Not Fully Committed? Reservations, Risk and Treaty Design

Abstract

This Essay responds to Reserving, a forthcoming Article by Professor Edward T. Swaine to be published in the Yale Journal of International Law. The Essay first reviews the Article's explanation of the complex and often counterintuitive rules that govern the filing of unilateral reservations to multilateral treaties. It then offers three modest additions to Professor Swaine's insightful contribution to the growing body of interdisciplinary scholarship on treaty design. First, the Essay applies Swaine's theory of state interests and information to a dynamic model that takes account of temporal issues such as when states file reservations and how treaty commitments change over time. Second, it extends Reserving's analysis to the flexibility devices that states employ when they preclude reservations or bargain around the default rules in the Vienna Convention on the Law of Treaties. Third, it considers the relationships between reservations and other treaty flexibility tools and explores the consequences of those relationships for managing the risks of international agreement.

Keywords: international law, treaties, reservations, rational choice