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Reservations to Multilateral Treaties Made in the Act of Ratification or Adherence

Published online by Cambridge University Press:  12 April 2017

William Sanders
William Sanders*
Affiliation:
Juridical Division, Pan American Union
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Extract

The question of the admissibility of reservations to multilateral treaties continues to present problems of great theoretical and practical interest. In particular, there is still considerable uncertainty regarding the procedure which should be followed where a signatory or adhering state desires to formulate reservations in the act of ratification or adherence. This question is of special interest to international organizations such as the Pan American Union and the League of Nations. As depositaries of treaties and of instruments of ratification and adherence, the procedural aspect of this problem is a matter of every day concern.

Type
Research Article
Information
American Journal of International Law , Volume 33 , Issue 3 , July 1939 , pp. 488 - 499
Copyright
Copyright © American Society of International Law 1939

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References

1 See Malkin, H. W., “Reservations to Multilateral Treaties,” British Year Book of International Law, 1926 Google Scholar; Lauterpacht, H., in Private Law Sources and Analogies of International Law, London, 1927, p. 156 Google Scholar et seq.; Committee of Experts for the Progressive Codification of International Law, Report on the Admissibility of Reservations to General Conventions, Official Journal of the League of Nations, 1927, p. 880; Draft Convention and Comment on the Law of Treaties, Harvard Research in International Law, this Journal, Supplement, Vol, 29 (1935), p. 688.

2 Gil-Borges, E., Notas sobre la Estructura Técnica de los Tratados Multilaterales Interamericanos, Caracas, 1936 Google Scholar; McNair, Arnold D., “The Functions and Differing Legal Char acter of Treaties,” British Year Book of International Law, 1930, p. 100 Google Scholar; Wright, Quincy, “The Interpretation of Multilateral Treaties,” this Journal, Vol. 23 (1929), p. 94 Google Scholar.

3 Report of the Committee of Experts, op. cit., p. 881; Harvard Research Draft Conven tion on Treaties, loc. cit., p. 870; M. O., Hudson, International Legislation, Vol. I, p. L, note 4Google Scholar.

4 League of Nations Official Journal, 1927, p. 881; see also Harvard Research Draft Convention on Treaties, loc. cit., p. 870.

5 League of Nations Official Journal, 1926, pp. 612-13; see also Malkin, loc. cit., p. 142.

6 Eighth International Conference of American States, Special Handbook for the Use of the Delegates, Pan American Union, p. 57.

7 Final Act of the Eighth International Conference of American States, p. 48.

8 Diario de la VIII Conferencia Internacional Americana, p. 611.

9 Department of State, Treaty Information, Bulletin No. 90, March 1937, p. 14.

10 Ibid., Bulletin No. 91, April 1937, p. 11.

11 See references, note 1, pp. 488-489, supra.

12 Eighth International Conference of American States, Special Handbook for the Use of the Delegates, Pan American Union, p. 57.

13 Art. 10 of the Harvard Research Draft Convention on Treaties, loc. cit., p. 658, establishes a different rule: “Unless otherwise provided in the treaty itself, a treaty which contains provision for exchange or deposit of ratifications shall come into force upon such exchange or deposit of ratifications by all the signatories.”

14 Dept. of State, Treaty Information, Bulletin No. 38, November, 1932, p. 23.

15 See the committee’s statement quoted on p. 489, supra.

16 Harvard Research Draft Convention on Treaties, loc. cit., p. 900.

17 David Hunter Miller, Reservations on Treaties, 1919, p. 141.

18 See Harvard Research Draft Convention on Treaties, he. c%„ pp. 898, 900.

19 Miller, op. cit., p. 160.

20 See communication of the Department of State to the Director General of the Pan American Union, p. 493, supra. See also Harvard Research Draft Convention on Treaties, loc. cit., pp. 851-53.

21 Department of State, Correspondence, Numerical File, 1909-1910.

22 Ibid.

23 This view is implicit in Miller’s discussion of the possibility of making reservations to the Versailles Peace Treaty. He states that in view of the fact that any reservations made by the signatories at ratification would be inserted in the procès-verbal of deposit, of which certified copies would be sent to the other signatories, all the participating states would have an opportunity to disapprove and refuse to accept them. Op. cit., p. 168.

24 Miller, op. cit., p. 157.

25 Dept. of State, Treaty Information, Bulletins Nos. 92, 93, and 97.

26 See resolution of the Lima Conference, p. 490, supra.

27 League of Nations Document C. 546 M. 383, 1937, V. Art. 23 provides that any state desiring to adhere to or ratify the convention with reservations, may inform the Secretary-General of the League, who then inquires of the states that have already become parties whether they have any objections to the reservations. If the reservations are formulated within three years from the entry into force of the convention, the inquiry is also addressed to all signatories who have not ratified. If no objections are made within six months from the date of the Secretary-General’s communication, the reservation is treated as accepted. If any objections are received, the Secretary-General requests the government formulating the reservation to inform him whether it is prepared to ratify or adhere without the reservations or to abstain from participation in the convention.

28 This does not apply, of course, in the case of treaties which require ratification by all the signatories before entering into force. The Convention on the Pan American Union, for example, provides that it “shall become effective” when the ratifications or adhérences of the 21 American Republics have been deposited and notice thereof communicated to all the states represented at the Sixth Conference. Furthermore, this convention expressly stipulates that it “cannot be modified except in the same manner in which it was adopted.”