The Problem of the Legal Consequences of Reservations Incompatible with the Object and Purpose of the Treaty
Keywords:
Treaties, Reservations, Reservations Incompatible with the Object and Purpose of the TreatyAbstract
This article aims to address the problem of the legal consequences of reservations incompatible with the object and purpose of the treaty according to Article 19(c) of the Vienna Convention on the Law of Treaties 1969 (VCLT). As there are no provisions in the VCLT that indicate the legal consequences of reservations incompatible with the object and purpose of the treaty, this raises the issues of the vagueness and uncertainty of the legal consequences of the incompatibility between a reservation and the object and purpose of the treaty.
The legal consequences of reservations incompatible with the object and purpose of a treaty must be addressed in two dimensions. The first dimension is the determination of the legal consequence of a reservation which is incompatible with the object and purpose of a treaty. The second dimension is the consequences of the state consent to be bound by a treaty given by a reserving state with which a problematic reservation is attached. Whilst the legal consequence of a reservation itself is less problematic, as it has been well-settled that the reservation prohibited by Article 19(c) is invalid and produces no legal effects, the legal consequence of the consent to be bound by a treaty of a reserving state is still an unsolved riddle. Academically, three proposals — the surgical approach, the backlash approach, and the severability approach — are put forward to serve as a proper threshold for determining the legal consequences of the consent of a reserving state which has made a reservation that is incompatible with the object and purpose of a treaty.
By examining the three approaches, this article argues that none of the three by itself can serve as a proper criterion to determine the legal consequence of incompatibility between a reservation and the object and purpose of the treaty on the consent of a reserving state. However, it is proposed by this article that the hybrid model based on the essentiality of a reservation to the consent of a reserving state which compromises between the backlash approach and the severability approach can serve as the solution to this issue. In order to deal with legal uncertainty caused by the essentiality criterion of the hybrid model, it is proposed by this article that the clause on the rebuttable presumption of severability should be incorporated into a treaty which will be helpful in cases where states fail to express to make a clear intention to be bound or not by a treaty in case of a reservation is considered invalid. Nevertheless, the suggestion of the ILC in its Guide to Practice on Reservations to Treaties that a reserving state is allowed to express its intention not to be bound by the treaty in case of invalidity of its reservation after the formulation of the reservation is rejected by this article due to a problem of legal uncertainty it may potentially cause.
References
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Cases
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Inter-American Court of Human Rights, Constantine et al. v. Trinidad and Tobago, Inter-American Court of Human Rights, Judgment of September 1, 2001 (Preliminary Objections)
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