- Hersch Lauterpacht 1953年提出四条“根据拟议法”（de lege ferenda）的规则，其中两条主张，保留必须得到三分之二有关国家的同意才能被接受；
- Two of the four proposals submitted as rules de lege ferenda in 1953 by Hersch Lauterpacht made the acceptance of a reservation conditional upon the consent of two thirds of the States concerned;
- Fitzmaurice 没有就这一问题提出任何明确的提议，因为他主张对一致同意原则的解释要严格； 不过，他在若干场合表示，他认为对保留的可接受性进行集体判定是“理想的”制度；
- Fitzmaurice made no express proposal on this matter because he held to a strict interpretation of the principle of unanimity, yet on several occasions he let it be known that he believed that a collective assessment of the admissibility of reservations was the “ideal” system;
- 虽然Waldock在1962年的第一次报告中也没有提出一个这样的机制, 委员会的若干成员却对此进行了辩护；
- Although Waldock had also not proposed such a mechanism in his first report in 1962, several members of the Commission took up its defence;
- 在维也纳会议期间，日本、菲律宾和大韩民国就此提出的修正案 被大多数国家否决， 尽管有若干代表团给予支持； 专家顾问Humphrey Waldock爵士， 以及其他一些代表团 对这种集体监测机制持非常怀疑的态度。
- During the Vienna Conference, an amendment to this effect proposed by Japan, the Philippines and the Republic of Korea was rejected by a large majority despite the support of several delegations; the Expert Consultant, Sir Humphrey Waldock, and some other delegations were very doubtful about this kind of collective monitoring system.
153. 然而必须认识到，此类条款不管听起来如何头头是道， 但远远没有解决所有问题：在实践中，这些条款并不鼓励缔约国保持它们应有的警惕， 而且没有回答重要的问题:
One is, however, compelled to recognize that such clauses — however attractive they may seem intellectually, — at all events fall short of resolving all the problems: in practice they do not encourage States parties to maintain the special vigilance that is to be expected of them and they leave important questions unanswered:
- 此类条款是否会致使缔约国无法享有按照《维也纳公约》第二十条第四和五款的规定提出反对的权利？
- Do such clauses make it impossible for States parties to avail themselves of the right to raise objections under article 20, paragraphs 4 and 5 of the Vienna Convention?
由于各国在这方面的行事权较大，回答无疑是否定的；实际上，反对按照1965年《消除一切形式种族歧视公约》第二十条提出的保留的国家虽未得到三分之二缔约国的支持，却维持了它们的反对立场， 而其实若按照第二十条的规定，要“客观”地确定保留是否与公约相符，是必须得到三分之二缔约国支持的。
Given the very broad latitude that States have in this regard, the answer must unquestionably be in the negative; indeed, States objecting to reservations formulated under article 20 of the Convention on the Elimination of All Forms of Discrimination have maintained their objections even though their position did not receive the support of two thirds of the States parties, which is needed for an “objective” determination of incompatibility under article 20.
- 而鉴于第二十条设立的机制，《公约》设立的消除种族歧视委员会没有就保留的效力问题采取立场。
- On the other hand, the mechanism set up by article 20 dissuaded the Committee on the Elimination of Racial Discrimination established under the Convention from taking a position on the validity of reservations, which raises the issue of whether the Committee's attitude is the result of a discretionary judgement or whether, in the absence of specific assessment mechanisms, the monitoring bodies have to refrain from taking a position.
这就引发了一个问题：委员会采取的态度是否为酌情决定的，还是在没有具体判定机制的情况下，监测机构必须避免采取立场。
- On the other hand, the mechanism set up by article 20 dissuaded the Committee on the Elimination of Racial Discrimination established under the Convention from taking a position on the validity of reservations, which raises the issue of whether the Committee's attitude is the result of a discretionary judgement or whether, in the absence of specific assessment mechanisms, the monitoring bodies have to refrain from taking a position.
实际上，没有任何因素要求它们遵守这样的义务；实际上，一旦承认在确定保留的效力方面此类机制优先于条约中规定的程序（而且人权条约机构根据职权须承担作出裁断的职责， 它们就可以随时行使这样的职权，正如国家一样。
Actually, nothing obliges them to do so; once it is recognized that such mechanisms take precedence over the procedures provided for in the treaty for determining the validity of reservations, and that the human rights treaty bodies are called upon to rule on that point as part of their mandate, they can do so in every instance, just as States can.
154. 实际上，关于这一问题的学术争论主要是如下几个因素共同引起的:
In reality, the controversy raging on this issue among the commentators can be ascribed to the conjunction of several factors:
- 问题实际上仅仅涉及人权条约；
- The issue really arises only in connection with the human rights treaties;
- 其原因首先是，在这一领域而且仅仅在这一领域，现代条约几乎无一例外地为制定的规范的实施设立了监测机制；然而，虽然对法官或仲裁员有权判定保留的效力，包括判定保留是否符合有关条约的目的和宗旨，从来没有人提出异议， 但是，这些人权条约赋予它们设立的机构明确职权（有的机构——在区域一级的——可以颁布具有约束力的决定，而有的机构，包括人权事务委员会，则仅能向各国提出一般建议，或针对具体某项指控的建议）；
- This is the case because, to begin with, it is in this area and only this area that modern treaties almost invariably create mechanisms to monitor the implementation of the norms that they enact; however, while it has never been contested that a judge or an arbitrator is competent to assess the validity of a reservation, including its compatibility with the object and purpose of the treaty to which it refers, the human rights treaties endow the bodies which they establish with distinct powers (some — at the regional level — can issue binding decisions but others, including the Human Rights Committee, can address to States only general recommendations or recommendations related to an individual complaint);
- 这是一个相对新的现象，《维也纳公约》的起草者没有考虑到；
- This is a relatively new phenomenon which was not taken into account by the drafters of the Vienna Convention;
- 另外，人权条约机构认为它们在这一领域的职权是非常宽泛的：它们不仅认为自己有权判定保留是否符合有关条约的目的和宗旨，而且似乎还认为自己在这方面具有作出决定的权力，尽管这并没有授权的依据， 而且，它们根据“可分性”理论，宣布那些保留被判定无效的国家必须受条约，包括保留针对的有关规定的约束；
- Furthermore, the human rights treaty bodies have held to a particularly broad concept of their powers in his field: not only have they recognized their own competence to assess the compatibility of a reservation with the object and purpose of the treaty that established them, but they have also seemed to consider that they had a decision-making power to that end, even when they are not otherwise so empowered and, applying the “divisibility” theory, they have declared that the States making the reservations they have judged to be invalid are bound by the treaty, including by the provision or provisions of the treaty to which the reservations applied;
- 因此，这些机构引起了一些国家的反对，因为这些国家不愿意在它们接受的范围之外受条约的约束，而至于这一范围，它们希望解释得越灵活越好；有些国家的反应特别剧烈，甚至不承认有关机构在这一事项上具有任何管辖权；
- In so doing, they have aroused the opposition of States, which have no interest in being bound by a treaty beyond the limits which they accept, which they expect to be able to interpret as freely as possible; some States have reacted particularly violently and gone so far as to deny that the bodies in question have any jurisdiction in the matter;
- 而人权活动者及 “人权”学说在这一领域的高度敏感性也使问题更加复杂，无益于平息这场近乎无谓的争论。
- This is compounded by the hypersensitivity of human rights activists and human-rights doctrine in this area, which has done nothing to calm a contentious debate that is nevertheless largely artificial.
155. 在现实中，这个问题无疑比评注者的一般描述要简单——并不意味着这种情况完全令人满意。
In reality, the issue is unquestionably less complicated than is generally presented by commentators — which does not mean that the situation is entirely satisfactory.
首先，毫无疑问，人权条约机构在遇到此问题行使职能，当然有权对保留的效力作出裁决，包括确定保留是否符合条约的目的和宗旨。
In the first place, there can be no doubt that the human rights treaty bodies are competent to rule on the validity of a reservation, when the issue comes before them in the exercise of their functions, including of course the compatibility of the reservation with the object and purpose of the treaty.
的确，必须承认，无论在审议国家或个人的主张，或者审议定期报告，或者行使一项咨询职能时，如果条约机构无法肯定对有关国家的准确管辖范围，就不能履行法定职能；因此，评估缔约国对设立这些机构的条约提具的保留的效力是其职能的一部分。
Indeed, it must be acknowledged that the treaty bodies could not carry out their mandated functions if they could not be sure of the exact extent of their jurisdiction vis-à-vis the States concerned, whether in their consideration of claims by States or individuals or of periodic reports, or in their exercise of an advisory function; it is therefore part of their functions to assess the validity of reservations made by the States parties to the treaties establishing them.
第二，这样做时，它们在其他任何方面的权力并没有增减：人权事务委员会和其他没有决策权的国际人权机构，在保留领域也没有具有这种权力；有权发布建设性裁定的区域法庭有这一权力，但有某些限制。
Secondly, in so doing, they have neither more nor less authority than in any other area: the Human Rights Committee and the other international human rights treaty bodies which do not have decision-making power do not acquire it in the area of reservations; the regional courts which have the authority to issue binding decisions do have that power, but within certain limits.
因此，第三而且是最后的一点是，虽然所有人权条约机构（或争端解决机构）都可以评价一项有争议的保留的效力，但它们不得以自己的判断代替该国同意接受条约约束的表示。
Thus, thirdly and lastly, while all the human rights treaty bodies (or dispute settlement bodies) may assess the validity of a contested reservation, they may not substitute their own judgement for the State's consent to be bound by the treaty.
156. 不用说，根据《维也纳公约》第二十、二十一和二十三条的规定，条约机构的权力不影响国家接受或拒绝保留的权力。
It goes without saying that the powers of the treaty bodies do not affect the power of States to accept reservations or object to them, as established and regulated under articles 20, 21 and 23 of the Vienna Convention.
同样，没有任何规定禁止国内法院在争端提交该法院的情况下，对一国提具的保留的效力，包括是否与一项条约的目的和宗旨相符作出必要评价， 因为它们有权适用国际条约法的规则（对1969年《维也纳公约》缔约国来说），或适用国际习惯法的规则因为第十九条(丙)项所述原则具有习惯法的效力。
Similarly, nothing prevents national courts, when necessary from assessing the validity of reservations made by a State on the occasion of a dispute brought before them, including their compatibility with the object and purpose of a treaty, since they are authorized to apply the rules of international treaty law — in the case of States parties to the 1969 Vienna Convention — or of international customary law, because the principle set out in article 19, paragraph (c) has the value of customary law.