Derogations and Reservations in International Law

Abstract

The topic of reservations and derogations is a complex issue in treaty law. Reservations define the content and extent of a legal obligation for a party to a treaty. They thereby allow states to accommodate their specific interests in the framework of multilateral treaties. The starting point for any examination of reservations is the 1969 Vienna Convention on the Law of Treaties (VCLT). According to the definition contained in Article 2(1)(d) VCLT, a 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.” Some unresolved and controversial issues in treaty law include the legal effects of objections to reservations, the legal effect of impermissible reservations, and the legal status of interpretative declarations. The VCLT does not address the notion of derogations. Typically, in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, states may take measures derogating from their obligations under certain treaties to the extent strictly required by the exigencies of the situation. This is provided that such measures are not inconsistent with their other obligations under international law. Specific clauses which lay down specific procedures on derogations are usually incorporated in human rights treaties. However, it is unclear under what precise circumstances a state may derogate from its treaty obligations, or what procedure is to be followed in this regard. The concepts of reservations and derogations have been of interest for many years, not least in the context of human rights treaties. In this article, the main focus is on reservations to and derogations from multilateral treaties. Historical Background of Reservations to Treaties Prior to the 1969 VCLT gives a historical overview of the development of the regime of reservations to treaties prior to the adoption of the 1969 VCLT. Reservations Under the Regime of the 1969 VCLT addresses reservations under the 1969 VCLT regime. Legal Effects of and Procedure Regarding Reservations deals with the legal effects of permissible reservations. Legal Effects of Impermissible Reservations addresses the legal effects of invalid reservations, and Reservations to Human Rights Treaties addresses reservations to human rights treaties. Practice of Human Rights Bodies on Reservations to Human Rights Treaties looks at some approaches of human rights bodies with respect to reservations to human rights treaties. Interpretative Declarations addresses the issue of interpretative declarations, and 2011 ILC Guide to Practice on Reservations discusses the 2011 Guide to Practice on Reservations to Treaties. Lastly, Derogations deals with the notion of derogations, with a particular emphasis on derogations from norms ius cogens and human rights treaties.