Progress on Guidelines for ‘Reservations to Treaties’ Is Reported to Legal Committee; Final Version Ready for Adoption Next Year

25 October 2010
GA/L/3399

Progress on Guidelines for ‘Reservations to Treaties’ Is Reported to Legal Committee; Final Version Ready for Adoption Next Year

25 October 2010
General Assembly
GA/L/3399
Department of Public Information • News and Media Division • New York

Sixty-fifth General Assembly

Sixth Committee

19th Meeting (AM)

Progress on Guidelines for ‘Reservations to Treaties’ Is Reported

 

to Legal Committee; Final Version Ready for Adoption Next Year

 

Debate Begins on Annual Report of International Law Commission

As the Sixth Committee (Legal) began its annual review of the report of the International Law Commission today, the Committee Chairperson, Isabelle Picco (Monaco), welcomed the presence of legal advisers from numerous capitals and expressed her confidence that their participation would enrich the debate on the Commission’s work.

Nugroho Wisnumurti (Indonesia), Chairperson of the International Law Commission, introducing the report, said the sixty-second session of the Commission, earlier this year, had yielded “important substantive outcomes”.  He stated that with the adoption of 59 additional draft guidelines on “reservations to treaties”, the final version of the entire set of guidelines was complete and ready for adoption next year.

He also highlighted other achievements such as the commencement of a second reading on the draft articles on “effects of armed conflicts on treaties” and the provisional adoption of five draft articles on the “protection of persons in the event of disasters”.  There had also been substantive discussions on “expulsion of aliens”.

He said feedback received from Governments was crucial to the Commission’s mission and to the development and codification of international law and he emphasized that, in particular, information on State practice was a valuable building block to the Commission’s work.

The Special Rapporteur of the Commission was the “driving force” behind the Commission’s work, he added, and the responsibilities of the system placed a heavy burden on special rapporteurs generally.  He hoped that the General Assembly would reconsider the restoration of the former honorariums.  He noted the establishment of the African Union Commission of International Law and said he welcomed its willingness to develop a working relationship with the International Law Commission.

The representative of Chile, speaking for the Rio Group, said the Commission’s questionnaire used to gather information on State practice needed to focus more on the main aspects of the topic under consideration.  He pointed out that a lack of response from States might be due to the size and infrastructure of international law teams in different countries rather than any lack of interest.  He also urged that the much welcomed dialogue, that begun last year between the Commission and the Legal Committee, be further enhanced during the Legal Committee’s meeting.

Austria’s delegate said he had hoped to see more progress on the question of the immunity of State officials from foreign criminal jurisdiction, and that the Special Rapporteur should give it high priority.  He also commended the effort to fill a gap in the Vienna Convention on the consequences of invalid or impermissible reservations, but suggested there needed to be a more precise definition of invalid reservations. 

The representative of Slovakia said the subject of reservations to treaties was of great interest to her country, as it was one of two nations to have emerged from the former Czechoslovakia, which had been handled in line with the Vienna Convention.  She commended the guidelines relating to the territorial scope and timing of the effects of a successor not maintaining a reservation formulated by the predecessor.  The guideline on the capacity of successors to object to prior reservations, and to the related issue of whether the successor may formulate objections to reservations, was most useful.

The Committee Chairperson noted the deaths of Sir Ian Brownlie, a former member of the International Law Commission and former Special Rapporteur on the topic “effects of armed conflicts on treaties”, and Paula Escarameia, current member of the International Law Commission.  She said the great loss of these two “esteemed international lawyers” would not only be felt by friends and colleagues, but by the international community at large, a sentiment expressed by many delegates during the debate. 

Also speaking today were the representatives of Denmark (on behalf of the Nordic countries), El Salvador, Mexico and Germany.

The Committee will meet again at 10 a.m., tomorrow (Tuesday, 26 October) to continue its debate on the International Law Commission report.

Background

The Sixth Committee (Legal) met today to begin its annual consideration of the work of the International Law Commission, with a focus on the “First Cluster” of issues, including introductory chapters I-III, chapter IV on reservations to treaties and chapter XIII on other decisions and conclusions of the Commission.

Before the Committee was the report of the International Law Commission (document A/65/10) on the proceedings of its sixty-second session (Geneva, 3 May to 4 June and 5 July to 6 August).

The report states that for its consideration of “reservations to treaties”, the Commission had previously provisionally adopted 59 draft guidelines with commentaries.  That included 11 draft guidelines already adopted by the drafting committee, dealing with the freedom to formulate objections and with matters relating to the permissibility of reactions to reservations and of related interpretative declarations and reactions.

At the latest session, the report says, the Commission considered the legal effects of reservations, acceptances of reservations and of objections to them, as well as the legal effects of interpretative declarations and reactions thereto.  On those matters, 37 draft guidelines were referred to the drafting committee.  In addition, 20 other draft guidelines were referred to the drafting committee; those dealt with reservations, objections to reservations, and acceptances of reservations and interpretative declarations in relation to the succession of States.

After consideration, the report states, the Commission completed the provisional adoption of the set of draft guidelines on reservations to treaties.  The text of the 116 draft guidelines is contained in the report.

For its consideration of “expulsion of aliens”, the report says the Commission had before it the draft articles on protection of the human rights of persons who have been or are being expelled, which had been revised and restructured by the Special Rapporteur.  Also before the Commission was a new draft workplan for structuring the draft articles, the Special Rapporteur’s sixth report, as well as comments and information received from Governments.  The Commission referred referenced articles from both the fifth and sixth reports, as well as from the addendum in the sixth report to the Drafting Committee.

The report also says that the Special Rapporteur expressed concern that the Commission’s consideration of the fifth report had “revealed a lack of understanding” with regard to his statements about protection of the human rights of persons who had been expelled or were being expelled.  In response to requests during the last session, he had restructured the draft articles into four sections, including “General rules”, “Protection required from the expelling State”, “Protection in relation to the risk of violation of human rights in the receiving State” and “Protection in the transit State”.

On “effects of armed conflicts on treaties” the Commission had before it the first report of the Special Rapporteur containing his proposals for the reformulation of the draft articles as adopted on first reading and taking into account the comments and observations of Governments.  Also reviewed by the Commission was a compilation of written comments and observations received from Governments.  After a debate in plenary on the first report, the Commission referred all the draft articles and the annex to the Drafting Committee.

In addition, the report says the Special Rapporteur suggested that, while focusing on the reactions of Member States to the first reading text and introducing changes where necessary, the approach to the topic be based on practice and doctrine.  With regard to a suggestion that increased emphasis be given to State practice, it was observed that State practice was scarce and, at times, contradictory.  The Special Rapporteur said he would conduct additional research in the area, while preparing commentaries to the draft articles.

Turning to the topic “protection of persons in the event of disasters” the report says the Law Commission had before it the third report of the Special Rapporteur who explained that this report reflected the debate following his second report.  The third report provided an overview of States’ views on the Commission’s work in this area, the consideration of the humanitarian principles directly relevant to the protection of persons, as well as the underlying concept of respect for human dignity, and the question of responsibility by the affected State for protecting persons under its territorial jurisdiction.

The report also states that proposals were made for three further draft articles, including draft articles 6 (Humanitarian principles in disaster response), 7 (Human dignity) and 8 (Primary responsibility of the affected State), which were then referred to the Drafting Committee.

For its consideration of the “obligation to extradite or prosecute” the report says that the reconstituted working group had before it a survey identifying 61 multilateral instruments at the universal and regional levels, and containing provisions combining extradition and prosecution as alternative courses of action for offenders.  Also before the working group was a working paper by the Special Rapporteur which, based on the 2009 general framework, specifically drew attention to the legal bases, material scope and content of the obligation to extradite or to prosecute, as well as the “triggering” of said obligation.

The Study Group on “treaties over time” was reconstituted and began its work, according to the report, on aspects of the topic with regard to subsequent agreements and practices on the relevant jurisprudence of the International Court of Justice, and of arbitral tribunals of ad hoc jurisdiction.  Also discussed were issues relating to the significance and role of subsequent agreements and practice in the interpretation and possible modification of treaties.

The report also notes a study group on the “most favoured-nation clause” which reviewed various papers based on the 2009 framework, including a catalogue of most-favoured-nation provisions and papers on the 1978 draft articles.  Also included in the review were papers on the practice of General Agreement on Tariffs and Trade (GATT) and the World Trade Organization, the work of the Organisation for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD), as well as the “Maffezini” issue.

On the topic of “shared natural resources”, the report says the Commission once again established the working group, which continued to assess, based on a working paper, the feasibility of future work on oil and gas.  Taking into account all aspects of the matter, including the views of Governments, and in light of previous discussions, the working group recommended that the Commission not take up the consideration of the oil and gas aspects of the topic.

Regarding “other decisions and conclusions of the Commission”, the report states that, among other issues, the Commission had before it a Note on “Settlements of disputes clauses”, which the Secretariat had prepared.  Several points were raised, including the need to examine the question of inclusion of the topic in a set of draft articles on a case-by-case basis, the usefulness of seeking information from regional bodies on methods used in addressing such disputes, and the possibility of drafting model clauses.  The Commission decided to continue the discussion on this matter at its next session.

In addition to the report of the International Law Commission, the Committee had before it a report by the Secretary-General on assistance to special rapporteurs of the International Law Commission (document A/65/186).  It affirms the role of the special rapporteurs in the work of the Commission and its ability to carry out its statutory responsibilities.  It also recalls that the General Assembly had recognized the unique responsibility placed on the rapporteurs by authorizing the exceptional payment of research project grants to them in the form of honorariums.  The Commission had repeatedly drawn attention the fact that the Assembly’s earlier decision on the $1 per year for each member of the Commission (document A/RES/56/272) had compromised support for the special rapporteurs’ research work; it urged the General Assembly to reconsider the matter and restore the honorariums.

As customary in its report, the Law Commission includes specific issues on which comments were of particular interest.

With regard to the first issue, “reservations to treaties”, the Commission welcomed comments from States and international organizations on the draft guidelines adopted this year, in particular to the draft guidelines on the effects of an established reservation and on consequences of an invalid reservation referenced in the Guide to Practice.

The second area in which information from States was sought pertained to “treaties over time” which might clarify the practical and legal significance of “subsequent agreements” and the “subsequent practice”.  To this end, the Commission requested one or more examples from States that had been or were particularly relevant in the interpretation and application of their treaties, as well as instances of interpretation which involved taking into account other factors arising after entry into force of the treaty.

Remarks by Committee Chairperson

ISABELLE PICCO (Monaco), Chairperson of the Sixth Committee, noted that the beginning of the debate on the report of the International Law Commission coincided with International Law Week.  Welcoming the Chairperson and several members of the Commission, she urged the Committee to take “full advantage” of the Commission’s presence in regards to its work.  She also welcomed the Legal Advisers from capitals, expressing her confidence that their participation would enrich the debate on the Commission’s work.

Introduction of International Law Commission Report

NUGROHO WISNUMURTI ( Indonesia), Chairperson of the International Law Commission, said that the sixty-second session of the Commission, this year, had yielded “important substantive outcomes”.  In adopting 59 additional draft guidelines on the reservations to treaties, the Commission had completed the entire set of guidelines and intended to adopt the final version next year.  Other achievements this year included, among others, the commencement of a second reading on the draft articles on “effects of armed conflicts on treaties”, the provisional adoption of five draft articles on the “protection of persons in the event of disasters”, and the continuation of substantive discussions on “expulsion of aliens”.

He said the working groups had also advanced their work, concluding in the area of “shared natural resources” by deciding not to pursue the question of transboundary oil and gas resources any further, and further clarifying issues to be considered on the topic of “the obligation to extradite or prosecute”.  Study groups continued discussions on “the most-favoured-nation-clause” and “treaties over time”.  However, although the Commission had not been able to consider the second report of the Special Rapporteur regarding “immunity of State officials from foreign criminal jurisdiction”, it would be taken up next year.

He noted the special relationship and the ensuing “unique interaction” between Governments and the Commission.  The process of communication pointed to the primacy of dialogue between States and the Commission, he said, and he emphasized that the feedback received from Governments during the development of progressive development of international law and its codification was crucial to the Commission’s mission.  In particular, information on State practice was a valuable building block to its work.

He also noted that if the relationship with Governments captured the uniqueness of the Commission as compared with other bodies, it was the Special Rapporteur of the Commission that was the “driving force” behind its work.  The Special Rapporteur’s responsibility, time-tested, proved to be efficient and effective in the progression and codification of international law.  However, such responsibilities also placed a heavy burden on individual special rapporteurs, and he observed that the honorariums which used to be paid was not so much designed to compensate them adequately for their services, but to acknowledge their substantial sacrifice of time and resources.  The Commission, since 2002, had drawn attention to the General Assembly on the need to reconsider the restoration of the former honorariums.

Cooperation and relationships with other bodies was a valuable component in the work of the Commission, he stated, including the annual visit of the President of the International Court of Justice, which served to formally support the “substantive synergy” in the work between the Court and the Commission.  As new bodies in international law were established, the Commission would work in liaison with them, and he welcomed the establishment of the African Union Commission of International Law with which cooperation was being developed.

He thanked Governments for their voluntary contributions to the trust fund on the backlog of the Yearbook, which was an important record of the Commission’s work, and also to the International Law Seminar, a programme of assistance in the teaching, study, dissemination and wider appreciation of international law.  He said the Codification Division was also integral to the Commission’s efforts, particularly in its studies and research projects.  Next year’s session of the Commission would be the last in the current five-year cycle, and a 12-week session would be held so that, as in previous practice, several projects could be concluded. 

He reviewed the substantive Chapter IV of the Commission’s report concerning the topic “reservations to treaties” which he noted had been on the Commission’s programme of work since 1993.

Statements:  Law Commission Report

THOMAS WINKLER ( Denmark), speaking for the Nordic countries, noted several challenges that the Commission faced, and commented on the fact that only one female representative at present was in the Commission.  While affirming the “great work” of the Commission and States in the codification and development of international law and promoting a rules-based international order, he said the Commission must maintain its momentum on issues of importance to States.

He said he was concerned that topics such as “immunity of State officials” and “obligation to extradite or prosecute” had made little progress during recent sessions.  Recognizing that there was divergence of views between States and scholars, he urged that the Commission establish a basis for a “more informed dialogue with and between States”.  He commended the Commission for discontinuing consideration of the issue of oil and gas under the topic “shared natural resources”; however, he said he would question how much progress could be made on the topic of “expulsion of aliens” which had already existing detailed rules and other forum engaged in application and monitoring of compliance.

Turning to “reservations of treaties”, he applauded the conclusion of work and adoption of the entire set of draft guidelines of the Guide to Practice which he said added clarity and consistency to a regime of “such practical importance to State relations”.  The Nordic countries, as well as other States, had developed the practice of severing invalid reservations from the treaty relations between the States, he added, notably with regard to the relevant article on the application of the treaty in the case of an invalid reservation.  He commended the Rapporteur for striking the right balance in the “sensible draft Guideline” between the different views that had been expressed on this issue.

HERMAN SALINAS ( Chile), speaking for the Rio group of countries, said the importance of the work of the special rapporteurs was recognized, and it was important to explore ways of further supporting their activities.  The questionnaires used by the Commission to elicit information and comments from States should focus more on the main aspects of the topic under consideration.  They should be drafted in a way that would enable more States to reply in a timely manner, perhaps by requesting information about national legislation or jurisprudence.  Finally, any lack of response should not be interpreted as a lack of interest, but should be ascribed to differences in size and infrastructure between international law teams in different countries.  The difference should not lead to the situation where the views of only certain countries were taken into account during debate.

He said the enhanced dialogue that had begun last year between the Commission and the Legal Committee was welcome, and more could be done to enhance cooperation and dialogue between the Commission and States.  This could include the strengthening of contacts and consultations between State representatives and Commission members during the Legal Committee’s meeting.  At present, only the Commission Chair and a few special rapporteurs attended the Committee meetings because of budgetary considerations; consideration should be given to ways of ensuring the full participation of special rapporteurs and working group chairs in the Committee’s work, particularly during the period when the Commission’s report was being discussed.  This would allow for questions and comments on an informal basis.

The “thematic dialogue” was an important event for an informal exchange of views between Committee members and those of the Commission, he concluded.  It should be held near the time of the meeting of the Legal Advisers and it should not overlap with other Assembly meetings that could jeopardize the presence of Legal Advisers.  The form and content should be formulated as a “short list” of themes.  It should be announced well in advance to allow time for preparation.

MANUEL MONTECINO GIRALT ( El Salvador) said the regime underlying treaties must be clear and precise.  Their legal regimes posed numerous complexities, particularly in the case of multilateral treaties.  The special rapporteurs had made monumental advances in the area of formulating treaties, including by providing for a flexibility that allowed for easing of the usual need for unanimity.  The guidelines on reservations were most useful, in that they built on existing legal regimes which had become established in practice.  As such, they added value both to the codification process and to the field of customary law.

He recalled that the Commission had requested delegations to comment on guidelines that still posed problems or were still unclear, he recalled.  Addressing them in detail, he began with the guideline on ‘interpretative declarations” and said the scope of the guidelines on the effect of individual and collective acceptances of an impermissible reservation should be further distinguished.  Other guidelines needing further clarification included those on the effect of a reservation on a treaty, the consequences of invalid reservations, the status of the author of an invalid reservation relative to the treaty and reactions to an invalid reservation.  Overall, he concluded, the guidelines were an important step forward in the codification of international law.

HELMUT TICHY ( Austria) commended the Commission for the range of subjects it covered, but said he had hoped to see more progress on the immunity of State officials from foreign criminal jurisdiction.  The Special Rapporteur should give it high priority.  He said the survey of multilateral conventions compiled by the Secretariat on the obligation to extradite or prosecute had been most useful.  On the topic of reservations to treaties, the Commission adopted important draft guidelines that covered pertinent topics such as the effects of reservations and interpretative declarations, as well as their status in the case of State succession.  But it might be difficult to apply the draft guidelines in practice, because of their comprehensive character and the existence of so many cross-references; further thought should be given to enhance their “user-friendliness.”

Once a reservation was established, he said, it affected treaty relations.  However, draft guidelines in the Commission’s report did not clarify whether treaty relations were also established between the author of a reservation and a contracting State (or organization) that objected to the reservation but did not exclude the entry into force of the treaty between them.

That problem, he added, was related to the complex question of when a reservation could be regarded as established; draft guideline 4.3 created the assumption that it could be done with regard to an objecting State or organization, contrary to guideline 4.1, which explicitly required acceptance in order for the reservation to be established.  Other guidelines did not discuss whether the author of the reservation was still entitled to invoke a breach by another party, he said.

He commended the effort to fill a gap in the Vienna Convention on the consequences of invalid or impermissible reservations, but suggested there needed to be a more precise definition of invalid reservations.  Seeking further clarification of another draft guideline, he said Austria was of the view that it would not be appropriate to force the author of a reservation to become bound by the terms of a treaty when the reservation was null and void.

JOEL HERNÁNDEZ ( Mexico) said he supported the work of the International Law Commission on the topic of “reservations to treaties” and in particular, on the effects of an established reservation and the consequences of an invalid reservation.  Concerning the effect of an established reservation, in order to ensure the view of the application of the relevant Vienna Conventions article, the system of relative participation should apply.  Thus, in keeping with the principle of reciprocity, the State would have the faculty to decide individually whether a reservation could be opposed or not.

He commended the Commission’s work on “invalid reservation” in view of its absence in the Vienna Conventions.  He urged that this be further considered, so that its application “not give rise to uncertainty”.  Continuing, he said a reservation that did not meet the formal conditions and substantive validity should be null and void of all legal effects.  He also supported the Commission’s position that in the absence of States or international organizations making objections to making the reservation invalid, the treaty should apply, notwithstanding that reservation.

BARBARA ILLKOVÁ ( Slovakia) said the subject of reservations to treaties, and objections to them, was of great interest to her country which was one of two nations emerging from the former Czechoslovakia.  A number of issues involving treaties and successor States were not covered by either the 1978 Vienna Convention or by relevant practice.  The various forms of succession were among those, and the guidelines shed light on them.

In the case of her country, she said the reservations of the predecessor State had been handled in line with the Vienna convention.  They had been maintained in the notifications of succession transmitted to the Secretary-General and other depositaries.  In that situation, succession to a treaty did not depend on an expression of intention by the successor State, which could be legitimately considered to have inherited all the predecessor’s rights and obligations under the treaty, without possibility of avoiding the obligations by formulating reservations.

Further, she said the guidelines relating to territorial scope and timing of the effects of non-maintenance by a successor of a reservation formulated by the predecessor were commendable.  It was important that the relevant guideline applied not only to treaties that were in force for the successor at the time of the succession, but also treaties not in force the successor on that date but to which it was a contracting State since that situation was not covered in the Vienna Convention.  It was understood that the guideline did not cover “territorial treaties”.  There was much complexity in the concepts behind the guideline on the capacity of successors to object to prior reservations, and to the related issue of whether the successor may formulate objections to reservations made in respect of a treaty to which it became a party as a result of succession.  Nevertheless, the guideline was clear enough and thus “most useful”.

SUSANNE WASUM-RAINER ( Germany) expressed concerns on the topic of “reservations to treaties”.  Addressing the legal effects and consequences of “impermissible” reservations on treaty relations, she observed that this remained unresolved in international law.  The relevant article in the draft guide introduced a presumption that in the case of an impermissible reservation, the reserving State would become a party to the treaty without the benefit of the reservation, unless it was clearly indicated that in those circumstances it did not wish to be bound by the treaty in question.  In her view, this went beyond a “mere guideline to existing practice” but proposed a new rule in international treaty law. 

She said her country would be reluctant to introduce a new rule into the draft guidelines, since doing so might impact further development of international treaty relations and thus result in “uncertainty rather than clarity”.  She said State practice remained ambiguous in this area and it would be difficult to identify a consistent State approach, even with regard to human rights treaties.  The relevant cases upon which much of this proposal had been based needed to be evaluated in the context of the Council of Europe, a “rather close-knit regional group” that upheld a common set of social and political values formulated in the European Convention on Human Rights.  In that regard, she emphasized that this specific European treaty context should not be generalized.  She expressed concern that such a broad positive presumption might make States more reluctant to adhere to treaties; many States, for constitutional reasons, would have to say that their consent to be bound by a treaty depended on their reservation.

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For information media • not an official record
For information media. Not an official record.