AS LEGAL COMMITTEE REVIEWS DRAFT GUIDELINES FOR TREATY RESERVATIONS, SPEAKERS STRESS EXCEPTIONAL CHARACTER OF HUMAN RIGHTS AGREEMENTS

Press Release
GA/L/3127

AS LEGAL COMMITTEE REVIEWS DRAFT GUIDELINES FOR TREATY RESERVATIONS, SPEAKERS STRESS EXCEPTIONAL CHARACTER OF HUMAN RIGHTS AGREEMENTS

The question of whether reservations should be permitted to human rights instruments was raised by several speakers this afternoon as the Sixth Committee began discussing the efforts of the International Law Commission to draw up practice guide on reservations to treaties.

The Committee is discussing the issue as one element in the Commission’s annual report. In the draft guidelines for reservations prepared by the Commission, “reservation” is defined as a unilateral statement made by a State or an international organization, purporting to exclude or modify the legal effect of certain provisions of a treaty as applied to that State or international organization.

The representative of Sweden, on behalf of the Nordic countries, said that a great majority of states parties to treaty preferred to remain silent as to reservations made by other parties, however troubling those reservations might be. There was, however, a welcome tendency among States to reduce the number and scope of reservations attached to human rights instruments. He attributed that trend to a consistent policy, on the part of a number of governments, objecting to reservations and modifications that might undermine the integrity of the treaty.

The Hungarian representative noted with satisfaction that the Commission had laid down some of the basic principles for the issue of impermissible reservations. He firmly believed that the separate status of certain multilateral normative treaties, including human rights treaties, should be strictly upheld.

Italy’s representative likewise said that human rights treaties represented a special category of international agreements under which reservations were inappropriate. Those treaties were characterized by the indivisible nature of the obligations imposed on States parties. The Council of Europe tended to reduce reservations to human rights treaties through dialogue and negotiation with the state seeking to initiate the reservation.

Also participating in the discussion were the representatives of the United Kingdom and France.

The Committee will meet again tomorrow, Wednesday, 3 November, at 3 p.m. to continue its consideration of reservations to treaties.

Programme of work

The Sixth Committee met this afternoon to examine the efforts of the International Law Commission to draw up an international legal instrument to guide States and international organizations in the practice of making reservations to treaties. It is considering the topic in the course of its examination of the Commission’s report (document A/54/10) on the work of its most recent session in Geneva from 3 May to 23 July 1999.

The Commission, in its draft Guide to Practice with respect to Reservations, defines a “reservation” in part as a unilateral statement, made by a State or international organization, purporting to exclude or modify the legal effect of certain provisions of a treaty in their application to that State or international organization.

A commentary adopted by the Commission stresses that a reservation is meant to modify the legal effect of a treaty provision and not the provision itself. At the same time, it explains that the Commission recognized a practical need to take into account the well-established practice of across-the-board reservations.

The text also defines an “interpretative declaration”, as distinct from a reservation, as a unilateral statement by a State or international organization purporting to specify or clarify the meaning or scope that the State or organization attaches to a treaty or provision of the treaty.

At its last session, the Commission adopted 18 draft guidelines pertaining to the definition of reservations and interpretative declarations, constituting a first chapter of the Guide to practice. The first chapter is divided into six sections concerning: definition of reservations; definition of interpretative declarations; distinction between reservations and interpretative declarations; and unilateral statements other than reservations and interpretative declarations. The rest deal with unilateral statements in respect of bilateral treaties and scope of definitions.

The General Assembly, by its resolution 48/31 of 9 December 1993, endorsed the Commission’s decision to include in its agenda the item, “law and practice relating to reservations to treaties”. In 1994, the Commission appointed a Special Rapporteur on the subject who, in his first report, proposed a more neutral title, such as “reservations to treaties”.

In 1996, the General Assembly invited States and international organizations, particularly those that are depositories, to respond to a questionnaire prepared by the Special Rapporteur on reservations to treaties, State practice and problems they had encountered. At its 1998 session, the Commission had before it the Special Rapporteur’s third report, dealing with the definition of reservations and interpretative declarations.

Statements

ZDZISLAW GALICKI (Poland), Chairman of the International Law Commission, introduced the Commission’s report on reservations. The Commission had adopted a new version of draft guideline 1.1.1, object of reservation, and of an untitled, unnumbered guideline, which had become draft guideline 1.6, scope of definition. He noted that the guidelines were accompanied by commentaries that provided clarifications and examples. He then gave details of the various draft guidelines adopted by the Commission, beginning with the first, which sought to avoid any confusion with declarations relating to the implementation of a treaty at the internal level, or general statements of policy, which were the object of other draft guidelines.

Draft guideline 1.1.5 related only to statements which, because they were designed to exempt their maker from certain obligations under a treaty or widen maker’s rights, restricted by correlation the rights of the other contracting parties, or increased their obligations. To the extent that all such statements constituted reservations, he said the temporal element came into play, consequently, they should be made only when the State had expressed its consent to be bound by the treaty. Draft guideline 1.1.6 concerned unilateral statements purporting to discharge an obligation by equivalent means.

He said the adoption of a definition of interpretative declarations in draft guideline 1.2 had filled a vacuum, as both the 1969 and 1986 Vienna Conventions on the Law of Treaties were silent on the matter. Draft guideline 1.2.1 addressed the issue of conditional interpretative declarations, whereby a State or an international organization made its interpretation a condition of its consent to be bound by the treaty. He said that although such declarations were closer to reservations than to single interpretative declarations, in that they sought to produce a legal effect on the provisions of the treaty, the Commission did not believe that those two types of unilateral statements were identical.

Continuing, the ILC Chairman of the Commission said that draft guideline 1.2.2 addressed the issue of interpretative declarations formulated jointly by States or international organizations. As was the case with reservations, the possibility of joint formulation of interpretative declarations could not undermine the unilateral character of such declarations.

The third section of the first chapter of the Guide to Practice concerned the distinction between reservations and interpretative declarations. It dealt also with the method of implementation of the distinction and with certain “indicators” that would be helpful in making the distinction, he said. Draft guideline 1.3 stated that the character of a unilateral statement as a reservation or an interpretative declaration was determined by the legal effect it purported to produce. The method of implementation of the distinction between reservations and interpretative declarations, independent regardless of the name used by the makers describe those statements, were covered in draft guideline 1.3.1.

Draft guideline 1.4 might be regarded as a general exclusionary clause meant to limit the scope of the Guide to Practice to reservations and interpretative declarations, as opposed to other unilateral statements of any kind formulated in relation to a treaty, he explained. Draft guideline 1.4.1 referred to statements undertaking unilateral commitments, while 1.4.2 dealt with unilateral statements purporting to add further elements to a treaty, which, in the Commission’s view, amounted to proposals to modify the content of the treaty.

Section 5 of the first chapter dealt with unilateral statements concerning bilateral treaties, and included three draft guidelines, he noted. Those addressed the question of the possibility of reservations and interpretative declarations in respect of bilateral treaties.

Regarding the guideline dealing with the scope of definitions (1.6), he said the Commission had reviewed it in the light of the discussions on interpretative declarations and reformulated it accordingly. He appealed to States to respond to the questionnaire sent out in 1995 on “reservations to treaties”. The Commission would welcome additional answers from States that had already responded.

UMBERTO LEANZA (Italy), speaking on State responsibility, said the Commission would have to address grave violations of international norms and not simply internationally wrongful acts. He appreciated the efforts to rationalize and simplify chapter III, on breach of international obligation. However, the decision to simplify it by deleting articles 20, 21, and 23, on obligations of conduct, result, and prevention, respectively, was a bit too radical. The distinction was common in State practice and international jurisprudence. Moreover, it was important in the protection of human rights. He could accept as a compromise the inclusion of a reference to the distinction in article 16, on existence of a breach. However, he did not agree with merely including the reference in the commentary.

Concerning the draft article on exhaustion of local remedies, he said he was not happy with the wording and felt that it should be reviewed. He approved of the decision to retain chapter IV, on implication of one State in the internationally wrongful act of another State. He stressed the importance of chapter V, on circumstances precluding wrongfulness. Concerning the proposal to delete article 29, on consent of the injured state, he said the importance of consent could not be ignored. He agreed with the inclusion of an article that would establish the primacy of jus cogens over other norms of international law.

Turning to reservations to treaties, he said human rights treaties represented a special category of international agreements to which reservations were inappropriate. Those treaties were characterized by the indivisible nature of the obligations imposed on States parties. The Council of Europe tended to reduce the number reservations to human rights treaties through dialogue and negotiation with the State seeking to make the reservation, with the aim of obtaining either the withdrawal or the amendment of the reservation.

Sir Franklin Berman (United Kingdom) said that his Government’s views on State Responsibility and Reservations to Treaties had been made available. He recalled his nearly 30 years in the Sixth Committee. Over the years, he said, resolutions had become longer, muddier and less legally careful.

He said this year’s report of the International Law Commission was comfortably longer than earlier ones, and more user-friendly. The Commission would have to devote a greater proportionate share of its attention to surveying the field for new topics that were legally worthwhile and practically relevant. Governments must play their part in that effort. It was in that spirit that his Government had organized a seminar in celebration of the Commission’s fiftieth anniversary.

In his view, the best forum for discussion of the reports of the International Law Commission was the “friendly and unconstrained circumstances” of the Legal Advisers’ meeting that took place during the early part of the Sixth Committee’s session.

While not opposed to the Committee’s annual debate on the Commission’s report, he said the rigid set forms for that discussion did not respond to needs. He rejected the supposition that the same form of debate was needed every year. He suggested cutting the amount of time allocated to formal debate, and using the time saved for informal meetings between Special Rapporteurs (and other members of the Commission) and any delegations wishing to attend. He said that would require a deliberate plan to get the Special Rapporteurs to New York, but it should be possible.

He said he had thought a lot about the role of the Sixth Committee, and concluded that its role was to help make international law, and to make it count in the policies of Governments and in the work of the Organization and its organs. He could not think of a more worthwhile task, or a more rewarding one.

GYORGY SZENASI (Hungary) generally endorsed the draft guidelines. He noted with satisfaction that the Commission had laid down some of the basic principles with respect to impermissible reservations. He accepted the view that the impermissibility of certain reservations was a problem separate from their definition. He firmly believed that the separate status of, certain multilateral normative treaties including human rights treaties, prohibiting “across the board” reservations, should be strictly upheld. At a later stage, the Commission might want to explore further the issue of admissibility of reservations to human rights treaties, including the possible role of the monitoring bodies of such treaties. Based on the outcome of those deliberations, the Commission might want to include further elements in its definition of impermissible reservations.

Concerning unilateral statements in respect of bilateral treaties, he called for firm support of the draft’s provision that a unilateral statement, however phrased or named, by which a state purported to obtain from the other party a modification of the provisions of the treaty, did not constitute a reservation within the meaning of the guide. He shared the view that a reservation to a bilateral treaty would be tantamount to refusal of the treaty as drafted. On the question of conditional interpretative declarations attached to bilateral treaties, he agreed that declarations not aimed at changing the legal effect of the treaty could be attached.

However, he shared the view that a number of elements helped to blur the necessary distinction between reservations and interpretative declarations. Given the close interrelationship among reservations and conditional and simple interpretative declarations, it was necessary for the Commission to further clarify the distinction, he said.

FRANCOIS ALABRUNE (France) said the instrument being drafted should permit further development of the practice guide on reservations. The provision on statements purporting to limit the obligation of their author could be replaced by another article, on the object of the reservations.

The definition of "interpretative declaration" used by the Special Rapporteur did not specify when the State or the international organization should make the declaration. France believed that it would be preferable for such declarations to be made within a limited timeframe. That could be the same as the period in which an expression of reservations was allowed to be made.

Referring to the method used to codify the guidelines, he said it should allow for the introduction of shades of meaning that would not be possible under the framework of a convention. In that regard, he said the Commission should congratulate itself on the precise and painstaking study undertaken by the Special Rapporteur. The guidelines would complement articles 19 to 23 of the Vienna Convention on the Law of Treaties. LARS MAGNUSON (Sweden), speaking on behalf of the Nordic countries, said that a great majority of States parties to treaty preferred to remain silent as to the reservations made by other parties, however troubling those reservations might be. The Nordic countries had noted, however, a welcome tendency among States to reduce the number and scope of reservations being attached to human rights instruments. Another positive development was that States that had formerly made unspecified reservations had been endeavoring to make them more precise, thus facilitating an assessment of their practical impact. The Nordic countries were firmly convinced that a consistent policy, on the part of a number of Governments, of objecting to reservations and to modifications that might undermine the integrity of a treaty, had played an essential role in promoting that encouraging tendency.

The Nordic countries could go along with the guidelines adopted so far, with the exception of guideline 1.1.3., on reservations having territorial scope, he said. That guideline provided that a unilateral statement by which a State purported to exclude the application of a treaty or some of its provisions, to a territory to which that treaty would otherwise be applicable, constituted a reservation. The legal situation regarding various parts of the territory of a State might vary considerably among States. The competence of the central government to legislate for an area having a special autonomous status might be circumscribed by constitution or international agreements, he said. There were also various kinds of treaties. The Nordic countries assumed that statements having territorial scope should sometimes be considered as interpretative declarations. In other cases, however, such as human rights treaties, a territorial statement could be considered to have the nature of a reservation.

On the issue of inadmissible reservations, he said that quite often reservations were so general that it was impossible to reconcile their scope with the object and purpose of the treaty. In light of the growing interest among States in the problem of reservations and their permissibility, he said it was disappointing that the Commission was not scheduled to present an analysis of that problem until 2001.

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