Why Severability? A New Theory of the Effect of Invalid Treaty Reservations
The 1969 Vienna Convention on the Law of Treaties does not establish the effect of an invalid reservation to a treaty. Still, it leaves this issue to the discretion of legal decision makers. These have developed two different approaches to the problem. According to the first approach, a State that m...
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| Format: | Article |
| Language: | English |
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University of Groningen Press
2024-12-01
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| Series: | Groningen Journal of International Law |
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| Online Access: | https://ugp.rug.nl/GROJIL/article/view/42225 |
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| author | Ulf Linderfalk |
| author_facet | Ulf Linderfalk |
| author_sort | Ulf Linderfalk |
| collection | DOAJ |
| description | The 1969 Vienna Convention on the Law of Treaties does not establish the effect of an invalid reservation to a treaty. Still, it leaves this issue to the discretion of legal decision makers. These have developed two different approaches to the problem. According to the first approach, a State that makes an invalid reservation to a treaty does not become a party. According to a second approach, the invalid reservation is severed, and the reserving State is a party without benefitting from the reservation. The second approach –the severability solution, so-called– can be observed mainly in the practice of human rights courts and treaty monitoring bodies. None of them have produced any complete and convincing explanation as to why the severability solution should be preferred to the alternative. Neither have any of the human rights scholars written about the issue. This article fills this critical gap. It introduces a new theory of the effect of invalid treaty reservations. This theory provides an answer to the general question of why, in the application of human rights treaties, the severability solution should be adopted, whereas in the application of many other treaties, it should not. |
| format | Article |
| id | doaj-art-3a47a4e839bb4a7797430f8f5a3565b9 |
| institution | Kabale University |
| issn | 2352-2674 |
| language | English |
| publishDate | 2024-12-01 |
| publisher | University of Groningen Press |
| record_format | Article |
| series | Groningen Journal of International Law |
| spelling | doaj-art-3a47a4e839bb4a7797430f8f5a3565b92025-01-28T14:15:03ZengUniversity of Groningen PressGroningen Journal of International Law2352-26742024-12-0111218420310.21827/GroJIL.11.2.184-20331892Why Severability? A New Theory of the Effect of Invalid Treaty ReservationsUlf Linderfalk0https://orcid.org/0000-0003-3094-526XFaculty of Law, Lund UniversityThe 1969 Vienna Convention on the Law of Treaties does not establish the effect of an invalid reservation to a treaty. Still, it leaves this issue to the discretion of legal decision makers. These have developed two different approaches to the problem. According to the first approach, a State that makes an invalid reservation to a treaty does not become a party. According to a second approach, the invalid reservation is severed, and the reserving State is a party without benefitting from the reservation. The second approach –the severability solution, so-called– can be observed mainly in the practice of human rights courts and treaty monitoring bodies. None of them have produced any complete and convincing explanation as to why the severability solution should be preferred to the alternative. Neither have any of the human rights scholars written about the issue. This article fills this critical gap. It introduces a new theory of the effect of invalid treaty reservations. This theory provides an answer to the general question of why, in the application of human rights treaties, the severability solution should be adopted, whereas in the application of many other treaties, it should not.https://ugp.rug.nl/GROJIL/article/view/42225vienna convention on the law of treatiesreservations to treatieshuman rights lawseverabilitytotal invalidity |
| spellingShingle | Ulf Linderfalk Why Severability? A New Theory of the Effect of Invalid Treaty Reservations Groningen Journal of International Law vienna convention on the law of treaties reservations to treaties human rights law severability total invalidity |
| title | Why Severability? A New Theory of the Effect of Invalid Treaty Reservations |
| title_full | Why Severability? A New Theory of the Effect of Invalid Treaty Reservations |
| title_fullStr | Why Severability? A New Theory of the Effect of Invalid Treaty Reservations |
| title_full_unstemmed | Why Severability? A New Theory of the Effect of Invalid Treaty Reservations |
| title_short | Why Severability? A New Theory of the Effect of Invalid Treaty Reservations |
| title_sort | why severability a new theory of the effect of invalid treaty reservations |
| topic | vienna convention on the law of treaties reservations to treaties human rights law severability total invalidity |
| url | https://ugp.rug.nl/GROJIL/article/view/42225 |
| work_keys_str_mv | AT ulflinderfalk whyseverabilityanewtheoryoftheeffectofinvalidtreatyreservations |