These slides deal with the law of reservations under Vienna Convention on Law of Treaties, 1969. Moreover, formulation, acceptance of reservation and objections upon reservations are discussed. Specific examples of CAT and ICCPR are also given and lastly, extra-territorial applicability of ICCPR and CAT is also discussed.

1. • Reservation (Relevant law)
• Admissible reservations and their effect
• Inadmissible reservations and their effect
• Reservation to art. 7 of ICCPR and art. 16 of
CAT
• Extra-territorial applicability of conventions
Reservations to ICCPR & CAT

2. U.S. Reservation
 USA made reservation to both the ICCPR and the
CAT according to which the phrase “cruel,
inhumane and degrading treatment” (Art. 7
ICCPR and Art. 16 CAT) should not be interpreted
in a manner contrary to the respective
prohibitions in the U.S Constitution (5th, 8th and
14th amendments). Finland, Norway, Sweden,
Denmark and the Netherlands declared their
objections against the US reservation on the
grounds of its inadmissibility under international
law.

3. Art. 7 of ICCPR:
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no
one shall be subjected without his free consent to medical
or scientific experimentation.
Art. 16 of CAT:
Each State Party shall undertake to prevent in any territory
under its jurisdiction other acts of cruel, inhuman or
degrading treatment or punishment which do not amount
to torture, when such acts are committed by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.

4. Vienna Convention on Law of Treaties
(VCLT), 1969
Article 2(d):
Reservation means “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”.
Article 2(f):
“contracting State” means a State which has consented to
be bound by the treaty, whether or not the treaty has
entered into force.
 Substance and style of statement

5. Formulation of reservation
Art. 19 of VCLT:
A state may formulate a reservation unless it is the reservation:
 is prohibited by the treaty,
 the treaty provides that only specified reservations may be made
 or the reservation is incompatible with the object and purpose of
the treaty.
 Art. 120 of statute of international criminal court provides that
“no reservations may be made to this statute”.
 Disarmament treaties: Comprehensive Nuclear-Test-Ban Treaty,
Chemical Weapons Convention, Anti-Personnel Mines Convention
Environmental treaties: Montreal Protocol, Kyoto Protocol
 Many treaties authorize reservations with regard to settlement of
dispute procedures.

6. ART. 64 of European Convention on
Human Rights, 1950
Any State may, when signing this Convention or when
depositing its instrument of ratification, make a
reservation in respect of any particular provision of the
Convention to the extent:
 that any law then in force in its territory is not in
conformity with the provision.
 Reservations of a general character shall not be
permitted under this article.
 Any reservation made under this article shall contain a
brief statement of the law concerned.

7. Acceptance and Objection to
reservation (Art. 20 of VCLT)
 Authorized Reservation
 When acceptance by all states is required
 Acceptance of reservation by another contracting state
 Objection to reservation by another contracting state
 When reservation becomes effective
 Time period for reservation

8. Legal effects of Reservation with
regards to another state
Art. 21 of VCLT:
A reservation established with regard to another party:
 modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation
relates to the extent of the reservation
 and modifies those provisions to the same extent for that
other party in its relations with the reserving State
 but such reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se.
 State objecting, not opposing entry into force:
 Withdrawal of reservations and objections: Article 22

9. Legal effect of Invalid reservation?
 No mechanism in VCLT
 No state is bound in international law without its
consent to the treaty.
 Is a reservation necessarily a condition on consent to be
bound?
 Rule of severability
 Sine qua non

10. CCPR General Comment No. 24: Issues Relating to
Reservations Made upon Ratification or Accession to the
Covenant or the Optional Protocols thereto, or in Relation
to Declarations under Article 41 of the Covenant.
Para no. 18: The normal consequence of an unacceptable
reservation is not that the Covenant will not be in effect at all for
a reserving party. Rather, such a reservation will generally be
severable, in the sense that the Covenant will be operative for the
reserving party without benefit of the reservation.
ILC Guide to Practice on Reservations to Treaties, 2011
4.5.3. The status of the author of an invalid reservation in
relation to a treaty depends on the intention expressed by the
reserving State or international organization on whether it
intends to be bound by the treaty without the benefit of the
reservation or it considers that it is not bound by the treaty.

11. Concluding remark of Bill Bishop at the end Hague
Lectures:
When we try to evaluate the institution of reservations as a
part of the treaty-making process, we must agree that they
can serve a very useful purpose despite the complications
and annoyances they introduce.... Much can be said for the
mechanism of reservations as a means to get partial
agreement where total agreement proves impractical or
impossible, and partial agreement seems worthwhile.

12. Issues regarding Human Rights
Treaties
 Who will determine admissibility of reservation?
 General Comment No. 24(52) adopted by the Human
Rights Committee
 Are Human Rights Treaties distinct from other treaties?
 Non-reciprocal nature of human rights treaties
 Role of treaty monitoring bodies
 Regional Level Practice
 Concluding remark w.r.t. U.S. reservations

13. Extra-territorial Applicability of CAT and
ICCPR
Art. 2 of CAT: Each State Party shall take effective legislative,
administrative, judicial or other measures to prevent acts of
torture in any territory under its jurisdiction.
Art. 3 of CAT: No State Party shall expel, return ("refouler") or
extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being
subjected to torture.
Art. 2 of ICCPR: Each State Party to the present
Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without
distinction of any kind.
Art. 9 of ICCPR: Everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary

14.  Both Conventions were not self-executing.
 Scope of CAT (does not apply to renditions)
 Diplomatic assurances
 The Foreign Affairs Reform and Restructuring Act of
1998 (FARRA).
 The International Human Rights Conformity Act of
1993
 Section 2242 of the act announced the U.S. policy “not
to expel, extradite, or otherwise effect the involuntary
return of any person to a country in which there are
substantial grounds for believing the person would be in
danger of being subjected to torture, regardless of whether
the person is physically present in the United States.”

15. .
 The territorial scope of CAT Article 3 is a matter of
debate. As a general matter, the United States has taken
the position that human rights treaties “apply to persons
living in the territory of the United States, and not to
any person with whom agents of our government deal in
the international community.
 In 2006, representatives of the U.S. State Department
informed the CAT Committee Against Torture that the
United States does not believe CAT Article 3 applies to
persons outside U.S. territory. United States Written
Response to Questions Asked by the Committee
Against Torture, April 28, 2006

16. The most compelling counter-argument is that although
FARRA generally prohibits persons from being expelled,
extradited, or involuntarily returned regardless of whether the
person is physically present in the United States, section
2243(c) of the act makes an exception requiring federal
agencies to exclude from the protection of CAT-implementing
regulations any aliens who, inter alia, are reasonably believed to
pose a danger to the United States, “to the maximum extent
consistent” with CAT obligations.
 Article 4: Each State Party shall ensure that all acts of
torture are offences under its criminal law. The same shall
apply to an attempt to commit torture and to an act by any
person which constitutes complicity or participation in
torture.
 Section 2340A of Title 18, United States Code, prohibits
torture committed by public officials under color of law
against persons within the public official's custody or control

17. Concluding observations by Committee against
torture on the combined third to fifth periodic reports
of the United States of America (2014).
 The Committee makes recommendation that the State
party should take effective measures to prevent acts of
torture, not only in its sovereign territory, but also “in
any territory under its jurisdiction”. In that respect, the
Committee draws attention to its general comment No. 2
(2007), in which it recognizes that ‘any territory’ includes
“all areas where the State party exercises, directly or
indirectly, in whole or in part, de jure or de facto
effective control, in accordance with international law

18. Interim report A/70/303 73(b) (2015) of the Special
Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment
Paragraph 32:
The obligation enshrined in article 2 of the Convention,
which requires States to take effective legislative,
administrative, judicial and other measures to prevent torture
in “any territory under [their] jurisdiction”, applies to all areas
and places “where the State party exercises, directly or
indirectly, in whole or in part, de jure or de facto effective
control”; furthermore, the scope of “territory” in article 2
encompasses “situations where a State party exercises, directly
or indirectly, de facto or de jure control over persons in
detention” and applies to “all persons under the effective
control of its authorities, of whichever type, wherever located
in the world”.

19.  Paragraph 33:
The Special Rapporteur concludes that the clause “any territory
under its jurisdiction” cannot be invoked to limit the
applicability of the relevant obligations to territory under States
parties’ de jure control because such an interpretation would be
contrary to the Convention’s object and purpose, authoritative
interpretations by the Committee, jurisprudence and common
interpretations of the term “jurisdiction” under international
law and would be in derogation of absolute norms of
customary international law and of a jus cogens nature. States
have international legal obligations to safeguard the rights of all
individuals under their jurisdiction, even extraterritorially. The
obligation to take preventive measures under articles 2 (1) and
16 (1) clearly encompasses action taken by States in their own
jurisdictions to prevent torture or other ill-treatment
extraterritorially.