After Two Decades, ‘Guide to Reservations’ Presented to Sixth Committee as Annual Review of International Law Commission Continues
After Two Decades, ‘Guide to Reservations’ Presented to Sixth Committee as Annual Review of International Law Commission Continues
|Department of Public Information • News and Media Division • New York|
Sixty-eighth General Assembly
19th & 20th Meetings (AM & PM)
After Two Decades, ‘Guide to Reservations’ Presented to Sixth Committee
As Annual Review of International Law Commission Continues
Special Rapporteurs on ‘First Cluster’
Topics Address Delegations’ Concerns at Conclusion of Debate
After almost two decades, the Guide to Practice on “reservations to treaties” finally came before the Sixth Committee (Legal), as the debate began on the “second cluster” of topics from the International Law Commission’s 2011 report.
Introducing the topic, Bernd Niehaus, Chair of the International Law Commission, said that it had taken 17 years of work to finalize the Guide to Practice on Reservations to Treaties. It was to have been presented during the Committee’s sixty-seventh session last year. However, due to Hurricane Sandy, examination of the Guide had not been possible.
In addition to the Guide, he said that the Commission had adopted a recommendation to the General Assembly to establish a mechanism for assistance in reservations to treaties, composed of a number of experts, and an "observatory" on reservations to treaties, as well.
He emphasized that the purpose of the Guide was to assist practitioners of international law who often faced delicate problems in interpretative statements. The text was meant to assist them not only with respect to the past, but to practice as it developed.
The Special Rapporteur on the topic, Alain Pellet stressed that the Guide was not just a series of “recipes for legal cuisine”,nor was it a “ready-to-use” guide for counsel in a hurry or a crib [sheet] for students as their memories failed them, but a true box of tools that diplomats, counsel, and members of parliament could delve into to solve problems.
He said that he had begun his work as Special Rapporteur with the hope that something useful would bridge the many gaps in the Vienna Convention. Appealing to delegations to discuss the Guide and do away with preconceived ideas, he urged them to “take it for what it is” in the search for a balanced useful solution arising from the Vienna regime in interpretation to treaties.
Tackling many issues covered by the Guide, several delegations commented that certain guidelines were not necessarily consistent with practice. The United States representative pointed out that, while the Guide, at times, reflected obligations that were otherwise established via treaty or custom, it did not always reflect consistent State practice or settled consensus on certain important questions.
Addressing the nature of certain reservations, Sweden’s delegate, speaking for the Nordic countries, stressed that at minimum, all States parties to a treaty must commit to its purpose. That was critical in preventing globally agreed norms from being undermined by far-reaching reservations. Although particularly true in the field of human rights where States parties had made reservations that were incompatible with the conventions’ aims, he pointed out that such reservations had occurred in other treaties as well. Those kinds of reservations should not be accepted as valid in any area.
In concluding deliberations on the first cluster of topics from the Commission’s report, delegates continued to echo the themes of the last two days and special rapporteurs on two of the topics let them know that they were being heard.
Concepcion Escobar Hernandez, Special Rapporteur on immunity of State officials from foreign criminal jurisdiction, responding to the expressed need for a term that would clearly define “official”, said that, in the coming report, she would deal with that matter. She also emphasized that the issue of terminology was not a minor one and should be equally considered in the third report.
The Special Rapporteur on subsequent agreements and subsequent practice in relation to the interpretation of treaties, Georg Nolte, underscored that the Commission had been designed to serve the international community by elaborating draft articles and conclusions in relative independence, and on the basis of input and feedback from the Sixth Committee. That feedback was not only reactive but served as a guide for future deliberation and gave the special rapporteurs and the Commission a sense of direction.
The representative of Canada also introduced the draft resolution on “Measures to eliminate international terrorism”.
Speaking today were representatives of Italy, Poland, India, Thailand, Cuba, Malaysia, Israel, Russian Federation, China, Indonesia, Iran, Mongolia, Australia, Switzerland, New Zealand, Japan, Austria, Portugal, Belarus and United Kingdom.
The Sixth Committee will reconvene on Friday, 1 November at 10:00 a.m. to continue its consideration of the report of the International Law Commission and to take action on several draft resolutions.
The Sixth Committee met today to conclude its deliberations on the first cluster of topics from the International Law Commission report and to take up the second cluster. (For background see press release GA/L/3465).
The Committee would also hear the introduction of the resolution on measures to eliminate international terrorism (document A/C.6/68/L.13) and take action on four draft resolutions on the granting of observer status, which had been introduced 16 October 2013 (for background see press release GA/L/3460).
Statements on First Cluster
ANDREA TIRITICCO (Italy) said that the first five conclusions adopted by the International law Commission on “subsequent agreements and subsequent practice in relation to the interpretation of treaties” seemed to meet the general aim of elaborating future draft propositions with a sufficiently robust normative content. Those conclusions also preserved the flexibility inherent in the concept of subsequent practice. However, on draft conclusion 5, he questioned whether the principles on attribution under the law of international State responsibility were fully applicable to the attribution of conduct. It was unclear from the draft and its commentary if the collective organs of international organizations in regard to interpretation of their constitutive treaties fell within the scope of paragraphs 1 and 2.
Turning to “immunity of State officials from foreign criminal jurisdiction”, he praised the in-depth analysis and related case-law of the three draft articles that the Commission had provisionally adopted. Turning to draft article 1 and noting the case-law which had emerged on the irrelevance of the official capacity of individuals accused of the most serious crimes, he said that the Commission should consider the overall development of international practice on the impact of the nature of the crime when considering the granting of immunities. Among other comments on the matter, he said that while immunity ratione personae covered acts performed by officials during or prior to their term of office, the immunity applied only if the criminal jurisdiction of a third State would be exercised during the term of office of the officials concerned.
RYSZARD SARKOWICZ ( Poland), observing that the Special Rapporteur’s report on “subsequent agreements and subsequent practice” focused only on decisions of international bodies, said that although a number of quoted decisions were remarkable, such an approach seemed insufficient because it did not take into account the decisions of national courts. The International Court of Justice in several cases had conducted a widespread survey relating to decisions of national courts. That had been done in a jurisdictional immunities case ( Germany vs Italy). On the interpretation of “agreement” in article 31 of the Vienna Convention on the Law of Treaties, he said that while he concurred that not every agreement was a treaty, it was difficult to agree that “subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions (…) are not necessarily binding”. The doubts as to the binding character of those agreements would question the need to conclude them at all. Taking into account all means of interpretation, in some circumstances such agreements could be treated as not conclusive. However, it was difficult to consider them as not binding for States that had concluded them.
On “immunity of State officials from foreign criminal jurisdiction”, he expressed appreciation for the Special Rapporteur’s efforts to define criminal jurisdiction, but pointed out that the definition might be too narrow and too wide at the same time. There were States in which the law regarding misdemeanours was applied by bodies other than courts, as was the situation in Poland a few years ago. In those cases, the reference to courts in the definition might leave some criminal proceeding outside the scope of the immunity. There were also pecuniary sanctions not of a criminal nature which were applied by courts. In that regard, the issue of the definition of criminal jurisdiction deserved great attention in the Commission’s future works.
NEERU CHADHA ( India), noting a clear distinction between subsequent agreement and subsequent practice, said that the basic determining factor on whether a subsequent agreement or practice had acquired the status of a means to interpret a treaty was its acceptance by all parties to the treaty. Similarly, the evolutive interpretation of the treaty required a clear acceptance by the parties in favour of such interpretation. On the topic of immunity rationae personae, she said that such immunity should be extended to a few high ranking officials beyond the troika of Heads of State, Heads of Government and Ministers of Foreign Affairs. In particular she said that Ministers of Defence and Ministers of International Trade could also be considered State officials deserving of such immunity. She urged the Special Rapporteur to collect and analyze State practice in that regard.
Acknowledging the Commission’s cautious approach to the topic, “protection of the atmosphere”, she agreed that the outcome of that work should be draft guidelines rather than a convention. She also stressed the need for thorough analysis and discussion on whether the topic “crimes against humanity” should be included in the Commission’s long-term programme of work, in view of existing international instruments, including the International Criminal Court that had already dealt with such crimes.
NORACHIT SINHASENI ( Thailand), speaking on treaty interpretation, said his delegation reserved its position regarding the accuracy of draft conclusion 3 commentary, paragraph 6. The terms accompanied by footnotes 92 to 95 were those cited by Judge Guillaume in his Declaration in Dispute regarding Navigational and Related Rights. That Declaration was the Judge’s personal view, and with due respect, did not necessarily reflect the judgments of the courts or tribunals concerned. On conclusion 4, paragraph 2 and 3, he sought a clarification for the selection of the word “conduct” as part of the definition of subsequent practice. On conclusion 5, paragraph 2 addressing attrition of subsequent practice, he sought further explanation and elaboration on the conduct by non-State actors which might be relevant when assessing the subsequent practice of parties to a treaty.
Turning to State officials’ immunity, he said the Commission ought to carefully choose the right definition for the term “official”, taking into due consideration States’ practice in their domestic law. Pointing out that Thailand was a State with a highly revered constitutional monarchy, he reminded the Commission that Heads of State who might be subject to criminal prosecution must actually be in a position effectively to exercise a control over or to direct the executive power of a State. A Head of State must not be prosecuted for a crime committed by some State mechanisms merely because of his or her nominal or ceremonial role as Head of State in that State.
On the Committee’s other decisions and conclusions, he wondered what would be of use to the international community regarding the Commission’s work on the “protection of the atmosphere”. Emphasizing that the protection of personal data in transborder flow of information was a topic of concern to the international community and had already been included in the Commission’s long-term programme of work since 2006, he suggested that the Commission take up that topic at its next session.
ONESIS BOLAÑO PRADA (Cuba), aligning her delegation with the Community of Latin American and Caribbean States, agreed that the provisions of articles 31 and 32 of the Vienna Convention were the foundation of treaty interpretation. In that regard, she highlighted the importance of not altering the Vienna regime since it reflected international customary law. Further, the interpretation of the regime should evolve over time. She also stressed that the intention of the parties signing a treaty must be considered in its interpretation.
Regarding “immunity for State officials”, she said the sovereignty of all States must be respected. The Commission must codify law on immunity to avoid exceptions that could be made under customary law. High-ranking officials who should enjoy immunity were those considered as such under their national legislation. She emphasized that no changes should be made to immunity regimes of the Vienna Conventions on Consular Relations and on Special Missions. Further, noting that Cuba had submitted national legislation to the Commission for its consideration of international customary law, she said that the identification and study of the topic should consider national legislation and law juris sive necesitatis.
SARAH KHALILAH ABDUL RAHMAN ( Malaysia) sought clarification on the urgency to conclude a convention on crimes against humanity, pointing out that the Rome Statute, which was already subscribed by 122 countries, also addressed such crimes. Commenting on the draft conclusions on treaty interpretation, in particular, conclusion 3, among others, she said caution must be employed in the determination of the “presumed intention of the parties” at the conclusion of the treaty. The parties’ intention formed the basis of a treaty and therefore, extreme care should be exercised in determining such intention to avoid distorting, in any way, or departing from the letter and spirit of the treaty.
She said the topic of “immunity of State officials” should focus on the immunities accorded under international law, in particular customary international law, and not under domestic law. There was no need to re-examine previously codified areas such as the immunities of diplomatic agents, consular officials, members of special missions and representatives of States to international organizations. On the need to define the term “officials”, she said a related consideration, particularly in the determination of immunity ratione materiae, would be whether officials employed on a contractual basis would be covered under such definition when they undertook the function of State officials. Further, she said the categories of persons considered as Heads of State and Heads of Government should be defined. She suggested that the definition include sovereign rulers who act as Heads of State. In Malaysia’s context, the Head of State was the King and the Head of Government was the Prime Minister.
RIVKA TOPF-MAZEH ( Israel), on the topic of subsequent practice in the interpretation of treaties, said that the reliability of other actors and their practice should be assessed and taken into account in a cautionary manner. On the “immunity of State officials”, her understanding of the term “criminal jurisdiction” included any act of authority which might hinder the official in the performance of his duties, or any “measures imposing obligations” upon the official, or the former official “in connection with his official activity”. As stated by the International Court of Justice, such acts of authority included acts which exposed the official to the mere risk of being subject to legal proceedings.
She further said that the scope of immunity ratione personae under customary law was not limited to the troika. Therefore, the relevant part should not be formulated in a way that might inadvertently misrepresent or be interpreted as limiting the scope of personal immunity as it currently stood. It would be more accurate to use the inclusive language of the Court, by adding at the outset of draft article 3 the words, “high-ranking State officials such as”. That would reflect current customary law and would also take into account developments in the conduct of international relations.
MARIA ZABOLOTSKAYA ( Russian Federation), emphasizing that immunity from international criminal jurisdiction should be covered within the topic, said there were fundamental differences of the principle therein. Immunity from foreign jurisdiction derived from the principle of sovereignty of States. Thus, the exercise of that jurisdiction required consent of the official’s State. However, in the case of international jurisdiction, States would voluntarily agree from the beginning to international jurisdiction and relevant rules pertaining to immunity, usually by way of concluding an international treaty. Moreover, those rules might vary depending on the case. In some cases, it was a matter of implementing the Security Council’s decisions and that hardly related to the institution of immunity as such.
On treaty interpretation, she suggested that the Commission reflect in its conclusions the main goal of the interpretation of a treaty, which lay in “elucidating the meaning of the text”. As well, a distinction must be drawn between the general and supplementary rules of interpretation reflected in articles 31 and 32 of the Vienna Convention in a more decisive manner. With regard to the relevance of the conduct of non-State actors, she suggested a more restrictive wording, noting that if a non-governmental or an international organization issued a report on the practice of States in a certain area, it was the reaction of States to such a report that was of greater importance rather than the report itself.
On the Commission’s new topics, she expressed once again her delegation’s concern with the topic “protection of the atmosphere”. It was a complex problem that included norms of several branches of law in which work was underway. Codification attempts therefore would inevitably interfere with those processes and undermine their integrity. On “crimes against humanity”, she said customary international law gave sufficiently clear understanding of the topic, citing several statutes and judgments in which the term was defined. She wondered what the goals would be in elaborating a new document and how that document would be related to the existing norms of customary and treaty law.
HUANG HUIKANG ( China) expressed willingness to provide information on his country’s State practice of items under consideration and encouraged the Commission to strengthen communication and cooperation with other bodies in the field of international law. Turning to “immunity of State officials” he said that the proposed draft articles were succinct and characterized by clear logic and impartiality. On immunity ratione personae, he said that international practice did not exclude the possibility of extending such immunity to some other high-level officials, noting that the jurisprudence of some domestic jurisdictions granted that immunity to Ministers of Commerce and Defence.
He went on to say that many applicable interventions existed with regard to the topic “protection of the atmosphere” and, thus, was not a suitable topic for the Commission’s programme of work. Further, speaking to the inclusion of “crimes against humanity” to the long-term programme of work, he said that given the complexity and sensitivity of that topic, the Commission should deal with it in a prudent manner and avoid any pre-determined results before wide consensus would be reached.
OCTAVINO ALIMUDIN ( Indonesia) said that on conclusion 3 “subsequent agreement” and “subsequent practice” as means of treaty interpretation might assist in determining whether or not an evolutive interpretation of a particular term of a treaty was appropriate. However, that evolutive interpretation must be treated with caution. International courts and tribunals recognized that a treaty served the interest of the parties at the time of its conclusion as well as the interest of the parties that might be evolving over time. In that regard, there were three principles that must be adhered to in evolutionary interpretation of treaties: the need to preserve the stability of the treaty; the need for express agreement of the parties in the case of subsequent agreements; and, for tacit understanding in the case of subsequent practice, an evolutive interpretation of the treaty must be grounded on the agreement or common understanding of all States parties as regards multilateral treaties.
On “immunity of State officials”, he said that before discussing exception, there was a need to address and understand the basic concept, principles and rules on immunity to which exceptions might apply. On the issue of immunity ratione personae, he said that, as reflected in customary international law, only the Head of State, Head of Government and Minister of Foreign Affairs enjoyed such immunity. Extending immunity ratione personae to high ranking officials other than the troika had no sufficient ground in practice and in international law.
HOSSEIN GHARIBI ( Iran) said that the draft conclusions presented on “subsequent agreements and subsequent practice” showed a tendency toward their “evolutionary” interpretation, rather than a “static” interpretation in determining the intention of States parties at the time of the treaty’s conclusion, as set out under articles 31 and 32 of the Vienna Convention. In that context, he raised doubts about the references to the Convention made in several of the draft texts. The Commission should discover the intention of the States parties, which might sometimes be beyond the clear provisions of a treaty.
Noting that commentaries to the draft conclusions referred to non-State actors, he said there might be confusion about the role of such actors in the formation of customary international law. A State might be directed to comply with the subsequent practice of non-State actors, including “social practice”, contrary to the provisions of a treaty to which they were parties. The implication that such subsequent practice could secure agreement from other States parties to the treaty was a violation of the treaty obligations of that State vis à vis other States parties. The “policy”, not “practice”, of some non-State actors might influence some States in the application of treaty provisions. The key question was under what circumstances that “new practice”, which was incompatible with treaty provisions, could be imposed on other States parties to the instrument. On “immunity of State officials”, he said the topic, aside from aiming at codification, should also formulate provisions de lege ferenda taking into account the requirements of international relations.
OCH OD ((Mongolia) expressing appreciation for the Commission’s achievements in light of the wide range of complex legal issues in the modern world, noted the impact of its recommendations on the legal affairs of States and the successful application of its draft articles in practice by national and international courts. On the interpretation of treaties, he said that the draft texts should contribute to the application of the relevant provisions of the Vienna Convention, but that they must not deviate from the general rules of the Convention.
He also supported a careful and thorough approach to discussions of “immunity of State officials” and welcomed the inclusion of “crimes against humanity” in the Commission’s long-term programme of work. He emphasized the Commission’s significant role within the United Nations system and underlined the importance of active interaction and dialogue between the Sixth Committee and the Commission. In that regard, he expressed his delegation’s readiness to increase its collaboration, particularly with respect to the topics of relevance to Mongolia and the issues of specific interest to the Commission.
JULIA O’BRIEN ( Australia) emphasized the procedural nature of immunity and underscored the need for immunity to not be equated with impunity. Her delegation was encouraged by the Commission’s efforts to achieve the right balance in limiting the temporal and material scope of personal immunity. Such balance should be a key factor in the future development of draft articles on both personal immunity and functional immunity (immunity ratione materiae). The Commission’s commitment to consider specific terms, including “officials” and the meaning of “acts performed in an official capacity” were also welcomed. The Commission should explore the possibility of defining the term “officials” within the draft articles. Other issues that should be considered included the continuing need to balance the protections give by immunity with the prevention of impunity from the most serious crimes and human rights abuses; the link between State responsibility and immunity; and the express or implicit waiver of immunity, noting the arguments occasionally used to interpret provisions of human rights treaties as implied waivers of immunity.
Remarks by Special Rapporteurs
GEORG NOLTE, Special Rapporteur on subsequent agreements and subsequent practice in relation to the interpretation of treaties expressed his gratitude to all delegations for their participation, and said that their comments on the topic had been constructive. While it was not the time to respond to specific points, he made some general observations. Among them, he said that the topic of subsequent agreements and subsequent practice was about elaborating on the rules of the Vienna Convention, rather than changing them; more specific conclusions, such as on the role of the practice of international organizations and treaty bodies, should follow. As well, more specific conclusions were also required on the conditions under which an agreement on the interpretation of a treaty provision was actually established by subsequent practice.
Most delegations, he continued, seemed to think the outcome of the work should take the form of draft conclusions with commentaries and he expressed the hope that the usefulness of that approach would become more apparent to those who had expressed scepticism. He closed, stating that the present debate had demonstrated the value of the procedures between the Commission and the Sixth Committee, which ensured that the products of the Commission were well founded. The Commission had been designed to serve the international community by elaborating draft articles and conclusions in relative independence, on the basis of input and feedback from the Sixth Committee. That feedback was not only reactive but served as a guide for future deliberation and gave the special rapporteurs and the Commission a sense of direction. All comments were duly noted and would be taken into account.
CONCEPCION ESCOBAR HERNANDEZ, Special Rapporteur on immunity of State officials from foreign criminal jurisdiction, thanked delegations for their comments and said that their statements were evidence of the importance States accorded to the topic. She had noted that the distinction between immunity ratione personae and immunity ratione materiae was accepted by delegations, generally speaking, in order to establish the different treatment that regulated the issue.
Responding to the several delegations that had appropriately referred to the need for a precise term of “official”, she said that, in the coming report, she would deal with that, as well as the concept tied to the definition of official act or acts performed in the course of official duties. She also emphasized that the issue of terminology was not a minor one and should be equally considered in the third report.
Recognition of immunity ratione personae in the troika had not raised any opposition from any delegation, she noted. Some delegations had expressed opinion of including in the regime of immunity ratione personae other high officials of States, especially members of the Government that participated in international relations, while a number of delegations had spoken out in favour of limiting immunity to the troika. She said the Commission had taken into account the diverging positions.
Regarding limits of exceptions to immunity from foreign criminal jurisdiction raised by a number of delegations with respect to international crime and the fight against impunity, she noted the need to take into account trends and developments of international criminal law. She fully shared delegations’ concerns and would deal with the issue of limits and exceptions in the coming report once normative elements had been identified in corresponding draft articles.
Pointing out the potential relationship of international criminal courts to domestic criminal courts when dealing with the topic, she said there were several points of connection that must be made at the right time. There was a need for the Commission to take into account several international standards in order to avoid inconsistent results in the exercise of the codification and progressive development of international law. Her coming report would be devoted to the analysis of immunity ratione materiae, and she would wait for information from Member States on the topic.
Introduction of draft resolution
GILES NORMAN ( Canada), introducing the draft resolution on “Measures to eliminate international terrorism” (document A/C.6/68/L.13), detailed the process of arriving at the draft and thanked all delegations for their active participation.
Introduction to Second Cluster
BERND NIEHAUS, Chair of the International Law Commission introduced the topic “reservations to treaties”, noting that the Commission had completed 17 years of work on the topic by finalizing the Guide to Practice on Reservations to Treaties. Because of Hurricane Sandy last year, examination of the Guide had not been possible. However, he reminded delegations that his predecessor, Maurice Kamto had provided the Sixth Committee an overview of it.
He stressed that the purpose of the Guide, which had five parts, was to assist practitioners of international law who often faced delicate problems in interpretative statements. It was meant to assist them not only with respect to the past, but to practice as it developed. Giving a detailed overview of each part, he said, among other comments, that Part One of the Guide was devoted to definitions, including “reservations” and “interpretative declarations”. Part Two dealt with forms and procedures to be followed in matters of reservations and interpretative statements, withdrawals or amendments thereof, and reactions thereto.
He continued, pointing out that Part Three focused on the permissibility of reservations and interpretative statements and embodied the criteria for assessing their validity. He drew the attention of the Committee on the new formulation of the guideline 18.104.22.168 entitled "reservations to treaties containing numerous interdependent rights and obligations", which avoided any reference to general human rights treaties, to determine the compatibility of a reservation with the object and purpose of a treaty.
Part Four, he said, dealt with the legal effects of reservations, objections to reservations and interpretative statements. Part Five focused on the issue of reservations, acceptances of reservations, objections to reservations and interpretative declarations in cases of succession of States.
The text of the guidelines therein was very largely in the provisional draft of 2010, he said. It should be noted that article 20 of the 1978 Vienna Convention on Succession of States in Respect of Treaties was the only provision to address the issue of reservations in relation to the succession to a treaty.
In addition to the Guide to Practice, the Commission had adopted in 2011 a recommendation to the General Assembly on the mechanisms for assistance in reservations to treaties. The Commission thought the Guide could be complemented by the introduction of flexible mechanisms to assist States in the implementation of legal rules applicable to reservations. In its recommendation, the Commission suggested that the General Assembly consider the creation of a mechanism for reservations that could be composed of a number of experts and to consider the establishment of an "observatory" on reservations to treaties.
Remarks by Special Rapporteur
ALAIN PELLET, Special Rapporteur on Reservations to Treaties, recalled that the Commission had adopted the Guide to Practice on Reservations to Treaties on 11 August 2011, the last day of his 22 years at the Commission. However, discussion of the matter had not been possible. Because of the size of the document, translations could not be produced in the necessary versions in time. Discussions were again delayed last year due to Hurricane Sandy.
Underscoring that the Guide was not just a compilation of 179 directives, he said that it was made up of both guidelines and commentaries. He hoped the General Assembly would welcome the Guide and call upon States to make use of it as much as possible. Nonetheless, the General Assembly should not just look at the guidelines. The guidelines had to go with the commentaries; the two parts made a whole guide.
Furthermore, he stated that the document was not just a series of “recipes for legal cuisine” and neither was it a “ready-to-use” guide for counsels in a hurry or a crib [sheet] for students as their memories failed them, but a true box of tools that diplomats, counsel, and members of parliament could delve into to solve problems. It was a guide for practice that made several recommendations.
They were not draft articles to turn into a convention or a series of codifying elements that reflected well established rules, he continued, even though some guidelines merely set forth what was customary, particularly when they merely reproduced certain provisions of the Vienna Convention. In that regard, it was important to look at the commentaries. There it would be possible to appreciate whether or not the Guide reflected provision of customary law or whether they were just recommendations of what the Commission thought desirable.
In addition, he said, the Guide was a reflection of the Commission’s consensus in its entirety, even if a member in an entirely irresponsible way nearly upset that consensus at the eleventh hour. That consensus was arduous.
He said that he had begun his work as Special Rapporteur with the hope that something useful would be produced to bridge the many gaps in the Vienna Convention. Various ambiguities that had been created by the Vienna provisions, starting with articles 19 to 23 of the Vienna Conventions of 1969 and 1986 would be cleaned up. Yet, that task had started in the midst of a political and ideological tempest. It was then that he understood that many of the problems looming were going to add to a very heated debate, where, at times, irrational positions had prevailed over a peaceful search for resolution.
Appealing to delegations to discuss the Guide and do away with preconceived ideas, he urged them to “take it for what it is” in the search for a balanced useful solution arising from the Vienna regime in interpretation to treaties. In his personal capacity, he said it was true that special rapporteurs did have a strong influence on the work of the Commission and it was they who tried or who should try to ensure that solutions obtained were consistent. “I tried to do that,” he said.
He paid tribute to the Secretariat and particular members whom he admired. He also asked that the Sixth Committee try to find reasonable solutions, telling them, ”You haven’t always made the task easy because you tend to hang on to past positions,” which did not lend to a constructive dialogue, and lead him to wonder on the point of the work of the Commission. However, in the following debates, he said, perhaps he would be proven wrong.
Statements on Second Cluster
ANDERS RÖNQUIST (Sweden), also speaking for the Nordic countries, addressed the issue of reservations that ran counter to the object and purpose of a treaty, stressing that, at minimum, all States parties to a treaty must commit to that object and purpose. That was essential to prevent globally agreed norms from being undermined by far-reaching reservations. That was particularly true in the field of human rights, noting that some States had made reservations to the Conventions on the Elimination of all Forms of Discrimination against Women and on the Rights of the Child which were incompatible with the Convention’s object and purpose.
The human rights field was not the only area where that occurred, he continued. Such reservations should not be accepted as valid in any area. Increasingly, States were severing such invalid reservations. In that context, he welcomed the clear and unequivocal statement in draft guideline 4.5.1 which said that a reservation that did not meet the conditions of formal validity and permissibility was null and void. Where he did not necessarily agree with the Guide was in regards to guideline 4.5.3, where the presumption was based on the intention of the author of an invalid reservation. Further a State which had made an invalid reservation might express its intention not to be bound by the treaty without the reservation. He also welcomed the draft conclusions on a reservations dialogue.
TODD BUCHWALD ( United States) said that although the Guide provided helpful detailed pointers for the practice related to treaty reservations and could be a valuable reference for practitioners, it was not intended to replace or amend the Vienna Conventions. As well, it was not a legally binding text and it did not authoritatively interpret the Vienna Convention. While the Guide, at times, reflected obligations that were otherwise established via treaty or custom, it did not always reflect consistent State practice or settled consensus on certain important questions. In particular, State practice on the consequences of an invalid reservation was varied, so that section 4.5.3 of the Guide should not be understood to reflect existing law.
He went on to say that the United States supported a robust “reservations dialogue” and welcomed the useful practices outlined in the Commission’s recommendation, which could help encourage clarity about the meaning and intent behind reservations and objections thereto. In regards to the proposal for a “reservations assistance mechanism”, although of interest, he questioned whether such mechanism, consisting of a limited number of experts considering problems related to reservations, was appropriate to inject into a process that fundamentally occurred between and among States. He was also concerned that the proposals resulting from the mechanism could be seen as compulsory on the States requesting assistance.
Mr. SILBERSCHMIDT ( Switzerland) said it was essential that the author of a reservation indicated the reasons for making the reservation. It was equally important for the other States not to remain silent when a questionable reservation was notified. An objection could draw the attention of the reservation’s author to doubts as to its permissibility and could thus initiate a dialogue between the objecting and the reserving State, as well as between the other interested parties. In that regard, he supported the Commission’s recommendation to the General Assembly to call upon States to initiate and pursue such a dialogue.
On the suggestion of establishing an observatory, he said it would be desirable for all regions to consider such observatories. Once that was the case, the establishment of a global observatory could be considered. On mechanisms of assistance, there was a need to answer the complex questions that arose in the context of reservations and objections, but existing mechanisms of international law already provided a framework and mechanisms for exchanging views and settling disputes.
He then turned to the subject of the effects of acceptance of an impermissible reservation, noting that an impermissible reservation was invalid, or null and void, as contained in the guidelines 3.3.1 and 4.5.1. Further, if an impermissible reservation was null and void, the question remained as to whether the author of the reservation was bound by the treaty in its entirety — without the reservation (principle of severability) — or whether or not it became a party at all. The Vienna Convention did not deal with the subject of the legal effects of an impermissible reservation.
PENELOPE RIDINGS (New Zealand), welcoming the consolidated Guide to Practice, said that the Guide covered one of the most difficult areas of treaty law and one which had great practical consequences. Her delegation particularly appreciated the approach taken regarding declarations on territorial scope in guideline 1.1.3. That interpretation stated that a declaration — which excluded the application of a treaty as a whole to a particular territory — was not a reservation in the sense of the Vienna Convention. Such a declaration did not concern the legal effect of a treaty. Rather, it established a “different intention” as to the territorial application of the treaty, in accordance with article 29 of the Vienna Convention. That interpretation articulated long-established State practice as well as United Nations treaty practice. It was particularly relevant for New Zealand’s dependent territory of Tokelau, a situation where it may not be appropriate to apply a treaty.
TOMOYUKI HANAMI ( Japan) said that interpretative declarations had been utilized on the assumption that any provision of an international treaty was subject to certain interpretations. Interpretative declarations, unlike reservations, had no legal effect. Subjecting interpretative declarations to the test of permissibility was rare in State practice and should undergo a process of legislation rather than codification. Furthermore, the Vienna Convention contained no provisions on the formal confirmation of conditional interpretative declarations formulated when signing a treaty, nor had a uniform and widespread practice of States been established concerning such questions. He, therefore, had doubts on the necessitation of guidelines regarding interpretative declarations adapted in the Guide.
Among other comments on specific sections in the Guide, he said that in regards to guidelines 2.1.3 and 2.5.4 which addressed the nature of the heads of permanent missions to an international organization and the formulation or withdrawal of a reservation relating to a treaty between the accrediting States and the organization, and guideline 2.4.1 where the depository of the treaty in question was an international organization — in particular the United Nations — he suggested adding to those guidelines the words “and heads of permanent missions to the international organization when formulating an interpretative declaration to a treaty to which the accrediting States are parties and of which the organization is a depository”. Finally, referring to Guideline 2.9.9, silence in response to an interpretative declaration merely denoted lack of relevance to the affairs of the non-responding State, rather than positive or negative opposition. Therefore, in principle, silence should not be construed as approval of or acquiescence in the declaration.
GREGOR SCHUSTERSCHITZ ( Austria) said, among other comments on the guidelines, that on representation for the purpose of formulating a reservation, it was not necessary to go into problematic detail. A shorter text reflecting article 7 of the Vienna Convention would be more appropriate. His delegation opposed the idea of permitting late reservations; even if admitted in some cases, they should not be used to create a general rule. Otherwise, treaties could no longer serve as a basis for stable and predictable relations among States. In regards to the text on late objections, he said it lacked clarity on the legal effects. In addition, the guideline on the assessment of the permissibility of reservations referred to contracting States, dispute settlement bodies and treaty monitoring bodies in a sequence, which should be meant to establish a hierarchy. Otherwise, divergences between the assessments by the different bodies would endanger the stability of treaty relations. The guideline needed to be supplemented, as treaty monitoring bodies may be entitled to make binding assessments.
The text on establishing a reservation, he went on to say, needed to be supplemented in order to ensure that it also covered cases of implied acceptance and cases where not acceptance was necessary. Reservations to treaties with a limited number of negotiating States required explicit acceptance and the guideline should be amended accordingly. Regarding the guidelines on reactions to a reservation considered invalid, he could accept most of its substance, although there were difficulties in establishing the intention of the reserving State. However, he could not accept that the intention not to be bound by a treaty could be expressed at any time and he doubted the usefulness of the part of the guideline in the cases of succession of states, which he said was not reflective of customary international law.
RITA FADEN ( Portugal) said that generally speaking, the commentaries and observations proposed in the Guide were well balanced and consonant with progressive development of contemporary international law. Further, exploring the dialogue on reservations should be as inclusive as possible, as to befit the idea of greater dissemination towards greater participation. Strengthening the reservations dialogue was essential as it would help to avoid reservations that were incompatible with international law. Developing the observatories on reservations regionally and subregionally was key to promote the reservations dialogue.
She then suggested that since most reservations being examined were to treaties deposited with the Secretary-General, the Secretariat could play a leading role for depositories by, for example, creating a separate section for reservations on its treaty website. She also said that “reservations to treaties” could be included on the Sixth Committee agenda every year. An assistance mechanism must be drawn very clearly so as not to overlap with current procedures for settling disputes. She encouraged the greatest possible dissemination of the Guide and its application.
ANDREI POPKOV ( Belarus) said the topic was truly one of the most complex and unregulated areas of international treaty law. At present, the Commission’s expertise could be harnessed, not only in regards to the drafting treaties but also in regards to other international documents in support of the progressive development and codification of international law. Addressing a variety of issues, he expressed concern that the formulation of guideline 1.7.2 carried the risk of being confused with the analogous understanding used in guideline 1.7.1. There was a need to distinguish the guidelines between instruments of multilateral treaties relating to several States parties and interpretation of international treaties through conclusion of an agreement between States in the sense of article 31 of the Vienna Convention. The former concerned amendments to treaties, while the latter should concern interpretation, which did not involve a tacit amendment in itself.
RUTH TOMLINSON ( United Kingdom) said that in regards to guideline 1.1.3, a declaration regarding the extent of the territorial application of a treaty did not constitute a reservation to that treaty. Unless a different intention was established, a treaty would be binding upon a party in respect of its non-metropolitan, as well as its metropolitan territory. Further, in making an invalid reservation, she said that paragraph 1 of guideline 4.5.3 related to the intention of the reserving State. Paragraph 2 did not reflect the lex lata, nor purport to do so. However, there was a real question as to whether the paragraph would have been better setting out the reverse presumption. She appreciated that proposals had been made in an effort to strike a “reasonable balance”.
As for paragraph 4, she said, a treaty body could not rule on the validity of reservations, unless given power to that effect. She said the key to the reservations dialogue was that it was flexible, not prescriptive. The Commission’s recommendations had retained those qualities. She would be interested in hearing States’ views on the proposals for both a reservations observatory and a reservations assistance mechanism.
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