Reservations to Treaties and United States Practice

Frederic L. Kirgis
May 04, 2003
            For quite some time and under several administrations, the United States government has been reluctant to enter into multilateral treaties (also known as conventions) that impose obligations directly on the national government, unless it can attach significant reservations to those treaties.  A prominent case in point is the International Covenant on Civil and Political Rights. [1]   When the United States became a party in 1992, it attached reservations that had the effect of excluding any U. S. obligations under the Covenant that might add anything to already-existing U. S. law. [2]   The United States has been less inclined to attach significant reservations when the treaties regulate private conduct, such as conventions on international sales of goods or on the civil aspects of international child abduction.
            The Vienna Convention on the Law of Treaties is the authoritative instrument on the international law of treaties.  Most of its provisions are thought to reflect customary international law, so they are considered binding even on nation-states (such as the United States) that are not formally parties to the Vienna Convention.  It defines a reservation to a treaty as "a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." [3]
            A reservation is permissible unless the treaty itself prohibits it, or the treaty permits only certain reservations not including the one in question, or the reservation is incompatible with the object and purpose of the treaty. [4]   Under traditional international law, a state that attaches an impermissible reservation cannot become a party to the treaty unless all other parties agree to the reservation.  Recently, however, the U.N. Human Rights Committee - the body that administers and interprets the Covenant on Civil and Political Rights - has taken the view that an unacceptable reservation to the Covenant will normally be severable, in the sense that the reserving party would be a party to the Covenant without benefit of the reservation. [5]   The Human Rights Commission's view is controversial, but in any event it does not appear to extend beyond human rights treaties.
            In recent years, several important multilateral conventions have prohibited most or all reservations.  One reason for such a prohibition is that these conventions are legislative in character, so it is considered essential to try to ensure uniform application of their rules among the states parties to them, even if the no-reservation clause dissuades some nation-states from becoming parties to the conventions.  Another reason for prohibiting reservations is that complex multilateral treaties often embody a "package deal" that involves compromises made among diverse interests on all sides; any reservation could unravel the package.  The United Nations Convention on the Law of the Sea is an example.  The United States is not a party to that convention, largely because of the provisions on deep seabed mining to which reservations could not be made.  The Rome Statute (treaty) of the International Criminal Court is another example.  The United States has announced that it will not become a party to the Statute. [6]
            Yet another example of a multilateral treaty prohibiting reservations, recently in the news, is the proposed World Health Organization's Framework Convention for Tobacco Control. [7]   The Convention does not set forth detailed rules, but it does contain several provisions requiring governmental regulation of the tobacco industry.  For example, it requires each State party to adopt and implement, "in accordance with its national law," measures to ensure that tobacco packaging and labeling do not create misleading impressions about the product's health effects, and do contain prominent health warnings covering not less than 30 percent of the principal display area.  It also requires each State party "in accordance with its constitution or constitutional principles" to undertake a comprehensive ban of all tobacco advertising, promotion and sponsorship, broadly defined.  If the party's constitution would not permit such a comprehensive ban, the party must apply certain restrictions on all tobacco advertising, promotion and sponsorship, particularly those with cross-border effects.  Parties that ban and penalize certain forms of tobacco advertising, promotion and sponsorship in their own territory are given the right to extend the ban and penalties to cross-border advertising, etc., entering their territory.  Each party must prohibit or promote the prohibition of free distribution of tobacco products to the public.
            The United States has objected to the clause in the Tobacco Control Convention prohibiting reservations, and has said it would not become a party to the Convention unless that clause is changed before the Convention is adopted at the World Health Assembly meeting scheduled for May 19. [8]   Apparently, the U. S. government wants to attach reservations to the provisions in the Convention setting minimum sizes for warnings on tobacco packaging, restricting free distribution of tobacco products and defining tobacco advertising and promotion. [9]   Another U. S. concern has to do with possible encroachments on states' rights within the United States. [10]   A United States official also raised First Amendment concerns, although the Convention - as noted above - contains provisions recognizing certain constitutional constraints in some States.  Other governments are resisting any effort to renegotiate the Convention, fearing that reservations could unravel the entire treaty.
            International law does not require the United States (or any country) to ratify the Tobacco Control Convention or any other treaty, whether or not the treaty contains a clause prohibiting reservations.  Nor does international law attempt to regulate the motives a government might have for wishing to attach reservations or for declining to become a party to a treaty.  Nevertheless, governments outside the United States and nongovernmental observers have expressed concern about a perceived U. S. pattern of nonparticipation or very limited participation in a wide range of multilateral treaties that make up much of the fabric of the international legal system.  The question is whether that system, for which the United States has professed its respect, can be effective without its most influential player.
[1]    999 UN Treaty Series 171.
[2]    See 138 Cong. Rec. S 4783 (1992).
[3]   Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(1)(d), 1155 UN Treaty Series 331.
[4]    Vienna Convention art. 19.
[5]    See Report of the Human Rights Committee, GAOR, 50th Sess.,  Supp. No. 40, vol. 1, at 119 (1996).
[6]    See Curtis A. Bradley, U.S. Announces Intent Not to Ratify International Criminal Court Treaty ( ASIL Insight, May 2002).
[7]    See David P. Fidler, World Health Organization's Framework Convention for Tobacco Control (ASIL Insight, March 2003).
[8]    See Washington Post, April 30, 2003, p. A1.
[9]    See N.Y. Times, May 1, 2003, p. A6.
[10]   Id.
About the Author: 
Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.