C. Reservations, understandings and declarations

At the moment of signature, ratification or accession of the Convention, States and regional integration organizations may wish to adjust the application of the treaty by means of lodging a reservation. The Vienna Convention on the Law of Treaties (art. 2, para. 1 (d)) defines a reservation as follows:

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.

States can also lodge declarations at the moment of signature, ratification or accession. Declarations are statements of understanding of a matter contained in the Convention or an interpretation of a particular provision.

In some cases reservations and declarations could be the symptom of a State's lack of will to implement the Convention fully, e.g., a State may mask its lack of will by invoking conflicting cultural principles. In other cases reservations and declarations could be the expression of a State's legitimate and serious concern related to the inadequacy of its national resources to cope with the obligations derived from the Convention. States may be tempted to lodge reservations to gain more time for implementation. States may decide to modify or limit some of the tougher provisions to avoid being blamed by the international community for not implementing the Convention properly. If reservations are inevitable, it is important to limit their impact to the absolute minimum. Both vague and specific reservations deserve attention when monitoring a treaty. For example, through its authoritative interpretations, the Committee on the Rights of Persons with Disabilities can circumscribe reservations of apparent general and indeterminate scope.

In any case, reservations are not to be encouraged and the facilitator should find ways to make this clear when presenting this module, taking into account the audience.

Article 46 of the Convention allows parties to lodge reservations provided that these are not incompatible with its object and purpose. A State that objects may notify the United Nations Secretary-General. The Secretary-General circulates any objection received. Objections to declarations generally focus on whether the statement is merely an interpretative declaration or is, in fact, a reservation that would modify the legal effects of the treaty. An objecting State sometimes requests that the declaring State should clarify its intention. If the declaring State agrees that it has formulated a reservation instead of a declaration, it may withdraw its reservation or confirm that its statement is only a declaration.

After a reservation is circulated, other State parties have 12 months in which they can object to the reservation, beginning on the date the notification of reservation was deposited or the date on which the State or regional integration organization expressed its consent to be bound by the treaty, whichever is later. When a State lodges an objection to a reservation with the Secretary-General after the end of the 12-month period, the Secretary-General circulates it as a “communication.” Lodging a complaint does not force a State to withdraw it. However, it does put political pressure on the State making the reservation and could lead to the voluntary withdrawal of the reservation either immediately or over a period of time. Furthermore, as a result of objecting to a reservation, a State might regard a treaty as not being in effect between itself and the State making the reservation—or at least not in relation to the provision to which the reservation has been made.

Treaty-monitoring bodies have consistently sought to restrict the scope of reservations and encourage their withdrawal. The Human Rights Committee, for example, has set out its position in its general comment No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant. Relying on the test that reservations incompatible with the object and purpose of the treaty are not permitted, the Committee indicates areas where it believes reservations are inadmissible. These include articles considered peremptory norms. The Committee queries whether reservations to non-derogable rights are permissible. Similarly, the Committee holds that reservations to measures that create the supportive machinery for the enjoyment of rights, such as the right to a remedy, are not acceptable. The Committee considers that it falls on itself to determine whether a reservation is incompatible with the object and purpose of the treaty, partly because the Committee indicates that the nature of a human rights treaty makes it inappropriate for States parties to make the decision and partly because the Committee cannot avoid making such an assessment in the performance of its functions.

Stakeholders involved in supporting treaty bodies, enhancing the universal periodic review (UPR) and/or interacting with national authorities that are embarking on or completing the ratification process should advocate ratification without reservations.

Finally, it is important to note that existing reservations may be modified. Such a modification may result in a partial withdrawal or could create new exemptions from, or modifications to, the legal effects of certain provisions (resulting in a new reservation). A State or regional integration organization may withdraw any reservation it has made to the Convention or Optional Protocol at any time. The withdrawal must be in writing and signed by the Head of State, Head of Government or minister for foreign affairs, or a person having full powers for that purpose issued by one of those authorities. As with reservations, it is possible to modify or withdraw declarations.

State parties to the Convention have lodged a range of reservations and declarations, some of which have attracted objections from other State parties.