Treaty making - a discussion of treaties and reservations to treaties.

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As agreements between States are made most notably by instrument of the treaty, a study of international law would be completely lacking without a discussion of treaties and reservations to treaties. Simply speaking, a treaty is an agreement between States, and as expected, agreement may not come easily. Making reservations to treaties is one method for States to show their disapproval for particular provisions. The effects of reservations to multilateral treaties have evolved over the years, resulting in greater leeway in some respects but also in greater restrictions, as with human rights treaties. Once a State has made a reservation, the other parties must react. It is also up to States to determine and distinguish between interpretive declarations and actual reservations as the consequences are quite different for the two. Furthermore, ius cogens and fundamental changes in circumstances play a role in determining viability in treaty law.

Traditionally, as can be seen with the League of Nations in 1927, only reservations which were accepted by all the states which had signed on to a treaty were allowed. In 1932 the Pan-American Union pushed for a different slant for treaties ratified with reservations as yet unaccepted with the following stipulations: 1) the treaty would be regarded as in force between original signatories without the reservations, 2) in force between Governments which ratified it with reservations and States which accepted the reservations, and 3) not in force between a Government which had ratified the treaty with reservations and one that had not (Harris 790).

The restrictive approach to reservations was modified when states made reservations to the 1948 Genocide Convention which contained no clauses allowing such reservations (Shaw 644). The International Court of Justice's (ICJ's) Advisory Opinion on the Genocide case, in tune with the Pan-American Union's view, revolutionised the rules. The Court said that the goal of the Genocide Convention was to "protect individuals" not to " confer reciprocal rights on contracting states" (Malanczuk 136). Thus, the Court allowed a State to become party to the Convention as long as at least one other State agreed to the reservation, compatible with the object and purpose of the Convention. If one party objected to another's reservation as incompatible with the object and purpose of the Convention, it had the right to consider the reserving state not a party to the Convention, and conversely, accepting the reservation as compatible with the object and purpose of the Convention allowed consideration of the reserving state as a party to the Convention. A signatory state's effective power of objecting to reservations has no legal validity unless it, itself, has ratified the treaty. Likewise, a state which has the ability to sign or accede, but has not, has no authority to object to reservations (Harris 791). The new rule of becoming party to a treaty with other States that accepted reservations as "compatible with object and purpose of the Convention" evolved.

Compatibility is decided by the states one-on-one. As the Convention had been a product of majority votes and a spirit of cooperation and universality, the Court found reason for flexibility in terms of allowing reservations. Since the goal of the Convention was humanitarian, the states' personal interests should have been cast aside in favor of a common interest. The 1969 Vienna Convention on the Law of Treaties confirmed these views (Shaw 645).

The controversy behind reservations to treaties lies in the premise of the goal of treaties and whether reservations hinder those goals. The principle behind reservations is respect of state sovereignty. States should not have to agree to anything about which they may be uncertain. A treaty with half-hearted support is useless, for it is a treaty in face-value only. For a treaty to be effective, it should have a sufficient number of states sign on to a majority of the provisions. Full support on all provisions is virtually impossible as states differ in their cultural, economic, and political backgrounds (Harris 791). For a few states to make reservations to treaties is more advisable than key states failing to become parties to multilateral treaties altogether (792). A balance must be struck between the "integrity of a treaty" and the "need to get as many States as possible on board" (804). States decide between themselves which reservations are allowable and which are not or take the case to the ICJ

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The Vienna Convention on the Law of Treaties 1969 defines the wheeling and dealing of treaty-making as a "network of bilateral relationships" as each party must decide one-on-one whether or not to accept another's reservation. Articles 19 to 23 of the Vienna Convention spell out the effects of reservations to multilateral treaties. Whether a state accepts or rejects a reservation settles the bilateral effect of that reservation between the reserving state and itself (Malanczuk 135). By the end of twelve months, silence is equal to consent. This creates a problem for small states that do not have manpower to ...

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