ASSEMBLY'S LEGAL COMMITTEE IS TOLD LAW COMMISSION SHOULD SET UP SYSTEM TO JUDGE RESERVATIONS TO MULTILATERAL TREATIES

5 November 1997

Press Release
GA/L/3055

ASSEMBLY'S LEGAL COMMITTEE IS TOLD LAW COMMISSION SHOULD SET UP SYSTEM TO JUDGE RESERVATIONS TO MULTILATERAL TREATIES

19971105 Question of Compatibility at Issue; Some Favour New Body, Others Warn of Complications If Current Procedures Change

A number of representatives this afternoon suggested that the International Law Commission should establish a system to judge the compatibility of reservations to multilateral treaties to guide States, as the Sixth Committee (Legal) continued its discussion of the Commission's report on the work of its forty-ninth session.

In considering chapter five of the report, reservations to treaties, some representatives said the main problem in reservations was the absence of a competent body which could objectively decide if a reservation was admissible under a treaty's provisions.

The representative of Japan said there was need for a body or system that would objectively decide whether a reservation was compatible with the object and purpose of the treaty. His Government proposed during the Vienna conference in 1968 that a collegiate decision mechanism to conduct the compatibility test of reservations be established for each treaty.

The representative of the Republic of Korea said treaty relations had been left unpredictable by the absence of an authority to determine the compatibility of reservations. That situation allowed a State to make impermissible reservations. For that reason, the Commission should establish a centralized mechanism to ensure uniform and timely decisions regarding the permissibility of reservations.

On the proposal of creating a separate reservations regime for human rights treaties, the representative of Ghana said that would not be a viable option in practice because the existing general regime could accommodate changes. Moreover, since several bodies and agencies dealt with human rights within the United Nations system, conferring additional powers on monitoring bodies could further complicate matters.

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Agreeing with this point, the representative of Tunisia said there should not be a separate regime for reservations to human rights treaties because the current regime had functioned well with regard to all kinds of treaties, including human rights treaties.

Statements were also made by representatives of Costa Rica, Argentina, Liechtenstein, Niger, Chile, India, Greece, Uruguay and the Russian Federation. The observer for Switzerland also spoke.

Also this afternoon, the Chairman of the International Law Commission, Alain Pellet, introduced chapters six through nine of the Commission's report dealing with State responsibility, international liability for injurious consequences arising out of acts not prohibited by international law, diplomatic protection, and unilateral acts of States.

The Committee will meet again at 3 p.m. tomorrow, 6 November, to continue its debate on the report of the International Law Commission.

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 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 of 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 State 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

CHUSEI YAMADA (Japan) said treaty-monitoring bodies could comment and express recommendations with regard to the admissibility of reservations by States in order to oversee the implementation of the treaties. However, they had no competence to make legal determinations on the validity of particular reservations, unless otherwise specifically authorized to do so by the express provisions of the treaties. The basic rule of consent by States must be safeguarded.

He said the key problem with reservations to treaties was the lack of a body or system that would objectively decide whether a reservation was compatible with the object and purpose of the treaty. His Government foresaw that problem at the time of the 1968 conference in Vienna. His delegation had then proposed a collegiate decision mechanism to conduct the compatibility test of reservations. Other governments had been supportive of the idea, but no mechanism had been found that was acceptable to the majority of the conference participants. Perhaps, the Commission should suggest a model collegiate system to judge the compatibility of reservations, as a guide for States in negotiating future treaties.

KAK-SOO SAN (Republic of Korea) said treaty relations had been left unpredictably by the absence of an authority to determine the compatibility of reservations with the object and purpose of the treaty concerned. That situation allowed a State making impermissible reservations to pretend to be a party to a treaty, until that State's reservation was finally denied either by an objection or by a binding decision in third-party dispute settlement. For

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that reason, the procedural aspects of the matter should be further elaborated through the work of the Commission. A centralized mechanism should be sought to ensure uniform and timely decisions regarding the permissibility of reservations.

On the issue of treaty-monitoring bodies, he said they should be given competence to comment upon and express recommendations with regard to the admissibility of reservations on the following conditions: first, they should have that power within the context of discharging their duties; and second, their finding must be subject to the approval of the State parties. The responsibility and competence for taking action on an inadmissible reservation, however, should rest with the State.

ERIC ODOI-ANIM (Ghana) said new approaches to the issue of reservations to treaties should address the question of clarity and the consequences arising from them. The approaches he had in mind related to: the definition of reservations; the distinction between reservations and interpretative declarations; the formulation and withdrawal of reservations; and the effects of reservations, acceptances and objections. He was not suggesting that the existing regime on reservations be rejected, rather, it should be refined and expanded.

A separate regime on reservations for human rights treaties would not be a viable option in practice, insofar as the existing general regime could accommodate changes, he said. Moreover, since several bodies and agencies dealt with human rights within the United Nations system, conferring additional powers on those bodies with respect to reservations could further complicate matters in the present reservations regime.

He urged the Commission to further study the proposals that would have States indicate the parameters for non-application of a provision of a human rights treaty. Also, the exact nature of human rights monitoring bodies should be clearly defined, he said. A system of collaboration between States and monitoring bodies within an expanded framework of the Vienna regime would be a workable solution. He supported the conclusions of the Commission, which had underscored the fact that the object and purpose of a treaty were the most important criteria in determining the admissibility of reservations, and that the existing Vienna regime was suited for the requirements of all treaties.

CARLOS F. DIAZ (Costa Rica) said it was inappropriate for the Commission to rush to conclusions without taking into account the views of States, although he took note of the fact that the conclusions were preliminary. Any adoption of resolutions would be contrary to the Commission's mandate and might represent only the views of Commission members. The real question was not whether there was a regime separate from the Vienna conventions, but how it was applied and finding a proper balance between it and the treaty's integrity.

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He could not accept second preliminary conclusion of the Commission, which confirmed the general applicability of the Vienna regime to all treaties, including human rights treaties. He was, however, pleased about the fifth and sixth conclusions. The fifth concerned the competence of the monitoring bodies to comment upon the admissibility of reservations. The sixth addressed the issue of the competence of monitoring bodies not excluding the traditional modalities of control by the contracting parties.

SILVIA A. FERNANDEZ (Argentina) said the Commission should continue its study on the object and purpose of treaties, in order to make the content and scope of its conclusions more specific. She was looking forward to the Commission's future work on the topic and the guide to practice on reservations to treaties that it planned to adopt.

On treaty-monitoring bodies, she said there may be a need to further define the paragraphs on that topic in order to avoid ambiguities and misinterpretations. Implicit powers for determining the admissibility of reservations should be awarded to monitoring bodies when those powers were not included in a treaty. However, the assessment made by the body could not be binding, independent of a specific treaty provision mandating such authority. Without such a provision, the body could only have the power to make recommendations.

CHRISTIAN WENAWESER (Liechtenstein) said he fully concurred with paragraph 5 of the Commission's preliminary conclusions on the reservations to treaties, which gave treaty-monitoring bodies the competence to comment upon and express recommendations with regard to the admissibility of reservations. That type of work fell within the purview of their existing mandates and was complementary to their ongoing dialogue with State parties on problems related to the application and implementation of the conventions in question. Such a practice would make a significant and urgently needed contribution to the implementation of the provisions of human rights instruments.

From a practical view, however, giving monitoring bodies that power would be extremely time-consuming, and it would hardly enable the resolution of problems that States currently faced on the subject of reservations. In the absence of concrete rules on the topic, States should engage in a dialogue on that matter, not only with the relevant treaty body, but also with the State that had lodged the reservation. Such a scenario had recently emerged with regard to a reservation made by his country when ratifying a major human rights treaty. His country looked forward to an exchange of views on that issue.

BOUBACAR TANKOANO (Niger) commended the Codification Division, Office of Legal Affairs, for organizing the recent colloquium, which commemorated the fiftieth anniversary of the International Law Commission. He said the balance sheet on the Commission's work was a positive and the status of the Commission

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could not be questioned. He supported proposals to strengthen the Commission's role.

The issue of reservations to treaties went to the very heart of State sovereignty, he continued. Reservations were permissible under the 1969 Vienna Convention on the Law of Treaties. It should be recognized, however, that reservations to human rights treaties could not be covered by the scope of the 1969 Convention. Reservations should be entered clearly and specifically, so that they did not give rise to different interpretations. The Commission and States should continue to study the subject.

SAMIA LADGHAM (Tunisia) said there should not be a separate regime for reservations to human rights treaties, as had been proposed in discussions before the Committee. The current regime on the reservations to treaties had functioned well to date, with regard to all kinds of treaties. She questioned whether any changes should be made to that regime.

On the topic of treaty- monitoring bodies, she said it was up to the States parties to a treaty to take a position on how to determine the admissibility of a reservation. With that in mind, she believed paragraphs 7 and 9 of the preliminary conclusions were premature, because there had been little agreement on the issues. Those paragraphs asked States to provide specific clauses in their treaties giving monitoring parties competence to determine the admissibility of reservations, and that States should give due consideration to the recommendations of those bodies.

HECTOR CORREA (Chile) said the ability of States to make reservations was a customary law given to States by the Vienna regime and by international law. The current regime had been able to adapt to the necessities of modern treaties, as well as encourage broader participation of States in treaties. There were, however, some gaps in the regime with regard to reservations, which had been a general problem in multilateral treaties. The common practice was to leave the admissibility of reservations to the subjective judgement of the other contracting States.

When a conflict arose over the competence of a State to make a decision on the admissibility of reservations, the complementary role of the treaty- monitoring body could be used to help resolve the situation, he said. That role, however, could not go beyond an opinion or recommendation. The role of such bodies could be stimulated through closer cooperation between them and the State parties.

SANTOSH MOHAN DEV (India) said States alone were competent to freely determine the extent to which they would be bound by international contractual obligations. It was a sovereign attribute of every State to negotiate with other States and decide on the extent to which it committed itself to the obligations it would enter into with other States. He believed the Vienna

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legal regime was universally applicable to all treaties without any distinction aimed at excluding a particular type of treaty, including human rights treaties.

He added that, to address differences between States on the admissibility of reservations to human rights treaties, dispute settlement mechanisms should be set up within the treaty. The human rights treaty- monitoring bodies, made up of elected experts, could greatly enhance the cause of human rights by fully and duly expressing the competence conferred upon them by their constituent instruments. Any overstepping of their competence would be counter productive, however.

MARIA TELALIAN (Greece) said it was important that the Commission distinguish between the compatibility of a reservation and its legal effects. She believed that the monitoring bodies of human rights conventions had the competence to provide an objective assessment on the competence of a reservation. That competence derived from the special character of the human rights norms and was necessary for the effective exercise of the monitoring functions assigned to those bodies.

The question of the legal effect of the assessment made by the supervisory bodies regarding impermissible reservations was most crucial and should be treated with great caution and sensitivity, she said. The provisions of the 1969 Vienna Convention on the Law of Treaties were very unclear in that respect, which had created confusion and legal uncertainty for State parties to multilateral treaties. The Commission should shed some light on the system of accepting or objecting to reservations. A thorough examination and clarification of those issues would meet the concern expressed recently by human rights monitoring organs about the number and scope of current reservations to human rights treaties. It would also help those bodies efficiently carry out their responsibility.

ALAIN PELLET (France), Chairman of the International Law Commission, introduced chapters VI through IX of the Commission's report on the work of its forty-ninth session. With regard to the long-term programme of work, he said a working group was established during its last session to examine possible new topics for the next session. The working group enumerated a number of criteria that should guide the selection of new topics. The Commission hoped that, at its next session, it would be able to propose new topics, with an indication of how it intended to proceed with its study of the subjects. Governments would also have an opportunity to examine the suggestions and comment on them.

On chapter VI, State responsibility, he said the topic affected every aspect of State activities. The first draft of articles by the Commission dealt with a number of critical issues and required the special attention of the Commission. For its second reading of the topic, scheduled to begin next

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year, the Commission needed to know the views of governments. At its last session, the Commission decided to design its work plan to allow for the completion of the second reading of the topic by the end of the present term of office. It also decided to establish working groups on key issues of the topic. A new Special Rapporteur on the issue of State responsibility, James Richard Crawford (Australia), was appointed.

On chapter VII, international liability for injurious consequences arising out of acts not prohibited by international law, he said the Commission established a working group on the topic to consider how to proceed with its work. The working group reviewed the work of the Commission on the topic since its introduction in 1978 and said that the scope and the content of the topic remained unclear, because of conceptual and theoretical difficulties. The cumbersome title of the topic, confused and ambiguous as it was, was also unhelpful.

In addition, he said the relationship between that topic and State responsibility was not entirely clear. Given the fact that the work of the Commission on "prevention" was already at an advanced stage, the working group decided to proceed first with the work under the subtitle "prevention of transboundary damage from hazardous activities". The Commission appointed P.S. Rao (India) Special Rapporteur for that part of the topic.

In considering chapter VIII, diplomatic protection, he said the Commission examined the scope and content of the topic in the light of the comments and observations made by governments. It decided that the topic was appropriate for consideration and took note of a more detailed outline on the scope and content of the topic proposed by the working group. The Commission appointed M. Bennouna (Morocco) Special Rapporteur for the topic, who would submit a preliminary report based on the outline of the working group.

The working group found that, given the increased exchange of persons and commerce across State lines, claims by States on behalf of their nationals would remain a significant issue. The topic was primarily concerned with the basis, conditions, modalities and consequences of diplomatic protection. The working group defined diplomatic protection as a formal claim made by a State in respect to an injury to one of its nationals.

He said that the Commission decided that the scope and content of the topic would include such issues as: basis for diplomatic protection; the required linkage between the beneficiary and the States exercising diplomatic protection; who could claim diplomatic protection and against whom; the conditions under which diplomatic protection may be exercised; and the consequences of diplomatic protection.

On chapter IX, unilateral acts of States, he said the Commission decided to initiate work on the codification and progressive development of the legal

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rules on the subject. The main objective of the study would be to identify and clarify the effects of unilateral legal acts of States and to create rules that were applicable to such acts. The study would include the legal effect of unilateral acts of States on themselves and on other States, as well as such questions as duration and when the acts could be terminated or revoked. V. Rodriguez Cedeno (Venezuela) was appointed Special Rapporteur for the topic and would submit a report to the Commission in 1998.

JULIO BENITEZ SAENZ (Uruguay) speaking on the topic of nationality with regard to succession of States, said his delegation agreed that priority should be given to "natural persons" before "legal individuals". The draft articles drawn up by the International Law Commission provided basis for tackling the issue. The principle that every person had a right to nationality should remain the basis for work on the draft articles.

With regard to reservations to multilateral treaties, his delegation reaffirmed their validity as enshrined in the 1969 Vienna Convention on the Law of Treaties. Monitoring bodies could not replace the competence of States to determine their right to reservations. His delegation did not agree with the conclusion of the Commission concerning the competence of the monitoring bodies, where the treaties establishing them were silent, to comment upon and express recommendations on the admissibility of reservations to carry out their functions.

On the question of international liability for injurious acts, he said the scope of State responsibility for cross-border actions should be clearly specified. Much work remained to be done and his delegation was satisfied that the Commission was competent to carry it out. There was also need for more work on the question of diplomatic protection and he hoped the Commission's working group would take account of the principle of the sovereign will of States. He urged further study on the issue of unilateral acts of States, as well as those of international organizations. He hoped there would be an equitable set of rules on that subject at the end.

IGOR K. PANEVKIN (Russian Federation) said his delegation approved the report of the work of the Commission at its forty-ninth session. Its preliminary conclusions on reservations to multilateral treaties were of practical interest to his delegation, which supported the regime provided for in the 1969 Vienna Convention on the Law of Treaties. The absence of protocols conferring competence on monitoring bodies to determine the admissibility of a reservation should not give them a right so to determine. They would be exceeding their competence if they did. He urged the Commission to formulate norms to guide States, and added that such guidelines should be supplementary to the Vienna regime.

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On the issue of nationality and succession of States, he said work on the subject should continue. Attention should be given to the issue of multiple nationality. He agreed that the Commission's draft articles should be adopted as a declaration by the General Assembly.

DIDIER PFIRTER, Observer for Switzerland, said that in considering reservations it might be useful to note the role of depositories of treaties. Those bodies, under the Vienna conventions, had the responsibility for determining whether a notification, accession or reservation to a treaty was in due form. If those instruments were not in due form, depositories could bring that fact to the attention of States parties. In the case of a reservation to a treaty, the depository had the duty to see if the treaty allowed such reservations. If the reservation was unauthorized, States must be notified.

He added that while his delegation was not opposed to giving treaty monitoring bodies the ability to determine the admissibility of reservations, those bodies should not exceed the scope of the powers given to them by States parties. Unless those parties had recognized the power of those bodies to judge reservations, it was doubtful that the body would have any competence in that area. The Commission's conclusions favoured the extended powers of monitoring bodies and it seemed to give its conclusions legal status and weight before States had agreed on those issues. His delegation would have preferred to have the Commission remain neutral regarding monitoring bodies during its work.

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