Re: Legal Opinion Concerning Reservations to the Initial Annexes to the SPAW Protocol

February 3, 2000

Juan Carlos Vasquez
Associated Programme Officer
Enforcement Assistance Unit
CITES Secretariat
15, chemin des Anémones
CH-1219 Chetelaine-Geneva

Re: Legal Opinion Concerning Reservations to the Initial Annexes to the SPAW Protocol

Juan Carlos Vasquez

This letter responds to your request for information relating to the SPAW Protocol. I appreciate your concern regarding the question of when States must enter a reservation to species included in the annexes to the SPAW Protocol. I have spoken with several people and it seems the success or failure of the SPAW Protocol may depend on the answer to this question. I have reviewed the answers provided by myself, Professors Condorelli and Chazournes, and the Environmental Law Centre (ELC) to this question. For the reasons stated below, I affirm my answer, which requires a State to lodge a reservation to the initial Annexes at the time they ratify or accede to SPAW.

I. Article 11, Paragraph 4.d Does Not Provide the Basis for Making a Reservation to the Initial Annexes

Article 11, paragraph 4, in its entirety, only applies to amendments to the annexes. Thus, subparagraph d can refer only to reservations to additions to the initial annexes. In addition, an analysis of the language of Article 11, paragraph 4.d, also demonstrates that this provision only applies to reservations to amendments to the annexes and not to the initial annexes. First, Article 11.4.d, refers to a “Party” and to “Parties.” The context of SPAW and this provision clearly indicate that “Party” refers to a Party to SPAW. Articles 26 and 27, which expressly refer to “Parties to the Cartagena Convention,” also supports the conclusion that Article 11.4.d refers to Parties to SPAW.

Consequently, Article 11.4.d requires a Party to SPAW to enter a reservation “within 90 days of the vote of the Parties [to SPAW].” But, the Parties to the SPAW Protocol never vote on the initial annexes. Instead, the Parties to the Cartagena Convention vote to approve the initial annexes, pursuant to Article 26. Thus, Article 11.4.d cannot relate to the entry of reservations to the initial annexes. It relates only to reservations to amendments to the annexes made after the entry into force of SPAW. The ELC analysis reaches the same conclusion: “It is clear from these provisions that Art. 11.4 governs the amendment of Annexes after their entry into force.”

It is for this reason that I respectfully disagree with the analysis of Professors Condorelli and Chazournes. They assume that Article 11.4.d applies to reservations to the initial annexes. Based on that assumption, they then determine the date a Party to SPAW must enter its reservation. Because the obligations of a treaty cannot bind a State until the treaty enters into force for that State, they conclude that a State has 90 days from the date that the Protocol enters into force for them to enter a reservation. It is only their assumption that Article 11.4.d applies to reservations to the initial annexes with which I disagree. However, a Party has 90 days from the date that SPAW enters into force for them to enter a reservation, only if Article 11.4.d applies to reservations to the initial annexes.

II. Article 19 of the Cartagena Convention Does Not Provide the Procedure, including the Making of Reservations, for the Adoption and Entry into Force of Annexes

In my original answer, I stated in Section V.A that neither SPAW nor the Cartagena Convention provide language concerning reservations to the initial annexes. In light of the response by ELC, I now provide the reasoning behind that conclusion.

Articles 19.2 and 19.3 of the Cartagena Convention provide the procedure for the adoption and entry into force for annexes and amendments to annexes “except as may be otherwise provided in any protocol with respect to its annexes.” The ELC analysis found that Article 11.4.d. of SPAW did not otherwise provide a different procedure. Thus, ELC found that, according to Article 19.2.d, reservations must be made within 90 days of the adoption of the initial annexes, which the Conference of Plenipotentiaries did in 1991, pursuant to Article 26.1 of SPAW.

It is Articles 26 and 27 of SPAW, however, that establish a procedure for adoption of the initial annexes. Article 27.2 of SPAW states that the Protocol shall not enter into force “until the annexes have been adopted in accordance with Article 26.” Article 26 then requires the Conference of the Plenipotentiaries of the Parties to the Cartagena Convention to adopt the initial annexes by consensus.

Of significance, Article 26 establishes a voting structure for the adoption of the initial annexes (by consensus) different from Article 19 of the Cartagena Convention (by a three-fourths majority). By significantly changing the voting structure, Article 26 of SPAW evidences a procedure for entering into force the initial annexes different than the procedure of Article 19 of the Cartagena Convention.

Further, if the drafters wanted Article 19 of the Cartagena Convention to apply, they could have easily done so. Just as the drafters designated the procedure in Article 28.2 to guide the entry into force of the SPAW Protocol and its annexes, they could have also designated Article 19 of the Cartagena Convention as the provision by which to adopt the initial annexes. But they did not do that. Instead, Article 27.2 of SPAW expressly directs that the initial annexes will be adopted pursuant to Article 26 of SPAW. For these reasons, I think the provisions of Articles 26 and 27 of SPAW replace the procedure for adoption of the initial annexes.

Unfortunately, SPAW does not create any provisions for entering reservations to the initial annexes. It is possible that this omission was intentional. If the initial annexes are adopted by consensus, as required by Article 26, perhaps the drafters, or at least some of the drafters, believed that reservations to the initial annexes were unnecessary. Of course, it is also possible, and perhaps more likely, that this omission is simply an unfortunate oversight.

III. The Vienna Convention on the Law of Treaties Provides the Rules for Entering Reservations

Because neither SPAW nor the Cartagena Convention provide rules for entering reservations to the initial annexes are permissible, resort to the Vienna Convention on the Law of Treaties (the Vienna Convention) is required. As I describe in greater detail in my original answer, Articles 2, 19, and 20 of the Vienna Convention require a signatory to SPAW to make their reservations to a species included in the initial annexes at the time they ratify or accede to SPAW. As I said in that earlier analysis:

Nonetheless, under general rules of treaty interpretation a State may make a reservation to a species included in the annexes as they exist at the time of ratification or accession. In the absence of specific rules in the Protocol or the Convention relating to reservations to a protocol or its annexes, general principles of treaty interpretation apply. Article 19 of the Vienna Convention provides that a State may make a reservation “when signing, ratifying, accepting, approving, or acceding to a treaty” unless the reservation is prohibited by the treaty, the proposed reservation is not included among the specifically enumerated reservations, or the reservation is incompatible with the object and purpose of the treaty. Thus, reservations to the initial annexes (or the annexes as they exist at the time of ratification or accession) are permissible, because the Protocol does not prohibit them and the conditions of the Vienna Convention for prohibiting them are absent.

However, unless otherwise provided by the agreement, a State must make its reservation at the time of ratification. Under Article 2(1)(d) of the Vienna Convention, a reservation by definition means a State’s unilateral action “when signing ratifying, accepting, approving or acceding to a treaty, whereby it proposes to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” The definition includes both a substantive component and a timing component. The substantive component, of course, is the exclusion of a provision from applicability for that State. The timing component requires the reservation to be made at a specific time — at the time when the State consents to be bound by the agreement. Under these rules, and because no other specific rules in the Protocol apply, a Party cannot make a reservation to the initial annexes (or the annexes as they exist at the time of ratification or accession) after it ratifies the Protocol, even if the Protocol has not yet entered into force.

This analysis is also more logical than the answer provided by ELC. As I understand the ELC’s analysis, all Parties to the Cartagena Convention were required to enter reservations to the initial annexes to SPAW within 90 days of the adoption of those annexes. Under this strategy, however, a Party to the Cartagena Convention would be required to enter their reservations before it indicated its consent to be bound by SPAW. In fact, such consent may never come. It seems implausible to require a State to make a reservation to a treaty that it is not required to sign. It is also inconsistent with international law to bind a State to the terms of a treaty to which that State has not agreed to be bound.

In contrast, if the rules of the Vienna Convention are followed, a State may enter a reservation when it consents to be bound by the terms of SPAW. Not only is this more logical, it is also consistent with international law.

IV. Conclusion

I assume that the failure to include a provision for entering reservations to the initial annexes is an unfortunate oversight by the drafters of SPAW. Nonetheless, I do not see how Article 11.4.d can be interpreted differently. Further, the rules of the Vienna Convention provide a reasonable and logical solution to the problem, even if that solution does not satisfy States that have already ratified SPAW.

States that have already ratified SPAW have options available to them. They could seek amendment of SPAW, specifically adding a provision relating to reservations to the initial annexes. I suppose also that they could retract their ratification or accession. Then they could ratify or accede to the SPAW Protocol again, making the desired reservations.

If you have any other questions, please let me know.

best regards,

Prof. Chris Wold
Northwestern School of Law of
Lewis & Clark College
10015 SW Terwilliger Blvd.
Portland, OR 97219
tel: (503) 768_6734
fax: (503) 768_6671
email: wold@lclark.edu