PUBLIC INTERNATIONAL

LAW
SPRING 2022
PROFESSOR ABHINAV MEHROTRA
  ARTICLE 2 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
modify the legal effect of certain provisions of the treaty in
their application to the state.
What is a
Reservation ?  The terms excluding could also mean omission to do
something . Whereas, the term modifying may mean the
understanding of something in certain way.
  Reservations are different than other statements like unilateral
political statements, interpretative declarations that may be
specific or general in nature.

 Reservations must be in writing and communicated to the

What is a
contracting states and other states entitled to become parties to
the treaty , as must acceptance and objection to reservations
Reservation ?  In general, the reservations are deemed to have been accepted
by states that have raised no objections to them at the end of
a period of 12 months after notification of the reservation
or by the date on which the consent to be bound was
expressed.
 Reasons for  1. Universal Character of the UN
Acceptance of  2. The extensive participation envisaged under the UN Charter
Reservations  3, The principles underlying the Charter are general principles
already binding upon the state.
 4. The Charter was adopted for humanitarian purposes, so
that the state parties do not have interests of their own but a
common interest.
  Article 19 :- Reservation may be made when signing,
ratifying , accepting , approving but they cannot be made
where the reservation is prohibited by the treaty or when the
treaty provides that only specified reservations may be made
and those do not include the reservation in question or
Vienna Convention where the reservation is not compatible with the object and

on Law of Treaties purpose of the treaty.

regarding  Article 20 (2) : It appears that the limited number of the

negotiating states and the object and purpose of the treaty
Reservation that the application of the treaty in its entirety between all
the parties is an essential condition of the consent of each
one to be bound by the treaty.
  Article 20 (4) :- General Rules for Treaty (other than constituent
instruments of Int’l Org.)
Vienna Convention  i) acceptance by another contracting state of a reservation
on Law of Treaties constitutes the reserving state a party to the treaty in relation

regarding to that other state.

Reservation  ii) an objection to by another contracting state, to a reservation

does not preclude the entry into force of the treaty between the
objecting and reserving states
 Iii) An act expressing a state’s consent to be bound by the treaty
and containing a reservation is effective as soon as at least one
other contracting state has accepted the reservation
  Article 21(3) : Where a state objects to a reservation , but not to
the entry in force of the treaty between itself and the reserving
state , then the provisions of the treaty to which the reservation
relates , do not apply to as between the two states to the extent
of the reservation
 Special Case of Human Rights Treaties
Vienna Convention
 In case of impermissible reservation, the provisions in question
on Law of Treaties applies in full to the reserving state
regarding  In this context, the ILC adopted the Preliminary Conclusions on
Reservation Reservation to Normative Multilateral Treaties including
Human Rights Treaties . It reaffirmed the applicability of the
Vienna Convention on all treaties including Human Rights.
 { The ILC also emphasized that it is the reserving state that has
the responsibility of taking action in the event of inadmissibility
such state could modify or withdraw the reservation or
withdraw from the treaty.
  ISSUES UNDER CONSIDERATION

 I. Can the reserving State be regarded as being a party to the Convention

Reservations To The while still maintaining its reservation if the reservation is objected to by
Convention On The one or more of the parties to the Convention but not by others?
Prevention And  II. If the answer to Question I is in the affirmative, what is the effect of the
Punishment Of The Crime reservation as between the reserving State and:
Of Genocide (a) The parties which object to the reservation?
(b) (b) Those which accept it?
  III. What would be the legal effect as regards the answer to Question I if an
objection to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?
 A first objection is founded on the argument that the making of an objection to a reservation
made by a State to the Convention on the Prevention and Punishment of the Crime of
Genocide constitutes a dispute and that, in order to avoid adjudicating on that dispute, the
Court should refrain from replying to Questions I and II.

OBJECTIONS
TO THE
Article 65 of the Statute recognizes that the Court has the power to decide whether the
circumstances of a particular case are such as to lead the Court to decline to reply to the

ADVISORY
request for an Opinion

OPINION Article 68 of the Statute recognizes that the Court has the power to decide to what extent
the circumstances of each case must lead it to apply to advisory proceedings the
provisions of the Statute which apply in contentious cases

The object of this request for an Opinion is to guide the United Nations in respect of its
own action regarding the legal effects of reservations to that Convention and more
particularly the legal effects of objections to such reservations.
  Another objection has been put forward to the exercise of the
Court's advisory jurisdiction: it is based on Article IX of the
Genocide Convention which provides that disputes relating to
the interpretation, application of fulfilment of that

OBJECTIONS Convention shall be submitted to the International Court of

Justice at the request of any of the parties to the dispute.
TO THE  The existence of a procedure for the settlement of disputes,
ADVISORY such as that provided by Article IX, does not in itself exclude
the Court's advisory jurisdiction, for Article 96 of the Charter
OPINION confers upon the General Assembly and the Security Council in
general terms the right to request this Court to give an
Advisory Opinion 'on any legal question'.
 All three questions are expressly limited by the terms of the Resolution of the General Assembly to the
Convention on the Prevention and Punishment of the Crime of Genocide,.
The three questions are purely abstract in character. They refer neither to the reservations which have, in
fact, been made to the Convention by certain States, nor to the objections which have been made to such
reservations by other States.

COURT’S
I. Can the reserving State be regarded as being a party to the Convention while still maintaining its
reservation if the reservation is objected to by one or more of the parties to the Convention but not by
others?

OPINION It is well established that in its treaty relations a State cannot be bound without its consent, and that
consequently no reservation can be effective against any State without its agreement thereto

Although, the existence of practices which go so far as to admit that the author of reservations which have
been rejected by certain contracting parties is nevertheless to be regarded as a party to the convention in
relation to those contracting parties that have accepted the reservations
  What kind of reservations may be made and what kind of objections may be taken to
them. [On account of its abstract character, cannot be given an absolute answer. The
appraisal of a reservation and the effect of objections that might be made to it depend
upon the particular circumstances of each individual case.

 Special characteristics of the Genocide Convention. The origins and character of

COURT’S that Convention, the objects pursued by the General Assembly and the contracting
parties, the relations which exist between the provisions of the Convention, inter se,
OPINION and between those provisions and these objects,
 The origins of the Convention show that it was the intention of the United Nations to
condemn and punish genocide as 'a crime under international law' involving a
denial of the right of existence of entire human groups, a denial which shocks the
conscience of mankind and results in great losses to humanity, and which is contrary
to moral law and to the spirit and aims of the United Nations
 The object and purpose of the Genocide Convention imply that it was the intention of
the General Assembly and of the States which adopted it that as many States as
possible should participate
  'If the answer to Question I is in the affirmative, what is the effect
of the reservation as between the reserving State and:
 (a) the parties which object to the reservation?
 (b) those which accept it?'
 As no State can be bound by a reservation to which it has not
consented, it necessarily follows that each State objecting to it
COURT’S will or will not, on the basis of its individual appraisal within

OPINION
the limits of the criterion of the object and purpose, consider the
reserving State to be a party to the Convention. In the ordinary
course of events, such a decision will only affect the relationship
between the State making the reservation and the objecting State .
 The reserving State will have the effect that the Convention will
enter into force between them, except for the clauses affected by
the reservation.
  'What would be the legal effect as regards the answer to
Question I if an objection to a reservation is made:
 (a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet
done so?’

COURT’S  A State which has made a reservation to which another State

OPINION has objected, the fact remains that the Convention does not
enter into force as between the reserving State and the
objecting State.
 The question arises whether the States mentioned under (a) and
(b) of Question III are entitled to bring about such a result by
their objection.
  The Court considers that signature constitutes a first step to
participation in the Convention.
 It is evident that without ratification, signature does not make the
signatory State a party to the Convention; nevertheless, it
establishes a provisional status in favour of that State
 But, both before and after the entry into force, this status would

COURT’S
justify more favourable treatment being meted out to signatory
States in respect of objections than to States which have neither

OPINION signed nor acceded.

 Until this ratification is made, the objection of a signatory State

can therefore not have an immediate legal effect in regard to the
reserving State. It would merely express and proclaim the
eventual attitude of the signatory State when it becomes a party
to the Convention.
  A treaty will come into force as soon as the consent to be bound
by the treaty has been established for all the negotiating states.
 Usually, in case of multilateral treaties, it may be provided
for entry into force upon ratification by a fixed number of
states.
ENTRY INTO  Example VCLT came into effect thirty days after the depost

FORCE OF of thirty fifth ratification.

 Article 80 of the 1969 Convention (following Article 102 of
TREATIES the UN Charter)
 After the entry into force , the treaties should be transmitted
to the United Nations Secretariat for registration and
publication.
  Article 25 VCLT : A Treaty whole or in part be provisionally
applied pending its entry into force , if the treaty so provides
or the parties have in some other manner so agreed.
 Article 29 VCLT :- Unless otherwise agreed, Article 29
provides that a treaty is binding upon each party in respect
of the entire territory
The Application  THIRD STATES
of Treaties  These are states which are not parties to the treaty in
question . General rules is that the international
agreements bind only the parties to them.
 [Based on respect for sovereignty and independence of
states]
  ARTICLE 34 VCLT :- A Treaty does not create either obligations
or rights for a third state without its consent.
 Exception being the provisions of the treaty that have become part
of the Customary International Law such as rules relating to
warfare.
 Example Article 2(6) of the UN Charter, The organization shall

THIRD ensure that the states which are not members of the United Nations
act in accordance with these principles so far as may be

STATES necessary for the maintenance of peace and security.

 Article 75 VCLT:- The provisions of the Convention are
without prejudice to any obligation in relation to a treaty which
may arise for an aggressor state in consequence of measures
taken in conformity with the Charter of the United Nations
with reference to the state’s aggression
  Article 36 VCLT :- A right arises for a third state from a
provision of a treaty if the parties to the treaty intend the
provision to accord the right either to a third state or to a
group of states to which it belong or to all states and the

THIRD third state assents thereto.

STATES [In case of granting the benefits to third states , their assent is
assumed in the absence of contrary provision]
  The common aim is the revision of treaties
 Amendment : It refers to formal alteration of treaty provisions
affecting all the parties to the particular agreement.
 Modification:- It relates to variation of certain terms of the
treaty between the particular parties.[Not be prohibited by
AMENDMENT the Treaty and not affecting the rights and obligations of

AND parties]

MODIFICATIO  Example, Article 40 VCLT : It specifies the procedure to be

adopted in amending the multilateral treaties ie.
N OF TREATIES  Any proposed amendment has to be notified to all contracting
states , each one is entitled to participate in the decision as to
action to be taken and in the negotiation & conclusion of any
agreements.
  Three basic approaches to treaty interpretation under
International Law :-
TREATY  i) actual text of the agreement and emphasizes the analysis of
the words used

INTERPRETAT  ii) The intention of the parties adopting the agreement.

 iii) The object and purpose of the treaty
ION  Article 31(1) : A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in light of the object
and purpose of the treaty.
  Subsequent agreement or practice related to the treaty
must be considered together with the context.
 A) As an instrument of interpretation
TREATY  B) To ascertain the alteration in relations between the
parties established by the treaty in question

INTERPRETAT  Article 32 VCLT :- Supplementary means of

interpretation
ION  A) Preparatory Work (travaux prepartoires) of the
treaty
 B) Circumstances of its conclusion.
  Article 42 :- The validity and continuation in force of a treaty
may only be questioned on the basis of the provision in the
INVALIDITY, Vienna Convention.
TERMINATION  Article 44 :- A State may only withdraw or suspend the
AND operation of a treaty as a whole not in particular parts,
SUSPENSION OF unless the treaty otherwise stipulates or the parties
otherwise agree.
THE OPERATION
OF TREATIES  The invalidity, withdrawal or suspension of particular parts
is only possible in certain scenarios that include:
 INVALIDITY,  a) The said clauses are seperable from the remainder of the
TERMINATION treaty with regard to their application.

AND  b) It appears from the treaty or is otherwise established that

acceptance of the clauses was not an essential basis of the
SUSPENTION consent of the other partiy/ies to be bound by the treaty as a
OF THE whole .
OPERATION OF  C) Continued performance of the remaninder of the treaty
TREATIES would not be unjust.
 INVALIDITY,
TERMINATION  Article 45 VCLT :- A ground for invalidity, termination ,
AND withdrawal or suspension may no longer be invoked by the
state, where after becoming aware of the facts, it expressly
SUSPENTION agreed that the treaty is valid or remains in force or by reason
OF THE of conduct deemed to have acquiesced in the validity of the

OPERATION OF treaty or its continuance in force.

TREATIES