Reservations to
Treaties and United States Practice
By Frederic L. Kirgis
May 2003
For quite some time and under several
administrations, the United States government has
been reluctant to enter into multilateral treaties
(also known as conventions) that impose obligations
directly on the national government, unless it can
attach significant reservations to those treaties.
A prominent case in point is the International Covenant
on Civil and Political Rights. [1] When the United States became a party in 1992,
it attached reservations that had the effect of excluding
any U. S. obligations under the Covenant that might
add anything to already-existing U. S. law.
[2] The United States has been less inclined
to attach significant reservations when the treaties
regulate private conduct, such as conventions on international
sales of goods or on the civil aspects of international
child abduction.
The Vienna Convention on the Law of Treaties
is the authoritative instrument on the international
law of treaties. Most of its provisions are thought
to reflect customary international law, so they are
considered binding even on nation-states (such as
the United States) that are not formally parties to
the Vienna Convention. It defines a reservation to
a treaty as "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." [3]
A reservation is permissible unless the
treaty itself prohibits it, or the treaty permits
only certain reservations not including the one in
question, or the reservation is incompatible with
the object and purpose of the treaty.
[4] Under traditional international law, a state
that attaches an impermissible reservation cannot
become a party to the treaty unless all other parties
agree to the reservation. Recently, however, the
U.N. Human Rights Committee - the body that administers
and interprets the Covenant on Civil and Political
Rights - has taken the view that an unacceptable reservation
to the Covenant will normally be severable, in the
sense that the reserving party would be a party to
the Covenant without benefit of the reservation.
[5] The Human Rights Commission's view is controversial,
but in any event it does not appear to extend beyond
human rights treaties.
In recent years, several important multilateral
conventions have prohibited most or all reservations.
One reason for such a prohibition is that these conventions
are legislative in character, so it is considered
essential to try to ensure uniform application of
their rules among the states parties to them, even
if the no-reservation clause dissuades some nation-states
from becoming parties to the conventions. Another
reason for prohibiting reservations is that complex
multilateral treaties often embody a "package deal"
that involves compromises made among diverse interests
on all sides; any reservation could unravel the package.
The United Nations Convention on the Law of the Sea
is an example. The United States is not a party to
that convention, largely because of the provisions
on deep seabed mining to which reservations could
not be made. The Rome Statute (treaty) of the International
Criminal Court is another example. The United States
has announced that it will not become a party to the
Statute. [6]
Yet another example of a multilateral
treaty prohibiting reservations, recently in the news,
is the proposed World Health Organization's Framework
Convention for Tobacco Control. [7] The Convention does not set forth detailed rules, but it does
contain several provisions requiring governmental
regulation of the tobacco industry. For example,
it requires each State party to adopt and implement,
"in accordance with its national law," measures to
ensure that tobacco packaging and labeling do not
create misleading impressions about the product's
health effects, and do contain prominent health warnings
covering not less than 30 percent of the principal
display area. It also requires each State party "in
accordance with its constitution or constitutional
principles" to undertake a comprehensive ban of all
tobacco advertising, promotion and sponsorship, broadly
defined. If the party's constitution would not permit
such a comprehensive ban, the party must apply certain
restrictions on all tobacco advertising, promotion
and sponsorship, particularly those with cross-border
effects. Parties that ban and penalize certain forms
of tobacco advertising, promotion and sponsorship
in their own territory are given the right to extend
the ban and penalties to cross-border advertising,
etc., entering their territory. Each party must prohibit
or promote the prohibition of free distribution of
tobacco products to the public.
The United States has objected to the
clause in the Tobacco Control Convention prohibiting
reservations, and has said it would not become a party
to the Convention unless that clause is changed before
the Convention is adopted at the World Health Assembly
meeting scheduled for May 19. [8] Apparently, the U. S. government
wants to attach reservations to the provisions in
the Convention setting minimum sizes for warnings
on tobacco packaging, restricting free distribution
of tobacco products and defining tobacco advertising
and promotion.
[9] Another U. S. concern has to do with possible
encroachments on states' rights within the United
States.
[10] A United States official also raised First
Amendment concerns, although the Convention - as noted
above - contains provisions recognizing certain constitutional
constraints in some States. Other governments are
resisting any effort to renegotiate the Convention,
fearing that reservations could unravel the entire
treaty.
International law does not require the
United States (or any country) to ratify the Tobacco
Control Convention or any other treaty, whether or
not the treaty contains a clause prohibiting reservations.
Nor does international law attempt to regulate the
motives a government might have for wishing to attach
reservations or for declining to become a party to
a treaty. Nevertheless, governments outside the United
States and nongovernmental observers have expressed
concern about a perceived U. S. pattern of nonparticipation
or very limited participation in a wide range of multilateral
treaties that make up much of the fabric of the international
legal system. The question is whether that system,
for which the United States has professed its respect,
can be effective without its most influential player.
About the Author:
Frederic L. Kirgis is Law School Association Alumni
Professor at Washington and Lee University School
of Law. He has written a book and several articles
on United Nations law, and is a member of the Board
of Editors of the American Journal of International
Law.
_________________________________________________________________________
The purpose of ASIL Insights is to provide concise
and informed background for developments of interest
to the international community. The American Society
of International Law does not take positions
on substantive issues, including the ones discussed
in this Insight.
ASIL
Insights may be found on the ASIL
Web Site.
Educational copying is permitted with due acknowledgement.
