The practice of reservations has a long history in public international law. Reservations allow states to exclude or modify provisions of a treaty in its application to that state at the time the state becomes bound by the treaty (See Vienna Convention on the Law of Treaties, Art. 2(d)). Reservations offer flexibility and increase membership in multilateral treaties because it allows states to participate without complete agreement on all treaty provisions.
However, it is well-settled that reservations must be consistent the “object and purpose” of the treaty (See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ 1951 and Vienna Convention on the Law of Treaties, Art. 19(c)). Many Multilateral Environmental Agreements (MEAs) specifically exclude reservations. This is especially true in framework agreements such as the Convention on Biological Diversity (Art. 37) and the United Nations Convention on the Law of the Sea (Art. 309). Reservations are similarly excluded in other environmental agreements that form complex, integrated programs to address environmental degradation. The Kyoto Protocol to the United Nations Framework Convention on Climate Change (Art. 26) is such a treaty. In treaties like this that have clear benchmarks or other detailed operational objectives, reservations would likely endanger those objectives.
Even where reservations are prohibited by the terms of the treaty, the treaty often permits declarations or statements of understanding (e.g., United Nations Convention on the Law of the Sea (UNCLOS), Art. 310). The key difference between a reservation and declaration or statement of understanding is that the latter does not have a direct legal effect on the obligations of the state entering it. Instead, they essentially put the world on notice that the state interprets the provision that is the object of the declaration a certain way. In practice, however, it can be difficult to distinguish reservations from declarations and statements of understanding.
Many MEAs that actively manage living resources, or balance conservation and utilization objectives, permit reservations to measures adopted by the decision-making body of the regime. These are typically called “specific reservations” and are provided for directly in the treaty. Specific reservations and objection procedures differ from the more classic reservation in that they are not directed to a treaty provision but rather a measure adopted by the regime going forward. There is a temporal difference as well in that classic reservations are entered only at the time the state becomes bound by the treaty. Specific reservations and objection procedures are frequently provided for in treaties establishing fishery organizations in addition to agreements like the International Convention for the Regulation of Whaling (ICRW), the Convention on International Trade in Endangered Species (CITES) and the Convention on Migratory Species (CMS).
The decision-making bodies established by these treaties, frequently termed Conference of Parties (COPs), Meeting of Parties (MOPs) or commissions regularly adopt conservation and management measures on behalf of the species under their mandate. Each of these treaties allows its members to opt out of those conservation or management measures that the State finds objectionable, difficult or impossible to comply with. The objection mechanism available in the Northwest Atlantic Fishery Organization (NAFO) is a good example of an objection procedure in a fishery treaty. Article 12 of the NAFO Treaty provides:
- A recommendation shall become binding on the Contracting Parties subject to the provisions of this Article and shall enter into force on a date determined by the Commission, which shall not be before 30 days after the expiration of the period or periods of objection provided for in this Article.
- (a) Any Contracting Party may, within 50 days of the date of notification of a recommendation adopted under paragraph 1 of Article 5, under paragraph 1 of Article 8 or under paragraph 1 of Article 9, object thereto. In the event of such an objection, any other Contracting Party may similarly object within 40 days after receiving notification of that objection. If any objection is made within this further period of 40 days, other Contracting Parties are allowed a final period of 40 days after receiving notification of that objection in which to lodge objections.
- (b) A recommendation shall not become binding on a Contracting Party which has objected thereto.
- (c) If three or more Contracting Parties have objected to a recommendation it shall not become binding on any Contracting Party.
- (d) Except when a recommendation is not binding on any Contracting Party according to the provisions of subparagraph (c), a Contracting Party which has objected to a recommendation may at any time withdraw that objection and shall then be bound by the recommendation within 70 days, or as from the date determined by the Commission under paragraph 1, whichever is the later.
- (e) If a recommendation is not binding on any Contracting Party, two or more Contracting Parties may nevertheless at any time agree among themselves to give effect thereto, in which event they shall immediately notify the Commission accordingly.
- In the case of a recommendation adopted under paragraph 1 of Article 6, under paragraph 2 of Article 8, or under paragraph 2 of Article 9, only the Contracting Party exercising fisheries jurisdiction in the area in question may, within 60 days of the date of notification of the recommendation, object thereto, in which case the recommendation shall not become binding on any Contracting Party.
- The Commission shall notify the Contracting Parties of any objection and withdrawal immediately upon the receipt thereof, and of the entry into force of any recommendation and of the entry into effect of any agreement made pursuant to subparagraph (e) of paragraph 2.
Article 12 is typical of objection procedures in fishery regimes in that an objection by a party opens a second window of opportunity for other States to object as well. Like the NAFO Treaty, other fishery agreements include the provision that a certain number of objections will defeat the proposed measures for all parties, not just the objecting State.
Specific reservations and objection procedures have come under increased scrutiny and they are frequently blamed for contributing to the decline of important resources. Japan’s record of regularly entering reservations to the listing of sea turtles in CITES’ Appendices is a good example. In the NAFO Treaty mentioned above, persistent use of the objection procedure by the European Community set the stage for a dramatic dispute with Canada. In the Spain-Canada Fishery dispute of 1995, Canada took enforcement against a Spanish vessel, the Estai, to curtail excessive fishing efforts in the North Atlantic. In brief, the European Communities’ reservations over a period of years in the 1980s were a precipitating factor in the decline of the Greenland Halibut – once a rich fishery in the North Atlantic.
Newer fishery agreements such as the Convention on the Conservation and Management of Fisheries Resources in the South East Atlantic Ocean (SEAFO) Treaty have raised the bar on the use of reservations making it more difficult for States to invoke. SEAFO requires states to give a reason for their objection. In 2004, the North East Atlantic Fisheries Commission (NEAFC) similarly adopted a recommendation requiring its members to advance a justification for their objections. In another example of increased scrutiny, the International Whaling Commission has several times singled out States that insist upon using the reservation mechanism of the ICRW to circumvent measures designed to conserve whales. This “name and shame game” draws attention to the States’ actions and stimulates efforts by environmental non-governmental organizations (NGOs) to convince these States to withdraw their reservations.
While the exercise of reservations remains valid, doing so in the environmental context is being viewed with greater suspicion. Progressively more attention is being devoted to the legal limitations on their use. The legal landscape informing the use of objections and reservations includes the Precautionary Approach, the duty to cooperate, the duty to base decision making on the best available scientific evidence and the abuse of rights doctrine. These emerging legal concepts from the discipline of international environmental law help to define the responsible practices of States vis-à-vis each other within the organizations created by multilateral environmental agreements.