Reservations to Multilateral

Environmental Law Treaties

Philip Salvesen

Bachelor of Laws (LLB)

Durham Law School

Durham University

March 2013

  i  

Acknowledgements

I would like to thank my supervisor, Dr Gleider Hernández, for his support and advice over the

past academic year. Our discussions and his insightful comments have been invaluable to me

throughout the dissertation process.

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Table of Contents

List of Abbreviations .................................................................................................................. iv

Introduction .................................................................................................................................. 1

Chapter 1: The History of the Rules Governing Reservations to Treaties ............................. 3

1.1 The Unanimity Approach ..................................................................................................... 4

1.2 The Pan-American Approach ............................................................................................... 6

1.3 The Genocide Convention Case ........................................................................................... 8

1.4 The Vienna Convention on the Law of Treaties ................................................................ 11

Chapter 2: Reservations to Multilateral Human Rights Treaties ......................................... 15

2.1 The Validity of Reservations ............................................................................................. 15

2.1.1 The Opposability School ............................................................................................. 15

2.1.2 The Permissibility School ........................................................................................... 19

2.2 The Consequences of Impermissible Reservations ............................................................ 22

2.2.1 The Surgical Doctrine ................................................................................................. 22

2.2.2 The Backlash Doctrine ................................................................................................ 23

2.2.3 The Severability Doctrine ........................................................................................... 25

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Chapter 3: Reservations to Multilateral Environmental Law Treaties ................................ 29

3.1 The Vital Importance of Global Participation .................................................................... 31

3.2 The Close Connection to Human Rights Protection .......................................................... 33

3.3 The Non-Reciprocal Nature of Environmental Obligations .............................................. 36

3.4 Implementing a Human Rights Approach .......................................................................... 39

Chapter 4: Conclusion ............................................................................................................... 41

Bibliography ............................................................................................................................... 43

Textbooks ................................................................................................................................. 43

Articles ..................................................................................................................................... 45

Other Sources ........................................................................................................................... 51

International Conventions ........................................................................................................ 53

Table of Cases .............................................................................................................................. 55

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List of Abbreviations

AJIL: American Journal of International Law

ARIEL: Austrian Review of International and European Law

BYIL: British Yearbook of International Law

CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women

Colo.J.Int'l Envtl.L.& Pol'y: Colorado Journal of International Environmental Law and Policy

Colum.Hum.Rts.L.Rev.: Columbia Human Rights Law Review

CUP: Cambridge University Press

EHRR: Essex Human Rights Review

EJIL: European Journal of International Law

Fordham Envtl.L.J.: Fordham Environmental Law Journal

Geo.Int'l Envtl.L.Rev: Georgetown International Environmental Law Review

GYIL: German Yearbook of International Law

Harv.Int'l L.J.: Harvard International Law Journal

HRC: United Nations Human Rights Committee

Hum.Rts.Q.: Human Rights Quarterly

ICCPR: International Covenant on Civil and Political Rights

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ICJ: International Court of Justice

ICLQ: International and Comparative Law Quarterly

ICRW: International Convention on the Regulation of Whaling

ILC: International Law Commission

ILM: International Legal Materials

IWC: International Whaling Commission

JLS: Journal of Legal Studies

MJIL: Melbourne Journal of International Law

MLR: Modern Law Review

OUP: Oxford University Press

Stan.J.Int'l L.: Stanford Journal of International Law

SYBIL: Singapore Yearbook of International Law

U.Pa.L.Rev.: University of Pennsylvania Law Review

UNGA: United Nations General Assembly

UNTS: United Nations Treaty Series

VCLT: Vienna Convention on the Law of Treaties

Yale J.Int'l L.: Yale Journal of International Law

YBILC: Yearbook of the International Law Commission

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Introduction

The 1969 Vienna Convention on the Law of Treaties (VCLT)1 codified the rules governing the

formation, validity, and effects of reservations to treaties. Although intended to be generally

applicable to all treaties, its rules governing reservations have faced opposition by the specialised

regime of international human rights law. That regime has concluded that the VCLT rules

governing reservations are inadequate due to the specific features and aims of international

human rights treaties, and therefore an alternative human rights approach has slowly gained

recognition and support from the wider international community. This dissertation aims to

expand on this diverging practice by critically assessing the adequacy of the VCLT rules

governing reservations in relation to multilateral environmental law treaties.

Chapter 1 will examine the historical development of the rules governing reservations, which has

been shaped by the competing policies of integrity and universality. It will argue that although

the VCLT implements a better balance between the two policies, its combination of subjective

and objective tests of validity presents fundamental uncertainties regarding the effectiveness of

the current regime.

Chapter 2 will focus on the suitability of the VCLT regime for multilateral human rights treaties.

First, it will examine the rules governing the validity of reservations. It will contend that, due to

the particular features and aims of human rights treaties, and in order to ensure the integrity of

treaty provisions, the validity of reservations should be assessed according to the permissibility

school. Secondly, the chapter will critically assess the possible consequences of impermissibility.

                                                                                                               1 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).

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It will argue that international human rights regimes have correctly adopted a presumption of

severability for inessential reservations, as this approach most effectively protects the integrity of

treaty provisions whilst ensuring maximum treaty participation.

Chapter 3 will seek to justify the application of the human rights approach to reservations to

multilateral environmental law treaties. It will contend that, despite the minimal commentary on

the subject, the issue of reservations to multilateral environmental law treaties is of growing

concern and must be addressed in order to ensure the effectiveness of future environmental

protection. It will argue that, due to the vital requirement of global treaty participation, the close

connection between environmental and human rights protection, and the non-reciprocal nature of

environmental obligations, the VCLT reservations regime is inadequate. Instead, the human

rights approach, implemented through environmental treaty-monitoring bodies, provides the

optimal balance of integrity and universality required for effective multilateral environmental

protection.

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Chapter 1: The History of the Rules Governing Reservations to Treaties

The historical development of the rules governing reservations has been shaped by the two

competing policies of integrity and universality. According to the former, reservations cause

injury to the integrity of the treaty as they exclude or modify provisions that were a fundamental

part of the original treaty.2 The absolute necessity of upholding a treaty’s integrity is supported

by those who view reservations as merely a means by which states circumvent any treaty

obligations they do not want to comply with. 3 However, according to the latter policy,

reservations are necessary in order to facilitate a wider level of participation by states. Proponents

argue that rather than formulating reservations to damage the integrity of a treaty, a state that

intends to undermine a treaty might ratify the treaty in its entirety and then simply ignore its

obligations. In comparison, states that intend to take the treaty seriously have the greatest

incentive to submit reservations to provisions that they do not want to, or cannot, be bound by;

and thus reservations may be a sign of seriousness on the part of a state.4

As the interests of the international community have evolved, moving towards the protection of

normative and community values, the required balance between universality and integrity has

shifted to facilitate wider participation through greater flexibility. The rules governing

reservations have adapted accordingly. Each stage of development to be discussed, therefore,

reflects the changing social and political aims of the international community at the time. The

                                                                                                               2 A Pellet and D Müller, 'Reservations to Human Rights Treaties - Not an Absolute Evil…' 2, in U Fastenrath, R Geiger, D-E Khan, A Paulus, S von Schorlemer, and C Vedder (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (OUP 2011). 3 J L Goldsmith and E Posner, The Limits of International Law (OUP 2005). 4 E Neumayer, ‘Qualified Ratification: Explaining Reservations to International Human Rights Treaties’, (2007) 36(2) JLS 397, 401.

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remainder of this chapter will critically examine how the law of reservations has evolved up until

the codification of the VCLT, taking into account the noticeable shift in the balance between

integrity and universality.

1.1 The Unanimity Approach

The rules governing reservations originated in the unanimity approach, as adopted by the Council

of the League of Nations in 1927.5 According to this approach, a valid reservation required

unanimous acceptance by all other states parties.6 This strict test was derived from the ‘contract

theory’: in other words, when states entered into a treaty it implied the completion of an offer and

acceptance of a contract.7 Consequently, a reservation was regarded as a counteroffer to the

original treaty, which required unanimous acceptance by the other parties.8 Therefore, the validity

of reservations was assessed identically to the negotiation of treaty provisions, to which all states

had to agree.

The unanimity rule was adopted to protect the integrity of treaties.9 This was because it was

believed that states parties could be relied upon to object to detrimental reservations and, since

objections had universal consequences, this would bind all states through uniformity of treaty

commitments.10 Nevertheless, on a close examination the unanimity approach suffered from two

                                                                                                               5 A McNair, Law of Treaties (OUP 1961) 163. 6 B Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women’ (1991) 85 AJIL 281, 289. 7 I M Sinclair, ‘Vienna Conference on the Law of Treaties’, (1970) 19(1) ICLQ 47, 54. 8 G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points’ (1957) 33 BYIL 273, 275. 9 J K Koh, ‘Reservations to Multilateral Treaties: How International Legal Doctrine Reflects World Vision’, (1982) 23 Harv.Int'l L.J. 71, 79. 10 R Jennings, Oppenheim’s International Law (9th edn, OUP 1992) 1244.

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fundamental issues that meant it could not safeguard the integrity of treaties. First, it rested upon

the assumption that a reservation accepted by all states parties would not undermine the integrity

of a treaty. One cannot rule out, however, the possibility of all states parties accepting a

reservation that clearly undermines vital aspects of the treaty, thus damaging its integrity.11 On a

practical level, the justification is also untenable when unanimous acceptance takes place due to

political reasons or by virtue of failure to raise objections, instead of in relation to its content.12

This issue is worsened and made possible by the second flaw: that the unanimity approach

imposed no substantive limits on the content of reservations. Consequently, reservations could

modify or exclude fundamental rights and obligations that the treaty sought to protect. Therefore,

since the only protection derived from the subjective test of acceptance by the other states parties,

without any restrictions on the content of reservations, the unanimity approach failed to

adequately uphold treaty integrity.

This approach was also criticised for failing to consider the emerging principle of universality.

Reservations are often essential in order to modify provisions that conflict with domestic

legislation. Therefore, such reservations make it possible for states to join treaties that they

previously could not. Consequently, by requiring unanimous acceptance and thus providing each

other state party with a veto, a state’s chances of joining a treaty were severely reduced when

reservations were essential.13 An objection to an essential reservation left the reserving state with

only two options. Either it could attempt to negotiate with the objecting state to gain acceptance,                                                                                                                11 As discussed in Section 1.3, the ‘object and purpose test’ of the ICJ in the Genocide Convention case was to protect these vital aspects of the treaty that lacked protection under the earlier approaches to treaty reservations. 12 P Devidal, 'Reservations, Human Rights Treaties in the 21st century - from Universality to Integrity' (2003) University of Georgia School of Law LLM: Theses and Essays, Paper 10, 10. 13 A Pellet and D Müller (n 2) 4.

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or it had to abandon its attempt to join the treaty. Where multiple states raised objections the

chances of successfully negotiating with them all to accept the reservation would be increasingly

unlikely, leaving the reserving state with only the latter option. Therefore, given these criticisms

of the high threshold, it is unsurprising that the unanimity approach became disregarded as the

importance of universality grew from the increase in human rights and other normative treaties.

1.2 The Pan-American Approach

In the 1930s the Pan-American Union adopted an alternative approach to determining the validity

of reservations.14 This involved a purely subjective test of validity governed exclusively by the

acceptance of reservations by other states parties.15 Therefore, in accordance with the unanimity

approach, there existed no substantive limits on the content of reservations or on a state’s ability

to accept them. Nevertheless, it was markedly different to the unanimity approach as a

reservation no longer required unanimous acceptance. Instead, acceptance by a single state party

was enough to validate a reservation, even if others raised objections.16 Therefore, whereas under

the unanimity approach only unanimous acceptance would entail validity, under the Pan-

American approach only unanimous opposition would entail invalidity.17

A further noticeably different feature of this approach was that, as a result of contrasting

reactions of states to a reservation, three possible treaty arrangements could simultaneously exist

between different states parties. Between states ratifying without reservations, the treaty would be

                                                                                                               14 G McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to the First Optional Protocol’ (2001) 23(3) Hum.Rts.Q. 769, 785. 15 J K Koh (n 9) 80. 16 A Gillespie, ‘Iceland’s Reservation at the International Whaling Commission’ (2003) 14(5) EJIL 977, 984. 17 J K Koh (n 9) 81.

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in force in its entirety; between a reserving state and an accepting state, the treaty would be in

force as modified by the reservations; and between a reserving state and an objecting state, the

treaty would not be in force.18 Consequently, whereas the unanimity rule produced uniform

obligations for all states parties, the Pan-American approach resulted in a collection of loosely

related bilateral treaty arrangements that differed in scope, albeit under an overarching

multilateral framework.19

Due to these significant changes, the Pan-American approach successfully addressed the

universality deficiencies of the unanimity approach by prioritising maximum participation.

Whereas the unanimity approach subordinated a state's freedom to formulate reservations to the

protection of the treaty’s integrity, the Pan-American approach offered states the maximum

degree of flexibility.20 This flexibility, afforded through the existence of differing bilateral

arrangements, clearly prioritised the goal of universality as a single objection would not prevent a

reserving state’s participation.21 However, this was achieved at the expense of treaty integrity.

This sacrifice of integrity was a direct result of allowing a nexus of diverse relationships to exist

under a single treaty.22 It could not be guaranteed that the bilateral arrangements would retain the

rights and obligations that the original treaty sought to protect.23 This was because the validity of

                                                                                                               18 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) 1951 ICJ Reports 15, 17. 19 E Swaine, ‘Reserving’ (2006) 31(2) Yale J.Int'l L. 307, 312. 20 G McGrory (n 14) 786. 21 A Gillespie (n 16) 984. 22 M Fitzmaurice, 'On the protection of human rights, the Rome statute and reservations to multilateral treaties' (2006) 10 SYBIL 133, 135. 23 The existence of bilateral relationships denied the possibility of multilateralisation. Although this could have been avoided by simply prohibiting reservations, as adopted by UNCLOS and the ICC Rome Statute, this complete prohibition has negative implications for the achievement of universality of treaty membership; therefore making this

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reservations was purely relativistic: governed by the subjective views of individual states whose

perception and consideration of reservations could widely differ. Therefore, different sets of

states could have widely differing treaty obligations with large aspects of the original provisions

modified or excluded, despite all being parties to the same multilateral treaty. This lack of

security for the integrity of a treaty made the Pan-American approach unsuitable for normative

treaties, where such results would make the treaty highly ineffective.24 Therefore, despite

attempting to rectify the unanimity approach’s lack of consideration for universality, the Pan-

American approach went too far in this regard. It failed to establish a satisfactory balance

between universality and integrity, resulting in a system of validity that could significantly hinder

the substantive purposes of a treaty.

1.3 The Genocide Convention Case

The unsettled rules governing reservations presented an issue following the negotiation of the

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide

Convention)25 as it was unclear whether reserving states could be counted within the stipulated

number of ratifications required for its coming into effect.26 As no agreement was reached during

a General Assembly debate, the issue was referred to the International Court of Justice (ICJ).

                                                                                                                                                                                                                                                                                                                                                                       solution impractical for normative treaties. Instead, Chapters 2 and 3 support the adoption of a single objective test in order to ensure consistent multilateral obligations between states parties. 24 J M Ruda, ‘Reservations to Treaties’ (1975) 146 Recueil des Cours 95, 116. 25 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 26 E Swaine, ‘Reserving’ (n 19) 313.

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From the outset, the ICJ demonstrated a clear focus on reconciling the competing goals of

integrity and universality.27 In considering the unanimity rule the Court concluded that it did not

constitute a rule of international law28 and subsequently rejected the approach for reasons of

universality. It was regarded as inconceivable that the contracting parties had contemplated that

an objection to a minor reservation would result in the exclusion of the reserving state.29 This

would severely reduce the level of participation in the treaty, which would be particularly

detrimental due to the universal nature of the condemnation of genocide and the cooperation

required to prevent its occurrence.30 This would restrict the scope of the Convention’s application

and consequently detract from the authority of its moral and humanitarian foundations.31

Therefore, the unanimity approach was rejected in favour of a more flexible regime.32

Simultaneously, however, the ICJ was reluctant to adopt a Pan-American style system with an

undivided focus on universality. It was believed that, despite their rejection of unanimity, even

less could the contracting parties have intended to sacrifice the integrity of the treaty in favour of

securing as many participants as possible.33 It thus acknowledged that both policies needed to be

sufficiently balanced, unlike in the earlier approaches. The Court’s reluctance to impose a purely

subjective test, without any substantive limits on the content of reservations, can be clearly seen

in its constant references to the character and purpose of the Convention, its provisions, and

modes of preparation and adoption. These factors were considered to be vital elements in                                                                                                                27 B Clark (n 6) 293. 28 Genocide Convention case (n 18) 24. 29 ibid. 30 ibid 23. 31 ibid 24. 32 G McGrory (n 14) 788. 33 Genocide Convention case (n 18) 24.

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determining the possibility of formulating reservations. 34 In particular, the moral and

humanitarian values of the Convention meant that states required a set of guiding principles, if

not substantive rules, as to which reservations could not be accepted due to their detrimental

impact on its integrity. Therefore, unlike in previous approaches, the Court explicitly sought to

limit the freedom of states to accept certain reservations.

The ICJ’s new regime permitted a reserving state to become a party to a treaty, notwithstanding

objections by some states parties, as long as the reservation was “compatible with the object and

purpose of the Convention.”35 Therefore, it implemented a two-stage test. First, it established an

objective test related to the content of reservations in the form of a ‘compatibility test’. This

represented a significant innovation as it was the first time that the content of reservations was to

be objectively regulated. By directly relating this to the object and purpose of the treaty, its

integrity would be protected by preventing the subsistence of damaging reservations. The second

stage retained the Pan-American system of subjective acceptance by states parties. Therefore,

once a reservation passed the compatibility test it did not require unanimous acceptance. Instead,

each state continued to individually appraise reservations and its subsequent decision would only

affect the relationship between the two states.36 This second stage ensured the degree of

flexibility required to facilitate universality.

Evidently, by combining objective and subjective elements, the ICJ successfully improved the

continuity between universality and integrity.37 On the one hand, wide treaty participation was

                                                                                                               34 ibid 21. 35 ibid 29. 36 ibid 26. 37 R Goodman, 'Human Rights Treaties, Invalid Reservations, and State Consent' (2002) 96(3) AJIL 531, 534.

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favoured by retaining the individual assessment of reservations; but by implementing the

compatibility test, a treaty’s integrity was protected simultaneously.

1.4 The Vienna Convention on the Law of Treaties

Despite the Genocide Convention case, there existed no universally accepted regime on treaty

reservation until 1969. This was because the ICJ emphasised that it was expressing its views on

the operation of reservations only in relation to the Genocide Convention, rather than establishing

a generally applicable regime. Furthermore, the United Nations General Assembly declared that

for new conventions coming into force each state could individually decide the consequences of

acceptance of or objection to reservations.38 Therefore, the drafters of the VCLT set out to codify

a set of generally applicable rules for all conventions. In general, the VCLT adopts the ICJ’s

approach to reservations with a combination of objective and subjective tests.39 By doing so it

strives to strike a balance between safeguarding treaty integrity whilst maintaining the flexibility

required for maximum participation.40 The rules relating to the formulation, validity and effects

of reservations are contained in Articles 19-21.

Article 19 codifies an objective test from the start by specifying three limitations: states parties

are allowed to formulate a reservation unless, (a) the reservation is prohibited by the treaty;41 (b)

the treaty provides that only specified reservations, which do not include the reservation in

question, may be made;42 or (c) in cases not failing under subparagraphs (a) and (b), the

                                                                                                               38 J M Ruda (n 24) 152. 39 M Fitzmaurice, 'On the protection of human rights...’ (n 22) 139. 40 M Fitzmaurice, ‘The Practical Working of the Law on Treaties’ in Malcolm Evans (ed), International Law (3rd Edition, OUP 2010) 191. 41 VCLT Article 19 (a). 42 ibid Article 19 (b).

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reservation is incompatible with the object and purpose of the treaty.43

Article 20 establishes the rules for the acceptance of and objection to reservations, thus codifying

the importance of subjective ‘approval’ and the rule that acceptance will be presumed in the

absence of expressed objection. Article 20(4)(a) states that acceptance by another state constitutes

the reserving state a party to the treaty in relation to the accepting state. Article 20(4)(b)

encourages wide participation by providing that an objection does not preclude the entry into

force of the treaty between the two states, unless a contrary intention is expressed by the

objecting state. Article 20(5) further facilitates universality, by introducing a presumption of tacit

acceptance if a state fails to object to a reservation within twelve months of being notified of it or

by the date on which it expressed its consent to be bound by the treaty, whichever is later.

Article 21 sets out the legal effects of reservations and of objections to reservations. Article

21(1)(b) establishes the reciprocal nature of reservations, specifying that modifications made by a

reservation apply to the same extent for the other party in its relations with the reserving state.

Article 21(2) affirms the independence of acceptance and objections, as a reservation does not

modify the provisions of the treaty as between the other states parties. Therefore, the VCLT

regime retains the bilateral system of acceptance of and objections to reservations, with the result

that a state may be party to the treaty in relation to some, but not necessarily all, other states.44

Finally, Article 21(3) declares that when an objecting state does not oppose the entry into force of

the treaty between the two states, the provisions to which the reservation relates do not apply as

between the two states.

                                                                                                               43 ibid Article 19 (c). 44 M Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’ (2000) 11(3) EJIL 489, 495; Although this presumption of the bilateral nature of obligations may be sufficient for some treaties, it is inadequate to apply this to normative treaties, as will be explored in Chapters 2 and 3.

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These provisions demonstrate that the validity and effects of reservations are determined by a

combination of objective and subjective tests. The objective test of Article 19 is based upon the

object and purpose test of the Genocide Convention case and is designed to protect the integrity

of the treaty through its objective limitations on the content of reservations. The subjective test of

Article 20 allows states to individually decide whether to accept or object to a reservation, with

the effects of a reservation dependent on those decisions. This subjective element intends to

facilitate wide treaty participation. However, the exact interaction of these sets of rules is unclear

and two contrasting schools of thought have emerged. The opposability school bases the validity

of a reservation entirely upon its acceptance by other states parties, thus viewing the objective

criteria merely as guidelines on which states may choose to base their decisions.45 However, the

permissibility school employs a two-stage test, first requiring that a reservation is objectively

compatible with the object and purpose of the treaty.46 If the reservation passes the compatibility

test, it proceeds to the second stage whereby other states decide whether to accept or object to it.

However, if a reservation is incompatible it will be void ab initio and therefore other states

parties are unable to accept it.47

This generally unresolved debate raises significant doubts over the effectiveness of the VCLT

regime. This is because by interpreting the objective criteria as merely guidelines the VCLT

would in practice lack objective control over the content of reservations. This has particularly

negative implications for human rights treaties due to their specific aims and features.

Consequently, the international human rights regime has taken a strong stance in favour of the

                                                                                                               45 J M Ruda (n 24) 190. 46 M Fitzmaurice, ‘The Practical Working of the Law on Treaties’ (n 40) 192. 47 D W Bowett, ‘Reservations to Non-Restricted Multilateral Treaties’ (1976) BYIL 67, 84.

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permissibility school in order to safeguard the effectiveness of multilateral human rights treaties.

Chapter 2 will begin by critically examining the two schools of thought in relation to the

particular features and goals of human rights treaties. In doing so, it will justify the adoption of

the permissibility school.

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Chapter 2: Reservations to Multilateral Human Rights Treaties

As explained, the VCLT does not answer the important question of whether the rules relating to

the acceptance of and objection to reservations are applicable to all reservations or only

permissible ones.48 This chapter will critically analyse the suitability of the opposability and

permissibility school in relation to human rights treaties. Having established that the

permissibility school most effectively protects the integrity of treaty provisions and is best suited

to the key features of human rights treaties, the possible consequences of impermissibility will be

examined. It will be concluded that the general adoption of a presumption of severability for

inessential reservations is justified due to its facilitation of wide participation without

compromising the integrity of treaty provisions.

2.1 The Validity of Reservations

2.1.1 The Opposability School

According to the opposability school the validity of a reservation depends solely on its

acceptance by another state party.49 Consequently, the object and purpose test of Article 19(c)

serves merely as a guideline on which states may decide to base their decisions.50 The

opposability school is supported by the absence in Article 20 of any mention of the compatibility

test. Additionally, it is based on the principles of state sovereignty and non-interference in

internal affairs, which arguably may lead to the unrestricted right of states to accept or object to

                                                                                                               48 A Pellet, ‘First Report on Reservations to Treaties’ (1995) UN Doc A/CN.4/470, paras 119–120. 49 K Korkelia, ‘New Challenges to the Regime of Reservations under the International Covenant on Civil and Political Rights’ (2002) 13(2) EJIL 437, 453. 50 J M Ruda (n 24) 190.

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reservations. However, a system of validity governed by this unrestricted acceptance or objection

to reservations is inadequate for human rights treaties, for the following reasons:

First, the opposability school removes any guarantee of objective control over the content of

reservations, and thus fails to guarantee treaty integrity. If a reservation’s validity is determined

solely by its acceptance by states, with Article 19(c) merely as guidance, it is possible for states

to accept reservations that are incompatible with the object and purpose of the treaty.51 It could be

argued that this will not be particularly detrimental, as in theory contracting states should have no

interest in accepting such reservations. However, this cannot be assured as a state’s desire to

protect the object and purpose of a treaty may be displaced, for example, by political motives.52

Therefore, in practice the opposability school imposes a purely subjective test of validity, similar

to that of the Pan-American Union.53 This is inadequate for human rights treaties due to the

particular nature or value of their provisions. Human rights treaties aim to protect rules that have

a distinct moral value and are “essential to international society.”54 Their purpose is to codify

community interests and set minimum global standards of treatment for individuals.55 For

example, the ICJ heavily relied upon the “moral and humanitarian principles” of the Genocide

Convention when formulating the compatibility test.56 This relates to the substance of the values

themselves, which has led the international community to recognise that their effective

                                                                                                               51 A Pellet, ‘Fifteenth Report on Reservations to Treaties, First Addendum’ (26 May 2010) UN Doc A/CN.4/624/Add.1, paras 410–413. 52 J M Ruda (n 24) 190. 53 J K Koh (n 9) 98. 54 F Hampson, ‘Working paper submitted pursuant to Sub-Commission decision 1998/113’ (1999) UN Doc E/CN.4/Sub.2/1999/28, para 13. 55 R Goodman (n 37) 534. 56 Genocide Convention case (n 18) 24.

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implementation and protection is fundamentally important. For these reasons, human rights

require protection beyond most other multilateral treaties that includes implementation, where

possible, in an undiminished form. This cannot be ensured if states are able to opt out, or allow

others to opt out, through objectively unrestricted reservations. Only by limiting the substantive

content of reservations can this be guaranteed. The opposability school fails to meet this

requirement and thus, by allowing states to accept objectively incompatible reservations, offers

no guaranteed protection for important human rights norms.

The second inadequacy of the opposability school derives from the non-reciprocal nature of

human rights obligations. The principle of reciprocity underpins the VCLT system of acceptance

and objections.57 By accepting or failing to raise an objection to a reservation, a state allows the

reserving state to alter directly the treaty obligations between the two states. Therefore, when

faced by a reservation that is incompatible with the object and purpose of the treaty, a state has a

clear incentive to object in order to prevent the diminishing of obligations owed directly between

the two states. However, human rights treaties do not create reciprocal obligations between

states.58 Unlike most treaties, the direct beneficiaries of human rights treaties are individuals, and

therefore states are not directly affected by reservations.59 The only potential consequences are

indirect: either to their nationals or moral standards.60 These indirect effects are unlikely to

provide substantial incentives for states to object to reservations. In particular, it would be naïve

to trust states to consistently object on the basis of moral standards for two reasons. First,

political or economic interests will often outweigh moral values due to their direct effects, thus

                                                                                                               57 A Pellet, ‘First Report on Reservations to Treaties’ (n 48) para 138. 58 G McGrory (n 14) 790. 59 K Korkelia (n 49) 439. 60 R Higgins, ‘Human Rights: Some Questions of Integrity’ (1989) 52 MLR 1, 11.

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preventing objections. Secondly, given the vast number of multilateral treaties, many of which

attract multiple reservations, states may not have the time or resources to closely analyse the

substance of all reservations. In such situations, it is likely that states will prioritise the

examination of reservations that have direct consequences, such as those to trade or investment

treaties. Furthermore, any resulting delay in examining a reservation may result in the

presumption of its tacit acceptance, despite any substantive issues with its content.61 Therefore,

these reasons cast serious doubt over the effectiveness of the opposability school for human

rights treaties.

In practice, the adoption of the opposability school has resulted in the integrity of several human

rights treaties being compromised.62 For example, when Libya formulated a sweeping reservation

to the Convention on the Elimination of All Forms of Discrimination Against Women

(CEDAW),63 stipulating that the Convention would not apply when in conflict with Sharia law,

only four states parties submitted objections. 64 Commentators, however, suggest that the

reservation is objectively incompatible with the object and purpose of the CEDAW.65 Despite

this objective incompatibility, the reservation remains operative due to the unfettered reliance on

states parties to individually raise objections, and thus the integrity of the treaty has been

                                                                                                               61 VCLT Article 20 (5); although states frequently fail to adhere to the twelve-month time limit: F Horn, Reservations and Interpretative Declarations to Multilateral Treaties (Elsevier Science Ltd 1988) 205-209. 62 C Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment No.24(52)’ (1997) 46(2) ICLQ 390, 391. 63 Convention on the Elimination of All Forms of Discrimination against Women, (entered into force 3 September 1981) 1249 UNTS 13 (CEDAW).

64 United Nations Division for the Advancement of Women, ‘Declarations, Reservations and Objections to CEDAW’ <http://www.un.org/womenwatch/daw/cedaw/reservations-country.html> accessed 24 Jan 2013; L Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff Publishers 1995) 324, 348. 65 B Clark (n 6) 299.

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impaired. This demonstrates how the negative implications of the opposability school are not

merely theoretical, thereby reinforcing its inadequacy for human rights treaties.

2.1.2 The Permissibility School

In comparison, the permissibility school rejects the assertion that incompatible reservations can

be valid. Therefore, it maintains that the rules on the acceptance of and objection to reservations

do not apply to impermissible reservations.66 This is supported by the fact that the ICJ, in the

Genocide Convention case, and the drafters of the VCLT, in the wording of Article 19(c), clearly

envisaged that reservations would be strictly limited to those that are compatible with the object

and purpose of the treaty. This was intended as a binding rule rather than a guideline.67

According to this interpretation it is not possible for states to accept an impermissible reservation,

as such a reservation is void ab initio. The decision to accept or object to a reservation, therefore,

only arises once a reservation has been objectively confirmed as permissible.68 The fact that the

permissibility school imposes substantive limits on the content of reservations provides a stronger

guarantee that reservations will not impair the integrity of human rights treaties. However, in

order to fully confirm this positive appraisal, the method of conducting the permissibility test

must be determined.

The permissibility school suffers from complications over how the compatibility test is to be

conducted. In some cases the most practical or only solution is to leave the assessment to the

states parties. In this way, permissibility is judged through a system of acceptance and objections

                                                                                                               66 B Simma and G Hernández, 'Legal Consequences of an Impermissible Reservation to a Human Rights Treaty - Where do we Stand?' in E Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (OUP 2011) 60. 67 L Sucharipa-Behrmann, ‘The Legal Effects of Reservations to Multilateral Treaties’ (1996) 1 ARIEL 67, 77. 68 D W Bowett (n 47) 80.

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with the Article 19 criteria as binding rules, rather than guidelines.69 Putting aside the issues of

monitoring state compliance with those rules, even if compliance was guaranteed the system

would still suffer from inconsistencies in the application of the criteria. Each state, in assessing

permissibility, would be influenced by natural prejudices and biases arising from its political,

cultural and economic allegiances. Furthermore, the lack of clear judicial direction as to how to

determine the object and purpose of a treaty would increase the likelihood of inconsistencies.70

These problems are exacerbated in the case of human rights treaties: first, the large numbers of

member states means the chances of achieving consensus from all states’ individual assessments

is unlikely; and secondly, the ambiguity of the compatibility test is amplified due to the wide

range of rights being protected.71 For these reasons, relying upon states to individually judge the

permissibility of reservations would never in practice produce truly objective or consistent

results. Instead of ensuring uniform obligations, a loosely connected framework of bilateral

treaties with differing obligations would be created. This is inadequate for human rights treaties

as it facilitates an inconsistent and subjective application of the validity criteria, which should be

assessed objectively to guarantee the integrity of treaty provisions.

In order to ensure objectivity, the adjudication of permissibility should be delegated to

independent treaty-monitoring bodies. Although they are generally set up to aid enforcement by

monitoring compliance with treaty obligations, many regard it within their competences to assess

                                                                                                               69 J Klabbers, ‘On Human Rights Treaties, Contractual Conceptions and Reservations’ in I Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Martinus Nijhoff Publishers, 2004) 178. 70 A Pellet, ‘Tenth Report on Reservations to Treaties, First Addendum’ (2005) UN Doc A/CN.4/558/Add.1, 81. 71 G McGrory (n 14) 791.

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the validity of reservations.72 Originally established by the European Commission of Human

Rights,73 this approach has been followed by The European Court of Human Rights,74 the Human

Rights Committee75 and various other monitoring bodies, albeit to the protestations of several

states.76 Despite this consistent trend, the first stage in any delegation would involve establishing

the competence of the particular body. As long as the adjudication of permissibility is not ultra

vires, a delegation provides for a much more objective standard of assessment. Whereas states are

naturally unable to make an objective assessment due to external pressures and biases, treaty-

monitoring bodies are by definition independent from external factors with the sole aim of

protecting the integrity of the treaty. Even though experts serving on those bodies are nominated

and elected by states parties, they serve in their personal capacity and act independently from

their respective governments.77 Therefore, they are able to objectively assess the permissibility of

reservations and, since the result of the assessment will apply to all states parties, this avoids

bilateralism in favour of multilateralisation and uniformity of treaty commitments.

Therefore, it is evident that the adoption of the permissibility school most effectively ensures the

integrity of human rights treaty provisions. Where possible, the assessment of permissibility

                                                                                                               72 H Steiner & P Alson, International Human Rights in Context: Law, Politics, Morals (2nd edn, OUP 2000) 773. 73 Temeltasch v. Switzerland, Case 9116/80, 5 May 1982, (1982) 5 EHHR 417. 74 Belilos v Switzerland, Case 10328/83, 29 April 1988, (1988) 10 EHRR 466. 75 HRC, ‘General Comment No 24: General Comment 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’ (4 November 1994) CCPR/C/21/Rev.1/Add.6, para 18. 76 E Swaine, ‘Treaty Reservations’ in D B Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 299. 77 C Sidoti, ‘National Human Rights Institutions and the International Human Rights System’ in R Goodman & T Pegram (eds), Human Rights, State Compliance, and Social Change: Assessing National Human Rights Institutions (CUP 2011) 116.

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should be carried out by treaty-monitoring bodies in order to achieve objectivity and consistent

treaty obligations between states.

2.2 The Consequences of Impermissible Reservations

There are three possible consequences of impermissible reservations.78 First, the reserving state

remains bound by the treaty, except for the provision to which the impermissible reservation

relates. Secondly, the impermissible reservation invalidates the state’s instrument of ratification,

so it is no longer a party. Thirdly, the impermissible reservation is severed from the instrument of

ratification, leaving the reserving state bound by the entire treaty without the benefit of its

reservation. These are known as the ‘surgical’, ‘backlash’ and ‘severability’ doctrines

respectively.79

2.2.1 The Surgical Doctrine

The surgical doctrine can be quickly disregarded as a feasible option as it has the paradoxical

effect of allowing a reserving state to benefit from its reservation, despite its impermissibility.80

By excluding the application of the relevant provision, an invalid reservation would have the

same effect as if it were valid. This would render the admissibility criteria of Article 19

ineffective, removing any point in making an assessment of permissibility. This would be

particularly detrimental for human rights treaties where the integrity of treaty provisions is vital

and the permissibility criteria are designed to serve this purpose. Furthermore, the surgical

                                                                                                               78 R Goodman (n 37) 531. 79 I Cameron and F Horn, ‘Reservations to the European Convention: The Belilos Case’ (1990) 33 GYIL 69, 115. 80 E Swaine, ‘Treaty Reservations’ (n 76) 293-294.

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doctrine arguably infringes upon the consent of the other states parties.81 In drafting, negotiating

and ratifying a treaty the states parties agree upon its core principles. Therefore, these can only be

excluded or modified by reservations if they are compatible with the object and purpose of the

treaty and receive the consent of the states parties. Consequently, if a reserving state were to

remain a party and benefit from an impermissible reservation this would clearly undermine the

consent of the other states parties. For these reasons, the surgical doctrine presents an

inappropriate consequence of impermissibility.

2.2.2 The Backlash Doctrine

The backlash doctrine represents a noticeably better option for human rights treaties than the

surgical doctrine. According to this doctrine an impermissible reservation invalidates the

reserving state’s consent to be bound, resulting in it no longer being a party to the treaty. This has

the vital improvement of protecting a treaty’s integrity by ensuring that impermissible

reservations are void and thus ineffective, as envisaged by the permissibility school.

Additionally, the doctrine has positive foundations in the protection of state consent, grounded

upon the assumption that a state’s consent in ratifying the treaty is made on the basis that it

contained the impermissible reservation.82 Various commentators voice support for the doctrine

for this reason.83 However, despite these positive factors, the doctrine can be criticised for failing

to consider the fundamental goal of universality.

                                                                                                               81 R Goodman (n 37) 533. 82 Certain Norwegian Loans (France v Norway), 6 July 1957, (1957) ICJ Reports 9, 55–9; Interhandel (Switzerland v United States), 21 March 1959, (1959) ICJ Reports 6, 117 (Separate Opinion of Judge Lauterpacht). 83 R Baratta, ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?’ (2000) 11 EJIL 413; D W Bowett (n 47) 89; C Bradley and J Goldsmith, ‘Treaties, Human Rights, and Conditional Consent’ (2000) 149(2) U.Pa.L.Rev. 399, 429–39; L Helfer, ‘Not Fully Committed? Reservations, Risk and Treaty Design’, (2006) 31(2)

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One of the major aims of human rights treaties is to secure ratification by as many states as

possible. The backlash doctrine, however, significantly interferes with this goal of universality.84

This is because a single impermissible reservation results in the automatic exclusion of the

reserving state. Although this undoubtedly protects the treaty’s integrity and the reserving state’s

consent, it fails to contemplate the importance of securing the participation of the reserving state.

Arguably, in some cases this unfulfilled goal may be as equally important. For example, when the

USA ratified the International Covenant on Civil and Political Rights (ICCPR) it submitted five

reservations,85 many elements of which were declared by the United Nations Human Rights

Committee (HRC) as incompatible with the object and purpose of the treaty. 86 If the

consequences were that the USA was no longer a party, the effectiveness and authority of the

ICCPR would be severely undermined. For many multilateral human rights treaties, especially in

their early stages, the participation of the largest and most influential states is paramount in order

to assert the treaty’s authority. Therefore, in such cases the backlash doctrine would be

detrimental. The fundamental problem seems to be a lack of categorisation of states and

reservations. By treating all states and reservations equally, the doctrine can lead to adverse

consequences whereby vital states may face expulsion due to the impermissibility of minor

reservations. In such situations, the negative consequences on universality arguably outweigh the

positives of protecting state consent and treaty integrity. Its approach is more suited to traditional

                                                                                                                                                                                                                                                                                                                                                                       Yale J.Int'l L. 367, 380; C Redgwell, ‘Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties’ (1993) 64 BYIL 245, 267. 84 R Moloney, 'Incompatible Reservations to Human Rights Treaties - Severability and the Problem of State Consent' (2004) 5(1) MJIL 155, 159. 85 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 86 HRC, ‘Report of the Human Rights Committee’, (3 October 1995) UN Doc A/50/40.

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bilateral relations where universality is a minor concern. Therefore, the backlash doctrine is

inadequate for general application to all impermissible reservations to human rights treaties.

2.2.3 The Severability Doctrine

According to the severability doctrine an impermissible reservation can be severed from the

instrument of ratification, leaving the reserving state bound by the entire treaty without the

benefit of its reservation. The doctrine takes the view that a reserving state’s intention to be

bound by the treaty, as evidenced by its ratification, should prevail over its contradictory

intention to impose an impermissible reservation.87 This ensures that reserving states remain

treaty members, thus protecting the goal of universality without having to compromise treaty

integrity. This balance of integrity and universality has led to its adoption by various human

rights bodies, including the European Court of Human Rights,88 Inter-American Court of Human

Rights89 and HRC.90

The doctrine, however, must be reconciled with the principle of state consent. By definition a

reservation excludes or modifies a treaty provision, and therefore demonstrates a state’s intention

not to be bound by the treaty in its original form. Consequently, the severability doctrine presents

a direct contradiction to state consent, as it leaves a state bound by provisions that it specifically

rejected. This problem is amplified when states explicitly condition their consent to be bound by

                                                                                                               87 D W Bowett (n 47) 76. 88 Belilos v Switzerland (Preliminary Objections) (n 74); Weber v Switzerland, 22 May 1990, Series A No 177; Loizidou v Turkey (Preliminary Objections), 23 March 1995, Series A No 310. 89 Hilaire v Trinidad and Tobago, Inter-American Court of Human Rights Series C No 80 (1 September 2001). 90 HRC, ‘General Comment No 24’ (n 75) para 18.

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a treaty subject to certain reservations.91 This is often due to a conflict with the reserving state’s

domestic constitution.92 Therefore, if those reservations were impermissible and accordingly

severed, the reserving state would remain bound by provisions that are domestically

unconstitutional. This constitutes a major breach of the reserving state’s consent by imposing

obligations upon it in the absence of consent.93 For this reason many states have objected to the

HRC’s adoption of severability, with the USA in particular expressing a distinct preference for

the backlash doctrine.94 These reactions demonstrate how fundamental the principle of state

consent is regarded by states. They reject the idea that an impermissible reservation will leave

them bound by an entire treaty, when they only consented to be bound by it in a modified form.

In order to resolve this conflict with state consent, impermissible reservations must be

categorised into two groups: those that are essential conditions of a state’s consent to be bound by

a treaty, and those that are merely ‘accessory’ conditions.95 Essential reservations cannot be

severed due to the incompatibility with the reserving state’s consent. Instead the backlash

doctrine should apply, with the unfortunate result that the reserving state is no longer a party.

However, inessential or ‘accessory’ reservations can be severed without such problems. An

accessory reservation is inessential in the sense that, although it was submitted by a state on

                                                                                                               91 For example, the USA made it clear that its consent required for the ratification of the ICCPR was given “subject to the following reservations…”: United States, ‘Senate Committee Foreign Relations Report on the International Covenant on Civil and Political Rights’ (1992) 31 ILM 645, 658-659; However, one must be wary of such reservations as they are inherently self-judging, meaning that the assessment of constitutional incompatibility is made by the reserving state and not subject to objective review: see Certain Norwegian Loans (n 82) 34 (Dissenting Opinion of Judge Lauterpacht). 92 C Bradley and J Goldsmith (n 83) 417. 93 R Baratta, ‘Book Review: Ineta Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation’ (2006) 17(2) EJIL 475, 477. 94 K Korkelia (n 49) 462-463. 95 Interhandel (n 82) 94 (dissenting Judge Armand-Ugon).

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ratification, the reserving state would have assented to the treaty without it.96 In such cases, the

desire to remain party to the treaty outweighs the importance of the reservation.97 Thus, the

severance of inessential reservations incurs no breach of the reserving state’s consent to be bound

by the treaty and provides the optimal consequence of impermissibility, by protecting integrity

and facilitating universality.

The determination of a reservation’s essentiality should be left to independent treaty-monitoring

bodies in order to avoid bilateralism, as discussed in relation to permissibility. Despite this

delegation, problems may still arise as there is no clear guidance regarding how to determine

essentiality. In some cases this determination will be facilitated by the reserving state clearly

stating whether a reservation forms an essential part of its consent to be bound. However, in the

absence of this declaration the International Law Commission (ILC) posits the most effective

solution.98 This solution is that, in the absence of any declaration regarding essentiality, the

reserving state shall be presumed to have tacitly agreed to the severability of any impermissible

reservations. The obvious criticism of this approach is that, being merely a presumption, it may

lead to the wrongful severance of an essential reservation, perhaps due to practical difficulties in

discerning the intention of the reserving state.99 However, if compared to the alternative solution

of a presumption in favour of the backlash doctrine, it is clear that the consequences of a

wrongful severance are less severe. Wrongfully expelling a state from a treaty can have multiple

negative consequences.100 On an international level, for example, the state will lose its leadership

                                                                                                               96 R Goodman (n 37) 538. 97 R Moloney (n 84) 165. 98 ILC, ‘Guide to Practice on Reservations to Treaties’ (2011) II (2) YBILC 4.5.3.2. 99 B Simma and G Hernández (n 66) 84. 100 R Goodman (n 37) 556.

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or level of participation in the regime, which may not be regained on re-accession. On a domestic

level the state may incur large costs and difficulties in re-acceding to the treaty. For example, the

USA would entail substantial political difficulties and costs in re-obtaining the President’s and

Senate’s support. These problems are worsened if there has been a change of government or

political instability since the original ratification. Furthermore, in states with poor human rights

records re-accession may not be guaranteed. Comparatively, although the wrongful severance of

a reservation has significant impacts, including the breach of state consent, states have a

relatively simple way of rectifying the damage by withdrawing from the treaty. This is a much

simpler and less expensive process than re-accession, and prevents the continuing breach of state

consent. Therefore, from a harm minimisation perspective it can be concluded that, where the

essentiality of a reservation is undeclared, a presumption of severability is the optimal solution

for impermissible reservations to human rights treaties.

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Chapter 3: Reservations to Multilateral Environmental Law Treaties

This chapter contends that the limited commentary on the subject of reservations to multilateral

environmental law treaties does not reflect its importance. On the contrary, there are several

reasons that explain why the bulk of academic debate has instead centred on reservations to

human rights treaties:

First, despite both being relatively modern, human rights protection became a major concern for

the international community at an earlier stage than environmental protection. Human rights

protection emerged as a chief international policy in the post-Second World War era following

the 1948 Universal Declaration of Human Rights.101 However, it was not until 1993 that the issue

of reservations to human rights treaties was perhaps fully recognised, as signified by its inclusion

in the ILC’s agenda.102 In comparison, environmental protection was largely confined to bilateral

or regional issues until the late 1960s,103 with the 1972 United Nations Conference on the Human

Environment representing the driving force for developments on an international scale.104 From

this point onwards the international community began to fully recognise the global scope of

numerous environmental problems, and arguably it became possible to identify the emergence of

a truly distinctive regime of international environmental law.105 Therefore, as the issue of

reservations to human rights treaties is only now reaching its resolution, it is unsurprising that the

issue of reservations to environmental law treaties is yet to attract widespread commentary.

                                                                                                               101 H Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 354, 354. 102 ILC, (1993) II(2) YBIL 96, 440. 103 P Cullet, Differential Treatment in International Environmental Law (Ashgate 2003) 4. 104 G Palmer, ‘New Ways to Make International Environmental Law’ (1992) 86(2) AJIL 259, 266. 105 T Stephens, International Courts and Environmental Protection (CUP 2009) 3.

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Secondly, whereas human rights treaties impose uniform obligations for all states parties,

multilateral environmental law treaties generally take a more flexible approach.106 Through the

principle of ‘common but differentiated responsibilities’ the scope of obligations will often differ

from state-to-state dependent on factors such as their contributions to global environmental

degradation, their technologies and their financial resources.107 This ensures that, where possible,

states are able to join the treaty without having to formulate reservations. It also demonstrates

that states recognise the importance of coordinated universal participation in order for

environmental protection to be effective.

Thirdly, many environmental law treaties specifically either exclude the possibility of making

reservations108 or permit reservations only in relation to specific provisions.109

These final two features mean that reservations to environmental treaties are less prevalent than

in human rights regimes. Therefore, the issue is perhaps seen as of lesser importance than that of

reservations to human rights treaties. This chapter contends that this assumption is incorrect.

Despite the increase in the scope and content of international environmental law, the scale and

pace of environmental destruction has continued to grow to the extent that it is estimated that

                                                                                                               106 D French, ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ (2000) 49(1) ICLQ 35, 41. 107 L Rajamani, Differential Treatment in International Environmental Law (OUP 2006) 9. 108 For example: Montreal Protocol on Substances That Deplete the Ozone Layer (adopted 16 September 1987, entered into force 01 January 1989) 1522 UNTS 3, Art 18; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 28 ILM 649, Art 26(1); Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December 1993) 1760 UNTS 79, Art 37; United Nations Framework Convention on Climate Change (adopted 09 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (Climate Change Convention), Art 24; Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119, Art 27. 109 For example: Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (adopted 21 June 1993) 32 ILM 1228, Art 35.

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over 60 per cent of all ecosystems that support life have been degraded or are being used

unsustainably.110 This directly affects human populations in many ways, such as by preventing

effective action against poverty and hunger. As a result of the increasing list of environmental

problems, the scope of international environmental law continues to increase through the

implementation of international treaties.111 Additionally, as the international community seeks to

maximise state participation it is likely that we will see a growing number of treaties allowing for

reservations. Therefore, even if it is not yet a pressing concern, the issue of reservations to

multilateral environmental law treaties will almost certainly become just that.

This chapter will argue that given their similar, and often identical, features and aims, the human

rights approach to reservations should be equally applicable to multilateral environmental law

treaties. Without this, the international community will once again be faced with an inadequate

regime of reservations that it will have to take steps to remedy, having failed to take preventative

measures.

3.1 The Vital Importance of Global Participation

The first justification for a human rights approach to reservations derives from the global effects

and sources of environmental degradation. These features mean that a lack of participation by

even a single state could undermine the entire environmental protection regime, with

consequences for the whole global community. Consequently, securing international cooperation

                                                                                                               110 T Stephens (n 105) 1. 111 P Sands and J Peel, with A Fabra and R MacKenzie, Principles of International Environmental Law (3rd edn, CUP 2012) 49.

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of the highest order, through universal treaty participation, is a necessity for multilateral

environmental law treaties.112

The protection of the environment is an issue of international concern as the consequences of

environmental degradation regularly extend beyond the offending state. Therefore, purely

voluntary or national responses by individual states provide inadequate solutions.113 Furthermore,

even though regional initiatives may solve certain transboundary disputes, such as air or river

pollution,114 other issues require extensive multilateral involvement due to their truly global

impacts resulting from activities all over the world.115 Climate change and biological diversity,

for example, are both the subject of global regulatory treaties due to their designation as being the

‘common concern of mankind’.116 The most important features in defining these issues as ‘global

concerns’ are their universal character and the need for common action by all states if measures

of protection are to work effectively.117 The depletion of the ozone layer, therefore, would

similarly be categorised as being of global concern. This is evident as it is impossible to pinpoint

the cause of ozone depletion to a single state or region. Instead, the scientific advancements have

identified the cause as the cumulative production and use of chlorofluorocarbons and halons.118

This is something that the majority of, if not all, states have been guilty of contributing to, albeit

in differing degrees.                                                                                                                112 A Gillespie (n 16) 989. 113 R W Hahn and K R Richards, ‘The Internationalization of Environmental Regulation’ (1989) 30(2) Harv.Int'l L.J. 421, 423. 114 P Birnie, A Boyle and C Redgwell, International Law & the Environment (3rd edn, OUP 2009) 128. 115 D Shelton, ‘Human Rights, Environmental Rights, and the Right to the Environment’ (1991) 28 Stan.J.Int'l L. 103, 107. 116 Climate Change Convention (n 108) Preamble; Convention on Biological Diversity (n 108) Preamble. 117 ibid. 118 R W Hahn and K R Richards (n 113) 425.

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Therefore, to ensure effective resolution of these global issues multilateral environmental treaties

must achieve as wide participation of states as possible.119 This is because, due to their global

nature, the lack of participation of even a single state, particularly one of industrial and economic

superiority, could act as a spoiler for the whole protective regime.120 This would severely limit

the effectiveness of a treaty regime, as environmental damage would continue to occur and affect

the entire global community.121 Therefore, in order to facilitate wide participation, a presumption

of severability should be adopted for inessential reservations so that reserving states are not

expelled due to impermissibility.

3.2 The Close Connection to Human Rights Protection

The second justification for the application of a human rights approach to reservations derives

from the often vital importance of environmental protection to the international human rights

regime. Despite being separate regimes they are premised upon similar values, seek similar goals,

and further the aims of each other.122 This overlap has led to the suggestion that environmental

issues belong within the category of human rights, as arguably the primary aim of environmental

protection is to enhance the quality of human life.123 However, given the existence of non-

anthropocentric justifications for environmental protection124 and the lack of support from

                                                                                                               119 A W Samaan, ‘Enforcement of International Environmental Treaties: An Analysis’ (2011) 5(1) Fordham Envtl.L.J. 261, 277. 120 For this reason, the Montreal Protocol on Substances That Deplete the Ozone Layer of 1987 was amended in 1990 in order to facilitate wider treaty participation from developing states that were unwilling to become parties because of its economic and development implications. 121 J I Charney, ‘Universal International Law’ (1993) 87(4) AJIL 529. 122 D Shelton (n 115) 104. 123 W P Gormley, ‘The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms’ (1990) 3 Geo.Int'l Envtl.L.Rev. 85, 86. 124 P Birnie, A Boyle and C Redgwell (n 114) 8.

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binding international legal instruments,125 the validity of this notion is limited. Therefore, this

section adopts a more moderate view that, due to their overlapping values and objectives, there is

an intrinsic link between the protection of the environment and the realisation of human rights.126

In its basic form the connection is that damage to the environment incidentally diminishes quality

of life.127 This does not mean that every case of environmental degradation will lead to a human

rights violation. However, often the two consequences will be complimentary. Therefore, if

environmental treaties fail to adopt the human rights approach to reservations the international

protection of human rights, strengthened by the implementation of a distinct reservations regime,

will be frustrated.

The international community has generally accepted this close connection, with the UN General

Assembly recognising the distinct relationship between the quality of the human environment and

the enjoyment of basic rights.128 If we look at this statement through the lens of today’s

impending environmental problems, such as the effects of climate change, there is significant

support for the suggestion that environmental degradation will have major impacts on

humanity.129 The environment and human existence cannot be viewed in distinct spheres, as this

would ignore both the effect of humanity on environmental degradation and the effect of

environment degradation on humanity. The reality is that, although it might increase the comfort

                                                                                                               125 L E Rodriguez-Rivera, ‘Is the Human Right to Environment Recognized Under International Law? It Depends on the Source’ (2001) 12 Colo.J.Int'l Envtl.L.& Pol'y 1, 44. 126 United Nations Human Rights Council, ‘Report of the OHCHR on the relationship between climate change and human rights’, (15 January 2009) UN Doc. A/HRC/10/61, para 18. 127 N A F Popović, ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration on the Draft Declaration of Principles on Human Rights and the Environment’ (1996) 27 Colum.Hum.Rts.L.Rev. 487, 487. 128 UNGA Res 2398 (XXII) (3 December 1968). 129 F Francioni, ‘International Human Rights in an Environmental Horizon’ (2010) 21 EJIL 41, 44.

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level of a select few who derive short-term economic benefits, environmental degradation makes

the world less hospitable for humanity.130 In particular, there are several human rights whose

protection could be severely impaired by inadequacies in environmental protection, potentially

due to an inadequate reservations regime. The right to life, for example, has the possibility of

being substantially affected by environmental issues.131 This was recognised in the Stockholm

Declaration, which acknowledged the essential role of the environment in the enjoyment of the

right to life.132 In practice, this connection has been relied upon by individuals who allege a

violation of their right to life as a result of environmental damage. For example, in one case the

UN Human Rights Committee recognised that the dumping of nuclear waste, despite being

primarily an environmental concern, raised serious issues with regards to the obligation of states

to protect human life.133 Even though the case was declared inadmissible due to a failure to

exhaust local remedies, the remarks of the Committee clearly support the view that

environmental protection often amounts to a precondition for the enjoyment of human rights.134

Other environmental violations that may affect a person’s right to life include the failure to

provide access to clean drinking water that is free from toxins or other contaminants, or a failure

to regulate the use of dangerous pesticides.135 Once again, despite these issues falling under the

                                                                                                               130 N A F Popović (n 127) 488. 131 Earthjustice Legal Defense Fund, ‘Environmental Rights Report 2008: Human Rights and the Environment’ (2008) 6 <http://earthjustice.org/sites/default/files/library/reports/2008-environmental-rights-report.pdf> accessed 12 Feb 2013. 132 ‘Declaration of the United Nations Conference on the Human Environment’ (1973) UN Doc A/Conf.48/14/Rev.1, preamble, para 1. 133 EHP v Canada, Communication No. 67/1980, UN Doc CCPR/C/OP/1, 20. 134 D Shelton (n 115) 113. 135 P Sands and J Peel, with A Fabra and R MacKenzie (n 111) 780.

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ambit of environmental regulation, the potential consequences could amount to a violation of the

right to life.

Overall, it can be firmly established that there often exists a direct connection between the

protection of the environment and the effective safeguarding of human rights. In many cases,

therefore, the guarantee of human rights will not be possible without adequate environmental

regulation. This highlights the vital importance of effective international environmental

protection, which inevitably must start at the stage of drafting multilateral treaties. Without the

substantive limits of the permissibility school, in order to prevent the acceptance of incompatible

reservations, the integrity of environmental treaties cannot be guaranteed, and neither can the

effective protection of international human rights. Therefore, in order to safeguard these

fundamental humanitarian concerns, the human rights approach to reservations must be adopted

by the international environmental regime.

3.3 The Non-Reciprocal Nature of Environmental Obligations

International environmental law obligations are generally non-reciprocal. This is evident as their

direct beneficiaries are either the whole global community or human individuals, without

reciprocal advantages for states.136 Consequently, many violations of multilateral environmental

treaty obligations will not per se affect the rights of any individual state.137 This feature has

significant implications on the adequacy of the VCLT rules on reservations.

                                                                                                               136 A Trinidade, ‘The Parallel Evolutions of International Human Rights Protection and of Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights’ (1991) 13 Inter-American Institute of Human Rights Magazine 35. 137 P Birnie, A Boyle and C Redgwell (n 114) 233.

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The problems associated with non-reciprocal environmental obligations are strongly evidenced

by analogy to the deficiencies of the regime of state responsibility in enforcing environmental

obligations. The first problem is that standing to bring a claim is confined to injured states.138

Although identifying injury to a state is often possible in transboundary disputes due to the

locality of the issue,139 violations of global obligations are more problematic.140 These violations

generally fail to affect the legal rights or interests of any state, thus preventing individual states

from bringing claims as they suffered no direct injury.141 Consequently, states seeking to enforce

multilateral environmental obligations have had to rely upon the exceptional, and often

disputed, 142 possibility of an actio popularis resulting from erga omnes environmental

obligations.143 Secondly, states have demonstrated a general reluctance to initiating proceedings,

even in the case of transboundary or severe environmental damage.144 This is because, as strongly

emphasised in Chapter 2, the desire to protect community interests will often be outweighed by

economic and political agendas. For example, many suggest that the promotion of East-West

relations was the reason behind European governments deciding not to invoke the responsibility

                                                                                                               138 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 42. 139 For example: Trail Smelter Arbitration, (1939) 33 AJIL 182. 140 A W Samaan (n 119) 268. 141 A E Boyle, ‘Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches’ in P Wetterstein (ed), Harm to the Environment: The Right to Compensation and the Assessment of Damages (OUP 1997) 83. 142 Nuclear Tests Cases, (1974) ICJ Reports 387. 143 T Stephens (n 105) 67. 144 For example: states on the Rhine waived their right to invoke the responsibility of Switzerland after the Sandoz chemical spill of 1986 that released pesticides, mercury and other highly poisonous agricultural chemicals into the river: M Ehrmann, ‘Procedures of Compliance Control in International Environmental Treaties’ (2002) 13 Colo.J.Int'l Envtl.L.& Pol'y 377, 381.

  38  

of the Soviet Union in relation to the Chernobyl disaster of 1986.145 In cases of less severe

environmental damage this problem is likely to be exacerbated.

If the inadequacies of the principles of state responsibility are applied to the rules on reservations

there are clear justifications for rejecting opposability in favour of permissibility. First, as

violations of environmental obligations rarely result in direct injury to individual states, it is

unlikely that states will foresee injury when deciding whether to object to a reservation.

Secondly, even if a state does foresee potential injury within its sovereign territory, or perhaps

has strong moral concerns for the global environment, their decision to accept or object to a

reservation is likely to be heavily swayed by economic and political agendas. This is particularly

problematic for environmental treaties due to the perceived conflict between economic growth

and environmental protection, especially in newly developing states.146 Consequently, it is

unlikely that a reservation will be met by numerous objections, even if it may result in severely

detrimental impacts to the environment. Therefore, if the validity of reservations is subjectively

determined along bilateral lines, as contended by the opposability school, there will be no

guaranteed collective protection for the integrity of environmental treaties.147 Instead, an adoption

of the permissibility school is required to prevent this by imposing objective limitations on the

content of reservations.

                                                                                                               145 M E O’Connell, ‘Enforcing the New International Law of the Environment’ (1992) 35 GYIL 293, 315-316. 146 A W Samaan (n 119) 272. 147 A Gillespie (n 16) 995.

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3.4 Implementing a Human Rights Approach

The previous sections have strongly evidenced the need for the international environmental law

regime to adopt a human rights approach to reservations. This involves the adoption of the

permissibility school when assessing the validity of reservations and a presumption of

severability for impermissible and inessential reservations. In order to be effective the

assessments of permissibility and essentiality should not be determined bilaterally by individual

states, but instead should be assessed unilaterally and objectively. As seen in the human rights

regime, the widespread existence of environmental treaty-monitoring bodies could facilitate this

objective assessment. The competence of each body to assess reservations will have to be

individually established, as their general purpose is to supervise the states’ implementation and

compliance with a particular regime.148 However, given the way that many human rights treaty-

monitoring bodies have readily declared their competence to determine the legality of

reservations, despite having similar mandates, there seems to be no fundamental reason why

environmental bodies will not follow suit.149 In 2001, for example, the International Whaling

Commission (IWC) determined that it had the competence to assess the legality of Iceland’s

reservation to the International Convention on the Regulation of Whaling (ICRW).150 Although

the member states only voted in favour by 19 votes to 18, with dissenting states suggesting that

the IWC was acting in contravention of customary international law,151 the IWC’s decision was

                                                                                                               148 R R Churchill and G Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94(4) AJIL 623, 623. 149 E Swaine, ‘Reserving’ (n 19) 321-322. 150 IWC, ‘Final Press Release from the IWC 53rd Annual Meeting’ (2001) <http://archive.iwcoffice.org/meetings/meeting2001.htm> accessed 28 Feb 2013. 151 IWC, ‘Statement Concerning Iceland’s Adherence to the International Convention for the Regulation of Whaling’, IWC/53/50.

  40  

made in accordance with the VCLT: as it is the competent organ of that organisation, as

empowered through the ICRW, which is the constituent instrument of that organisation.152 The

IWC’s decision may signify a distinct shift in practice, indicating that international

environmental regimes already favour the assessment of validity being carried out by objective

treaty-monitoring bodies. However, due to the narrowness of the decision and the lack of

supportive practice from other environmental bodies, the issue of competence requires further

research and evidence before a general rule can be established. Therefore, the competence to

assess the validity and essentiality of reservations will have to be established on an individual

basis, either expressly granted by the founding document or implied by other factors. Where this

delegation is possible, it will result in an objective and unilateral decision that will provide the

optimal protection for the unity and integrity of environmental law treaties.

                                                                                                               152 A Gillespie (n 16) 997.

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Chapter 4: Conclusion

By using the international human rights regime as a standpoint, this dissertation has attempted to

present a compelling argument for the general adoption of a human rights approach to

reservations by the international environmental law regime. This was done initially by critically

examining the practice of the international human rights regime in diverging from the traditional

rules of the VCLT.

In relation to the validity of reservations, it was concluded that the opposability school provides

an inappropriate assessment of validity as it lacks substantive control over the content of

reservations and its foundations in the principle of reciprocity make it unsuitable for non-

reciprocal human rights obligations. In comparison, by interpreting the VCLT according to the

permissibility school, and thus implementing the validity criteria of Article 19 as binding rules,

the international human rights regime has successfully ensured that incompatible reservations

cannot subsist and undermine the integrity of treaties. Furthermore, by delegating the assessment

of validity to treaty-monitoring bodies the content of reservations can be controlled in a truly

objective manner, to ensure uniformity of treaty commitments that retain the integrity of the

original treaty.

Three possible consequences of impermissibility were identified: the surgical, backlash and

severability doctrines. Although the backlash doctrine represents a significant improvement on

the surgical doctrine by upholding treaty integrity and state consent, its suitability for human

rights treaties is undermined by its failure to facilitate wide treaty participation. In comparison,

the severability doctrine effectively guarantees treaty integrity without having to sacrifice

universality. Additionally, from a harm minimisation perspective, a wrongful presumption of

severability presents significantly reduced detriments than those of a wrongful presumption of

  42  

expulsion. Consequently, its adoption by the international human rights regime for inessential

reservations, in order to resolve the conflict with state consent, represents a notable improvement

on the traditional VCLT approach.

Despite the numerous benefits of this approach it has not sparked a shift in the practice of the

international environmental law regime, or indeed of any other specialised regime. Although

several factors may explain the lack of supporting practice and commentary, this paper has

stressed how the issue of reservations to multilateral environmental law treaties is of growing

concern, given the increasing awareness of environmental degradation and the need to obtain

universal treaty participation to ensure effective action. Furthermore, the distinct connection and

shared features between the human rights and environmental law regimes emphasise the equally

applicable inadequacies of the VCLT rules on reservations.

In hindsight, it is likely that the proponents for the human rights approach to reservations would

argue that, had it been possible, they would have preferred to have taken preventative action

before the issue of reservations came to a head. Evidently, due to the highly controversial issues

at stake and the radical nature of the development, this was not possible. In contrast, the

international environmental law regime is in the enviable position of being able to benefit and

learn from the past actions of the human rights regime, thus providing the perfect opportunity to

take preventative action instead of having to cure an existing problem. Undoubtedly it will take

time to fully establish this approach within the diverse regime of international environmental law,

especially since matters such as the competence of treaty-monitoring bodies remain unsettled.

Therefore, it is imperative that the international environmental regime takes heed of the need to

address this concern early so that preventative action can be effectively implemented.

  43  

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thereto, or in Relation to Declarations under Article 41 of the Covenant’ (4 November

1994) CCPR/C/21/Rev.1/Add.6.

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1993) 1760 UNTS 79.

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Environment (adopted 21 June 1993) 32 ILM 1228.

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  54  

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force 23 March 1976) 999 UNTS 171 (ICCPR).

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entered into force 01 January 1989) 1522 UNTS 3.

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  55  

Table of Cases

• Belilos v Switzerland, Case 10328/83, 29 April 1988, (1988) 10 EHRR 466.

• Certain Norwegian Loans (France v Norway), 6 July 1957, (1957) ICJ Reports 9.

• EHP v Canada, Communication No. 67/1980, UN Doc CCPR/C/OP/1.

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September 2001).

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• Loizidou v Turkey (Preliminary Objections), 23 March 1995, Series A No 310.

• Nuclear Tests Cases, (1974) ICJ Reports 387.

• Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide

(Advisory Opinion) 1951 ICJ Reports 15.

• Temeltasch v. Switzerland, Case 9116/80, 5 May 1982, (1982) 5 EHRR 417.

• Trail Smelter Arbitration, (1939) 33 AJIL 182.

• Weber v Switzerland, 22 May 1990, Series A No 177.