Common use of Reservations and Declarations Clause in Contracts

Reservations and Declarations. The first non-drafting elements that may limit the uniform application of the Conventions are reservations and declarations. Reservations are defined by the 1969 Vienna Convention as: […] a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it pur- ports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.201 In substance, reservations allow each State to be part of an international convention with certain ad hoc adjustments. Declarations are not defined in the 1969 Vienna Convention. However, as discussed above,202 they can be considered as either disguised reservations or political statements with limited impact in international public law. It follows that if many different reservations and declarations were made admissible, they would undermine the whole purpose of the Conven- tions.203 During the 1929 Warsaw Conference, the possibility of allowing xxxxx- vations in the text was discussed. The delegate for Italy voiced the concern that such an inclusion would jeopardize the envisaged uniformity: 201 1969 Vienna Convention, Article 2(1)(d). 202 See, section 3.2.4.3(4). 203 On the effect of reservations, see, Xxxxxxx Xxxx, International Law 693 (8th edition, Cambridge University Press, 2017); Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Droit International Public 195-203 (8th edition, LGDJ). Il reste dans le procès-verbal que la Délégation italienne considère qu’une Con- vention pour unifier certaines règles ne peut insérer des réserves qui troublent précisément l’unification. En effet, s’il s’agit d’unifier on ne peut admettre que cette unification n’existe pas ou que cette unification soit boiteuse.204 It was however decided, given the purpose of uniformity, to refuse on principle any reservations unless specially allowed.205 Thus, the Additional Protocol to the 1929 Warsaw Convention only authorizes reservations with respect to State flights. Article 40 of the 1929 Warsaw Convention also authorizes High Contracting Parties to declare that said convention does not apply to all or any of its overseas territories. Similar provisions are found in the 1955 Hague Protocol.206 In the same vein, Article 56 of the 1999 Montreal Convention provides that States can submit a declaration if they have two or more territorial units in which different systems of law are applicable in relation to matters dealt with by the convention. If submitted by a State, such declaration would have then to indicate whether the convention extends to all its territorial units, or to only to one or more of them.207 With respect to reservations per se, Article 57 of the 1999 Montreal Convention specifies that: No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Conven- tion shall not apply to: (a) international carriage by air performed and operated directly by that State Party for non-commercial purposes in respect to its functions and duties as a sovereign State; and/or (b) the carriage of persons, cargo and baggage for its military authorities on air- craft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities. Theoretically, one could be satisfied with the limits imposed on the type of declarations and reservations allowed in the 1999 Montreal Convention. However, despite their limitations,208 they have not prevented Argentina from submitting an interpretative declaration with respect to the term 204 ICAO Doc 7838, II Conférence Internationale de Droit Privé Aérien, 4-12 Octobre 1929, 205 Ibid., p. 122-124. 206 Articles XXV and XXVI. This last Article is more limited than the reservation authorized in the Additional Protocol to the 1929 Warsaw Convention, as it only permits States to declare that the Protocol shall not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft, registered in that State, where the whole capacity has been reserved by or on behalf of such authorities. 207 Several declarations were submitted. 208 There were suggestions to introduce opt-out provisions, which eventually were not accepted. See, ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 105. ‘bodily injury’ in Article 17 of the 1999 Montreal Convention, as discussed earlier.209 This might be an isolated case; however, it may be viewed as a prec- edent for others to further depart from the text, which, as regularly stated above, is designed to create uniformity.