Enhancing Role of International Court Could Improve People’s Lives ‘Around the World’, President tells Delegates, Legal Advisers
Enhancing Role of International Court Could Improve People’s Lives ‘Around the World’, President tells Delegates, Legal Advisers
|Department of Public Information • News and Media Division • New York|
Sixty-eighth General Assembly
21st & 22nd Meetings (AM & PM)
Enhancing Role of International Court Could Improve People’s Lives
‘Around the World’, President tells Delegates, Legal Advisers
Four Requests for Observer Status Approved by Sixth Committee,
As Annual Review of International Law Commission Debate Continues
The Sixth Committee (Legal) today approved four requests for observer status in the General Assembly and continued its consideration of the second cluster of topics on reservations to treaties in the International Law Commission’s 2011 report.
Without a vote, the Committee approved requests for observer status from the International Institute for the Unification of Private Law, International Anti-Corruption Academy, Pan African Intergovernmental Agency for Water and Sanitation for Africa, and the Global Green Growth Institute.
Also addressing the Committee was Peter Tomka, President of the International Court of Justice, who spoke about the Court’s role in the international community and the need to increase Member States adhering to the Court’s compulsory jurisdiction. As the Organization’s principal judicial organ, the Court had been vested with the prime responsibility of peacefully settling bilateral disputes submitted to it by States. Enhancing the role of international law, and the Court could improve the lives of people around the world, he underscored.
More and more, he said, Member States were turning to the Court as a reliable and efficient body of dispute resolution. However, while the Court had delivered more judgments over the past 23 years than in its first 44 years of existence, just over one-third of Member States had made or maintained declarations recognizing the Court’s compulsory jurisdiction, he said, urging other States to do so.
In the ensuing interactive discussion, Norway’s delegate stressed that the application to the Court was cost-effective. Agreeing, Mr. Tomka pointed out that the average cost for resolution of a dispute at the Court was $5 million. If some of those disputes had led to armed conflict, it would have been far more costly for the parties involved.
The jurisdiction of the Court, he told the Committee, should not be perceived as a sword of Damocles hanging over the heads of States or Governments. Unlike a criminal court that determined guilt, the Court of International Justice tried to settle disputes in an attempt to move the parties forward. That was evident in the decision handed down to Senegal and Belgium, the latter’s representative stated. What had started out as a dispute had ultimately turned into greater cooperation.
Continuing the debate on “reservations to treaties”, China’s representative, while thankful for the Special Rapporteur’s contributions, pointed out that the Guide to Practice on Reservations to Treaties could cause more problems than it could solve. It tried to provide standard answers, in theory, for all questions that might be encountered in the field of treaty reservations. The attempt to legislate every scenario could create a “strait jacket”.
However, Romania’s representative commended the efforts of the Special Rapporteur, noting that the future development of the international law on treaties would prove that he was a visionary in his approach to issues that today appeared controversial.
Alain Pellet, the Special Rapporteur on Reservations to Treaties, said it was quite a moving and emotional time for him, noting that after 22 years in the Commission, it would be his last time addressing the Committee. While he had often said how disappointed he was by the formalism of its debates, he had not been insensitive to the kind words that he had heard.
Responding to comments and concerns, he said that the Guide was a result of collective work in which the delegates were stakeholders and not meant as “bedside reading”. It aimed to provide a toolbox to help States resolve problems. Practice would determine what could be consolidated despite the Guide’s vast size.
Also speaking in today’s debate were representatives of Netherlands, Slovenia, Germany, Chile, Czech Republic, Malaysia, Republic of Korea, Russian Federation, Greece, Poland, Singapore, France, Spain, Iran and India.
An observer for the Council of Europe also spoke.
The Sixth Committee (Legal) will reconvene on Monday 4 November at 10:00 a.m. to conclude its debate on the second cluster of issues and take up the third cluster from the report of the International Law Commission.
The Sixth Committee (Legal) met today to hear a statement from the President of the International Court of Justice. It would also continue its consideration of the annual report of the International Law Commission. For background, see Press Release GA/L/3467.
It would also take action on four requests for observer status in the work of the General Assembly. Those requests included the observer status for the International Institute for the Unification of Private Law (document A/C.6/68/L.5); observer status for the International Anti-Corruption Academy (document A/C.6/68/L.6); observer status for the Pan African Intergovernmental Agency for Water and Sanitation for Africa (document A/C.6/68/L.7); and observer status for the Global Green Growth Institute(document A/C.6/68/L.8). For background, see Press Release GA/L/3460.
Remarks by President of International Court of Justice
PETER TOMKA, President of the International Court of Justice, speaking on the general framework and the mechanism of article 36(2) of the Court’s Statute, said the Court’s jurisdiction to proceed with the peaceful settlement of disputes between States remained subject to the consent of States appearing before it. That idea was very much in line with the underlying philosophy that led to the inception of the League of Nations and, subsequently, the United Nations. It was particularly important for Member States, as they were ipso facto parties to the Court’s Statute and, by virtue of their obligations under the United Nations Charter, to undertake the peaceful settlement of their international disputes.
One mechanism offered to them in that regard was adjudication by the Court, which was an increasingly attractive option in maritime or land boundary dispute resolutions, disagreements over treaty interpretation, environmental law, sovereignty over maritime features, and the protection of living resources and human health. The Court could secure jurisdiction over certain disputes by way of special agreement by which disputing States would submit their dispute jointly for adjudication by the Court. The Court’s jurisdiction could also be triggered by a compromissory clause enshrined in a multilateral convention or in a bilateral treaty. More importantly, for present purposes, Article 36(2) of the Court’s Statute provided that the Court’s compulsory jurisdiction be accepted under that optional clause by a declaration. In that declaration, a State would recognize ipso facto and without special agreement in relation to any other State accepting the same obligations, the Court’s jurisdiction in all legal disputes. That declaration would then be deposited with the United Nations Secretary General.
Turning to the genealogy of State consent and the present-day Court, he described the origins of the Court, beginning with the framers of the 1907 Hague Convention for the Pacific Settlement of International Disputes. Judicial settlement of disputes — as a means to attain the objective of settling inter State differences peacefully following World War I — had acquired traction within the preparatory works of the Permanent Court of International Justice, a predecessor of the current Court. A proposal instituting the compulsory jurisdiction of the Permanent Court was floated by a committee of jurists entrusted with elaborating the first draft for that Court’s establishment. Ultimately, that proposal did not acquire credence in the League of Nations’ Council. While adherence to that court should be actively promoted and enhanced, States should nonetheless retain some degree of discretion in subjecting themselves to the judicial settlement of their disputes.
Thus, the Statute of the Permanent Court had contained a provision which was quasi-identical to what was now Article 36(2) of the present-day Court’s Statute. He said the debate over whether to grant the Permanent Court compulsory jurisdiction had “reared its head” again when it was time to lay down the groundwork for the International Court of Justice. There was concern that too rigid a jurisdictional scheme might deter some States from adhering to both the text of the Court’s Statute and the United Nations Charter. The framers of the Charter nonetheless instituted jurisprudential continuity by modelling the present-day Court’s Statute after that of the Permanent Court — ensuring that the jurisprudence developed by that body remained relevant to the current Court’s work. When taken together, both institutions shared over 90 years of accumulated experience in the peaceful settlement of disputes — critically important for the sound administration of the international justice.
On the role of the Court in the international community, he said the inclusion of the international rule of law as an undeniable component of the United Nations framework had paved the way for an international community composed of various actors, all commonly invested in bettering the lives of peoples throughout the world. That objective could be partly achieved through enhancing the role of international law on the international scene. More importantly, that approach ensured the transition to more just and equitable societies. In that regard, the Court had been entrusted with a singular mandate under the Charter as the Organization’s principal judicial organ vested with the primordial responsibility of peacefully settling bilateral disputes submitted to it by States.
He said that increasingly, the Court was turned to as a reliable and efficient dispute resolution institution, with parties putting their confidence in the Court and in the prospect that it would a reach a well reasoned and just outcome. Over the last 23 years, the Court had delivered more judgments than during the first 44 years of its existence.
Pointing out that some courts’ jurisdiction was an automatic feature resulting from membership in an international or regional organization of which the judicial institution was an organ, he said that membership in the United Nations did not assume jurisdiction of the Court was compulsory. Rather, consent must be expressed in the form of a unilateral declaration. At present, 70 out of the 193 Member States of the United Nations had made or maintained such declarations, which was slightly over a third of the Organization’s membership. That figure stood in contrast with those States that had Article 36(2) declarations in force in 1948, which represented 59 per cent of the Organization’s membership at that time.
In conclusion, he said there was no doubt that the Court remained an important agent for strengthening and upholding the rule of law on the international level. Yet, it was “high time” to issue a call for greater recognition of the Court’s jurisdiction. He appealed to the Committee’s delegates as eminent and privileged counsel and advisors, to promote both dispute settlement by the Court and greater adherence to its compulsory jurisdiction for peaceful conflict resolution and more harmonious inter-State relations.
Following his presentation, Sixth Committee delegations and legal advisors questioned Mr. Tomka, commenting on a broad range of issues ranging from the impact of the Court’s advisory opinions on third States to the best way to encourage States’ acceptance of the Court’s jurisdiction.
Among delegations addressing the latter issue, a representative of the Netherlands, noting that her country was the Court’s host, asked whether the Court should be “marketed” as a safety valve in the international system, or as a sword that could be used at any time.
The jurisdiction of the Court, Mr. Tomka responded, should not be perceived as a sword of Damocles hanging over the heads of States or Governments. Rather, unlike a criminal court that determined guilt, it tried to settle disputes in an attempt to move the parties forward.
Indeed, Belgium’s representative noted that the Court’s decision in its dispute with Senegal on extradition of a former President of Chad had led to immediate steps by Senegal, with Belgium’s assistance, to implement that decision. What had started out as a dispute had ultimately turned into greater cooperation.
Norway’s delegate stressed, as well, that the application to the Court was cost-effective and that the Trust Fund could be used to help States in need of assistance to meet expenses relating to such applications. Mr. Tomka agreed, noting that the average cost for resolution of a dispute at the Court was $5 million, whereas some of those disputes could have led to armed conflict which would have been far more expensive.
In addition, he pointed out that applications to the Court were far less expensive than other forms of arbitration, as the only costs incurred by States before the Court were for their legal representation. The Court’s own expenses were already accounted for. By contrast, in other arbitrations, the costs of the arbiter tribunals also needed to be covered by the parties.
Representatives of Iran and Turkey asked about the Court’s advisory opinions and third States, with Iran’s delegate focusing on what measures the Court took to ensure that third States would not be jeopardized by those opinions. Advisory opinions were not binding, Mr. Tomka responded. However, they did carry weight. The Court provided an opportunity to all States to provide written comments on advisory opinions and subsequently to appear before the Court if they chose to do so.
Greece’s representative, noting that some States, when accepting the jurisdiction of the Court, did so with reservations or limitations, wondered whether the Judges of the Court had ever discussed such limitations. Mr. Tomka said that they had not, but that he might be able to answer that question in a year’s time. The Court had before it a case between Japan and Australia on drilling in the Arctic, during which Japan had challenged the admissibility of Australia’s claim due to such a limitation made by that country.
Also participating in the discussion were representatives of Germany, Thailand and Democratic Republic of Congo.
Statements on Second Cluster
LIESBETH LIJNZAAD ( Netherlands) said that the guidelines should be judged by their practical utility to Government lawyers and officials of international organizations who dealt with reservations in their daily work, with the provisions of the Vienna Convention and the flexibility of that system as the starting point. Stressing that the Guide was simply that, she noted that it contained elements not based on practice, although it might form a basis to establish new State practice, and perhaps international customary law. She also noted that the Guide sketched out means to determine where to find the “object and purpose” of a treaty, an elusive concept in the law of treaties.
She then addressed the issue of whether a reservation being deemed invalid would mean that the author would be bound by the treaty without benefit of the reservation or would not be bound at all, one of the main problems considered by the Commission. She noted that guideline 4.5.3 might lead to confusion by suggesting that the author of a reservation could change its position as a party after having expressed its consent to be bound. She disagreed strongly with the view that a late reservation be considered accepted unless one State party objected to it (guideline 2.3.1 and related 4.3.2). No practice supported that. Such a guideline “would be a development of law, not necessarily progressive”. On the Commission’s two proposals, she said that the reservations dialogue was a useful tool, but considered the establishment of an observatory on reservation within the Sixth Committee ill-advised. There was also no need for a mechanism to settle differences on acceptance of reservations, as acceptance was a matter for individual States.
BORUT MAHNIČ (Slovenia), associating himself with the European Union delegation, and commenting on several guidelines, suggested further deliberation on guideline 2.3 that addressed the late formulation of reservations, especially in cases when “none of the other contracting States and contracting organizations opposes the late formulation of the reservation”. Such a directive could eventually lead to non-transparent and confusing practice regarding the formulation of reservations, which, as a rule, needed to be formulated in conjunction with the State’s expression of its consent to be bound by a given treaty.
Turning to cluster 3 issues and speaking on the formation and evidence of customary international law, among others, he suggested that the work include concrete examples on how to best identify rules of customary international law. As well, the relationship between customary international law and other sources of international law needed to be carefully examined. The analysis could focus not only on the effects of other sources of international law, such as treaty law, or on customary international law, but also on the effects in the opposite direction. That could offer a comprehensive understanding of the interplay between different sources of international law. On the provisional application of treaties, the Commission’s objective should be to analyze comprehensively the mechanism of provisional application and its legal implications so that States would be able to understand it better, both when they concluded treaties and when they implemented those treaties.
On the addition of “crimes against humanity” to the Commission’s programme of work, he said the lack of a treaty requiring States to punish and prevent crimes against humanity must be addressed. His country, together with the Netherlands, Belgium and Argentina had launched an initiative for the adoption of a new international instrument on mutual legal assistance and extradition for the effective investigation and prosecution of the most serious crimes of international concern by domestic jurisdictions.
HUANG HUIKANG ( China), while thanking the Special Rapporteur for his contributions over the past 18 years, pointed out that the final outcome on “reservations to treaties” was a clear indication of the urgent need to improve the Commission’s working methods. Noting the almost two decades that it took to produce a guidance of hundreds of pages, he said it would be interesting to do a survey on how many of the delegates present had read through the Guide or had intended to read through it carefully in the future. He had tried to do so from beginning to end, but failed to because he found it of little help to his work on treaties. Recalling other delegations’ comments that the Guide could cause more problems than it could solve, he said he was confused as to why, after 20 years’ deliberation, Member States still had so many questions and critical opinions, a rarity in the Commission’s history.
The most distinctive feature of the Guide, he continued, was its over elaboration of trivial details, making it pedantic and far from State practices. It tried to provide standard answers, in theory, for all questions encountered or that might be encountered in the field of treaty reservation. However, many of those questions were just based on hypothesises and might never be encountered in treaty practices of one State. It was practically impossible to legislate for every imaginable scenario. To do so may create a “strait jacket”. Thus, it was particularly important to develop legal principles that could provide practical guidance, yet leave space for their operation at the same time.
He went on to say that some of the Guide’s provisions lacked sufficient flexibility and balance. For instance, the approach of positive deduction adopted in guideline 4.5.3 in the case where the author of an invalid reservation did not raise an objection, was in contravention to the principle of autonomy. As well, in regards to the two annexes on “proposal for reservations dialogue” and “proposal for technical assistance and assistance in the settlement of disputes in the field of reservations”, he said that reservations, as well as their explanation and withdrawal, should be left to the States parties themselves, as directed by the principle of autonomy of the law of treaties. In practice, all States were capable of addressing issues related to reservations by themselves. In light of those points, he suggested that the Committee only take note of the Guide, and not take any further action on it.
MARTIN NEY ( Germany), commending the Guide as a source of valuable practical information, cited as an example the question of whether the partial withdrawal of a reservation might be used as an opportunity to make an objection, an issue that frequently arose in practice. The Guide stated that it could not. However, he expressed concern at the Commission’s conclusions on the legal effect and consequences of non-permissible reservations on treaty relations. Guideline 4.5.1 proposed that such reservations were null and void and devoid of legal effect, and thus could be severed from a State’s consent to be bound. Further, guideline 4.5.3 said there was a positive presumption under which a State making an impermissible reservation would be considered a contracting State without the benefit of its reservation. As well, the proposal of severability and positive presumption could not be deduced from existing case law or State practice. There was thus a reluctance to accept the conclusions as a new rule. The positive presumption, as formulated in the Guide, could hamper treaty relations between States.
HERNAN SALINAS (Chile), underscoring that the format of the Guide to Practice was a right one, said that its content could be made stronger with time, and be solidly incorporated in the body of international treaty law. The work was not to be innovative. It was to complement many areas where the Vienna Convention did not provide appropriate regulations, or areas that arose after the Convention’s application. An innovative approach would lead to many problems and weakened existing rules. The Commission’s work should not always result in a convention. That should not be the criterion for determining the success or failure of its work. The Guide to Practice was a real contribution to international law in that area, and would be used as an extremely valuable reference work of States.
He said there was a real dialogue underway between States on the subject. However, there was no need to introduce new elements that could lead to undesirable consequences. As well, there was no need to set rules or have special recommendations for dispute settlements in terms of interpretation validity. General rules regarding the peaceful settlement of disputes were adequate. Setting up an observatory for reservations could be an acceptable mechanism operating on the basis of the needs of States who were involved in problems related to reservations or objections, or acceptance of reservations. Its framework of reference should be the Vienna Convention and the Guide.
PETER VALÉK ( Czech Republic) said that the Guide comprehensively elucidated contentious aspects of one of the most “neuralgic” areas of the law of treaties. However, certain minor aspects of a work of such magnitude required “calibration” by subsequent practice and commentaries. In that context, he requested clarification of the legal effects of late objections as well as objections to general or vague reservations, and on how objections forming part of a reservation dialogue could be formulated.
Further, he said that the reservations dialogue could significantly help to clear legal positions and assess the validity of reservations. He also commended the conclusions that would guide States to cooperate as closely as possible and exchange views on what concerns had been raised, while coordinating measures to be taken. He expressed appreciation for consideration given to late objections, and welcomed the recommendation on establishing a mechanism of assistance, which could also function as an advisory body for States seeking help in formulating reservations, and he requested further elaboration of how that body would function, provided there would be no financial implications for Member States.
ALINA OROSAN ( Romania) said that the Guide was an excellent tool for practitioners in the field of international law, striving to find solutions and answers to difficult questions that could arise in practice with respect to reservations. She welcomed the commentary, particularly the numerous examples taken from practice and the useful bibliography provided.
Concerning the subject of “late reservations”, she shared the concerns raised by other delegations, stating that the approach taken by the Guide represented a significant departure from the Vienna Convention, and should be treated with extreme caution. “[W]e should not legitimize or encourage this practice, as it might turn out to be done at the expense of legal certainty,” she said. In closing, she commended the efforts of the Special Rapporteur, noting that the future development of the international law on treaties would prove that he was a visionary in his approach to issues that today appeared controversial.
FARHANI AHMAD TAJUDDIN ( Malaysia) requested further information on the proposed reservations assistance mechanism, particularly on its purpose, role, function and the extent of its effect. She then made comments on particular guidelines. The definitions contained in guidelines 1.1.1, 1.1.2 and 1.1.6 should not prejudge the nature of the unilateral statements in question at the outset. Reference must be made to the effects that such statements might intend to produce in order to determine their status. On guideline 3.2, she said that a treaty monitoring body should comprise of independent experts and not representatives of Governments or countries. Further those experts should only make legal findings so as to execute that body’s powers without political influence by the representatives of Governments or countries.
She also expressed concerns on guideline 3.2.5 regarding the competence of dispute settlement bodies, which gave them the power to assess the permissibility of reservations where the determination of their validity was needed to settle disputes. That, she said, would redefine the role of those bodies. Among her many other comments on specific points in the guidelines, she said that 4.2.3 and 4.2.5 needed to be reformulated and simplified for better clarity. Further a separate legal regime should be developed for international organizations. She was open to discussing the matter with the Commission and welcomed the views of other States on the matter. The conclusions on the reservations dialogue were acceptable insofar as they served only as guidelines or recommendations.
MI YOUNG SONG ( Republic of Korea), recalling the terms in 3.2 of the Guide, said explicit or implied consent of a reserving State was required for other entities to get involved in the assessment of the validity of its reservations. Treaty-monitoring bodies would not be able to evaluate that validity without any clearly conferred mandate to do so. On the reservations dialogue presented in the annex, she said the dialogue mechanism was interesting but purely a reflection of the progressive development of international law. While, in principle, the exchange of information and opinions on reservations with other States might be a good method to ensure the integrity of multilateral treaties, such an exchange should not be used as pressure on States by hindering them from exercising their valid right to make reservations under a treaty.
She went on to say that given that reservations to treaties concerned relations among States parties, the interference of such mechanisms of individuals on those relations could modify the core characteristic of the law of treaties. Thus, it was essential to clarify a possible form of mechanisms of assistance and their functions and limits. Noting that the Commission had indicated that those mechanisms could present proposals to resolve differences among views on reservations to treaties, she expressed concern that such provision could be interpreted to imply that mechanisms of assistance could play the role of a dispute settlement body. If mechanisms of assistance were to be established, their main function would be limited to offering technical assistance to States in formulating reservations or objections to other reservations.
MARIA ZABOLOTSKAYA ( Russian Federation) said that reservations could arise at many points. The broad use of reservations might affect a treaty regime. It would be difficult to overestimate the value of the Guide. It would improve juridical techniques and provide greater clarity on the formulation of reservations. In closing, she said that the reservations dialogue would also be helpful.
MARIA TELALIAN ( Greece) said that the Guide moved towards progressive development of international law, rather than codification, thus filling existing gaps in the Vienna system on reservations without detracting from the object and purpose of that system. Offering comments to a number of guidelines, she said, among other things, that late reservations, registered as progressive development, should be used only in exceptional cases given the risk of endangering the smooth operation of treaty relations because of the legal uncertainty they entailed. She was similarly concerned with guideline 2.6.13 on objections formulated late, according to which such an objection would not produce all the legal effects of one formulated within the twelve-month period, as noted in guideline 2.6.12. In that regard, she wanted to know what, if any, those legal effects would be.
On reaction to an invalid reservation in guideline 4.5.3, she noted that in its previous formulation there had been a presumption that the State formulating such a reservation would nevertheless become a party to a treaty without the benefit of the reservation, which she supported. That reflected the practice of some States that held that a reservation that was incompatible with the object and purpose of a treaty was “severable”. The current text of the guideline now stated that the presumption was now based on the intention of the State of the invalid reservation to determine that State’s status as party to the treaty. That was a serious departure from the severability practice developed by States in their treaty relations over the years. She could not see how that guideline would be carried out by States who consistently applied “severability” in their treaty relations.
WLADYSLAW CZAPLINSKI ( Poland), speaking on the problem of permissibility of so-called “late reservations”, supported the replacement in the Guide of the expression “late reservation” with the wording “late formation of a reservation” or “a reservation formulated late”. That would indicate more clearly that the text was not a new separate category of reservations, but rather “declarations which are presented as reservations, but which are not in keeping with the time periods during which they may, in principle, be considered as such....” Although such declarations seemed still to be contrary to the very concept of reservations, the conditions under which they could be formulated effectively were adequate to safeguard the basic principle of pacta sunt servanda.
He reiterated the objective character of the invalidity of reservations, noting that it was probably the most important issue in the Guide. The Commission rightly assumed that reservations, which did not meet the conditions of formal validity and permissibility were null and void, independently from the reactions of other contracting States. Acknowledging that there was no objective mechanism to assess the objective invalidity of reservations, he said the Commission’s proposed guidelines constituted an attempt to solve the problem, but it was hardly likely that they would properly work in practice. There was more than one entity that was competent to assess such permissibility and consequently, the validity, of reservations.
EDWIGE BELLIARD ( France) said that despite the excellent work done on the Guide, some difficulties remained. The concept of validity was not an appropriate criterion for the admissibility of reservations. States had the right to make the declarations they deemed necessary, and it was up to each State to decide what effect that action would have on its relationship with the formulating State. It was not possible to speak of the objective validity of a reservation, but only of its “opposability”. In that regard, the issue was whether the unilateral action of one State would run up against a unilateral action by another State under which the latter would accept that the reservation would have an effect on their legal relationship. That could only occur through the consent of States, which was a cardinal principle.
As to the establishment of an Observatory for reservations at the United Nations, she said that that would require considerable resources and was not suitable to the issue under consideration. Further, the issue of objections to reservations was an individual choice for each State. In that context, she wondered whether there was a need for a group of experts on the matter. In closing, she said that despite the real difficulties, it should not be forgotten how rich a study the Guide was.
JOSE MARTIN Y PEREZ DE NANCLARES ( Spain) said the guidelines and commentaries were destined as benchmarks for any future study on those matters. Further, noting that the Guide had already proven itself, he said his Government had on 25 October of this year launched a bill on international treaties and international agreements that expressly recognized the definition of reservations to treaties contained in the Vienna Conventions of 1969, 1978 and 1986 and reproduced in the Guide. Also in it were definitions of “interpretative statements” that were similar to the Guide‘s intention to clearly distinguish between reservations and interpretative statements on the basis of their respective legal effects.
He praised the Guide for being useful and pragmatic, but pointed out that provisions in section 2.3 on late formulation of reservations, section 3.3.3 on acceptance of an invalid reservation and section 4.5.3 on the status of the author of an invalid reservation were of concern. On the idea of a mechanism, he was not totally convinced that it was viable to transpose the European models to the United Nations. Some experiments should first be carried out to test experientially a form of mechanism. While the attempt to encourage a mechanism of assistance was praiseworthy, when designed in practice its technical nature and budgetary implications must be borne in mind.
MOSHEN SHARIFI ( Iran) urged vigilance in the area of progressive development as some new rules might cause practical problems, including contradicting already existing rules or going too far beyond long-time State practice. “Reservation to treaties” fulfilled the key purpose of guaranteeing maximum level of membership to treaties while maintaining their overall integrity. In that context, he saw no harm in encouraging States to engage in a reservations dialogue as long as it remained a voluntary, non-binding consultative exchange of views between and among parties, both existing and potential, to a treaty. The designated depositary of each treaty could play an important role in facilitating such consultations.
Flexibility was key to evaluating the usefulness of different provisions of the Guide, he continued. Likewise, State consent should remain the primary consideration both in assessing the validity of reservations and in determining the effects of objections to reservations. Any legal formalism that diluted flexibility or undermined consent would not serve the cause of international treaty law. The establishment of such mechanisms as an observatory on reservations to treaties or similar observations assistance mechanisms was premature. Similarly, he said that an objection to a reservation should be considered in light of established principles of international law, including the principle of sovereign equality of States. States could only be bound by a treaty having expressed their consent; no State could bind another State against its will. Observations with “super maximum” effect had no place in international law.
NEERU CHADHA ( India) said her delegation was willing to take forward the recommendation on a reservation assistance mechanism. The suggestion to create a small group of experts within the Committee was worth further examination. That group could make recommendations to States in order to settle differences of view concerning reservations, as well as provide States with ‘technical assistance in formulating reservations or objections to reservations as suggested by the Special Rapporteur. However, she did not see that any compulsory procedure in that regard would be acceptable to States. On the observatories, she said that different regional mechanisms like Committee of Legal Advisers on Public International Law had been suggested as templates. Those needed to be more fully discussed within the Committee.
JÖRG POLAKIEWICZ, observer for the Council of Europe, noted that more than 200 international treaties had been concluded within the Council. Its Committee of Ministers had agreed on the need, during the drafting process of each convention, to examine whether to include explicit provisions on reservations, which would determine, on a case by case basis, the applicable regime. It also invited bodies responsible for monitoring conventions to raise the question of the need to maintain reservations already formulated, and the possibility of considering their withdrawal, with national authorities. Most of the Council’s 214 conventions were open to accession by non-member States.
Turning to the work on reservations of the Committee of Legal Advisers on Public International Law, he said that it was amply referenced in the Guide as the European Observatory of Reservations to International Treaties. The strength of the Committee was its combination of broad representation and the topicality of the issues of public international law on its agenda. Its activities as the Observatory covered conventions of both the Council and the United Nations. Thus States were alerted to potential difficulties and encouraged to regularly review reservations and declarations. That process could lead to real dialogue and afforded States the opportunity to interact directly with the State that had formulated the reservation or declaration in question. The European Observatory was a good example of a flexible cooperation mechanism. The Council was prepared to provide expertise and support to other international organizations in that regard.
Remarks by Special Rapporteur
ALAIN PELLET, Special Rapporteur on Reservations to Treaties, said, in regards to a delegate stating he or she did not read the document, that he did not think the Guide would become the “bedside reading” of any legal counsel. The Guide was to provide a sort of toolbox to help States resolve technical or sometimes political problems which arose every day regarding reservations to treaties in practice. Acknowledging States’ contributions to render customary law on reservations to treaties, he said time must be allowed to take its course. Practice would determine what could be or what was consolidated despite the Guide’s vast size of guide.
Concerning elements that needed to be changed, he said that problems were going to crop up and States would be free to take up positions. “This is no holy writ; it’s intended to be a helpful tool.” The Guide to Practice should be taken as it stood on that front. Further, while he would take into account delegations’ comments, he would refrain from making them on the guidelines, point by point. “It is up to you to design international law,” he said.
There were three major points of attrition where consensus had not arisen, he went on to say. First, referring to the late formulation of reservation, he said the attempt had been to find reasonable solutions and consider principally human rights treaties because those were main ones that had been institutionalized.
Section 4.5.3 was the outcome of much discussion and thought by the Commission, he continued. The average solution put forth by the Commission had led to uncertainly, but international law was a law of uncertainty. As such, section 4.5.3 should not be criticized on that. International law created a mechanism to see whether or not a reservation was permissible or opposable.
“It is you who cause this uncertainty,” he told the Committee. While the Commission would have liked to come up with a single solution dispelling all uncertainty, they had not been able to find a rock solid solution, even after having listened carefully to the cacophony among States. The outcome was far from a perfect one but a reasonable middle course.
It was not that international organizations were necessarily going to align practice with everything in the Guide, he pointed out. The Guide was just a catalyst on which practitioners could take position. It was impossible to consider that 187 states would agree on 179 guidelines. In the immediate future, the Committee could adopt a resolution in that regard. He called upon States to take the Guide as a whole as much as possible, emphasizing that commentaries and the annex formed part of that whole.
He also acknowledged the divergent views on the observatory. Noting that the European States seemed to want to keep their observatories, he asked, “why not take their experience and make it available to the rest of the world?” While it was hard to imagine how such an observatory would work, he proposed a working group with a few States, such as the Czech Republic and India, to try an experimental treaty observation.
On the problem of disputes, he said States could go to the International Court of Justice or regional consultative bodies. On technical assistance, the United Nations could support those States having difficulty grasping reservations or objections to reservations. That should be part and parcel of a technical assistance program, which he firmly believed there was a need for.
“It is quite a moving and emotional time for me,” he said, noting that, after 22 years in the Commission, it would be his last time addressing the Sixth Committee. While he had often said how disappointed he was by the rigidity and formalism of the Committee’s debates, he told the Committee he had not been insensitive to the kind words that had been spoken. More so, the Guide was not “Alain Pellet’s Guide”. It was a result of collective work in which the delegates were stakeholders. Whatever was said was very much heeded and taken into account. Nonetheless, it was essential to come up with compromises. Hence, there were weaknesses in the Guide. He paid tribute to the Committee, delegates and the Codification Division who had been with him during the many years.
Requests for Observer Status
Before the Committee were four draft resolutions containing requests for observer status in the work of the General Assembly.
Requesting such status were the International Institute for the Unification of Private Law (A/C.6/68/L.5); the International Anti-Corruption Academy (A/C.6/68/L.6); the Pan African Intergovernmental Agency for Water and Sanitation for Africa (A/C.6/68/L.7); and the Global Green Growth Institute (A/C.6/68/L.8).
All requests were approved without a vote by the Committee.
* *** *