Reservations to Treaties

Reservations to Treaties in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On June 29, 2011, the U.S. Mission to the United Nations conveyed via two separate letters to the Secretary-General of the United Nations the U.S. objections to Pakistan's reservations to the International Covenant on Civil and Political Rights (“ICCPR”) and its objections to Pakistan's reservations to the Convention Against Torture (“CAT”). In both cases, the U.S. expressed its view that the totality of Pakistan's reservations was inconsistent with the object and purpose of each treaty. The U.S. objections to Pakistan's reservations to the ICCPR and the U.S. objections to Pakistan's reservations to the CAT are reprinted below and the letters conveying these objections to the Secretary-General are available at (internet link) state.gov/s/l/c8183.htm.

Developments

The Government of the United States of America objects to Pakistan's reservations to the ICCPR. Pakistan has reserved to Articles 3, 6, 7, 12, 13, 18, 19, and 25 of the Covenant, which address the equal right of men and women to the full enjoyment of civil and political rights, the right to life, protections from torture and other cruel inhuman or degrading treatment or punishment, freedom of movement, expulsion of aliens, the freedoms of thought, conscious and religion, the freedom of expression, and the right to take part in political affairs. Pakistan has also reserved to Article 40, which provides for a process whereby States Parties submit periodic reports on their implementation of the Covenant when so requested by the Human Rights Committee (HRC). These reservations raise serious concerns because they both obscure the extent to which Pakistan intends to modify its substantive obligations under the Covenant and also foreclose the ability of other Parties to evaluate Pakistan's implementation through periodic reporting. As a result, the United States considers the totality of Pakistan's reservations to be incompatible with the object and purpose of the Covenant. This objection does not constitute an obstacle to the entry into force of the Covenant between the United States and Pakistan, and the aforementioned articles shall apply between the U.S. two states, except to the extent of Pakistan's reservations.

Details

The Government of the United States of America objects to Pakistan's reservations to the CAT. Pakistan has reserved to Articles 3, 4, 6, 12, 13, and 16 of the Convention, which address non-refoulement, criminalization of acts which constitute torture, arrest or apprehension of those suspected of committing torture, investigation of credible allegations of torture, the right to bring before and have examined by competent authorities allegations of torture and for treatment or punishment. At the same time, Pakistan has chosen not to participate in the Committee's inquiry process under Article 20. The combination of Pakistan's reservations and its decision not to participate in the Article 20 process raises serious concerns because the reservations obscure the extent to which Pakistan intends to modify its substantive obligations under the Convention, and preclude further inquiry by the Committee if well-founded indications of systematic torture do arise. As a result, the United States considers the totality of Pakistan's reservations to Articles 3, 4, 6, 12, 13, and 16 to be incompatible with the object and purpose of the Covenant. This objection does not constitute an obstacle to the entry into force of the Covenant between the United States and Pakistan, and the aforementioned articles shall apply between the U.S. two states, except to the extent of Pakistan's reservations.

International Law Commission's Work on Reservations to Treaties in 2013

United States views on international law [1] in relation to ILC's Work on Reservations to Treaties: On October 30, 2013, Assistant Legal Adviser Todd Buchwald delivered U.S. remarks on the report of the International Law Commission on its work on reservations to treaties. Mr. Buchwald's remarks appear below and are also available at Mr. Chairman, once again, I would like to thank the Chairman of the Commission, Mr. Bernd Niehaus, for his introduction of the Commission's report and for the Commission's completion in 2011 of the Guide to Practice on Reservations to Treaties and commentaries thereto. (link resource) usun.state.gov/briefing/statements/216136.htm.

Some Aspects of ILC's Work on Reservations to Treaties

Particular gratitude is due to Professor Pellet, who devoted countless hours and considerable expertise to this project; he is commended for bringing this work to a conclusion after so many years. The Guide provides helpful and detailed pointers for the practice related to treaty reservations and can be a valuable reference for practitioners. We also find Professor Pellet's introduction to the Guide to be particularly helpful in detailing the Guide's intended purpose and relationship to law. In this connection, we note the Commission's longstanding consensus that the Guide is not intended to replace or amend the Vienna Conventions. The Guide is not a legally binding text and does not authoritatively interpret the Vienna Convention. Indeed, some passages are simply recommendations for good practice, which is consistent with the Guide's overarching purpose of providing practical solutions for the sometimes complicated questions that arise in this area.

Developments

We also note that though the Guide at times reflects obligations that are otherwise established via treaty or custom as law, it does not always reflect consistent state practice or settled consensus on certain important questions, as we have indicated in our prior statements on this topic. For example, state practice on the consequences of an invalid reservation remains quite varied and, as a result, section 4.5.3—one of the more controversial elements of the Guide—in particular, should not be understood to reflect existing law. Moreover, the approach articulated in that section should not be regarded as a desirable rule, since it cannot be reconciled with the fundamental principle of treaty law that a state should only be bound to the extent it expressly accepts a treaty obligation. If a state objects to another state's reservation as invalid, the objecting state can decide to either accept treaty relations notwithstanding its objection, or it can decide not to accept treaty relations. The reserving state, however, cannot be bound without its consent to a treaty without the benefit of its reservation.

Details

The Commission has recommended the establishment of a “reservations dialogue,” and that the General Assembly consider establishing an “observatory” on treaty reservations within the Sixth Committee, as well as a “reservations assistance mechanism.”

The United States supports a robust “reservations dialogue” and welcomes the useful practices outlined in the Commission's recommendation, which can help encourage clarity about the meaning and intent behind reservations and objections thereto. We note in particular that the reservations dialogue is not a singular or rigid process, but rather a set of basic recommended practices and principles that can improve reservations practice.

The “observatory” on treaty reservations is an interesting proposal. However, we would need to reflect further on any proposed details before we express a view as to whether it is appropriate to establish such a body within the Sixth Committee.

International Law Commission's Work on Reservations to Treaties in 2013 (Continuation)

United States views on international law [1] in relation to ILC's Work on Reservations to Treaties: With regard to the “reservations assistance mechanism,” the United States is following this proposal with interest. In general, we question whether an independent mechanism, consisting of a limited number of experts that would meet to consider problems related to reservations, is appropriate to inject into a process that fundamentally is to take place between and among states. Further, we are concerned about any implication that the proposals resulting from the mechanism could be seen as compulsory on the states requesting assistance.