Fifty-sixth General Assembly

Sixth Committee

20^th and 21^st Meetings (AM & PM)

LEGAL COMMITTEE COMPLETES REVIEW OF PROPOSED GUIDELINES

ON ISSUES RELATING TO RESERVATIONS TO TREATIES

Issues relating to Reservations to Treaties -- such as their formulations, interpretative declarations and the role of the depositary -- dominated discussions today as the Sixth Committee, at two meetings, wound up its examination of guidelines on the topic, prepared by the International Law Commission.

The Commission adopted 12 guidelines on the topic at its fifty-third session earlier this year, and referred 13 others to its drafting committee.  The draft guidelines established the principle of the obligation of confirmation of reservation formulated when a treaty was being signed.  The obligation had become part of positive international law.

The representatives of Mali, France, Poland and Guatemala spoke during this morning’s deliberations.  Speaking this afternoon were the representatives of Hungary, Greece and Israel.

The International Law Commission Special Rapporteur for Reservations to Treaties, Alain Pellete, also addressed the Committee this afternoon.

The Committee will meet again at 3 p.m. tomorrow, Wednesday, 7 November, to take up further topics in the report of the International Law Commission’s report, including Diplomatic protection, Unilateral Acts of States and other decisions and conclusions adopted by the Commission.

Background

The Sixth Committee (Legal) met this morning to continue consideration of the report of the International Law Commission on its latest session, with special focus on Reservations to Treaties.

The Commission adopted 12 guidelines on the topic at its fifty-third session (2001) and referred 13 others to its drafting committee.  The Chairman of the Commission, Peter Kabatsi, introduced the subject yesterday afternoon.

      Statements

SALIFOU FOMBA (Mali) said that reservations to treaties constituted an important mechanism for the broad and consensus participation of States in the international legal system.  The Guide to Practice proposed by the International Law Commission would be invaluable, in particular for small States.  He agreed with the guide's retention of the distinction between simple interpretative declarations and conditional interpretative declarations.  He noted the Commission’s conclusion at this stage that conditional interpretative declarations be subjected to the same legal regime as reservations themselves.  Thus, the Commission would not then include specific instructions for those declarations. Stressing the importance of research on State practice in the use of those declarations, he said States and organizations should be required to provide information as soon as possible to the Commission.  Mali intended to do so presently.

He said the use of late formulations of reservations followed the desire to provide for the broadest possible participation of States in treaties.  While the rules were flexible, the freedom to formulate late reservations should not be unlimited nor unconditional.  Citing the reluctance of many to support anything that would unduly encourage the practice, he said it would be good idea to limit the scope of the right to formulate a late reservation.  The International Law Commission had proposed the acceptance of late reservations as long as they were not in conflict with the treaty and there was no objection to them.

Turning to the role of the depositary, he said that the letter and spirit of the Vienna Conventions had established, in article 76, the international as well as the impartial nature of the function of depositary.  Article 77 of the Convention compelled the depositary to refer to States; the depositary was not given full powers in a dispute. 

JEAN-LUC FLORENT (France) noted that the provisions of the draft

guidelines concerning formulations of reservations in writing conformed with the text of the 1969 Vienna Conventions on the Law of Treaties.  Such written formulations were the only means of guaranteeing contractual obligations.

He said the provisions of guideline on the formulation of conditional interpretative declarations (2.4.2) were acceptable.  The formulation should be in written form even if the declarations were conditional.  He believed the practice could be simplified by stating that the guideline on reservations applied mutatis mutandis to conditional interpretative declarations.

There should be a distinction, he said, between the competent authorities that formulated reservations and those who made them.  He did not, for example, believe that heads of permanent missions could be considered as competent to formulate reservations.

He noted that the guideline on communication of reservations (2.1.5) was based on the provisions of article 23 of the 1986 Vienna Convention.  The drafting of the text was acceptable.  The communication should not be done by electronic mail, since its security could not be guaranteed.

The provisions of guideline dealing with effective date of communications relating to reservations (2.1.8) were totally acceptable to his delegation.

ANNA WYROZUMSKA (Poland) said her delegation shared the Commission’s doubts as to whether the Guide to Practice should include draft guidelines specifically relating to conditional interpretative declarations.  In the view of her delegation, they were included in the concept of reservations; the practice of late formulations of reservations should remain exceptional and be kept under strict conditions.  The delegation favoured the negative formula provided for in guideline 2.3.1.  Her delegation believed the 12-month limit set for communication of reservations was reasonable.

On the role of the depositary, she said she shared the view that it was not part of the depositary’s function to assume the role of an interpreter or judge of the nature of a party’s reservation.  However, she was inclined to accept that the depositary, upon receipt of a reservation which was manifestly inadmissible, might draw attention of the State making the reservation to that fact.

The depositary might refuse to circulate a communication if the treaty expressly prohibited a reservation.  She also said that if the reservation was expressly prohibited or manifestly inadmissible by the treaty, article 20 paragraph 5 of the (1969) Vienna Convention would not apply.  The lapse of the 12 months would not make such a reservation effective.  

ROBERTO LAVALLE (Guatemala) recommended that each time a guideline reproduced language from the Vienna Conventions, it should be indicated by a footnote.  Also a footnote should be used when it quoted a provision in the United Nations Charter.  He believed guideline 1.4.7 should be broadened to include, in the case of a treaty, that instead of the obligation for the parties to choose among the various options, they should instead simply be allowed to choose from among the list.  He also recommended the use of an alternative phrase in guideline 2.2.2 to improve it.  There was a discrepancy between the title and the text of guideline 2.2.3.  He believed the title was fine but the text needed to be amended in order to harmonize the two.

There appeared to be a contradiction between guideline 2.3.3 and guideline 2.3.1 and he deemed the first to be unnecessary.  If a treaty did not specifically prohibit reservations, there should be no obstacles to guidelines 2.1.2 and 2.4.3. He suggested other wording for paragraph (a) in guideline 2.3.4.  Guideline 2.4.6 would be improved if immediately following the word "momentos"  [in the Spanish text} the phrase "within a certain time period" was inserted, and if immediately after the words "otro momentos" [again in the Spanish text], the phrase  "following the expiration of this time period" was inserted.

Simple interpretative declarations produced a legal effect in only two cases:  one was in the place of an estoppel and the other was when they  

constituted a disguised reservation.  The Guide to Practice needed to deal solely with simple interpretative declarations when they were submitted in writing and submitted to the depositary as well.

The meeting was then adjourned.

When the Committee met again this afternoon, ARPAD PRANDLER (Hungary), agreed with the Special Rapporteur that the Guide to Practice on the legal regime of reservations and interpretative declarations would merely systemize the prevailing State practice and that of international organizations.  He also agreed that reservations and their alternatives were useful in that they might be conducive to States becoming party to multilateral treaties, and thereby contributing to the general acceptance of international legal norms.  He supported the inclusion of international organizations in the guide as major actors, in addition to States, in the field of making reservations or statements to treaties.

He said Hungary supported a regime of multilateral treaties through which the integrity of those treaties and the principle of pacta sunt servanda was upheld.  Since, on a number of occasions, conditional interpretative declarations had been made in practice, they should be covered by the guidelines.  Since their effects were identical to reservations, there was only need for a single general guideline.  As to late reservations, he shared the view that the overall formulation of rules had more to do with the progressive development of international law than with codification in its strict sense.  He supported a restricted approach, saying the late formulation of reservations should be accepted only as exceptions to the rule and could be tolerated only if the States Parties did not reject them.

Regarding the role of the depositary, he said he shared the view that the depositary should faithfully implement its role, which was mainly of an administrative character, without making any attempt to influence or prejudge the views of the States parties concerning issues which might be raised by them.  He added that his government would like to see more information provided by the International Law Commission on activities in the field of human rights treaties.

PHANI DASCALOPOULOU-LIVADA (Greece) noted that the Special Rapporteur had decided to depart from the traditional rule of diplomatic protection concerning continuous nationality, to try to find a way to serve the interests of individuals who might be adversely affected in certain circumstances by the strict application of the rule.  However, she said, she did not agree that such an approach was the best to follow.  The rule should be kept as such, thus asserting the codification thereof, and the existing legitimate concerns should be taken into account by providing for exceptions to the rule, in the context of progressive development.  Such exceptions would come into operation in cases of involuntary change of nationality.  The major exception of that kind would be that of state succession where nationality was being attributed directly and ipso jure by the law, in a massive way and without any right of option being afforded to individuals.  Other cases of lesser importance were those of marriage and adoption or whenever nationality was lost irrespective of the will of the individual.  The conceptual merging of notions such as diplomatic protection on the one hand and human rights on the other, and the loss of clarity of their corresponding delimitative dimensions, were not in the interest of international law and ultimately not in that of individuals either.

Addressing unilateral acts of States, she said the International Law Commission gave the impression that it was still looking for a way to tackle the topic.  Substantive progress was apparently still lacking.  The only angle that would be of interest to Greece would be that which focused on acts forming an autonomous source of international law, i.e., when a unilateral act constituted a binding obligation toward another state or several States, or towards the international community as a whole.  Although such acts were not common, they must however be regulated for reasons of legal certainty.  Consequently, unilateral acts which were linked with a treaty or with a rule of customary international law -- such as a declaration of a breadth of territorial seas of twelve nautical miles -- should be left out of the ambit of unilateral acts to be examined by the International Law Commission.  The same applied to institutional acts of international organizations, such as the United Nations or the European Union.

YORAM DINSTEIN (Israel) dealt with three topics considered by the Commission at its fifty-third session this year:  Reservations to treaties; Diplomatic protection and Unilateral Acts of States.  On Reservations to Treaties, he expressed concern about the tendency to assimilate interpretative declarations to reservations.  He believed that the two categories were -– and should remain –- separate and independent of each other.  There were salient distinctions between a formal reservation and an interpretative declaration in terms of timing and form. Another cardinal difference was that a tribunal was not free to apply or to reject a reservation to a treaty which did not rule out reservations.  If the reservation was compatible with the object and purpose of a treaty -– and it had been accepted –- it must be looked upon by the tribunal as if it were an integral part of the treaty in the relations between the reserving State and the accepting State.

On Diplomatic protection, he said the Commission would well be advised to retain customary rule, subject to exceptions made in the case of involuntary change of nationality.  Unlike a voluntary change of nationality (which raised fears of abuse), an involuntary change took place through nobody’s fault, and common sense as well as justice demanded that the general rule of continuous nationality be mitigated.

On the rule of exhaustion of local remedies, he said it was predicated on unimpeachable customary law.  The only possible criticism of article 10 was that the rule, which had evolved over a long period in case law, had numerous specific applications which were not expressly addressed in the text.  It might be advantageous to be more explicit about practical problems like appeals and other available means of challenging a judgement under a domestic legal system.

He said the Commission’s study of the topic of Unilateral Acts of States was truly seminal, as it had never been carried out before.  It was useful to distinguish between the forms of unilateral acts of States and their effects.  As far as form was concerned, he said it was on the whole convenient to distinguish between four modalities:  specific notations; general declarations or statements; action unaccompanied by any statement or declaration and silence amounting to acquiescence.

He said he strongly supported the proposal by the Special Rapporteur on the topic to apply to unilateral declarations the principles of interpretation incorporated in articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties.  It was better to distinguish between declarations and other unilateral acts of States, he added.                                                    

ALAIN PELLET, Special Rapporteur on the topic of Reservations to Treaties, responding to comments made by delegations, said he would have liked a less formal interaction between the International Law Commission and the Sixth Committee on the subjects discussed.  He therefore called for a true dialogue between the two bodies; it would have been much more interesting to have the views of the Sixth Committee members on topics before the Commission, rather than after work on texts had been completed.

He observed that from the debate on the topic of Reservations to Treaties, governments believed that the role of the depositary should be harmonized in general terms with the provisions in the Vienna Convention on the Law of Treaties.  The Commission might take that view into account when it resumed consideration of the topic next year.

On the question of interpretative reservations, he said that in general terms, States seemed to think it was not necessary to prepare lengthy guidelines on it.  The clear majority position on conditional interpretative declarations seemed a reasonable one.  There was no difference between interpretative declaration and conditional interpretative declaration.

He observed that Sixth Committee members, like those of the Commission, seemed to be divided.  No one really called into question late formulations of reservations, a practice carried out by most States.  He wondered how the idea could be incorporated into the guideline without the risk of encouraging States to continue the practice.

He said he found it difficult to draw conclusions from debates in the Committee.  Cooperation between the Commission and the Sixth Committee seemed to be “a dialogue of the deaf”.

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