Implementation of Reservations Law in International Environmental Treaties : The Cases of Cuba and Iceland

Two recent international environmental disputes have illustrated the significant uncertainty that exists concerning the provisions on reservations found in the Vienna Convention on the Law of Treaties (Vienna Convention). The first dispute occurred in 1998 when Cuba sought to enter a reservation to protect the hawksbill sea turtle by the Protocol Concerning Specially Protected Areas and Wildlife (SPAW) to the Cartagena Convention, but only after Cuba had already ratified SPAW. No fewer than three legal opinions emerged, each reaching different conclusions concerning the permissibility of Cuba's reservation. The second dispute began in 2001 when Iceland submitted its instrument of adherence to the International Convention for the Regulation of Whaling (ICRW) with a reservation to the commercial whaling moratorium — the central component of the current whaling regime. Again, several legal opinions reached different conclusions about the permissibility of the reservation and whether International Whaling Commission (IWC) had the authority to approve or reject it. While the rules on reservations of the Vienna Convention on the Law of Treaties are no model of clarity, this level of confusion should not exist because the failure to understand the law of reservations properly can have great practical consequences for the effective implementation of a treaty or the participation of a State in a treaty. In fact, such was the confusion at the IWC that became a member of the IWC by a 19-18 vote, with Iceland cast the deciding vote. By examining the attempts by Cuba and Iceland to make reservations to environmental treaties, this article provides a framework for understanding the law of reservations in the modern era of international treaties. It concludes that, although the correct decisions were made to prevent Cuba from entering its reservation and to require the IWC to accept Iceland's reservation, States still misunderstand the law of reservations. As such, this article also summarizes key elements of the law of reservations law of the Vienna Convention on the Law of Treaties to guide States in future disputes