The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations
72 Pages Posted: 4 Nov 2016
Date Written: 2016
The United States often ratifies multilateral treaties by relying on what are commonly referred to as reservations, understandings, and declarations (RUDs). RUDs limit the domestic effect of treaties and confine provisions to particular meanings consistent with the United States’ practices. In recent years, during and after the U.S. Supreme Court’s consideration of Bond v. United States, some government officials have become increasingly concerned that RUDs could be unenforceable in courts, thereby exposing the United States to unintended treaty commitments and liabilities. Remarkably, the legal literature does not contain a comprehensive account of the extent to which RUDs are enforceable in courts of law. Such an understanding may influence domestic and international perspectives on ratifying future treaties, including the pending Convention on the Rights of Persons with Disabilities and the United Nations Convention on the Law of the Sea. Consequently, this Note provides an original, searching review of the jurisprudence of RUDs in U.S. and international courts. It finds that U.S. courts and international courts consistently enforce RUDs, except for international courts reviewing treaties that expressly prohibit their use. Such findings should offer solace to those worried about the possibility that RUDs are inadequate to protect against unintended domestic effects of treaties. At the same time, they also reveal that the real concern over RUDs is not their insufficient drafting, but rather their overuse. There is a risk that treaties may increasingly prohibit RUDs, and that international courts will readily enforce these prohibitions. Given that there is no threat of the domestic invalidity of RUDs, this Note argues that the United States and other states should refrain from overusing RUDs and consequently risking broader treaty formulation and compliance.
Keywords: International law, treaties, reservations, understandings, declarations, interpretative declarations, RUDs, foreign relations
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