TREATY MONITORING BODIES SHOULD NOT HAVE AUTHORITY TO DECIDE ON VALIDITY OF RESERVATIONS, LEGAL COMMITTEE TOLD

4 November 1997

Press Release
GA/L/3054

TREATY MONITORING BODIES SHOULD NOT HAVE AUTHORITY TO DECIDE ON VALIDITY OF RESERVATIONS, LEGAL COMMITTEE TOLD

19971104 Speakers Say Law Commission Conclusions Imply Such Authority, But Treaty Reservation Decisions Remain Prerogative of State Parties

Treaty monitoring bodies should not be given the authority to judge on the admissibility or inadmissibility of reservations to treaties, said a number of representatives this afternoon, as the Sixth Committee (Legal) continued its consideration of the report of the International Law Commission on the work of its forty-ninth session. Speakers said that the preliminary conclusions of the Commission on reservations to treaties, which are contained in the Commission's report, implied the right of treaty monitoring bodies to decide on treaty reservations, but such decisions should be the prerogative of State parties to the treaty. The representative of the United States said that treaty monitoring bodies had neither the power to make legal determinations regarding the validity of particular reservations, nor the authority to set aside a reservation. That power should remain between the reserving State and other State parties. The fundamental rule of treaty law was that a State must consent to any treaty obligation. The representative of China said that treaty monitoring bodies had no powers besides those given to them by the State parties and they could only exercise the functions that the treaties entrusted to them. It was up to the State that made the reservation to determine whether its reservation was consistent with the purposes and objectives of the treaty. Allowing treaty monitoring bodies to make recommendations regarding the admissibility of reservations would impinge on the prerogatives of States, said the representative of the United Republic of Tanzania. That power, therefore, must only be assumed by the clear and explicit delegation by of the States themselves. Monitoring bodies could not be seen as assuming functions beyond those assigned to them. Statements were also made by the representatives of Austria, Sweden, Netherlands, Jamaica, Venezuela, Canada, Germany, Iran, Bahrain, Australia, South Africa, Morocco, and Guatemala. The Committee will meet again at 3 p.m., Wednesday, 5 November, to continue its discussion on the Commission's report.

Committee Work Programme

The Sixth Committee (Legal) met this afternoon to continue its consideration of the report of the International Law Commission on the work of its forty-ninth session, with an emphasis on chapter V dealing with reservations to normative multilateral treaties.

At its most recent session, the Commission had before it the Special Rapporteur's second report on the topic of reservations to normative multilateral treaties. Based on that report, the Commission adopted preliminary conclusions on the topic, which were intended to help clarify the reservations regime applicable to normative multilateral treaties, particularly in the area of human rights. Among other things, the conclusions state: that the Vienna Conventions on the Law of Treaties of 1969 and 1986 governed the regime of reservations to treaties, including human rights treaties; and that a treaty-monitoring body -- organizations created by treaty parties to monitor compliance and help implement the treaty -- had the competence to comment upon and express recommendations with regard to the admissibility of reservations by States. (For background, see Press Release GA/L/3049 of 27 October.)

Statements

FRANZ CEDE (Austria) said his delegation felt the Special Rapporteur's work had not proceeded far enough for conclusions to be drawn, even though they were preliminary. He said the question of the definition of the notion of "object and purpose of a treaty", which was essential for the determination of the inadmissibility of a reservation, had not yet been studied. Also, the problem of the legal effects of an inadmissible reservation had not been addressed. Those were the most crucial questions of the entire study. The Commission's "preliminary conclusions" should have dealt with the question of the unity or diversity of the legal regime for reservations to treaties.

The legal regime governing reservations should be kept uniform, he said. In addition, the final product of the work on reservations to treaties should be in the form of guidelines for the practice by States and should not, in any way, alter the existing regime of the Vienna Conventions on the Law of Treaties. He shared the Commission's view that the legal force of the findings made by a treaty-monitoring body could not exceed the powers vested in that body for the performance of its monitoring role, in general. It might be helpful to create a procedure for altering reservations or withdrawing them and formulating new ones, even after ratification, to remedy a faulty reservation.

PER SALAND (Sweden) said the applicability of the Vienna regime should be the general rule, subject to exceptions through agreement in particular treaties. He agreed with the Commission's view on the role of human rights

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treaty-monitoring bodies on reservations by States. The possible extension of the competence of certain monitoring bodies was a matter for further discussion. He looked forward to a study on the highly complicated issue of the effects of objections to reservations. He noted the Commission's conclusion that, in the event of the inadmissibility of a reservation, it was the State expressing the reservation that was responsible for taking action to modify or withdraw its reservation.

An analysis should be made of the effects of an inadmissible reservation, when the State expressing it did not withdraw or modify its reservation, he said. A State should not be permitted to accede to a normative multilateral treaty and, at the same time, through reservations, nullify central provisions of that treaty. Reservations of that kind were inadmissible and should not influence the legal effect of adherence to the treaty. Another important issue that should be thoroughly analysed was the problem with interpretative declarations, which, in certain cases, might constitute hidden reservations.

HENDRIKUS G.J. VERWEIJ (Netherlands) said that, while a number of members of the International Law Commission appeared to believe that the existing law on reservations to treaties had functioned adequately, that assumption was debatable. The concern about reservations to human rights treaties was not about a system that had technical deficiencies. The concern was based on the inability of the system to cope with safeguarding normative instruments. Consequently, the Commission's work on the issue should focus more on the implications of reservations as the reason for reviewing and possibly improving the law. "The Commission's starting point that things are basically alright may be doubted", he said.

He added that the preliminary conclusions adopted by the Commission may be premature. They did not provide new insights into the questions surrounding reservations. In paragraph 1 -- which states that the object and purpose was the most important criterion for determining the admissibility of reservations -- the Commission had not fully raised the question of the nature of the object and purpose rule. It was important to understand both the content and the nature of the object and purpose obligation, in order to be able to apply it. The Vienna Conventions did not provide guidelines on how to make such a determination. The Commission should look into the question of how to establish the object and purpose of a particular treaty.

ROBERT E. DALTON (United States) said that treaty-monitoring bodies did not have the power, inherent or otherwise, to make legal determinations regarding the validity of particular reservations. Further, they did not have the authority to purport to set aside a reservation. That should remain between the reserving State and other State parties. They certainly did not have the power to override or ignore the fundamental rule of the treaty law, which was that a State must consent to any treaty obligation.

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States were free to agree on different rules, he said. In addition, parties to a treaty could agree on a more restrictive regime of reservations that would give some regional or other body greater authority to assess the validity and consequence of reservations. However, they must do so consciously and expressly.

GAO YANPING (China) said that human rights treaty-monitoring bodies were solely for the purposes given to them by the States parties, and those bodies could only exercise the functions that the treaties entrusted to them. In accordance with the Vienna Conventions, it was up to the State that made the reservation to determine whether its reservation was consistent with the purposes and objects of the treaty. States parties should be the ones that determined the consequences of reservations and the kind of treaty relationship between them.

She questioned paragraph 12 of the Commission's conclusions on reservations to treaties, which stated that "the Commission emphasizes that the above conclusions were without prejudice to the practices and rules developed by monitoring bodies within regional contexts". That paragraph could be understood to mean that regional rules could be different from the Vienna regime and, therefore, various misunderstanding could arise. It should be deleted.

PATRICK ROBINSON (Jamaica) said any system to deal with the role of monitoring bodies in relation to human rights should acknowledge that the will of the States parties to a treaty was paramount. A distinction had to be made between monitoring bodies that exercised a legally binding decision-making power and those that had only a consultative function. On the other hand, a distinction between regional and global bodies was not warranted.

Monitoring bodies, that exercised a legally binding decision-making power, would have the competence to rule on a reservation relating to a case before them, he said. That ruling would, in accordance with the relevant treaty, bind the reserving State. Those monitoring bodies should consult the reserving State and other States parties about a reservation, leaving it to the States parties to make a determination about the reservation on the basis of articles 19 and 20 of the 1969 Vienna Convention on the Law of Treaties.

He proposed that the General Assembly adopt a resolution which would, among other provisions, bring to the attention of States parties to treaties, including human rights treaties, the need for them to become more reactive to reservations on the basis of the provisions of articles 19 and 20 of the 1969 Vienna Convention. The Assembly should encourage States parties to normative multilateral treaties, including human rights treaties with monitoring bodies, to adopt protocols conferring competence on those bodies to pass on the permissibility of a reservation. The State parties to treaties that had no monitoring bodies should adopt protocols for settling disputes relating to reservations.

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TUVAKO N. MANONGI (United Republic of Tanzania) said that allowing treaty-monitoring bodies to express recommendations regarding the admissibility of reservations by States was not a solution to the concern about the legal questions. That was a step that could involve even more serious consequences, because such a function would most likely impinge on the prerogatives of States. That power, therefore, must only be assumed by clear and explicit delegation by the States themselves. Monitoring bodies could not be seen as assuming functions beyond those assigned to them.

Those conclusions on the monitoring bodies, he added, also presumed that such bodies did not have a relationship or a reporting mechanism with State parties. Most, if not all, did have a working relationship with the parties. While such relationships might need improvement, that was no justification for granting monitoring bodies the power to determine the admissibility of reservations by States.

NORMAN M. MONAGAS-LESSEUR (Venezuela) said the subject of nationality in relation to State succession was generally governed by domestic law, but there were a number of international laws that bound States in relation to nationality. The Commission should present its work in the form of a convention, which would be the best way to regulate actions on the topic. One important aspect of the 27 draft articles on nationality and State succession was its stress on the protection of human rights and the prevention of statelessness. The issue of human rights should be given more emphasis, by making it separate from the general articles on nationality.

On reservations to treaties, he said the participation of treaty- monitoring bodies should only be in a consultative capacity, and those bodies should not make binding decisions. Their power was based on the rights granted to them by States, and they should act according to the boundaries set for them. Monitoring bodies should play an advisory role, and that role should be specified clearly in the preliminary conclusions drawn by the Commission.

JOHN HOLMES (Canada) expressed concern about the proliferation of reservations to treaties, particularly those on human rights. In principle, he accepted and supported the preliminary conclusions of the Commission on reservations to treaties. The Vienna regime was well suited to the requirements of all treaties and a fragmented approach was undesirable. He also supported the Commission's conclusions that monitoring bodies could make comments upon and express recommendations on the admissibility of reservations. It might be useful, however, for the Commission to further develop ideas in its preliminary conclusions on the subject.

REINHARD HILGER (Germany) said that a satisfactory regime of reservations to treaties should balance the interest in broad participation and in the preservation of a treaty's essence. The Vienna regime provided for a maximum of flexibility and adaptability. The permissibility of reservations was evaluated

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in the light of the object and purpose of the treaty. At the same time, the freedom of the other contracting parties to agree to reservations was fully preserved through a mechanism of acceptance and objections.

When negotiating multilateral treaties, he said States should pay special attention to the question of the admissibility of reservations and the consequences of reservations, when admissibility was doubtful or even clearly excluded. In principle, the Vienna regime could be properly applied to all multilateral treaties, with the exception of those concluded by a limited number of parties and the constituent instruments of international organizations. The Vienna regime did not, however, cover reservations to bilateral treaties.

In his view, monitoring bodies had the competence to examine the significance of reservations, insofar as that was necessary for them to carry out their functions. Their competence was self-implied by the powers vested in them by the contracting States, he said. States were free to form their own judgement and to decide on reactions to reservations. The Commission's findings with regard to human rights monitoring bodies were properly meant to apply only to human rights instruments of a universal character. He supported the Special Rapporteur's conclusion that it was the exclusive responsibility of the State itself to rectify the defect in the expression of its consent to be bound. He hoped that at the next session of the Commission, work would be concentrated on the question of inadmissible reservations.

DJAMCHID MOMTAZ (Iran) said the competence of treaty-monitoring bodies to judge reservations could only be assessed with respect to the rights given to them by State parties. If those bodies were established by State parties, they could not judge the admissibility of reservations and they should not be handed such power now. That power would run counter to the rights of States to decide on their own accord the admissibility or inadmissibility of reservations to treaties. If monitoring bodies were allowed to make conclusions on reservations, States might be discouraged from becoming party to treaties in general.

The Vienna regime was very deficient on a number of subjects dealing with reservations to treaties, he said. Specifically, clear and precise criteria for judging the admissibility of reservations was not presented. The absence of such criteria in the Vienna regime should serve as the basis for the future work of the Commission.

HUSSAIN MOHAMMED AL-BAHARNA (Bahrain), commenting on the question of nationality and succession of States, said his delegation had no substantive objection to the 27 draft articles proposed by the International Law Commission. He noted, however, that Part II of the draft document might not be suitable in its present form for adoption as a treaty or a convention.

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On the question of reservations to treaties, he said such actions by States parties rendered ineffective their obligations under such instruments. The Vienna regime required thorough study by the Commission, particularly the provisions relating to the practice of States in respect to reservations to normative human rights treaties. There was no necessity for a separate regime for human rights treaties. He agreed with the Commission that collaboration between States parties and monitoring bodies could provide the basis for a possible solution to the problem of reservations and the gaps in the Vienna regime. He also hoped that the principles the Commission had enunciated would clarify the reservations regime applicable to normative multilateral treaties.

MARK GRAY (Australia) said important questions had not been answered in the Commission's conclusions or in the Vienna regime, such as: to which normative treaties did the principles apply; and, did the right of treaty monitoring bodies to judge a reservation apply when a treaty was silent on the role of the monitoring bodies or when it was silent on reservations as a whole?

The problems that might arise from the conclusions on monitoring bodies could include a dispute between a monitoring body and the reserving State as to the admissibility of the reservations, he said. Generally monitoring bodies were not empowered with "legal force" to judge reservations, which paragraph 8 of the conclusions suggested. At most, those bodies could only make recommendations. Thus, it might not be appropriate for them to arbitrate the admissibility of reservations.

ALBERTUS HOFFMANN (South Africa) said his country endorsed the general approach of the International Law Commission on the question of reservations to treaties. Recent developments had prompted a reconsideration of rules and principles laid down by the Vienna regime. Those developments included the practice of making interpretative declarations in addition to, or instead of, reservations. There was, clearly, a need for greater clarity on the distinction between reservations and interpretative declarations. It was, therefore, appropriate that the Commission should embark upon a study on reservations to normative treaties, particularly human rights treaties.

Many States had made far-reaching reservations to those treaties, which were sometimes incompatible with the objectives and purpose of the treaties, he said. Other State parties had remained silent on such reservations, although they were required to monitor reservations for compatibility. The Vienna regime should be respected. At the same time, it was necessary to consider the reasons that had led some human rights monitoring bodies to assert their competence in that field. It would be highly undesirable for the views of those bodies, which today played a key role in the protection of human rights, to be simply dismissed by States, he said.

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ELHASSANE ZAHID (Morocco) said the practice of reservations to normative multilateral treaties had always existed. Since the codification of the 1969 Vienna Convention on the Law of Treaties, the legal regime on the issue had been well defined and had become a sort of acquired sovereign right of States, which could not be suppressed. Codification of such regimes had not been easy. The recourse to reservations was governed by the Vienna regime, which was working very well and should not be changed. There was no need for a separate reservation regime for human rights treaties. Any action contrary to those principles would only discourage States from adhering to international regimes, he said.

ROBERTO LAVALLE VALDES (Guatemala) said the preliminary conclusions of the Commission should have stressed the desirability of treaties that prohibit reservations or allow reservations only under certain circumstances. States should also be encouraged to make treaties that contained specific provisions on the powers of monitoring bodies and their ability to judge reservations. By placing those provisions in the treaty itself, future conflicts over such matters could be avoided.

He added that there should be changes to paragraph 12 of the conclusions, which states that the conclusions were without prejudice to practices developed by monitoring bodies within regional contexts. The words "within regional contexts" should be replaced with "jointly with State parties".

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