DIFFERING VIEWS HEARD AS LEGAL COMMITTEE DISCUSSES CONDITIONS FOR STATES, OTHERS TO EXPRESS RESERVATIONS TO TREATIES

Fifty-eighth General Assembly

Sixth Committee

19^th Meeting (PM)

DIFFERING VIEWS HEARD AS LEGAL COMMITTEE DISCUSSES CONDITIONS

FOR STATES, OTHERS TO EXPRESS RESERVATIONS TO TREATIES

Review Continues of Topics in International Law Commission Report

The question of impermissible reservations and objections was a key avenue for the development of international law, Sweden’s representative told the Sixth Committee (Legal) this afternoon as it continued considering the report of the International Law Commission by debating the issues of unilateral acts of States and reservations to treaties.

Speaking on behalf of the Nordic countries, Sweden’s delegate called for States and organizations objecting to reservations made by others to state the grounds for the objection.  A guideline to that effect should be included in the Commission’s Guide to Practice, he said.  Also, objections should be specific and transparent, especially when a State or an international organization objected to an impermissible reservation because it was incompatible with the object and purpose of a treaty.

Japan’s representative said the texts should reveal the intentions of the country making a reservation and of one objecting to it.  A dialogue between parties could clarify intentions when not apparent.  The Commission should not predetermine the modality of the “reservations dialogue” it was taking up.  In determining the nature and effect of an objection, the intention should be examined to determine whether the State would not apply part of a treaty, block the application of the entire treaty or make a comment with no legal effect on the reservation.

Introducing the chapters yesterday, Commission Chairman Enrique Candioti (Argentina) had presented the issue of reservations by describing 11 adopted draft guidelines and three model clauses dealing with withdrawal of reservations and modifications of them.  He had also invited comments on the proposed definition of objections to reservations and on the advantages and disadvantages of clear statements of grounds for objections to reservations.  Comments would also be welcome on the draft guideline for enlarging the scope of reservations, which he said had given rise to divergent positions.

On the unilateral acts of States, he had said the difficulties continued.  The issue was not easy to conceptualize, its scope was problematic and access to State practice was limited.  A working group had made recommendations on the best approach and the Commission had again requested information from governments on general practice relating to unilateral acts and conduct of States.

Speaking on that item today, the representative of the Netherlands noted that recognition was the first particular unilateral act to be taken up and would be followed by others, such as promise, renunciation and protest.  He said the lines between those various acts were blurry, but a common denominator was the expression of its will by a State with the intention of creating obligations or other legal effects under international law.

Also speaking this afternoon were the representatives of Slovenia, Guatemala, Portugal, Italy, France, China, Romania, Cyprus, Chile, Argentina, Austria and Poland.

Iran’s representative orally introduced a procedural motion on behalf of the Organization of Islamic Conference (OIC).

Established by the General Assembly at its second session in 1947, the International Law Commission has the mandate to promote international political cooperation and to encourage the development and codification of international law.

The Committee will meet again at 10 a.m. on Monday, 3 November, to continue debating unilateral acts of States (chapter VII) and reservations to treaties (chapter VIII) in the International Law Commission’s report.

Background

The Sixth Committee (Legal) met this afternoon to continue its debate on the report of the International Law Commission (document A/58/10).  It was expected to take up the subjects of unilateral acts of States and reservations to treaties.  (For background on the Commission and its report, see Press Release GA/L/3238 of 27 October).

Statements

The representative of Iran orally introduced a procedural motion on behalf of the Organization of the Islamic Conference (OIC) prior to action on agenda item 158, the international convention against the reproductive cloning of human beings.  By that motion, debate on the item would be partially adjourned until the sixtieth session of the General Assembly in the hope that consensus could be achieved on the matter at that time.

META BOLE (Slovenia) said she agreed with the view that the basic provisions on reservations to treaties were laid down in the Vienna Conventions and that non-binding guidelines in the form of a Guide to Practice would both be useful to States and fill gaps on interpretative declarations and objections to reservations.  Welcoming the draft articles on withdrawal and also the model clauses, she said the commentaries to guidelines should eventually be part of the guide.

Responding to specific points raised in the report, she said the definition of “objections” as contained in it was acceptable, and broad enough to cover the intentions of a range of States or international organizations.  The rules on enlarging a reservation could be in line with those applicable to late formulation.  In case of bad faith on the part of State or organization, the opposition of a single State should prevent enlargement.

On unilateral acts, she reiterated the importance of the issue, agreed that such acts gave rise to international obligations and said they constituted a commitment.  A number of cases considered by the International Court of Justice had confirmed the practice.  The International Law Commission should continue examining the practice and prepare guidelines or recommendations.

CONNIE TARA CENA SECAIRA (Guatemala) expressed concern that the Commission’s work on unilateral acts of States had been characterized by difficulties leading to unproductive results.  Definition of objections to reservations contained in the recommendations of the special rapporteur was obviously defective, she said.  The Commission must agree whether only acts to which names were being assigned should be regulated, or whether there should be a specific number of unilateral acts or “open-ended” lists.  She wondered whether it would be advisable for general norms to be adopted to apply to all the acts; or whether special norms should be adopted for each; or a mix of special norms employed for each act.

With regard to reservations to treaties, she said her delegation had read the special rapporteur’s eighth report with great interest.  Comments on the guidelines should focus on how it should be applied.  She welcomed the trend towards States reporting objections and indicating reasons for their action.  There was general approval for encouraging States to explain reasons for their objections.

LUIS SERRADAS TAVARES (Portugal) said the work on unilateral acts of States served to fulfil the actual needs of States and the structure of the international community.  Emphasis should be placed on gathering information on State practice.  The Commission should also focus on general and specific rules applicable to the various types of unilateral acts.  When considering the form the work on the matter should take, it should be kept in mind that the topic was a source of international law having a characteristic autonomy.  That could be threatened if the regime became conventional, which in turn would threaten the nature of an autonomous source of international law.

With regard to enlarging the scope of reservations and the definition of objections to reservations, he said the consensual regime of the Vienna Convention and the general principle of “legal certainty” in law applied.  Expanding the scope of reservations in the manner proposed would be incompatible with their purpose in the convention, as would a guideline on it.  Finally, the International Law Commission should continue work on State practice with regard to the definition of objection of reservations.

JOHAN LAMMERS (Netherlands) said, on the subject of unilateral acts, that the special rapporteur had again posed the right questions in his report and had outlined the framework for dealing with a difficult and abstract subject defying codification and progressive development.  It was disappointing that the drafting of specific articles based on the working group’s recommendations had seemed to be deferred to a distant future.  Moreover, since the scope had been defined as statements versus actions, with a different approach for both, the Commission should aim to elaborate draft articles for both situations.  The Assembly could decide what legal form they should take.  It could decide to proceed as it had on State responsibility.

He said he disagreed with the view that the topic was not ready for codification until it existed as a legal institution.  To consider unilateral acts only as a description of a sociological reality of informal interaction was an injustice to the jurisprudence of the International Court of Justice.  It had been ruled that the concept of a unilateral act was in the domain of law, and that a unilateral act by a State could produce legal consequences.  The special rapporteur had chosen the right approach by beginning with an analysis of “classical” unilateral acts based on rules applicable to all unilateral acts.

The special rapporteur, he went on, had begun with recognition as a particular unilateral act, but there were others such as promise, renunciation and protest.  A common denominator in the various acts among which dividing lines blurred was the expression by a State of its will, with the intention of creating obligations or other legal effects under international law.  A matrix could be drawn with the categories of unilateral acts on the horizontal line and the legal issues raised by them on the vertical.  Finally, the sparse amount of information on State practice was not surprising.  Relevant practice was extremely difficult to trace and identify.

In a separate statement, on the issue of reservations to treaties, the Netherlands delegate said he hoped the work would soon be concluded, after 10 years.  If a definition of “objection” was needed at all, it should be broader than the one proposed.  Modelled after the definition of “reservation” in the Vienna convention, it distinguished between two kinds of intentions on the part of the objecting State but did not fully encompass all the intentions with which objections could be formulated.

As to the legal implications of an objection, he said he agreed with the view that the intention of the objecting State determined the legal effect of its objection.  Therefore, the objecting State should consider carefully its intentions and how best to formulate the objection, with intentions made explicit and, preferably, in writing.  Further, the question of advantages and disadvantage of clearly stating grounds for objections to reservations was a policy issue, rather than a legal one.  Certainly, it was desirable to state those grounds but State practice was inconsistent on that.  And finally, he said, the time limit for making reservations was clearly when consent to be bound was expressed.  Enlarging the scope of reservations would introduce a highly undesirable flexibility into the law of treaties.

CARL HENRIK EHRENKRONA (Sweden), speaking for the Nordic countries on the topic “Reservations to treaties”, said it was their practice to object to reservations considered incompatible with the object and purpose of a treaty.  That was especially so with regard to reservations to human rights treaties.  It was their view that incompatible reservations were invalid ipso facto and, therefore, impermissible.  It was clearly unacceptable if major achievements in the development of international human rights law in recent times risked seriously being weakened because of an insufficient legal regime governing objections to impermissible reservations, he said.  To exclude objections to such invalid “reservations” from the scope of a definition of objections would be to disregard an important part of existing State practice and also the practice of the European Court of Human Rights.

He said the Nordic countries believed that the intention of the State which performed a unilateral act -- be it a reservation, an objection or a mere unconditional interpretative declaration -- was certainly the essential element in an assessment of both the purported and factual effect of such an act.  They could agree to the definition proposed by the special rapporteur in the report (paragraph 363).  They shared the view that objecting States and organizations should be encouraged to state their grounds for objecting to reservations of other States and organizations.  They would welcome a draft guideline to that effect to be included in the Guide to Practice.  Objections should be specific and transparent, especially when a State or an international organization objected to an impermissible reservation as being incompatible with the object and purpose of a treaty.

Regarding the modifications of reservations, he said the Nordic countries aligned themselves with the view that such modifications could be dealt with in the same way as late reservations.  He emphasized the importance they attached to questions of impermissible reservations and objections, as a means to develop international law, and they looked forward to the results of the Commission’s work in that field.

IVO M. BRAGUGLIA (Italy) said his delegation shared the concern expressed by some delegations about the time frame adopted by the International Law Commission on its work on reservations to treaties.  He said the definition of objections to reservations –- if one were to be drafted -- should deal with all the reasons for the act without altering their intentions.  The Commission should remain faithful to its mandate.  On the question of enlargement of the scope of reservations, he said a State could formulate late reservations if no other contracting party formed an objection.

RONNY ABRAHAM (France) said the special rapporteur should gather all the information possible from States on unilateral acts so that the rules could then be drawn up on that important issue.  The definition of a unilateral act should refer to the State seeking to have a legal effect.  Intention should be taken into consideration and autonomy highlighted.  The recommendation to broaden the scope of unilateral acts to include the behaviours of States was not desirable.  The simultaneous consideration of State behaviour and unilateral acts could slow the work on the issue, regardless of similar legal effects created by both.  The Commission should limit its work to unilateral acts.

On reservations to treaties, he said the 11 new drafts dealing with withdrawal of reservations and modifications of them now brought the number of directives on the matter to 50.  Conditional interpretative reservations were only a category of reservations, and work on that should be held off.  Enlarging the scope of reservations to extend the time limits for entering them could be taken up in the guide.  The process should be subject to strict conditions, and while it was not desirable to enter reservations, in the strict legal framework, it was better than denouncing a treaty.  A definition of enlargement could improve the usefulness of the mechanism.  On the touchy question of defining an objection to a reservation, the intention of the objecting State should be looked at, so that the definition itself could fill a void in the Geneva Convention.  A strict definition would have advantages with regard to form and substance.

JIA GUIDE (China) said conditions were in place for the International Law Commission to pursue an in-depth study on international liability.  The Commission should carry out more studies on domestic and international practices on the topic, to find common denominators that would solidly lay the groundwork for a uniform regime.  The proposed allocation-of-loss regime should combine principles with flexibility.  China endorsed, in principle, the various proposals of the special rapporteur on the scope of the topic and compensation for damage to the environment, among others.  He said the proposals should be fleshed out and adjusted on the basis of further survey of State practice.

He said the enlargement of the scope of reservations should be treated as the late formulation of a reservation.  The provisions in the draft guidelines on the question should apply.  China believed that the definition of objections should clearly provide that objections to reservations could merely produce the legal effects defined in the Vienna Convention on the Law of Treaties.

On the topic of unilateral acts of States, he said China favoured the scope defined by the Commission.  It hoped that the Commission, based on a study of State practice, would proceed expeditiously so that the draft articles or guidelines on unilateral acts of States could be prepared at an early date. 

HUKIHIRO WADA (Japan) said the intentions of a country formulating a reservation, and of one making an objection to it, should be interpreted according to the texts of the reservation and objection.  A dialogue between the parties to clarify intentions when not apparent from the texts would be helpful.  The Commission should not predetermine the modality of the “reservations dialogue” it was taking up, since there were many ways in which States could explain and clarify their intentions to others with respect to reservations or objections.

Continuing, he said the intention of a State making an objection to a reservation should be the basis for determining the nature and effect of the objection.  To fully ascertain the nature of a statement made by a country in response to another country’s reservation, primary attention should be on the intent of the responder.  That would disclose whether the State intended not to apply part of a treaty on which the reservation was made; whether it intended to block the application of the entire treaty with regard to the reserving State; or whether it was making a comment with no legal effect on the reservation.  Finally, actual State practice in formulating reservations, and in ways of examining reservations and objecting to them, should be examined when discussing reservations.

COSMIN ONISII (Romania), speaking on responsibility of international organizations, proposed the inclusion of the concept of “international legal capacity” in the draft articles, particularly with regard to the attribution of conduct.  On the topic of diplomatic protection, he said a State adopted the cause of its nationals as its own, while functional protection was exercised solely in the interests of an organization.  Like diplomatic and consular officials, he said, officials of international organizations should also be excluded from the scope of the topic.

On the topic of International liability, he said the basis of the allocation of loss to the operator could be the application of the “polluter-pays” principle that had been expressly referred to in some bilateral agreements.  States had only a subsequent role in sharing the loss arising out of harm caused by hazardous activities; State liability should serve as a last resort.  It would be premature to decide on the final form of the instrument on liability, which should also be taken in relation to the final form of the draft articles on prevention already completed by the Commission.

On the topic, unilateral acts of States, he reiterated the importance of the identification of a set of principles applicable to those actions, taking into account the fact that they represented a source of legal norms.  Measures taken by States outside their jurisdiction might be of interest.

Turning to reservations to treaties, he said Romania welcomed the adoption of the draft articles relating to withdrawal of reservations and commended the special rapporteur on his dedicated efforts.  On the definition of objections, his delegation favoured a formulation based on two elements:  intention, which was the key element of an objection, and a reference to the effects that the objection produced.  It shared the view that States should be encouraged, in principle, to state the grounds for the objection that they formulated.

A.J. JACOVIDES (Cyprus) spoke on all the topics and issues covered by the International Law Commission at its fifty-fifth session.  He said Cyprus aligned itself with the position of the European Union on the question of responsibility of international organizations.  The topic of diplomatic protection was a classical one on which a wealth of authority existed.  The topic was adequately dealt with in the draft articles approved, in principle, by the Commission, and, in his delegation’s view, there was no need to include other issues.

On unilateral acts of States, Cyprus agreed that governments should respond positively to the request to provide information on relevant general practice.  On shared natural resources, another topic taken up by the Commission, the representative of Cyprus said there should be further study of its technical and legal aspects.  On fragmentation of international law, Cyprus considered it as a natural consequence of the expansion of international law, which was a sign of vitality and, thus, might strengthen international law if approached with caution.  Cyprus sympathized with the Commission on the issues of documentation and honorariums.

CLAUDIO TRONCOSO (Chile) welcomed the report of the special rapporteur on unilateral acts of States.  The analysis had made it possible for such acts to be identified.  The methods employed by the special rapporteur in his sixth report were appropriate and adequate for the study on the scope of unilateral acts.  The three other topics concerning the act of recognition –- namely, its validity, legal effects and applicability -- would be more suited in a general analysis covering unilateral acts in the strictest sense.  He expressed an interest in having the present study continued.  Articles concerning general acts should be elaborated, and States required to provide information on their practice of unilateral acts.

On the question of reservations to treaties, he said a simple interpretative declaration, unlike a normal reservation, might be made any time.  For that same reason, they might be withdrawn without any formality or requirement.  Chile shared the view that “conditional” interpretative declarations must be subject to the common regime of reservations.  He said States or international organizations would be bound by them.  A simple interpretative declaration could be made at any time within the scope or meaning of the norms agreed upon.

EUGENIO CURIA (Argentina) referred back to the issue of diplomatic protection and on the rights of States to exercise it on behalf of a legal person who had suffered harm.  On international liability, he drew attention to the failure to comply with international obligations as of particular concern in the area of transporting hazardous materials.  He said questions to be considered were the extent to which the State of origin should be required to help in areas such as clean-up and compensation. 

On reservations to treaties, he elaborated on late reservations as those made after a State had bound itself to treaty obligations.  He said such formulations had been accepted in the past when the contracting party supported the reservation.  Such formulations, however, should be limited, as should objections.  There were gaps in the articles.  In the area of shared natural resources, he said he was particularly concerned with water.  General universal principles should be established for standards of use and protection.  Liability measures should be much stricter than at present.  His country shared the Guarani Aquifer with its neighbours Brazil, Uruguay and Paraguay; they had devised a joint system for managing the largest underground water system in the world. 

HANS WINKLER (Austria), speaking on reservations to treaties, expressed concern about the increasing number of guidelines produced by the Commission and their complex structure.  If the Commission continued at its current pace

(66 individual guidelines), it could end up with more guidelines on the issue than articles of the 1969 Vienna Convention on the Law of Treaties, which contained

80 articles without final clauses.  He said the more complex the guidelines became, the less likely was their acceptance and application in practice.  He, therefore, strongly encouraged the Commission to streamline the present guidelines, merging individual texts wherever possible.

On unilateral acts of States, he said the approach adopted by the special rapporteur raised several questions.  It seemed doubtful whether, under the heading of unilateral acts, the Commission should deal with the topic of “recognition” without seeking prior consent of the General Assembly.  His delegation was not convinced of the need to continue the item in the Commission.  If it were thought necessary to continue, he said, then account should be taken of the recommendations of the working group, while the working methods were changed.

REMIGIUSZ HENCZEL (Poland) said work on the topic of unilateral acts had progressed slowly until now.  Answers from governments, however, and the working group’s recommendations should speed the process.  It should be kept in mind that the line was blurred between unilateral acts that were intended to formulate legal obligations and those adopted exclusively for political purposes.  At times it was more convenient for States to retain the hazy differentiation so as to avoid being legally bound by unilateral declarations.

On reservations to treaties, he said the Guide to Practice would be of great practical value to governments and international organizations.  It would harmonize two fundamental values of treaty relations, the integrity and universality of treaties.  While supporting the guidelines so far provisionally adopted, the increasing number and detail of the casuistic consecutive draft guidelines proposed by the special rapporteur were of concern.  Even so, the draft guide to practice contained valuable instructions on formulating reservations and interpretative declarations, as well as on how to use them in practice.  A notable point was the detail in differentiating between reservations and other statements.  Written comments were annexed to the statement.

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