The judicial enforceability and legal effects of treaty reservations, understandings, and declarations.

• Author: Chung, Eric
• Position: Continuation of IV. Revisiting the Use of and Concerns over RUDS through Conclusion, with footnotes and appendices, p. 205-241

1. Recasting the U.S. Perspective and Priorities on RUDs

   In light of the preceding case analysis, U.S. senators and other government officials should take solace in the fact that RUDs have and will most likely continue to have the force of law, at least in U.S. courts and in most instances in international courts. If RUDs are enforceable, the United States and other states have little reason to stop using them. But that fact alone should not discourage those who are skeptical about the extensive use of RUDs. Rather, it is this awareness of the robust enforceability of RUDs that encourages a reexamination of the optimal scope of RUDs. The question is no longer whether RUDs are enforceable, but rather when RUDs are adopted, what is their ideal usage?

   More specifically, the questions raised by senators over the Disabilities Convention should be reformulated. Rather than question whether RUDs can be drafted to insulate the United States from certain treaty obligations--they can, and they do--we should ask whether RUDs will be sustainable in a treatymaking system that is increasingly wary of treaty ratification using RUDs. The effects of RUDs usage are both domestic and international, and yet they have not been considered in detail. This Section begins by exploring the domestic effects of RUDs' enforceability and then pivots to the international effects, namely their undermining of the treatymaking process and the possible risk of the proliferation of no-reservation treaty provisions.

   1. Reorienting from the Domestic Effects of RUDs

      U.S. senators have long been concerned about the possibility that treaty ratification could create domestic responsibilities and liabilities that impinge on the United States' sovereignty and ability to determine its own obligations through domestic legislation. To that end, the use of RUDs to promote treaty ratification has been significant, especially in multilateral treaties, such as the various international human rights treaties that have been considered in the post-World War II era. In the 1950s, Senator Bricker proposed a constitutional amendment that would make " [a] treaty ... effective in the United States only through legislation which would be valid in the absence of [a] treaty," effectively placing a permanent RUD on all treaties that would render every one of them non-self-executing. (144) The amendment eventually failed, but not without a significant cost to treaty ratification: acquiescing to the political forces backing the Bricker Amendment, the Eisenhower Administration essentially pledged to steer the United States away from human rights treaties. (145) Since then, the most prominent multilateral treaties, including the CAT and the ICCPR, have only been ratified through RUDs, including non-self-executing declarations akin to that proposed in Senator Bricker's amendment.

      The United States did not always focus exclusively on unintended domestic effects. For instance, when the Senate debated ratification of the Genocide Convention in the 1980s, some senators challenged a reservation that recognized the supremacy of the Constitution. The senators noted that there was no evidence that the Convention would conflict with the Constitution, that the Constitution in any case would be supreme over a treaty, that it was "disturbing to our allies who have undertaken an unqualified acceptance of the treaty's obligations," and that the "self-serving nature of the reservation suggested that the United States 'was not ratifying the ... Convention in good faith.'" (146) The senators concluded:

      [The] reservation ... will seriously compromise the political and moral prestige the United States can otherwise attain in the world community by unqualified ratification of the Genocide Convention. It will hand our adversaries a propaganda tool to use against the United States and invite other nations to attach similar self-judging reservations that could be used to undermine treaty commitments. (147) Notwithstanding this criticism, the reservation ultimately passed the Senate by a vote of 83-11 on February 19, 1986. (148)

      This focus on the international effects of RUDs has not won out. Since that contentious battle, the concerns over the possible unintended domestic effects of treaty ratification without RUDs continue to overshadow the concerns over their international effects. As the various ratified and non-ratified treaties discussed here illustrate, the United States has mostly confined itself to one of two approaches: (1) ratify a treaty with RUDs or (2) not ratify treaties at all. Neither is objectively preferable. (149)

      Indeed, if one extreme is using RUDs for a much more conditional, arguably substance-less ratification, and the other extreme is restricting the practice of RUDs and inevitably limiting participation in multilateral treaties altogether, (150) the United States has been at both extremes but rarely between them. Fueling the United States' practices at the extremes appears to be a general lack of any real consideration of the effect that RUDs would have on the United States' relations with other states and the wider international community. Senators have mostly concerned themselves with whether the treaty would have the domestic implications they seek (e.g., will the RUD be enforced?), thereby forgoing an analysis of the costs and benefits of using RUDs (e.g., could the United States be hindering commitments to human rights by providing such detached, conditional consent to international treaties?).

      But this Note's case analysis suggests that the United States should be operating in the middle. Concerns over the unintended domestic effects of treaties are exaggerated. Domestic courts will enforce RUDs. They have done so consistently over the years, and there is no indication that they will cease to do so. The United States government should therefore be concerned with the international implications of placing reservations on treaty provisions, both for the sake of international appearance and the effects on the behavior of other states. It should consider the international court jurisprudence, which might shape the contours of treaty enforcement in international law. Moreover, the United States should take into account how the drafting of treaties could be changing over time.

   2. Reorienting Toward the International Effects of RUDs

      In short, the more pressing concerns are the international effects of RUDs. Indeed, while certainly not the only country to use RUDs, (151) the United States has been the target of intense criticism from the international community for its use of RUDs, particularly in human rights treaties. (152) Again, a generous reading of the United States' use of RUDs is that the United States aims for authenticity in its treatymaking process by only ratifying treaties in forms in which the United States would actually abide by them, while a less generous reading argues that the RUDs are a sign of arrogance. (153) Some scholars suspect the latter to be more likely. (154) The reality, accepted even by proponents of RUDs, is that RUDs at the very least influence perceptions that can have significant consequences in international relations. (155) States may face backlash for their practices, and the aspiration of securing an international order that respects treaty commitments may falter.

      Indeed, various international movements have arisen out of frustration with the United States and other states' practices of using RUDs. One prominent example is General Comment 24, which was promulgated by the United Nations Human Rights Committee (UNHRC) in 1994. (156) Recognizing that forty-six states had entered 150 reservations to the ICCPR, the UNHRC expressed concern that the reservations' "content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States parties." (157) In that comment and thereafter, the UNHRC assumed a duty to determine whether specific reservations to the ICCPR are permissible by reviewing them under the VCLT's "object and purpose" test. While the comment was a forceful reaction to RUDs, the UNHRC does not have any enforcement authority for its decisions and therefore can only have a limited impact in curtailing the use of RUDs. (158)

      A more direct, potentially fomenting international movement suggested by the case analysis is a pattern of treaty drafters expressly banning RUDs in part or altogether. While scholars have rarely discussed them, (159) no-reservation clauses--and related treaty provisions limiting RUDs--first appeared on the U.S. Senate's radar decades ago. (160) Over the years, they elicited concerns in the United States, (161) particularly in the area of environmental treaties, (162) but they have mostly been underestimated. In the 1990s, three environmental treaties--the Basel Convention, the Environmental Protocol to the Antarctic Treaty, and the United Nations Framework Convention on Climate Change--all prohibited reservations, eliciting concerns from members of the Senate. (163) Senators who provided advice and consent for these treaties emphasized their concern over no-reservation clauses, (164) and they clarified that their approval should not be construed as precedent for consenting to such clauses in future agreements. (165) If more treaties feature these no-reservation clauses, these past events suggest that the United States will increasingly find it difficult to sign onto other treaties, even those it finds particularly important.

      And it does appear that more treaties are featuring these no-reservation clauses. (166) The Statute of the International Criminal Court, Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons Convention, and Anti-Personnel Mines Convention, along with a number of environmental treaties, including the Montreal Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm Convention, and Cartagena Protocol, all ban...