Response: Not Fully Committed? Reservations, Risk, and Treaty Design

Abstract

Ed Swaine's Article, Reserving, sheds new theoretical light on an old and vexing question in international law: what rules should govern the common practice of filing unilateral reservations to multilateral treaties? The regulation of these unilateral opt-out devices has been a longstanding irritant for international legal scholars. The default rules governing reservations in the Vienna Convention on the Law of Treaties are complex, ambiguous, and often counterintuitive. And the practice of states-both those that reserve and those that do not-is little better. States often bargain around the default rules by negotiating treaty-specific risk management provisions (but frequently do not). They sometimes object to plausibly treaty-incompatible reservations (but just as often do not). And they sometimes allow treaty bodies to review the validity of reservations (but they also challenge that authority, claiming for themselves the sole power to judge their treaty partners' unilateral statements).