Quick answer
Sometimes. A State may join a treaty with a reservation, a unilateral statement that seeks to exclude or modify the legal effect of certain treaty provisions for that State. Under Article 19 of the Vienna Convention on the Law of Treaties, 1969 (VCLT), a reservation is not allowed if the treaty prohibits it, if the treaty permits only other specified reservations, or if it is incompatible with the object and purpose of the treaty. The object-and-purpose test comes from the ICJ's 1951 Advisory Opinion on Reservations to the Genocide Convention. A reservation is not a rejection of the whole treaty: the State joins the treaty but limits the effect of particular provisions for itself.
The law
- Article 2(1)(d) VCLT: a "reservation" is a unilateral statement, "however phrased or named", made when signing, ratifying, accepting, approving or acceding to a treaty, by which a State purports to exclude or modify the legal effect of certain provisions in their application to that State. The label does not decide the matter: a statement called a "declaration" can still be a reservation if it has that effect.
- Article 19 VCLT: a reservation may be formulated unless (a) the treaty prohibits it, (b) the treaty allows only specified reservations that do not include it, or (c) it is incompatible with the object and purpose of the treaty.
- Article 20 VCLT: other States may accept or object. Unless the treaty provides otherwise, a reservation is treated as accepted by a State that raises no objection within twelve months of being notified, or by the date it consents to be bound, whichever is later (Article 20(5)).
- Article 21 VCLT: sets out the legal effects of acceptance and objection, compared in the table below.
The case
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International Court of Justice (ICJ), Advisory Opinion of 28 May 1951, by 7 votes to 5. The General Assembly asked whether a State whose reservation is objected to by some parties but not others can still be a party. The Court answered that it can, if the reservation is compatible with the object and purpose of the Convention; otherwise it cannot be regarded as a party. Each party judges compatibility for itself and may treat the reserving State as a party or not. The Court stressed that the principles underlying the Convention bind States even without any treaty obligation, and that its purpose is purely humanitarian.
Acceptance and objection compared
| Point | Accepting State | Objecting State |
|---|---|---|
| Treaty relations with the reserving State | Reserving State becomes a party in relation to it (Article 20(4)(a)) | Treaty still enters into force between them unless the objecting State clearly says otherwise (Article 20(4)(b)) |
| Effect on the reserved provision | Modified for both sides to the extent of the reservation (Article 21(1)) | Does not apply between the two to the extent of the reservation (Article 21(3)) |
India's practice
The UN Treaty Collection records that India, while joining the Genocide Convention, declared that any dispute under Article IX can go to the ICJ only with the consent of all parties to the dispute in each case. On CEDAW, India made declarations on Articles 5(a), 16(1) and 16(2), and made a reservation that it does not consider itself bound by paragraph 1 of Article 29 (reference of disputes to arbitration or the ICJ). India is not a party to the VCLT itself.
Example
Renu learns that her country has joined a treaty against discrimination, but with a reservation saying it will not follow the treaty's core rules that prevent discrimination. Other States may object that the reservation is incompatible with the object and purpose of the treaty under Article 19(c) VCLT. A reservation that guts the treaty's central protection is the kind the 1951 Opinion warns against. Whether the State then remains bound to the whole treaty without the reservation is a separate question that the VCLT does not answer.
Current-law note
Human rights treaties protect individuals rather than exchange benefits between States, which makes reservations to them especially sensitive. The UN Human Rights Committee addressed reservations to the ICCPR in General Comment No. 24, adopted on 2 November 1994. In the Committee's view, compatibility with the object and purpose of the Covenant must be judged objectively, and an unacceptable reservation will generally be severable: the Covenant stays in force for the reserving State "without benefit of the reservation" (paragraph 18). This is the Committee's interpretation, not a rule written in the VCLT. For the wider law of treaties, see Law of Treaties in International Law.
Exam point
A reservation (Article 2(1)(d) VCLT) is allowed unless prohibited or incompatible with the treaty's object and purpose (Article 19(c)), the test laid down in the ICJ's Genocide Reservations Opinion of 28 May 1951.
Sources and further reading
- Vienna Convention on the Law of Treaties, 1969, United Nations
- Summaries of ICJ Judgments, Advisory Opinions and Orders 1948 to 1991 (Genocide Reservations Opinion), United Nations
- Genocide Convention: status, reservations and declarations, UN Treaty Collection
- CEDAW: status, reservations and declarations, UN Treaty Collection
- Human Rights Committee, General Comment No. 24 (CCPR/C/21/Rev.1/Add.6), OHCHR
