The Evolution of Legal Status of Reservations: from the League of Nations Unanimity Rule to the International Law Commission 2011 Guide to Practice on Reservations to Treaties

Abstract

The author started by pointing out a current wide-spread use of the reservations to the multilateral treaties which became inseparable part of the process of entry into force of vast number of the treaties especially those purporting universal participation. Arguably a combination of the rather soft controlling fixable approach towards reservations secured almost universal and speedy ratifications of universal human rights treaties. The evolution of the legal status of the reservations performed a tricky pathway — from the strict negative approach reflected in so-called “unanimity rule” in the League of Nations to a liberalized regime of the reservation envisaged initially in the Advisory Opinion of the International Court of Justice 1951 and then codified in the relevant articles of the Vienna Convention on the Law of the Treaties 1969 and after that again towards tightening in the decisions of the regional human rights courts and UN controlling quasi-judicial bodies. Such “aggressive” approach of the human rights controlling institutions has been repeated albeit in a more soften way in the 2011 International Law Commission Guide to Practice on Reservations to Treaties in a form of provisions regarding severability of the reservations from act of ratification and obligation of the author of the reservation to withdraw from the treaty in case of its decision to keep the reservation in question. At the same time the ILC Guide just clarified then modified current legal status of reservations tending to consider the objections to the reservations as a major instrument reflecting the will of the states on issue of the validity of reservations. Such position of the ILC reflects the undisputable reality of the current international law in a sense that the states are more sensitive to its own right to make reservations than its right to control the validity of reservations made by other states. The states consider reservations as a convenient tool for determination of the level of its participation in the relevant treaty. The “aggressive” stance towards reservations adopted by the human rights courts and UN quasi-judicial bodies presents interesting but not decisive vector in the evolution of the legal status of reservations.