Edited by Christian J. Tams, Antonios Tzanakopoulos and Andreas Zimmermann
Chapter 10: Integrity versus flexibility in the application of treaties
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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