RECIPROCITY, PROPORTIONALITY, AND THE LAW OF TREATIES.pdf

Virginia Journal of International LawWinter, 1994

*295 RECIPROCITY, PROPORTIONALITY, AND THE LAW OF TREATIES

D.W. Greig [FNa]

Copyright (c) 1994 Virginia Journal of International Law Association; D.W. Greig

INTRODUCTION

The balancing of interests is fundamental to the law's role in promoting the well being of society. In estab-lishing and maintaining this balance, the concepts of reciprocity and proportionality figure prominently.

At common law, the very idea of contract traversed, even if it did not originate in, the notion of reci-procity. A promise was enforced in order to ensure performance of the reciprocal obligation for a benefitalready received. [FN1] Issues of proportionality, on the other hand, arise principally in the realm of remediesfor the breach of an obligation. The reaction of a victim or the award of damages by a court must be in propor-tion to the breach and its consequences. Thus, an innocent party to a broken contract may only terminate thecontract if the nature of the breach is sufficiently serious [FN2] or the broken contract term is sufficiently im-portant. [FN3] Correspondingly, an award of damages for a breach of contract is based upon the differencebetween the value of proper performance and the value of the performance received. [FN4]

In the European Community, proportionality has assumed great importance as a general principle of lawagainst which various government actions may be tested for validity. One example arose under European Eco-nomic Community (EEC) sugar market regulations. [FN5] *296 EEC regulations required sugar exporters tomake a sizable security deposit at the time of their first export application. This deposit was to be forfeited eitherif a subsequent license application was not made within the prescribed time limit or if the exporter failed to ex-port the goods as agreed. In a case involving an application that was late by less than four hours, the EuropeanCourt of Justice held that applying the same penalty for the breach of a secondary obligation (failing to complywith a time limit) as for the breach of the primary obligation (not carrying out the agreed proposal) would viol-ate the requirement of propor-tionality. [FN6]

The principle of proportionality has also been invoked by the European Court of Justice in a series of casesinvolving the Treaty of Rome. [FN7] Article 48(4) of the Treaty, which allows a member state to discriminate infavor of its own nationals in public service appointments, has given rise to a number of cases before the Courtbecause the provision is a major exception to the concept of free movement of workers within the Community.The exception appears in a number of guises, but its difficulties can be seen most clearly in the context of thepromotion issue. Because upper levels of public service may be barred to non-nationals, Belgium attempted tojustify a complete ban on the recruitment of non-nationals for public service jobs. The European Court of Justiceheld that a total ban would be disproportional to what would be necessary to ensure the objectives of article48(4). [FN8]

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The principle of proportionality has spilled over into other fora. It has been applied by the European Courtof Human Rights, [FN9] and *297 it will eventually form part of the armory for courts of European Communitymember states when dealing with Community law. In the United Kingdom, however, the House of Lords hashitherto resisted the possible adoption in the future of the principle [FN10] as a basis for judicial review inEnglish law, [FN11] restricting the test of reasonableness in decision making to the avoidance of irrationality.[FN12] There is undoubtedly support for a narrow version of the test in Australian authorities, [FN13] but therehave also been indications of a more extensive basis for review. [FN14] In more recent times, this has been de-veloped into a broad recognition of the principle of proportionality. In the words of Wilson, Dawson, Toohey,and Gaudron, JJ: In the course of argument, the parties accepted the reasonable proportionality test of validity .. . , namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuitof the enabling purpose. [FN15]

*298 For the most part, in mature legal systems, general propositions regarding the need for reciprocity andproportionality have been replaced by more specific rules which obscure the original inspiration. Thus, the re-ciprocal basis of contract is, in the common law, expressed in the form of consideration, while proportionality isrepresented by a variety of rules in different situations. [FN16]

The purpose of this Article is to consider the role of both reciprocity and proportionality in international law,with particular regard to the law of treaties. Reciprocity cannot always be separated from proportionality, eitheranalytically or in practice; nevertheless, each has some discrete applications. Often, where the separation is notpossible, the principles are being employed in a political rather than a legal setting. For example, internationallaw and its development are often dependent upon the political force of reciprocity in that rights benefitting onegroup of states are recognized in return for the acceptance of different rights regarded as advantageous by otherstates. Similarly, an international actor may seek to establish the political acceptability of an action by referenceto its proportionality to the situation with which the state is faced. In turn, this could lead to acceptance of thelegal validity of such actions in the future provided, of course, that the actions are proportional to the emergencyor threat.

With respect to the influence of reciprocity on legal development, much of the law on diplomatic and sover-eign immunity was *299 based upon the notional, if not the actual, reciprocal recognition of such rights. Thus,Harvard's 1932 Research in International Law referred to diplomatic intercourse as a normal function of statesand went on to say that, [o]n the basis of reciprocity, diplomatic privileges and immunities are the acceptedmeans by which such normal functioning is assured. [FN17] Similarly, given the common philosophy ensuringthe inviolability of both the sovereign and his or her ambassador, [FN18] reciprocity was a relevant factor in se-curing the immunity of the foreign state in the courts of another country. In Le Gouvernement espagnol v. Ca-saux, the French Cour de Cassation stated that [t] he reciprocal independence of States is one of the most uni-versally recognized principles of the law of nations;-it results from this principle, that a government may not besubjected, in regard to its undertakings, to the jurisdiction of a foreign State. [FN19] The position at commonlaw was essentially the same. In the Cristina, [FN20] admittedly, Lord Wright treated reciprocity as an alternat-ive explanation of sovereign immunity, although it would be equally possible to view the explanations heprovided as of cumulative importance:

The rule may be said to be based on the principle par in parem non habet imperium, no State canclaim jurisdiction over another sovereign State. Or it may be rested on the circumstance that in general thejudgment of a municipal Court could not be enforced against a foreign sovereign State, or that the attemptto enforce might be regarded as an unfriendly act. Or it may be taken to flow from reciprocity, each sover-



eign State within the community of nations accepting some subtraction from its full sovereignty in returnfor similar concessions on the side of the others. [FN21]

*300 The role of reciprocity in the development of legal rules is also clearly evident in the context of the lawof armed conflict. Prior to the French Revolution there were treaties whereby states regulated their relations withregard to warlike activities; reciprocity was either implicit or expressed in various edicts, acts, and treaties fromthis period. The 1785 Treaty of Amity and Commerce between the United States and Prussia contained detailedprotection for prisoners of war -- an implicitly reciprocal agreement. [FN22] In 1778, Catherine II of Russia is-sued instructions providing among other things that Turkish prisoners of every captured vessel shall be treatedwith great humanity, provided with provisions and against every other need and not be allowed to lack for any-thing. [FN23] In such prescriptions the reciprocity was latent in the sense that, faced with inconsistent conductby an adversary, the instruction would be withdrawn or suspended as a retaliatory measure. On the other hand,expectations of a reciprocal response were made explicit in an invitation issued to potential antagonists in thedecree of the French National Assembly of May 25, 1793, relating to the exchange of prisoners of war. [FN24]A year earlier, on May 4, 1792, the Assembly had decreed that les prisoniers de guerre sont sous la sauvegardeet protection de la nation. [FN25] This philosophy formed the basis of a later instrument providing that sick andwounded prisoners were, on condition of reciprocity, to be treated with the same care as French soldiers. [FN26]The idea of reciprocal obligations also appeared in a nineteenth century principle whereby each combatant statewas liable to compensate an adversary for the cost of feeding and clothing its prisoners. [FN27]

Later development of the law of armed conflict, known today as international humanitarian law, took placemainly through a series of multilateral conventions, including most notably the Hague Regulations of 1899 and1907, the Geneva Conventions of 1929 and 1949, and the Optional Protocols of 1977. As the law and customs*301 of warfare were transformed into conventions, the significance of reciprocity shifted to its remedial aspect.Reciprocity can still have a law-making role in areas not covered by the new conventional rules, or a law-amending role in the areas that are so covered, but reciprocity's principal relevance today concerns the extent towhich derogation from a particular provision is permissible in retaliation for the breach of that provision.

Non-compliance with a treaty provision in response to a similar breach of obligations by another party is,generally speaking, a matter of treaty law -- one to which the discussion will soon turn. However, the permiss-ibility of acts of retaliation may also have to be considered in light of other factors. For example, if it is possibleto establish that the broken treaty provision is part of the jus cogens, the range of states entitled to take remedialaction would be extended beyond the parties to the treaty in question. Short of that, it is also possible for theparties to limit the permissible remedies for a material breach of a treaty. Thus, common article 1 of the fourGeneva Conventions of 1949 provides that the High Contracting Parties undertake to respect and to ensure re-spect for the present Convention in all circumstances. [FN28] The significance of this provision is amplified byarticle 3, which prescribes certain minimum standards in the case of a domestic armed conflict to which theConvention does not otherwise apply, and which stipulates that certain acts set out therein shall remain prohib-ited at any time and in any place whatsoever. [FN29] Commenting on provisions such as article 3, Fitzmauricecontended that

the character of the treaty is such that, neither juridically, nor from the practical point of view, is theobligation of any party dependent on a corresponding performance by the others. The obligation has anabsolute rather than a reciprocal character -- it is, so to speak, an obligation towards all the world ratherthan towards particular parties.*302 Such obligations may be called self-existent, as opposed to conces-sionary, reciprocal or interdependent obligations . . . . [FN30]

This description gives rise to a number of theoretical problems related to the concept of obligations erga



omnes and, inevitably, to the jus cogens. With regard to the former, the International Court of Justice hasprovided alternative descriptions relevant to the present discussion. In the Reservations case, the Court com-mented on the rights of the parties to the Genocide Convention as a group:

In such a convention the contracting States do not have any interests of their own; they merely have,one and all, a common interest, namely, the accomplishment of those high purposes which are the raisond'etre of the convention. Consequently, in a convention of this type one cannot speak of individual ad-vantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rightsand duties. The high ideals which inspired the Convention provide, by virtue of the common will of theparties, the foundation and measure of all its provisions. [FN31]

It follows that reciprocity is not the primary factor in such an arrangement; rights and obligations do not ex-ist between individual parties. Instead, the obligations are owed to the contracting parties as a group, and pre-sumably the correlative rights are vested in the group as well.

In Barcelona Traction, [FN32] on the other hand, the Court contrasted rights belonging to individual states(such as those arising in cases of diplomatic protection) and rights vested in the international community as awhole. A well known passage states:

[A]n essential distinction should be drawn between the obligations of a State towards the internation-al community as a whole, and those arising vis-' a-vis another State in the field of diplomatic protec-tion. By their very nature the former are the concern of all States. In view of the importance of the rightsinvolved, all States can be held to *303 have a legal interest in their protection; they are obligations ergaomnes.

. . . Such obligations derive, for example, in contemporary international law, from the outlawing ofacts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of thehuman person, including protection from slavery and racial discrimination. Some of the correspondingrights of protection have entered into the body of general international law ( Reservations to the Conven-tion on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,p. 23); others are conferred by international instruments of a universal or quasi-universal character.[FN33]

The Court's reference to the Reservations case was presumably to the statement that the principles underly-ing the Genocide Convention were principles which are recognised by civilised nations as binding on States,even without any conventional obligation. [FN34] In this light, the common interest of the contracting parties isbetter expressed in the Barcelona Traction formula of obligations owed erga omnes, i.e., to the internationalcommunity as a whole. On the other hand, an obligation of the kind described in the Reservations case, in-volving the proscription of a crime under international law, [FN35] takes on the quality of jus cogens. It is, ofcourse, not certain that obligations erga omnes invariably coincide with the rules of the jus cogens.

Although the difference between jus cogens and obligations erga omnes can be uncertain, the two cases out-line several different levels of obligation: those owed to individual states; those owed to the parties to the treatyas a group; and those owed to the international community as a whole. In the 1949 Geneva Conventions, it ispossible to discern a distinction along these lines between the effects of common article 1 and common article 3.[FN36] Article 1 provides, in effect, that the whole convention is to operate independently of the reactions andwishes of individual parties because they have undertaken to respect and to ensure respect for the *304 presentConvention in all circumstances. [FN37] This provision may be taken to signify acceptance of both individualduties to respect, and a joint duty to ensure respect for, the convention in all circumstances. Under article 3, cer-



tain acts are to remain prohibited at any time and in any place whatsoever. [FN38] The acts proscribed includemurder of all kinds, mutilation, cruel treatment and torture, the taking of hostages, humiliating and degrad-ing treatment, and so on. [FN39] These fundamental obligations are binding in an armed conflict not of an in-ternational character occurring in the territory of one of the High Contracting Parties -- to which the provisionsof the Convention would not otherwise apply. [FN40] However, given their fundamental nature as human rightsrecognised by civilised nations as binding on States, [FN41] it can be argued that this set of obligations hasce caract'ere de normes imperatives, ce caract'ere du jus cogens, [FN42] with irrevocable rights of enforcementvested in the international community.

From a procedural perspective, there are obvious difficulties with the concept of community enforcement oflegal obligations. It is conceivable in theory, though hardly likely in practice, for a treaty to bestow jurisdictionon an international tribunal with respect to community rights. With regard to obligations erga omnes, there is nomechanism for the international community to present a claim in an international judicial forum.

It would make little sense to have a concept of international obligations encompassing obligations beyondthe scope of judicial determination. In fact, the concept of obligations erga omnes has been employed to arguethat a particular state may represent the international community in order to enforce such obligations. This argu-ment failed in the South West Africa cases, [FN43] but similar reasoning was approved in the Barcelona Trac-tion judgment where the Court specifically asserted that because of the importance of the rights involved, allStates can be held to have a legal interest in *305 their protection. [FN44] This argument has been employedbefore the International Court by Australia and New Zealand in the Nuclear Tests cases [FN45] and by Portugalin the East Timor case. [FN46]

This Article focuses not so much upon the individual enforceability of rights arising from obligations ergaomnes, but rather on the extent to which the recognition of such rights affects the rules on reciprocity and pro-portionality in the context of responses available for the breach of treaty obligations. The answer to that ques-tion is far from clear even at the outset, because it is uncertain what obligations are obligations erga omnes. It iseasy to point out that because the fundamental human rights referred to in article 3 of the Geneva Conventionsof 1949 are protected at all times and in all places, appropriate remedies for breach do not include reciprocalwithdrawal of protection from nationals of an offending state. On the other hand, if the use of force in a mannercontrary to article 2(4) of the U.N. Charter is a breach of the jus cogens (and obligations erga omnes), principlesof reciprocity and proportionality remain relevant by virtue of customary law and article 51 of the Charter, bothof which affirm the existence of the right of self-defense. [FN47] As a tentative conclusion, the continued relev-ance of reciprocity and proportionality depends upon the scope of the obligation in question. Under a treatywhich appears to create rights vested in the parties as a group, the parties may intend the treaty's provisions toremain binding on all of them irrespective of a material breach by one of their number. However, it is open totreaty parties to prescribe the remedies available in case of breach. Thus, in relation to article 1 of the GenevaConventions of 1949, it is clear that the parties intended to ensure the continued operation of *306 the particularconvention in all circumstances. [FN48] In this way, reciprocal conduct as a proportional response to a breachwas excluded.

I. RECIPROCITY IN A JURISDICTIONAL SETTING

The question of whether, or to what extent, reciprocity is a general principle of law arises most significantlyin the bilateral relations of states and as a consequence of the requirement that such relations be conducted in



good faith. Thus, if a relationship is established by treaty, the parties must perform that treaty in good faith, andalso interpret the treaty in good faith. [FN49]

Good faith and reciprocity also have a role to play in ameliorating the effects of reservations in a jurisdic-tional setting. [FN50] In examining the role played by reciprocity, one must exercise care because the termreciprocity has been used in different ways. The jurisdiction of international tribunals is essentially reciprocal:article 36(2) of the Statute of the International Court of Justice limits the Court's jurisdiction to cases where bothparties have accepted the same obligation. Even without such a provision, the Court could hardly dispense withreciprocity. Unless otherwise authorized, no international tribunal could hear and decide a case unless bothstates had accepted that tribunal's jurisdiction with respect to the dispute in question.

Where a dispute is submitted to the International Court of Justice, difficulties arise with regard to the notionof reciprocity if the declaration of one of the parties contains an automatic reservation. By such a reservation,the declarant purports to exclude from the Court's jurisdiction matters within that state's national or domesticjurisdiction as understood or determined by the state concerned. [FN51] Whereas a reservation limiting jurisdic-tion to disputes hereafter arising can operate to the advantage of the other party to a dispute*307 if jurisdictionis contested on temporal grounds, it is not obvious what benefit can inure to a respondent state from an automat-ic reservation in the applicant's declaration. However, in the Norwegian Loans case, [FN52] the Court held thatNorway was entitled to rely upon the reservation in the French declaration excluding differences relating tomatters which are essentially within the national jurisdiction as understood by the Government of the French Re-public from the Court's jurisdiction. Thus, Norway could claim that the matter in dispute fell within Norway'snational jurisdiction as understood by that state. The Court explained:

In accordance with the condition of reciprocity to which acceptance of the compulsory jurisdiction ismade subject in both Declarations and which is provided for in Article 36, paragraph 3, of the Statute,Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputesunderstood by Norway to be essentially within its national jurisdiction. [FN53]

This passage raises a number of issues, and may may be analyzed from two alternative points of view. First,the condition of reciprocity may be regarded simply as a reference to the principle of reciprocity upon which art-icle 36(2) of the Statute of the Court is based; second, the condition of reciprocity may signify something differ-ent from that principle. If so, the requirement of reciprocity must be further explored.

A. The Condition of Reciprocity Is Equivalent to the Principle of Article 36(2)

There have certainly been a number of assertions that the principle of reciprocity implicit in article 36(2) ofthe Statute and the explicit condition of reciprocity referred to in article 36(3) are identical. [FN54] However, asnoted above, [FN55] it is not immediately apparent how on the ordinary meaning of reciprocity (i.e., that *308jurisdiction exists only within the area common to both declarations) it is possible for one party to use the otherparty's automatic reservation to its own advantage.

In the Interhandel case, [FN56] the U.S. declaration of August 26, 1946 accepted jurisdiction for disputeshereafter arising, whereas the Swiss declaration of July 28, 1948 had contained no such restriction. The UnitedStates argued that the reciprocity principle required that the Court's jurisdiction be limited to disputes arisingafter the date of the Swiss declaration. [FN57] Although the Court rejected this contention, its judgment leavesthe breadth of the notion of reciprocity in question.



To begin, the Court expressed its position in the widest terms: Reciprocity in the case of Declarations ac-cepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance whichit has not expressed in its own Declaration but which the other Party has expressed in its Declaration. [FN58]At first glance, therefore, a declarant state (such as Norway) would be entitled to rely upon an automatic reser-vation expressly benefitting only the other state (as was true of the French declaration). On this reasoning, theconclusion of Norwegian Loans was justifiable in terms of the reciprocity principle.

There are, however, flaws in this reasoning. First, the above passage from Interhandel refers only to the re-spondent state's right to invoke a reservation in the other party's declaration; it provides no guidance as to theconsequences of such an invocation. In most cases, the Court will simply decide whether, on the facts, the reser-vation invoked excludes the substance of the dispute from the ambit of the Court's jurisdiction. In NorwegianLoans, the Court had to decide whether, as a matter of law, the reservation as expressed could be subject to Nor-way's determination of national jurisdiction. The answer to this question was not clearly provided by the prin-ciple of reciprocity. As the Court explained in Interhandel, in words suggesting a narrower interpretation of theprinciple, [r]eciprocity . . . cannot justify a State . . . in relying upon a restriction which the other Party . . . hasnot included in its own Declaration. [FN59] In Norwegian Loans, while Norway was entitled to rely upon therestriction in the French declaration regarding matters*309 within France's national jurisdiction, it would havebeen inconsistent with the wording of the French reservation to permit Norway to exclude matters it held to bewithin its own national jurisdiction. For the reservation to operate in that way, some further justification wasneeded.

In this light, it is hardly surprising that the Court in Norwegian Loans was careful to provide a different ex-planation as to how Norway could take advantage of the French reservation. The Court described a concept ofreciprocity quite distinct from its appearance in article 36(2) of the Statute, preferring instead the condition ofreciprocity expressed in the declarations of the two parties and provided for in article 36(3) of the Statute.While the first part of this explanation of the decision -- the avoidance of reciprocity as referred to in article36(2) -- seems acceptable, it does not follow that the second part -- the preference for the condition of reci-procity -- is necessarily correct.

B. The Condition of Reciprocity as an Overriding Requirement

It should first be noted that the condition of reciprocity was probably inserted in article 36(3) of the Statuteof the Court to enable a declarant state to insist on the acceptance by specified states of the Court's jurisdictionbefore the declarant's acceptance took effect; [FN60] i.e., the condition of reciprocity was a form of conditionprecedent. However, even if this was the original intention behind the condition of reciprocity in article 36(3) ofthe Statute, it could not have provided the only meaning of that condition. Such a narrow definition wouldrender pointless the ritualistic clause -- on condition of reciprocity -- included in many declarations. In most ofthese cases the states concerned were simply reinforcing the principle of reciprocity in article 36(2). This wastrue of the Norwegian declaration in which Norway recognizes as compulsory ipso facto and without specialagreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, thejurisdiction of the International Court of Justice. [FN61] The French declaration, in its English translation, wasin substantially the same terms, [FN62] as indeed were those of a significant *310 number of other states.[FN63] What appears to have been the obvious intention and meaning of this terminology is inconsistent withthe Court's precise selection of the condition of reciprocity as the basis for its decision in Norwegian Loans. Itwas not any principle of reciprocity in article 36(2) but the conditions of reciprocity in the two declarations and



expressed in article 36(3) that enabled Norway to employ the French reservation in the way that it did.

On the face of the record of the judgment, the Court's conclusion seems to have required both France andNorway to have included in their declarations the proviso that they had been made on condition of reciprocity.The reason for this was that the reference to the condition of reciprocity in article 36(3) on its own would not besufficient because it is no more than a facilitating provision (enabling a state to employ such a condition if itwishes), unlike the principle of reciprocity in article 36(2), which is implicit in the system of compulsory juris-diction.

This conclusion is unfortunate. As has already been pointed out, it is not easy to reconcile with the wordsemployed in the French and Norwegian declarations. The number of states making declarations on condition ofreciprocity, where that condition was not specifically employed as synonymous with the language of article36(2), and to which therefore the Norwegian Loans decision was more properly applicable, was relatively small.[FN64] Moreover, if a respondent state's declaration had not been made expressly on condition of reciprocity,that state would not be able to take advantage of an applicant state's automatic reservation. This imbalance couldnot be redressed by the principle of reciprocity, which, as already explained, is no more than the recognitionthat, *311 since two unilateral declarations are involved, such jurisdiction is conferred upon the Court only tothe extent to which the two Declarations coincide in conferring it. [FN65]

As the principle of reciprocity does not, on the Court's own descriptions of it, provide an answer, and thecondition of reciprocity is unsatisfactory in origin, in the requirements ascribed to it (the purely fortuitous fact ofits inclusion in the parties' declarations), and in the application of those requirements (to declarations in whichthe condition seemed to be equated with the principle of reciprocity in article 36(2)), an alternative justificationfor the decision in Norwegian Loans is needed. If one considers automatic reservations in a broader context, thereasons for Judge Lauterpacht's attack on their validity are readily understood. [FN66] It is contrary to the no-tion of a legal obligation for a state to submit to the Court's jurisdiction and yet be entitled to determine whetheror not the obligation exists (i.e., to determine whether or not a matter is within its domestic jurisdiction). Fur-thermore, such a reservation also conflicts with the basic principle, expressed in article 36(6) of the Court's Stat-ute, that disputes on matters of jurisdiction should be settled by a decision of the tribunal concerned.

Lauterpacht also argued that automatic reservations constituted a denial of objective judicial assessment ofthe circumstances, because the reserving state could make a subjective decision to withdraw the matter from theCourt. However, while such reservations reflect subjective political interests, a declaration must be accepted asa manifestation of an intent to accept the Court's jurisdiction. This intention to submit to jurisdiction would en-title the Court to impose objective standards on such reservations. Thus, the same obligations of good faith thatare integral parts of the performance and interpretation of treaties in general apply a fortiori to arrangements,whether by treaty or under article 36(2) of the Statute, for the judicial settlement of disputes. Norway contendedthat automatic reservations, such as that employed by France,

must be interpreted in good faith and should a Government seek to rely upon it with a view to deny-ing the jurisdiction of the Court in a case which manifestly did not involve a 'matter which is essentiallywithin the national *312 jurisdiction' it would be committing an abus de droit which would not preventthe Court from acting. [FN67]

The principle of good faith is not just a means of ensuring the Court's scrutiny of an automatic reserva-tion. It is also a means of ensuring the validity of an automatic reservation through the imposition by the Courtof an objective standard. Reciprocity, in other words, is a translation into jurisdictional terms of this aspect of



the overriding requirement of good faith in dealing with other parties who have accepted the Court's jurisdictionunder article 36(2).

To summarize, the Court's various references to reciprocity in the context of article 36 have not been partic-ularly informative. Article 36(2), with its emphasis on the acceptance by states of the same obligation, is nomore than an acknowledgment of the self-evident principle that jurisdiction exists to the extent that the disputeis covered by the declaration of both parties to the litigation. It is only loosely that it can be said that there is areciprocity of obligations. In this sense, reciprocity is essentially static: it is no more than a common denomin-ator, an existing fact. In contrast, reciprocity as applied to the French declaration in Norwegian Loans is a posit-ive or active principle. It enabled the French declaration to be transposed to the advantage of Norway. This act-ive principle of reciprocity is not dependent upon the terms of the parties' declarations. It arises from the re-quirement of good faith in the application of both the reservation and the declaration of which it forms part, andtherefore exists independently of any state's declaration accepting jurisdiction on condition of reciprocity. Also,the principle is not connected with article 36(3) of the Statute. It is an inherent part of the system of compulsoryjurisdiction, but distinct from the principle expressed in article 36(2).

C. The Scope of Reciprocity

Under either analysis of reciprocity, its scope remains unclear. In particular, how far does it extend to bal-ance a lack of equality between the terms of two declarations?

In the Military and Paramilitary Activities ( Nicaragua) case, [FN68] the United States' declaration wassubject to termination on six months' notice, but the Nicaraguan declaration contained no provision*313 relatingto termination. Despite the absence of such a provision, it was not doubted that Nicaragua was entitled to with-draw its declaration. Instead, the parties differed over whether a notice of termination could be with immediateeffect (the United States' view) or whether the termination could take effect only after reasonable notice (theNicaraguan view). The United States argued that the principle of reciprocity entitled the United States, as wellas Nicaragua, to withdraw with immediate effect. It would therefore follow that the modification to the UnitedStates declaration by the Shultz letter three days before Nicaragua's application to the Court prevented the Courtfrom asserting jurisdiction. [FN69]

The Court rejected this argument for three reasons. First, the Court distinguished between the scope andsubstance of the commitments entered into under a declaration and the formal conditions of their creation,duration or extinction. [FN70] Reciprocity was applicable to the former category, but not to the latter. Second,the Court asserted that reciprocity could not be employed to excuse departure from the terms of a State's owndeclaration, whatever its scope, limitations or conditions. [FN71] Third, the Court refused to accept the UnitedStates' argument that a declaration containing no provision dealing with termination was terminable with imme-diate effect. [FN72]

Only the Court's first two reasons are relevant to the discussion of reciprocity. The second is perhaps themore straightforward. Presumably, the Court believed that reciprocity can operate only in the gaps not coveredby a declaration. Where a declaration makes an express provision, reciprocity cannot allow a departure fromthat provision, even if there is a manifest inequality as a result. Thus, even if Nicaragua's declaration had con-tained a clause entitling Nicaragua to terminate its obligations without notice, the United States' declaration, per-mitting termination on six months' notice, prevented reciprocity from redressing the imbalance. Under this reas-oning, however, if the United States' declaration had contained no termination provision, while Nicaragua's de-



claration permitted termination by notice with immediate effect, then reciprocity would have operated to the ad-vantage of the United States.

*314 This possibility, however, would probably have been ruled out by the Court's first reason. Where theissue of termination concerns the formal conditions of the creation, duration and extinction of a party's com-mitments under its declaration, reciprocity does not apply. This distinction, permitting the application of reci-procity on matters regarding the scope and substance of a party's obligations, might appear to justify theCourt's application of the principle of reciprocity in Norwegian Loans. [FN73] In that case, it could be arguedthat the Court was concerned with the scope of the obligations arising from the French automatic reservation,rather than with the formal conditions relating to the creation, duration, or extinction of those obligations. Thisdistinction, however, is unworkable. The decision in the latter case did depend upon the existence of an obliga-tion to submit to the jurisdiction of the Court rather than upon the scope of the obligations created by the Norwe-gian and French declarations. Norway's announcement to the Court of its understanding that the subject matterof the dispute fell within its national jurisdiction had the effect of extinguishing any obligation it may have beenunder to submit to Court's jurisdiction. As a consequence, the Court did not examine the scope of the obligationscreated by the declarations, nor did it consider any limitations on the operation of an automatic reservation.[FN74]

Given no adequate distinction between the scope and the existence of obligations, one must extract such adistinction from the sentence in Norwegian Loans referring to the formal conditions for the creation, durationor extinction of the obligations. Although the language of this sentence in its context seems to apply to indi-vidual obligations, it would make more sense if the formal conditions applied to the commitments as a whole(i.e., to the whole declaration), rather than to commitments as component obligations of the declaration. If theformal conditions are not limited to the declaration as a whole, then the limitation on reciprocity could con-ceivably apply to those automatic reservations which require a formal condition for them to take effect. For ex-ample, Norway was able to express its understanding that the matter was within its national jurisdiction in apurely informal manner because that is all that the French reservation required. *315 On the other hand, if theautomatic reservation had been in the form of the United States' version, requiring a determination that the mat-ter fell within a state's domestic jurisdiction, it could well be argued that a determination denotes a formal de-cision by the state making it. It seems unlikely that the Court in the Nicaragua case was drawing such a distinc-tion. In order to avoid such an interpretation, it seems necessary to conclude that the formal conditions refer tothe declaration as a whole and its creation, duration and extinction rather than to the distinct commitmentsarising thereunder.

The Nicaragua case presents a unique reciprocity issue. In earlier decisions, the Court had responded to re-quests to apply reciprocity between existing declarations with a nexus created by an application to the Court. InNicaragua, the United States had modified its declaration and then sought to justify the modification by refer-ence to a declaration the nexus to which was supplied by an application to the Court subsequent to the act ofmodification. [FN75] The Court expressed doubts about this argument:

The Court is not convinced that it would be appropriate, or possible, to try to determine whether aState against which proceedings had not yet been instituted could rely on a provision in another State's de-claration to terminate or modify its obligations before the Court was seised. The United States argumentattributes to the concept of reciprocity, as embodied in article 36 of the Statute, especially in paragraphs 2and 3, a meaning that goes beyond the way in which it has been interpreted by the Court, according to itsconsistent jurisprudence. That jurisprudence supports the view that a determination of the existence of



the same obligation requires the presence of two parties to a case, and a defined issue between them,which conditions can only be satisfied when proceedings have been instituted. [FN76]

This pronouncement provides no adequate explanation of the decision. It is true that to have allowed reci-procity to operate in this way would have gone beyond the Court's previous jurisprudence. However, this ishardly decisive. As previously explained, Norwegian Loans could not have been justified on the previous *316understanding of article 36(2). Nor was the decision in Norwegian Loans justifiable under the condition of reci-procity referred to in article 36(3), which in origins did not have such a meaning. Finally, to attribute this resultto the existence of an express condition of reciprocity in each declaration would undoubtedly have given an en-tirely novel significance to that condition. Even amongst members of the Court who supported a notion of pre-seisin reciprocity there seem to have been doubts as to its logical soundness. [FN77] Nevertheless, in view of theextension of reciprocity in Norwegian Loans, and in the interests of good faith and equality between the parties,there is no reason why reciprocity should not apply to test the validity of a pre-seisin modification or withdrawalof a declaration.

Consider the position of a state revoking its acceptance of the Court's jurisdiction under article 36(2). Onthe basis of the Court's pronouncements in Nicaragua, the revocation must take place in accordance with the re-quirements of the state's declaration or, if there is no period of notice prescribed, after giving reasonable no-tice. It does not follow that a revocation in breach of the requirements prescribed, with intended immediate ef-fect, is void of all legal consequences. While some acts of termination or modification of declarations have beenmet with objections, for the most part states have tended to acquiesce in such changes.

What is the position of an objecting state in these circumstances? If a failure by a state to abide by the peri-od of notice prescribed by its own declaration constitutes a breach of an obligation owed to other declarantstates, then such states may object to the breach. If the declaration is silent on the issue of termination, requir-ing, in the Court's view, reasonable notice before termination, states would be entitled to protest against termina-tion without notice. But would a right to protest be available to a state whose declaration provided for termina-tion upon notice with immediate effect?

The power to preserve rights by protest is linked to issues of good faith. A failure to protest by other stateswould inure to the benefit of the actor. Good faith prohibits a non-protesting state from retreating from its ori-ginal position, particularly if reliance has been placed on the apparent acceptance. Similarly, the protest *317 ofa state whose own declaration provided for termination upon immediate notice would be ineffective. Notions ofgood faith, if not reciprocity, support this view.

As to the more general doubts expressed about the idea of pre-seisin reciprocity, there are good reasons fordiscounting them. The system of compulsory jurisdiction comprises two stages: the declarations accepting juris-diction, and the subsequent seizing of the Court of a dispute by the application made to the Court. The Courthas made it clear that a declaration creates immediate obligations between the declarant and other states thathave accepted the jurisdiction under article 36(2). As described in the Right of Passage case:

The Court considers that, by the deposit of its Declaration of Acceptance with the Secretary-General,the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarantStates, with all the rights and obligations deriving from Article 36. The contractual relation between theParties and the compulsory jurisdiction of the Court resulting therefrom are established . . . by the fact ofthe making of the Declaration. . . . For it is on that very day [of making the Declaration] that the consen-sual bond, which is the basis of the Optional Clause, comes into being between the States concerned.



[FN78]Under the Court's own opinion, therefore, the declaration is a crucial first step in the process. Moreover,

even if being a party to the Statute (as are all members of the United Nations) is not enough to bring into playprinciples of good faith sufficient to establish a norm of reciprocity, making a declaration to accept jurisdictionmust surely have that effect. A contractual relation or consensual bond in the specific context of compulsoryjurisdiction is more than adequate to justify a requirement of reciprocity operating with regard to that type ofjurisdiction. It is implicit in and an integral part of such relationships.

The second stage in the system of compulsory jurisdiction, brought about when an application is made to theCourt, provides no reason to disentitle a state from taking advantage of the idea of pre-seisin reciprocity. Whenthe Court in Nicaragua expressed doubts about the a possibility of pre-seisin reciprocity, it also *318 referred toa passage from the Right of Passage case, where it had observed that, when a case is submitted to the Court, itis always possible to ascertain what are, at that moment, the reciprocal obligations of the Parties in accordancewith their respective Declarations. [FN79] This statement does not rule out a concept of pre-seisin reciprocity.Indeed, it is entirely compatible with such an idea.

When considering the reciprocal obligations of the Parties in accordance with their respective Declarations,the Court may need to determine whether one of the declarations is still in force (as was the case withNicaragua's own declaration). This determination may depend on whether the declaration had been validly ter-minated or modified prior to the application (as was the case with the United States' declaration). In this context,the focus should not necessarily be on deciding whether the withdrawal was effective against all states that hadmade declarations under article 36(2), but on deciding whether the withdrawal was effective against the oppos-ing state. The answer would depend on a range of factors, some of which might be unique to the respondentstate. These could include circumstances suggesting acquiescence in the termination. There is no obvious reasonfor precluding an argument based upon reciprocity, as that existed by virtue of the fact that both states had madedeclarations under article 36(2). Such an argument is not dependent upon a party's application to the Court.

D. Summation

To conclude this section it is necessary to summarize the International Court's position on compulsory juris-diction and to consider the implications for the role of reciprocity. The expansive view of reciprocity adoptedby the Court in Norwegian Loans [FN80] was not explicable in terms of the principle underlying article 36(2) ofthe Statute, nor did it comply with the condition referred to in article 36(3). Rather, the decision demonstratedthe existence of a broader requirement of reciprocity, based upon principles of good faith and arising out of therelationships established by declarations made under article 36(2). In Nicaragua, [FN81] on the other hand, theCourt was more reticent. It refused to apply reciprocity to the formal conditions relating to the creation, dura-tion or extinction of the commitments with respect to the Court's compulsory *319 jurisdiction [FN82] (withthe apparent supposition that this should be read as referring to the declaration as a whole rather than to its sev-eral obligations). Moreover, the Court doubted whether reciprocity could apply at the pre-seisin stage to justifyan act that was not permissible to a state under the terms of its own declaration.

Given the prominence accorded to reciprocity in Norwegian Loans, it is difficult to understand the Court'sapproach in Nicaragua. There is no obvious reason why reciprocity should not apply to the formal conditionsrelating to the existence of a declaration or its component parts. Nor is there any reason for doubting reci-procity's relevance to a pre-seisin situation, even if its applicability can only be tested once an application is



made to the Court.

In such circumstances, the scope of reciprocity is unlikely to be extensive because the Court has argued thatreciprocity cannot operate in the face of a contrary provision in a declaration. If a state makes a declarationcommitting itself to a period of notice before termination, the state should be held to its undertaking. This is afortiori so where the state maintains its declaration despite the fact that other states are unwilling to include asimilar promise in their declarations. In other words, it is for a declarant state to decide what conditions itwishes to impose upon itself and whether to maintain those conditions. In making such decisions, the state con-cerned is the best judge of its own interests, and the Court should not substitute its judgment in the guise of reci-procity. Only where its declaration fails to address an issue may reciprocity be invoked by the state and appliedby the Court to redress an imbalance.

There are lessons to be learned from the role of reciprocity in a jurisdictional context. Reciprocity is not asingle idea, or, if it is, it has a number of separate manifestations. Some are specific as under article 36, para-graphs 2 and 3 of the Statute of the Court. Others are more general, as in the explanation given above for thedecision in the Norwegian Loans case. [FN83] These examples demonstrate that the principle of reciprocitymay vary with its context. This conclusion is readily transposed to the context of the law of treaties. In somesituations, there may be little scope for reciprocity to augment or balance the parties' relationship. Thus, theStatute of the Court refers to the means whereby parties might submit cases to the Court. It follows that there iswhat Waldock described *320 as a fundamental lack of reciprocity between the positions of States which doand States which do not make declarations accepting the jurisdiction of the Court under article 36(2). [FN84]Whereas a state in the former group is committed to its declaration for the time it remains in force, a state in thelatter group can submit a case to the Court at any time by making a declaration and then an application. [FN85]This lack of reciprocity is built into the system, and it is left to the declarant state to devise its own means ofprotection. [FN86] In other words, there is not a sufficiently proximate relationship created by the Statute tosupport the application of reciprocity as a remedial factor. On the other hand, between states that have made de-clarations, the consensual bond is close enough to bring principles of reciprocity into play. In such a case,where the declaration of one of the parties creates an imbalance in favor of that party, and where there is no con-trary indication in the declaration of the other party, reciprocity is available as a means of redressing the imbal-ance.

In the context of the Statute, therefore, the making of declarations creates a relationship that provides thebasis for reciprocity to operate. In the context of general treaty law, the requirements of good faith betweenparties provide a justification for applying principles of reciprocity, provided that a treaty relationship is suffi-ciently proximate and that the possibility is not excluded by the terms of the treaty. For example, if a treaty in-cludes interrelated obligations, one to be performed by one party in return for performance of another obligationby the other party, reciprocity would provide a ground for one party to refuse performance in response to abreach by another party, quite outside the provisions on non-performance contained in the Vienna Conventionon the *321 Law of Treaties. In such circumstances, the closeness of the interrelationship justifies the applica-tion of reciprocity.

Reciprocity also has a role to play in relation to reservations to treaties. While the negotiation of multilateraltreaties is a group exercise amongst potential parties, individual states have the final choice of whether or not toratify the treaty in question. And while ratification is a unilateral act, the obligations to which it gives rise arethose provided in the treaty regime. However, ratifications subject to reservations create special circumstances.



The Vienna Convention deals with reservations primarily on a bilateral basis. Individual parties decidewhether to accept or object to a reservation. [FN87] If a state objects to a reservation, it must also decide wheth-er it considers the reserving state to be a party to the treaty. [FN88] The option of refusing to accept the re-serving state as a party to the treaty with regard to the objecting state is a drastic step, but it seems to be the onlyway to respond to a reservation regarded as incompatible with the object and purpose of the treaty.

Reciprocity was undoubtedly a factor in the drafting of these rules; nevertheless, the rules leave the re-serving state in an advantageous position. Under the Convention, a reserving state cannot be made subject to atreaty provision that its reservation excludes, even if another state objects to the reservation in question. This isparticularly problematic when a reservation is believed to conflict with the object and purpose of thetreaty. Given that other states can accept the reservation as part of the treaty regime, what options remain for anobjecting state that does not wish to refuse to accept the reserving state as part of the regime? A number of suchstates have rejected the reservation as invalid and declared the treaty in force between themselves and the re-serving state. [FN89] Although this option is not provided for in the Vienna Convention, principles of good faithand reciprocity would justify such a measure. Ultimately, it may be possible to determine the legality of the re-servation through third-party adjudication. In the meantime, objecting states will have preserved their rightsagainst the reserving state under the original text of the treaty.

*322 II. PROPORTIONALITY IN A REMEDIAL CONTEXT

It is unclear whether proportionality may be regarded as a general principle of international law, but it has anobvious role in the law of self-defense in both municipal [FN90] and international settings. [FN91] It has alsobeen used as a basis for the principle of equitable delimitation of contested areas of the continental shelf. [FN92]

As already mentioned, proportionality has developed into a major means of judicial review of governmentalaction at both a municipal and an international level. [FN93] The principle of proportionality was well estab-lished in German and Swiss law by 1970, [FN94] although it has not been generally accepted in France. [FN95]It has been articulated as one of the general principles of European Community*323 law governing the activitiesof organs of the Community such as the Commission, and of member states exercising a delegated law-makingrole. [FN96] The principle may be found both within the legal traditions of those states and within the humanrights instruments to which they have become parties. As the European Court of Justice explained in the Noldcase:

As this Court has already stated, fundamental rights form an integral part of the general principles oflaw, the observance of which it ensures.

In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditionscommon to the Member States, and it cannot therefore uphold measures which are incompatible with fun-damental rights recognized and protected by the Constitutions of those States.

Similarly, international treaties for the protection of human rights on which the Member-States havecollaborated or of which the are signatories, can supply guidelines which should be followed within theframework of Community law.

The submissions of the applicant must be examined in the light of these principles. [FN97]Although it is debatable whether the principle of proportionality can be considered a general principle of

(international) law, the Court of Justice seems to have regarded it as such. [FN98] The principle has also beenadopted by various international administrative *324 tribunals as a criterion for reviewing administrative de-



cisions terminating the employment of personnel. [FN99]

Even in municipal law, where the punishment is supposed to fit the crime [FN100] or the award of damagesis to correspond to the injury suffered by a plaintiff, proportionality plays a key role. In the international sphere,where potential responses to a breach of an obligation are rarely institutionalized, proportionality could play amore significant and obvious role in limiting the scope of self-help. Of course, there are a range of available re-sponses which would not constitute a breach of any obligation owed to the state against which they were taken.[FN101] Such measures might include ending diplomatic relations, imposing selective trade barriers not con-trary to any treaty arrangements between the parties, or curtailing treaty relations in a manner permitted by theagreements in question. [FN102] In such cases proportionality is irrelevant: the acts are permissible and there-fore unregulated by international law.

Although retortion can be in response to an act falling short of a breach of an obligation, [FN103] there is adanger that a sequence of retaliatory acts may be set in motion: [T]here is no limit in the game of retortionsbetween States as it could be played ad infinitum. [FN104] In other words, an accumulation of lawful acts ispermissible. It follows that proportionality has no part to play in the *325 process of response selection.However, there is an obvious danger in the unregulated recourse to what are, basically, unfriendly acts. [FN105]Once having exhausted the range of retorsive measures, there is the possibility that unlawful responses will fol-low.

Even if the reactions are limited to purely retorsive acts, their cumulative effect can hardly be conducive tofriendly relations. While the maintenance or promotion of such relations is not required by international law,[FN106] such an obligation might exist under a treaty of friendship. Specific provisions of such a treaty arelikely to limit the range of legitimate retortions. Moreover, unfriendly acts may be contrary to the object andpurpose of such a treaty and therefore unlawful.

This possibility was considered by the International Court in the Nicaragua case. [FN107] Nicaragua arguedthat the various activities planned or carried out by the United States against Nicaragua violated the object andpurpose of the 1956 Treaty of Friendship, Commerce and Navigation. In Nicaragua's view the treaty of friend-ship imposed on the Parties the obligation to conduct amicable relations with each other. [FN108] Thus, theCourt was asked to rule that

a State which enters into a treaty of friendship binds itself, for so long as the Treaty is in force, to ab-stain from any act toward the other party which could be classified as an unfriendly act, even if such act isnot in itself the breach of an international obligation. [FN109]

The Court did not think that the existence of such a far-reaching rule is evidenced in the practice of States.[FN110] In the Court's *326 opinion, there must be a distinction, even in the case of a treaty of friendship,between the broad category of unfriendly acts, and the narrower category of acts tending to defeat the object andpurpose of the Treaty. [FN111] Within this latter category the Court referred to a number of activities whichwere such as to undermine the whole spirit of a bilateral agreement directed to sponsoring friendship betweenthe two States parties to it and which were patently illegal under general international law, such as direct at-tacks on ports and oil installations, and the mining of Nicaraguan ports. [FN112] While a variety of acts of eco-nomic pressure against Nicaragua were less flagrantly in contradiction with the purpose of the Treaty, [FN113]the Court still regarded some of the acts as breaches of the treaty obligation invoked by Nicaragua. The Courtexplained:



A State is not bound to continue particular trade relations longer than it sees fit to do so, in the ab-sence of a treaty commitment or other specific legal obligation; but where there exists such a commit-ment, of the kind implied in a treaty of friendship and commerce, such an abrupt act of termination ofcommercial intercourse as the general trade embargo of 1 May 1985 will normally constitute a violationof the obligation not to defeat the object and purpose of the treaty. The 90 per cent cut in the sugar importquota of 23 September 1983 does not on the other hand seem to the Court to go so far as to constitute anact calculated to defeat the object and purpose of the Treaty. The cessation of economic aid, the giving ofwhich is more of a unilateral and voluntary nature, could be regarded as such a violation only in excep-tional circumstances. [FN114]

The Court's approach contains an implicit reference to proportionality. Conduct which does not constitute abreach of any specific provision of such a treaty may nevertheless amount to a breach of a general obligation notto derogate from the treaty's object and purpose. [FN115] However, the Court's judgment does not seem to ac-knowledge the possibility that an accumulation of less serious acts might amount to a derogation from the objectand purpose of the treaty, even though the conduct and its consequences *327 are serious. The Court rejected theidea that the significant cut in the sugar quota, in conjunction with the other measures, constituted a breach ofU.S. obligations. Although it is possible to envisage a situation in which a series of steps might amount to a ter-mination of commercial intercourse contrary to the object and purpose of the treaty, it may be that the tenor ofthe Nicaragua judgement is against this possibility. Even the Court's characterization of the trade embargo as anact contrary to the obligation hinged upon the embargo's abruptness. Therefore, an escalating series of measures,though producing the same result over time, might not be regarded as a breach.

III. RECIPROCITY, PROPORTIONALITY, AND THE VIENNA CONVENTION

Reciprocity and proportionality are implicit concerns during treaty negotiations, though the negotiator'sprimary focus will be on the specific obligations to be created by the instrument and the balance of rights andobligations within the ultimate treaty structure. After a treaty is finalized, however, concepts of reciprocity andproportionality can become explicitly relevant. Two areas of treaty law are particularly worth examining to de-termine whether the Vienna Convention on the Law of Treaties has adequately considered these con-cepts. Reciprocity is most important with respect to the effect of reservations; proportionality is especially rel-evant to remedies for the breach of treaty obligations.

A. Reciprocity and Reservations

Under the influence of a notion that might be termed pure reciprocity, it was originally believed that reser-vations had to be accepted by all treaty parties before the reserving state could become a party to the treaty. Theinability of such a rule to accommodate a multilateral conventional regime, a regime drawn up by a series of ma-jority votes at an international conference and aimed at achieving universality of membership, was recognizedby the International Court in the Reservations case, where the need for more flexible rules was acknowledged.[FN116] The present law, developed by the International Law Commission from the Court's opinion in Reserva-tions, may be found in articles 19 through 23 of the Vienna Convention. Although these provisions appear topreserve the *328 principle of reciprocity, on closer examination, they give an unacceptable advantage to a re-serving state. This lack of reciprocity is most evident when considering both the permissibility of reservationsand the options available to a state regarding a reservation as unacceptable.



1. The Permissibility of Reservations

Unlike the issue of whether a treaty becomes binding on signature or on ratification, where neither the Inter-national Law Commission nor the Vienna Conference identified a primary or presumptive rule, the Commissionrecommended, [FN117] and the Vienna Conference adopted, the primary rule for reservations in the case ofmultilateral treaties: [FN118] a state may formulate a reservation unless there are grounds for excluding thisrule's operation. [FN119] For instance, a state cannot make a reservation at all if an express provision in thetreaty prohibits reservations. [FN120] Also, a reservation cannot be made if the treaty provides that only spe-cified reservations, which do not include the reservation in question, may be made. [FN121]

The practice of specifying which treaty provisions cannot be subject to reservations accords with the Interna-tional Court's view that reservations of a minor nature can be valid, while those of a major nature must be re-garded as ineffective. [FN122] Reservations can be of a major nature for two different reasons. They may relateto fundamental provisions of the treaty, or they may be so general in nature that they are incompatible with thespirit of the treaty. The Vienna Convention dealt with the former in the way indicated above, and also acceptedthe latter, providing that in cases where a treaty makes no provision regarding reservations, a state may formu-late a reservation unless it is incompatible with the object and purpose of the treaty. [FN123]

At a superficial level, these provisions provide a balance between the interests of both reserving and reactingstates. Yet, *329 the consequences of an impermissible reservation are unclear. Article 19 suggests that such areservation is void. This inference, however, disregards two issues: It fails to distinguish between the reasons forimpermissibility referred to in article 19, and it does not consider the effect of the reactions of other parties tothe reservation.

On its face, article 19 suggests that the three reasons for impermissibility are of equal value and effect.[FN124] Although it may be a straightforward exercise to determine if a reservation violates a treaty's prohibi-tion against reservations, deciding whether a reservation violates the object and purpose of a treaty can be a farmore subjective undertaking. In the Reservations case, the International Court acknowledged the existence of ajudgmental role for parties reacting to a reservation that was already subjective in nature, entitling each state toassess whether from its own standpoint the reservation was compatible with the object and purpose of thetreaty. [FN125] However, the Court reverted to an objective test when it stated that

a State which has made and maintained a reservation which has been objected to by one or more ofthe parties to the Convention but not by others, can be regarded as being a party to the Convention if thereservation is compatible with the object and purpose of the Convention; otherwise, that State cannot beregarded as being a party to the Convention. [FN126]

In practice, objections to a reservation as contrary to the object and purpose of the treaty are unlikely to bedefinitively resolved in the absence of a regime of compulsory adjudication. Thus, a state making an objection-able reservation will be regarded as a party to the treaty by some states but not by others. [FN127] In fact, thisessentially*330 subjective result is implicit in subparagraphs (a) and (c) of article 20(4) of the Vienna Conven-tion, which provide respectively that, unless the treaty stipulates otherwise, acceptance by another contractingState of a reservation constitutes the reserving State a party to the treaty in relation to that other State, and thatan act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon asat least one other contracting State has accepted the reservation. Thus, because article 20(4) does not applywhere a treaty stipulates otherwise, it will be irrelevant to a situation where a reservation conflicts with article19(a) and (b), but it can apply to a situation where a reservation may be incompatible with the object and pur-



pose of the treaty. In such a situation, individual parties decide for themselves whether that degree of incompat-ibility exists. [FN128]

In addition to leaving the status of an impermissible reservation uncertain, the Vienna Convention does notdetermine whether an *331 impermissible reservation taints the entire act of acceptance of the treaty. The dis-cussion above suggests that the answer may depend primarily upon the reaction of other participants in the treatyregime. For example, where a reservation is treated as incompatible with the object and purpose of the treaty, thereacting state may declare under article 20(4)(b) that the reserving state is not a party to the treaty, i.e., that theentire act of acceptance is ineffective. However, absent a contrary judicial determination, other participants maytreat the reserving state as a party to the treaty, even if they object to the reservation in question on the ground ofincompatibility. State practice appears to support the possibility of acts of acceptance being regarded as effectivenotwithstanding the invalidity of a reservation contained therein. [FN129] Indeed, reacting states on occasionhave denied the operation of significant parts of a treaty, while accepting that the treaty is otherwise in forcebetween themselves and the reserving state. [FN130]

Even given the uncertain status of reservations alleged to be in breach of the object and purpose of a treaty, adegree of reciprocity is preserved because a reacting state can object to the reservation and even declare that thetreaty in question is not in force between itself and the objecting state. [FN131] However, the onus is upon thestate concerned to make an objection, [FN132] and to declare that, as a *332 result, it does not regard the treatyas being in force between it and the reserving state. [FN133]

The above results are equally attributable to the proposition that a state cannot be bound by a reservation towhich it has not consented. However, they still reveal the disadvantageous position of a state confronted by an-other state's reservation. There appears to be no way a state can receive the benefits of the original treaty in itsrelations with the reserving state; its objection to the reservation cannot reinstate the provision covered by thereservation. But what if the state regards the reservation as impermissibly at variance with the object and pur-pose of the treaty? Can it maintain that the treaty as a whole is in force because such a reservation is inval-id? Principles of good faith and reciprocity have an obvious role to play in answering this question.

2. The Position of a Reacting State

A lack of reciprocity is apparent in the position of a state reacting to a permissible reservation. Initially, itseems that a state accepting the reservation is protected by article 21(1), which appears to preserve the notion ofreciprocity:

A reservation established with regard to another party . . .(a) 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(b) modifies those provisions to the same extent for that other party in its relations with the reserving

State. [FN134]There are, however, latent limitations upon the scope of the principle of reciprocity. [FN135] While most

treaty relationships create mutual rights and obligations between the parties to which the principle of reciprocityis readily applicable, it is possible to envisage*333 treaty provisions imposing particular obligations on oneparty or group of parties, so that there can be no reciprocity with regard to those obligations. If a treaty were toimpose one obligation on state A, or states A, B, and C, but a different kind of obligation upon parties D and E,a reservation by a state in the former group could modify the treaty obligation without enabling states in the lat-



ter group to obtain any reciprocal advantage from the reservation under article 21(1)(b).

Reservations would also not operate reciprocally under a human rights convention where the obligations areowed to individual persons protected by the convention. Parties to the convention would not be able to take ad-vantage of such a reservation because they would not be released from obligations to persons subject to theirown jurisdiction. Such a reservation could only operate reciprocally in the context of dispute settlement proced-ures granting states a right of complaint against the other states parties. In these circumstances, a reservation bystate A limiting the scope of its obligation to submit to settlement procedures could be relied upon by state B ifstate A were to make a complaint against B.

Other factors can prevent the reciprocal operation of a reservation. The nature or wording of the reservationmight be such as to exclude its general availability. Logically, a reservation claiming a special right for the re-serving state which is peculiarly applicable to the reserving state cannot operate in favor of other parties. Forexample, Israel made a reservation to three of the four 1949 Geneva Conventions, stipulating that Israel willuse as the distinctive sign of the medical services of its armed forces and their equipment (including hospitalships) the Red Shield of David and not any of the signs permitted under the provisions of those Conventions.[FN136] Acceptance of such a reservation would hardly entitle other parties to the Conventions to depart fromthe requirements relating to distinctive signs, even in their dealings with Israel, without express reservations oftheir own.

Parties to a treaty, or even the treaty itself, can sometimes make the acceptance of obligations under thetreaty expressly subject to a condition of reciprocity. As a result, a party may be able to transpose the terms of areservation exclusively benefitting the reserving state to its own advantage. The Norwegian Loans case *334may be explained in this way. [FN137] The French declaration accepting the jurisdiction of the InternationalCourt of Justice contained a reservation excluding from the Court's jurisdiction differences 'relating to matterswhich are essentially within the national jurisdiction as understood by the Government of the French Republic. [FN138] The Court held that Norway was entitled to rely on this reservation and to claim that the matter in dis-pute fell within Norway's national jurisdiction. [FN139] The Court justified this use of the French declaration byreference to the fact that both parties had made their acceptance of jurisdiction subject to the condition of reci-procity as provided for in article 36(3) of the Court's Statute. [FN140] As noted earlier, this is a superficial ex-planation of the decision. [FN141] Given the origins of both article 36(2) and article 36(3), a broader concept ofreciprocity is needed to justify the outcome, and the decision therefore demonstrates the significance of thatbroader concept of reciprocity, even though its role was masked by the references to article 36(3).

Even if states are not likely to object to a particular reservation, the reserving state is in an advantageous po-sition. Because of the nature of the treaty obligation, or because of the way in which a reservation is framed, theoperation of the principle of reciprocity will be limited. Where there are objections to a reservation, the re-serving state's position of advantage is even more pronounced: If the reservation excludes the operation of atreaty obligation in whole or in part, an objection cannot revive that obligation against the reserving state.

Consider, for example, the reservations to the Genocide Convention, which prompted the General Assemblyto request the International Court for an advisory opinion. The Soviet Union and a number of other states ex-cluded the operation of a provision bestowing jurisdiction on the Court in the case of a dispute over the inter-pretation of the Convention. [FN142] Under the rules since established by the Vienna Convention, no form ofobjection to *335 such a reservation could legally reinstate jurisdiction over the reserving state. Indeed, therewould be little difference between the position of an accepting state and an objecting state. [FN143] The only



difference would arise if the latter held the convention not to be in force between the two states.

The disadvantageous position of the reacting state can also be seen when a reservation purports to modify,rather than exclude, a treaty obligation to the benefit of the reserving state. Although an objection is essential toprotect the reacting state from the effects of the modification, the obligation in the treaty cannot be restored asagainst the reserving state. In the Continental Shelf arbitration between the United Kingdom and France,[FN144] the latter had made a number of declarations relating to the operation of article 6 of the 1958 Conven-tion on the Continental Shelf. [FN145] The tribunal accepted the French view that these declarations constitutedreservations rather than interpretive statements. [FN146] It refused to accept that, because of the United King-dom's objections to the French reservations, the reservations were not opposable to it and . . . [that therefore]Article 6 applies without any modification. [FN147] The Court reasoned that accepting this contention wouldallow the rejection unilaterally to set aside express conditions placed by the French Republic on its consent to bebound by the Article. [FN148] The tribunal also refused to suspend operation of the entire article, as the Frenchhad urged:

Just as the effect of the French reservations is to prevent the United Kingdom from invoking the pro-visions of Article 6 except on the basis of the conditions stated in the reservations, so the effect of theirrejection is to prevent the French Republic from imposing the reservations *336 on the United Kingdomfor the purposes of invoking against it as binding a delimitation made on the basis of the conditions con-tained in the reservations. Thus, the combined effect of the French reservations and their rejection by theUnited Kingdom is neither to render article 6 inapplicable in toto, as the French Republic contends, nor torender it applicable in toto, as the United Kingdom primarily contends. It is to render the Article inapplic-able as between the two countries to the extent, but only to the extent, of the reservations; and this is pre-cisely the effect envisaged in such cases by Article 21, paragraph 3 of the Vienna Convention on the Lawof Treaties and the effect indicated by the principle of mutuality of consent. [FN149]

The practical effect of this principle depends both on the scope of the reservation and the situation to whichthe reservation is applied. In the Continental Shelf arbitration, the conditions imposed by France on the applica-tion of article 6 related to the very areas in dispute. The United Kingdom's rejection of those reservationsrendered article 6 inapplicable to the situation. The tribunal was obliged therefore to seek an answer from cus-tomary international law. However, if article 6 had been a jurisdictional clause for the settlement of disputes,the French reservations excluding those areas from the ambit of the clause would have rendered the UnitedKingdom's reaction nugatory.

It creates a problem for a reacting state that its objection to a reservation cannot restore the effect of the partof the treaty to which the reservation applies. For an objecting state, the only potential remedy in the ViennaConvention, referred to in article 20(4)(c), is to declare that the treaty has not come into force between the twostates. States have on occasion taken this drastic step. [FN150] The objecting state may also be able to rely onthe contention that, although excluded by the reservation, the conventional *337 rule is nevertheless applicableas representing customary international law. [FN151] Indeed, some states have made specific reference to cus-tomary international law as a reason for regarding a treaty provision as applicable notwithstanding a reservation.This occurred under the 1961 Convention on Diplomatic Relations. According to article 27, paragraphs 1 and 2,a receiving state shall permit and protect free communication by a diplomatic mission, the official correspond-ence of which shall be inviolable. [FN152] Hence, as paragraph 3 proclaims, the diplomatic bag shall not beopened or detained. This last requirement provoked various reservations by Arab States, [FN153] includingone by Bahrain claiming a right to open the diplomatic bag if there are serious grounds for presuming that itcontains articles the import or export of which is prohibited by law. [FN154] Although a number of parties de-



clared the various reservations invalid, [FN155] a few responded to the reservations by asserting that the rule setout in article 27(3) remained binding under customary international law. [FN156]

Typically, a state wishing to preserve the validity of a treaty provision excluded by a reservation will attackthe validity and effectiveness of the reservation in its objection. A variety of formulae have been employed withthis objective in mind. Some states have chosen to record their view that they do not regard or recognize asvalid the reservation in question. [FN157] In some cases, this has been augmented by a reference to the reser-vation as incompatible with the objects and purposes of the particularconvention. [FN158] *338 Occasionallythe latter formulation, or something akin to it, is used in conjunction with a reference to the impermissibility ofthe reservation. [FN159]

Often an objecting state will declare that it does not regard a statement as modifying any rights or obliga-tions under the provision to which it relates. The intention appears to be both to express the view that the de-claration is an interpretive statement and not a reservation, and to minimize the declaration's effect, whatever itsstatus, by denying that it can modify the provision in question. In isolated instances, a reacting state has invokedsuch a formula against a declaration it has designated as a reservation. [FN160] It may be that the state con-cerned is implying that the reservation is no more than an interpretive statement. In any case, there can be nodoubt that the reserving state intends to render the reservation or statement ineffective as a means of modifyingthe treaty provision. Objections asserting both that the reacting state does not accept a reservation as valid andthat the relevant provisions are or remain in force between the states concerned have the same purpose. [FN161]

3. Summation

It is no easy task to assess how successful these attempts might be in preventing a reserving state from tak-ing advantage of the beneficial position apparently accorded to it by the Vienna Convention. As previously ex-plained, although article 19(c) prescribes that a state may not formulate a reservation incompatible with the ob-ject and purpose of a treaty, the Convention gives no guidance *339 as to the consequences of making such a re-servation. [FN162] Moreover, the uncertainty is compounded by the subjective means established by the Con-vention for determining whether the requirement has been satisfied. This result has two causes. First, the ob-jectivity that the Convention seeks to impose for dealing with the invalidity, termination, and suspension oftreaties (i.e., the settlement procedures in part V) has no counterpart in the section on reservations. Second, un-der article 20(4), subparagraphs (a) and (c), the general principle of objectivity normally applicable to treatieshas in practice been reduced or even eradicated in relation to reservations. [FN163]

This inbuilt subjectivity, and also the fact that a failure to object will in time operate as an acceptance of areservation, creates, prima facie, a situation covered by article 21, which largely assimilates the positions of anaccepting and an objecting state as far as the effects of a reservation are concerned. Indeed, considering thateven in cases of significant opposition to a reservation by far the majority of parties have not raised any objec-tion, the Vienna Convention seems to bestow both validity and effectiveness upon the reservation in question.[FN164]

This conclusion should not be accepted too readily. The Convention does not bestow a majority view uponall of the parties. [FN165] If a failure to object does signify acceptance of the validity of a reservation, [FN166]this principle can only operate to the disadvantage *340 of a state that does not object. It cannot affect an object-or, and certainly not an objector challenging the validity of the reservation. Despite the inadequacies of the Con-vention's reservations provisions, article 19(c) must support the legitimacy of this view. In the absence of any


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