Table of Contents

Research Handbook on the Law of Treaties

Research Handbook on the Law of Treaties

Research Handbooks in International Law series

Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann

Offering a unique conceptual approach to the Law of Treaties this insightful Research Handbook not only sets out the foundational issues, but identifies tensions within the field, including formalism vs flexibility, integrity vs flexibility, and uniformity vs specialisation, to name a few. It seeks to define and re-define the dimensions in which Treaty law operates, tracing its fault-lines and the challenges it faces, such as breaches, regime-collisions, state succession and armed conflict. Representing a broad range of jurisdictional and ideological perspectives, the Research Handbook provides a diverse and stimulating approach to international treaties.

Chapter 10: Integrity versus flexibility in the application of treaties

Katherine Del Mar

Subjects: law - academic, public international law, politics and public policy, international politics, international relations

Extract

This chapter examines the inherent tension that exists between treaty integrity and flexibility in the application of treaties. It focuses on flexibility devices which can be triggered unilaterally and which are available when entering multilateral treaties, namely reservations and other unilateral statements made upon ratification of a treaty, such as interpretative declarations. Consequently, amendment and modification procedures are not examined. A reservation is the flexibility device par excellence by which the integrity of a treaty is softened. This is because reservations are exceptions to a party’s consent to be bound by the provisions of a treaty where their intended effect is to condition consent on the terms of the reservation. Reservations constitute an attempt to reconcile two conflicting but fundamental requirements in treaty making: preserving the integrity of a treaty and encouraging universality of participation. The drawback of reservations is the possibility for them to undermine the integrity of a treaty regime. A principal concern with regard to reservations, therefore, is how far this flexibility device can go without harming the integrity of a treaty. The ‘integrity of a treaty’ is a notion traditionally understood to mean that ‘no reservation [is] valid unless it [is] accepted by all contracting parties without exception, as would have been the case if it had been stated during the negotiations.

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