 1990.[14] The aim of CROC is to ensure a set of rights of child up to the age of eighteen are protected in the world. Example of rights listed in CROC are right to education,[15] right to life,[16] right to express view[17] and right to be protected from neglect and abuse.[18] Australia became a party to this convention and ratified but with reservation on Article 37(c) on 1991.[19] Generally, reservation is allowed in multilateral treaties unless the treaty itself prohibits it.[20] CROC permits right of reservation under condition that it must compatible with the object and purpose of the Convention.[21] Therefore, reservation under Article 37(c) regarding right to detain children separately from adults will be invalid if it is incompatible with the object and purpose of CROC. There are several countries such as Japan, New Zealand and Switzerland also made reservation under Article 37(c) as they deem that it is unconditionally guaranteed. However, based on the Concluding Observations of the Committee on the Rights of the Child on Australia’s report, the Committee opined that Australia’s reservation was superfluous and should be withdrawn.[22] There is no inconsistency between the reason given by Australia and the provisions of Article 37(c) of the Convention.[23] The wording provided in Article 37(c) as every child deprived of liberty shall be separated from adults “unless it is considered in the best interests of the child not to do so”. Therefore, it is not compulsory to do so if it violates the interests of the child and child shall have the right to maintain contact with his or her family. CROC guarantees the best interest of child therefore reservation made by Australia and others State parties found to be incompatible with the purpose of the convention and suggested to withdraw of its reservation.
[1] Vienna Convention on the Law of Treaties 1969, (treaties.un.org) <https://treaties.un.org/doc/Publication/UNTS/Volume 1155/volume-1155-I-18232-English.pdf> last accessed 19th August 2014. [2] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 (entered into force 13 March 1976). [Hereinafter ICCPR.] [3] Senate Committee on Foreign Relations, Report on the International Convenant on Civil and Political Rights [4] "(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.” “(2) That the United States reserves the right, subject to its Constitutional constrains, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.” "(3) That the United States considers itself bound by Article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” "(4) That because U.S. law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to the third clause of paragraph 1 of article 15.” "(5) That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18." [5] Reservation to Article 20 of the ICCPR [6] Reservation to Article 6 of the ICCPR [7] Reservation to Article 7 of the ICCPR [8] Reservation to Article 15 of the ICCPR [9] Reservation to Article 10 of the ICCPR [10] Article 6 paragraph 2 of ICCPR [11] Article 6 paragraph 5 of ICCPR [12] Kristina Ash, ‘U.S. Reservation to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence’, (2005), vol.3, Northwestern Journal of International Human Rights [13] Oliver de Frouville, ‘Practice by States in regard to reservations and declarations’ Human Rights Dialogue between the European Union and China [14] ‘Australian Government-Department of Foreign Affairs and Trade’ (2007) <http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/E123F4F71DCAE3E7CA256B4F007F2905> accessed 14 March [15] Article 28 of CROC [16] Article 6 of CROC [17] Article 13 of CROC [18] Article 19 of CROC [19] Australia accepts the general principles of Article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contract with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37(c). [20] Article 19 (a) of VCLT [21] Article 51(2) of CROC [22] Consideration of reports submitted by States parties under article 44 of the Convention (2012) [23] Ibid
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