Restatement (Third) of Foreign Relations Law of the United States (1987), excerpt | Samuel Moyn | August 01, 2016

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Restatement (Third) of Foreign Relations Law of the United States (1987), excerpt

Restatement (Third) of Foreign Relations Law of the United States (1987)

§ 313 Reservations

(1) A state may enter a reservation to a multilateral international agreement unless

(a) reservations are prohibited by the agreement,

(b) the agreement provides that only specified reservations not including the reservation in question may be made, or

(c) the reservation is incompatible with the object and purpose of the agreement.

(2) A reservation to a multilateral agreement entered in accordance with Subsection (1) is subject to acceptance by the other contracting states as follows:

(a) a reservation expressly authorized by the agreement does not require subsequent acceptance by the other contracting states;

(b) where application of the agreement in its entirety among the parties is an essential condition to their consent, a reservation requires acceptance by all the parties;

(c) where a reservation is neither authorized nor prohibited, expressly or by implication,

(i) acceptance of a reservation by another contracting state constitutes the reserving state a party to the agreement in relation to the accepting state as soon as the agreement is in force for those states;

(ii) objection to a reservation by another contracting state does not preclude entry into force of the agreement between the reserving and accepting states unless a contrary intention is expressed by the objecting state.

(3) A reservation established with regard to another party in accordance with Subsection (2)(c) modifies the relevant provisions of the agreement as to the relations between the reserving and accepting state parties but does not modify those provisions for the other parties to the agreement inter se.

Comment a. Reservation defined. A reservation is defined in the Vienna Convention, Article 2(1)(d), as a unilateral statement made by a state when signing, ratifying, accepting, approving, or acceding to an international agreement, whereby it purports to exclude or modify the legal effect of certain provisions of that agreement in their application to that state.

Comment g. Declarations and understandings. When signing or adhering to an international agreement, a state may make a unilateral declaration that does not purport to be a reservation. Whatever it is called, it constitutes a reservation in fact if it purports to exclude, limit, or modify the state's legal obligation. Sometimes, however, a declaration purports to be an “understanding,” an interpretation of the agreement in a particular respect. Such an interpretive declaration is not a reservation if it reflects the accepted view of the agreement. But another contracting party may challenge the expressed understanding, treating it as a reservation which it is not prepared to accept.

QUESTION

What happens if a reservation is incompatible with the object and purpose of a treaty?

Scholars have identified three options:

Option 1: The ratification is invalid.

Option 2: The state remains bound to the treaty except the provision(s) to which to reservation(s) related).

Option 3: The state remains bound to the treaty, including the provision(s) to which to reservation(s) related).

Which rule is best?

--

§ 314 Reservations and Understandings: Law of the United States

(1) When the Senate of the United States gives its advice and consent to a treaty on condition that the United States enter a reservation, the President, if he makes the treaty, must include the reservation in the instrument of ratification or accession, or otherwise manifest that the adherence of the United States is subject to the reservation.

(2) When the Senate gives its advice and consent to a treaty on the basis of a particular understanding of its meaning, the President, if he makes the treaty, must do so on the basis of the Senate's understanding.

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August 01, 2016

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Samuel Moyn

Harvard Law School

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