Document:- A/CN.4/470 First report on the law and practice relating to reservations to treaties, by Mr. Alain Pellet, Special Rapporteur Topic: Law and practice relating to reservations to treaties Extract from the Yearbook of the International Law Commission:- 1995, vol. II(1) Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations THE LAW AND PRACTICE RELATING TO RESERVATIONS TO TREATIES [Agenda item 6] DOCUMENT A/CN.4/470* First report on the law and practice relating to reservations to treaties by Mr. Alain Pellet, Special Rapporteur [Original: French] [30 May 1995] CONTENTS Page Multilateral instruments cited in the present report .................................................................................................. 122 Works cited in the present report ............................................................................................................................. 123 Paragraphs INTRODUCTION ................................................................................................................................... 1–7 126 Chapter I. THE PREVIOUS WORK OF THE COMMISSION ON RESERVATIONS AND THE OUTCOME ................ 8–90 126 A. The law of treaties ................................................................................................................. 10–61 127 1. The work of the Commission from 1950 to 1961 ........................................................... 12–33 127 (a) Consideration of the reports of Mr. James L. Brierly (1950–1951) ......................... 12–22 127 (b) The reports of Sir Hersch Lauterpacht (1953–1954) ................................................ 23–29 129 (c) The first report of Sir Gerald Fitzmaurice (1956) .................................................... 30–33 130 2. The work of the Commission from 1962 to 1965 ........................................................... 34–57 130 (a) Consideration of the first report of Sir Humphrey Waldock (1962) .....................… 35–46 130 (b) The adoption of the draft articles on the law of treaties (1965-1966) ....................... 47–57 132 3. The United Nations Conference on the Law of Treaties (1968-1969) and the question of reservations .................................................................................................................... 58–60 134 Conclusion ................................................................................................................................... 61 136 B. Succession of States in respect of treaties ............................................................................. 62–71 136 C. Treaties concluded between States and international organizations or between two or more international organizations .................................................................................................... 72–90 137 II. BRIEF INVENTORY OF THE PROBLEMS OF THE TOPIC ................................................................. 91–149 141 A. The ambiguities of the provisions relating to reservations in the Vienna Conventions on the Law of Treaties ..................................................................................................................... 96–125 142 1. The permissibility of reservations .................................................................................. 97–114 142 2. The regime for objections to reservations (the opposability of reservations) .................. 115–125 144 B. Gaps in the provisions relating to reservations in the Vienna Conventions on the Law of Treaties 126–149 146 1. Some gaps of a general nature ........................................................................................ 127–135 146 (a) Reservations to bilateral treaties and interpretative declarations............................... 127–129 146 _________ * Incorporating documents A/CN.4/470/Corr.1 and Corr.2. 121 122 Documents of the forty-seventh session Chapter Paragraphs Page (b) Effects of reservations on the entry into force of a treaty .............................................. 130–131 147 (c) Problems unsolved by the Vienna Convention on Succession of States in respect of Treaties ............................................................................................................................ 132–135 147 2. Problems connected with the specific object of certain treaties or provisions ................ 136–144 148 (a) Reservations to constituent instruments of international organizations ......................... 137 148 (b) Reservations to human rights treaties ............................................................................. 138–142 148 (c) Reservations to provisions codifying customary rules ................................................... 143–144 149 3. Problems arising from certain specific treaty approaches ............................................... 145–149 149 (a) Reservations and additional protocols ............................................................................ 146 149 (b) Reservations and the bilateralization approach .............................................................. 147–149 150 III. THE SCOPE AND FORM OF THE FUTURE WORK OF THE COMMISSION ......................................... 150-179 151 A. Preserving what has been achieved ...................................................................................... 153–169 151 B. The form that the results of the work of the Commission might take .................................... 170–179 154 CONCLUSION ...................................................................................................................................... 180–182 155 ________________ Multilateral instruments cited in the present report Source General Agreement on Tariffs and Trade (Geneva, United Nations, Treaty Series, vol. 55, p. 187. 30 October 1947) Convention establishing the Inter-Governmental Mari- Ibid., vol. 289, p. 3. time Consultative Organization (Geneva, 6 March 1948) Convention on the Prevention and Punishment of the Ibid., vol. 78, p. 277. Crime of Genocide (New York, 9 December 1948) Convention for the Protection of Human Rights and Ibid., vol. 213, p. 221. Fundamental Freedoms (European Convention on Human Rights) (Rome, 4 November 1950) Convention relating to the Status of Refugees (Geneva, Ibid., vol. 189, p. 137. 28 July 1951) Protocol relating to the Status of Refugees (New York, Ibid., vol. 606, p. 267. 31 January 1967) Single Convention on Narcotic Drugs (New York, Ibid., vol. 520, p. 151. 30 March 1961) Protocol amending the Single Convention on Narcotic Ibid., vol. 976, p. 3. Drugs of 1961 (Geneva, 25 March 1972) International Covenant on Economic, Social and Cultural Ibid., vols. 993, p. 3, and 999, p. 171. Rights and International Covenant on Civil and Politi- cal Rights (New York, 16 December 1966) Vienna Convention on the Law of Treaties (Vienna, Ibid., vol. 1155, p. 331. 23 May 1969) [hereinafter called the 1969 Vienna Convention] American Convention on Human Rights (San José, Costa Ibid., vol. 1144, p. 123. Rica, 22 November 1969) The law and practice relating to reservations to treaties 123 Convention on the Recognition and Enforcement of Ibid., p. 249. Foreign Judgements in Civil and Commercial Matters (The Hague, 1st February 1971) Convention on the Limitation Period in the International Ibid., vol. 1511, p. 3. Sale of Goods (New York, 14 June 1974) Vienna Convention on Succession of States in respect of Official Records of the United Nations Confer- Treaties (Vienna, 23 August 1978) [hereinafter called ence on Succession of States in respect of Trea- the 1978 Vienna Convention] ties, Vienna, 4 April-6 May 1977 and 31 July- 23 August 1978, vol. III (United Nations publi- cation, Sales No. E.79.V.10) Vienna Convention on the Law of Treaties between Document A/CONF.129/15. States and International Organizations or between International Organizations (Vienna, 21 March 1986) [hereinafter called the 1986 Vienna Convention] ________________ Works cited in the present report BASTID,Suzanne BROWN,E. D. Les traités dans la vie internationale: conclusion et effets. Paris, “The Anglo-French continental case”, Year Book of World Affairs, Economica, 1985. 1979 (London), pp. 304–327. BAXTER,R. R. CAMERON,Iain and F.HORN “Treaties and custom”, Collected Courses of The Hague Academy “Reservations to the European Convention on Human Rights: the of International Law, 1970–I. Leyden, Sijthoff. Vol. 129, Belilos case”, German Yearbook of International Law (Berlin), pp. 25–106. vol. 33, 1990, pp. 69–129. CLARK,Belinda CASSESE,Antonio “The Vienna Convention reservations regime and the Convention “A new reservations clause (article 20 of the United Nations Conven- on Discrimination against Women”, American Journal of tion on the Elimination of All Forms of Racial Discrimination). International Law, vol. 85, 1991, pp. 281 et seq. Recueil d’études de droit international en hommage à Paul BLAY,Samuel K. N. and B. M. TSAMENYI Guggenheim. Geneva, Institut universitaire de hautes études in- ternationales, 1968, pp. 266–304. “Reservations and declarations under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees”, Interna- “Una nuova sulle riserve”, Rivista di diritto internazionale, vol. L, tional Journal of Refugee Law, vol. 2, No. 4, October 1990, Nos. 3–4, 1967, pp. 584 et seq. pp. 527 et seq. “Su alcune ‘riserve’ alla convenzione sui diritti politici della donna”, ibid., vol. LI, 1968, pp. 294 et seq. BONIFAZI,Angela “La disciplina delle riserve alla Convenzione europea dei diritti COCCIA,Massimo dell’uomo”, Les clauses facultatives de la Convention eu- “Reservations to multilateral treaties on human rights”, California ropéenne des droits de l’homme. Bari, Levante, 1974. Vol. 3, Western International Law Journal, vol. 15, No. 1, winter 1985, pp. 301–319. pp. 1 et seq. BOURGUIGNON,Henry J. COHEN-JONATHAN,Gérard “The Belilos case: new light on reservations to multilateral trea- “Les réserves à la Convention européenne des droits de l’homme ties”, Virginia Journal of International Law, vol. 29, No. 4, (à propos de l’arrêt Belilos du 29 avril 1988)”, Revue générale de summer 1989, pp. 347–386. droit international public (Paris), vol. 93/1989/2, pp. 273–314. BOWETT, D. W. “Note sur les décisions et constatations du Comité des droits de “Reservations to non-restricted multilateral treaties”, British Year l’homme des Nations Unies relatives à la France (1989)”, An- Book of International Law, 1976–1977, 48th year, pp. 67–92. nuaire français de droit international, vol. XXXV, 1989, “The arbitration between the United Kingdom and France concern- pp. 424 et seq. ing the continental shelf boundary in the English Channel and COHEN-JONATHAN,Gérard and J.-P. JACQUÉ south-western approaches”. Ibid., 1978, 49th year, 1979, pp. 1 et seq. “Activité de la Commission européenne des droits de l’homme”, An- nuaire français de droit international, vol. XXVIII, 1982, BOYLE,A. E. pp. 513 et seq. “The law of treaties and the Anglo-French continental shelf arbitra- “Activités de la Commission européenne des droits de l'homme”, tion”, International and Comparative Law Quarterly, vol. 29, ibid., vol. XXXVII, 1991, pp. 561–580. parts 2–3, April-July 1980, pp. 498–507. 124 Documents of the forty-seventh session COLELLA,Alberto HAN,Henry H. “Les réserves à la Convention de Genève (28 juillet 1951) et au “The U.N. Secretary General’s treaty depositary function: legal im- Protocole de New York (31 janvier 1967) sur le statut des ré- plications”, Brooklyn Journal of International Law, No. 3, 1988, fugiés”, Annuaire français de droit international, vol. XXXV, pp. 562–565. 1989, pp. 446–475. IMBERT,Pierre-Henri COMBACAU,Jean “À l’occasion de l’entrée en vigueur de la Convention de Vienne sur Le droit des traités. Paris, Presses Universitaires de France (Que le droit des traités: réflexions sur la pratique suivie par le Secré- sais-je?, No. 2613), 1991. taire général des Nations Unies dans l’exercice de ses fonctions de dépositaire”, Annuaire français de droit international, vol. COOK,Rebecca XXVI, 1980, pp. 524–541. “Reservations to the Convention on the Elimination of all Forms of “La question des réserves dans la décision arbitrale du 30 juin 1977 Discrimination against Women”, Virginia Journal of Interna- relative à la délimitation du plateau continental entre la Répu- tional Law, vol. 30, No. 3, spring 1990, pp. 643 et seq. blique française et le Royaume-Uni de Grande-Bretagne et COX,William W. d’Irlande du Nord”, ibid., vol. XXIV, 1978, pp. 29–58. “Reservations to multipartite conventions”. Proceedings of the “La question des réserves et les conventions en matière de droits de American Society of International Law at its forty-sixth annual l’homme”, Actes du cinquième colloque international sur la meeting, Washington, D. C., 24–26 April 1952, pp. 26 et seq. Convention européenne des droits de l’homme: organisé DALTON,Robert E. conjointement par le Gouvernement de la République fédérale d’Allemagne et le Secrétariat général du Conseil de l’Europe “The Vienna Convention on the Law of Treaties: consequences for (Francfort, 9–12 avril 1980). Paris, Pedone, 1982, pp. 97 et seq. the United States”, Proceedings of the American Society of International Law at its seventy-eighth annual meeting, Wash- “Les réserves à la Convention européenne des droits de l’homme de- ington, D. C., 12–14 April 1984, pp. 276 et seq. vant la Commission de Strasbourg (affaire Temeltasch)”, Inter- national and Comparative Law Quarterly, vol. 33, part 3, July DEHAUSSY,Jacques 1984, pp. 558–595. “Le problème de la classification des traités et le projet de conven- Les réserves aux traités multilatéraux: évolution du droit et de la tion établi par la Commission du droit international des Na- pratique depuis l’avis consultatif donné par la Cour internatio- tions Unies”, Recueil d’études de droit international en hom- nale de Justice le 28 mai 1951. Paris,Pedone, 1978. mage à Paul Guggenheim. Geneva, Institut universitaire de hautes études internationales, 1968, pp. 305–326. KOH,Jean K. “Reservations to multilateral treaties: how international legal doctrine DEVISSCHER,Charles reflects world vision”, Harvard International Law Journal, “Une réserve de la République arabe de Syrie à la Convention de vol. 23, No. 1, 1982, pp. 71 et seq. Vienne (1969) sur les traités”, Belgian Review of International Law, vol. 8, 1972–2, pp. 416–418. MACDONALD,R. St. J. “Reservations under the European Convention on Human Rights”, EDWARDS,JR.,Richard W. Belgian Review of International Law, vol. XXI, 1988–2, “Reservations to treaties”, Michigan Journal of International Law, pp. 429–450. vol. 10, No. 2, spring 1989, pp. 362–405. MAJOROS,Ferenc ELIAS,Taslim O. “Le régime de réciprocité de la Convention de Vienne et les réserves The Modern Law of Treaties. Dobbs Ferry, New York, 1974. dans les Conventions de La Haye”, Journal du droit internatio- FENWICK, C. G. nal, 101st year, No. 1, January-February-March 1974, pp. 73– 109. “When is a treaty not a treaty?”, American Journal of International Law, vol. 46, No. 2, April 1952, pp. 296–298. MARCUS-HELMONS,S. FITZMAURICE, G. G. “L’article 64 de la Convention de Rome ou les réserves à la Conven- “Reservations to multilateral conventions”, International and tion européenne des droits de l'homme”. Revue de droit interna- Comparative Law Quarterly (London), vol. 2, part 1, January tional et de droit comparé, 45th year, No. 1, 1968, pp. 7 et seq. 1953, pp. 1–26. MARKS,Susan FLAUSS,Jean-François “Reservations unhinged: the Belilos case before the European Court “Le contentieux de la validité des réserves à la CEDH devant le of Human Rights”, International and Comparative Law Quar- Tribunal fédéral suisse: requiem pour la déclaration interpréta- terly, vol. 39, part 2, April 1990, pp. 300 et seq. tive relative à l’article 6 § 1”, Revue universelle des droits de l’homme, vol. 5, Nos. 9–10, 20 December 1993, pp. 297 et MARCOFF,Marco G. seq. Accession à l’indépendance et succession d’États aux traités interna- FROWEIN,Jochen Abr. tionaux. Fribourg, Editions universitaires, 1969. “Reservations to the European Convention on Human Rights”, Pro- MCNAIR, Lord tecting Human Rights: The European Dimension. Cologne, Carl The Law of Treaties. Oxford, Clarendon Press, 1961. Heymanns, 1988, pp. 193–200. GAJA,Giorgio MCRAE,D. M. “Unruly treaty reservations”, International Law at the Time of its “The legal effects of interpretative declarations”, British Year Book Codification: Essays in Honour of Roberto Ago, vol. 1. Milan, of International Law, 1978, 49thyear, 1979, pp. 155–173. Giuffrè, 1987, pp. 307–330. MENDELSON,M. H. GAMBLE JR.,John King “Reservations to the constitutions of international organizations”, “Reservations to multilateral treaties: a macroscopic view of State British Year Book of International Law,1971, 45th year, 1973, practice”. American Journal of International Law, vol. 74, pp. 137 et seq. 1980, pp. 372–394. The law and practice relating to reservations to treaties 125 NISOT,Joseph SCHACHTER, Oscar “Les réserves aux traités et la Convention de Vienne du 23 mai “The question of treaty reservations at the 1959 General Assembly”. 1969”, Revue générale de droit international public, third se- American Journal of International Law, vol. 54, 1960, pp. 372– ries, vol. LXXVII, 1973, pp. 200–206. 379. SCHMIDT,Markus G. PILLOUD,Claude “Reservations to United Nations human rights treaties: the case of the “Les réserves aux Conventions de Genève de 1949”, Revue inter- two Covenants”, Human Rights as General Norms and a State’s nationale de la Croix-Rouge, July 1957, pp. 409–437; ibid., Right to Opt Out: Reservations and Objections to Human Rights 47th year, No. 553, January 1965, pp. 315–324;.and ibid., Conventions, J. P. Gardner, ed. London, British Institute of In- 58th year, No. 685, January 1976, pp. 131–149 and 195–221. ternational and Comparative Law, 1997, pp. 20–34. PIPER,Catherine Logan SHELTON,D. “Reservations to multilateral treaties: the goal of universality”, “State practice on reservations to human rights treaties”, Canadian Iowa Law Review, vol. 71, No. 1, October 1985, pp. 295–322. Human Rights Yearbook, 1983, pp. 205 et seq. QUÉNEUDEC,Jean-Pierre SINCLAIR, Sir Ian “L’affaire de la délimitation du plateau continental entre la France The Vienna Convention on the Law of Treaties. 2nded. Manchester, et le Royaume-Uni”, Revue générale de droit international Manchester University Press, 1984. public, vol. 83/1979/1, pp. 53–103. “The Vienna Convention on the Law of Treaties: the consequences REDGWELL, Catherine of participation and nonparticipation”, Proceedings of the 78th Annual Meeting of the American Society of International Law, “Universality or integrity? Some reflections on reservations to gen- Washington, D.C., American Society of International Law, 12– eral multilateral treaties”, British Year Book of International 14 April 1984, pp. 271 et seq. Law, 1993, 64th year, 1994, pp. 245–282. REUTER,Paul TEBOUL,Gérard Introduction to the Law of Treaties. 2nd ed. London and New “Remarques sur les réserves aux conventions de codification”, Re- York, Kegan Paul International, 1995. vue générale de droit international public, vol. 86, 1982/4, pp. 679–717. RIGALDIES,Francis “L’affaire de la délimitation du plateau continental entre la Répu- TOMUSCHAT,C. blique française et le Royaume-Uni de Grande-Bretagne et “Admissibility and legal effects of reservations to multilateral trea- d’Irlande du Nord”, Journal du droit international, 106th ties: comments on arts.16, 17”, Zeitschrift für ausländisches öf- year, 1979, No. 3, July-August-September 1979, pp. 506–531. fentliches Recht und Völkerrecht: Comments on the Interna- ROSENNE,Shabtai tional Law Commission’s 1966 draft articles on the law of trea- ties, vol. 27, 1967, pp. 463–482. Developments in the Law of Treaties 1945–1986. Cambridge, New York, New Rochelle, Melbourne, Sydney, Cambridge Univer- ZANGHI,Claudio sity Press, 1989. “La déclaration de la Turquie relative à l’art. 25 de la Convention RUDA,J. M. européenne des droits de l’homme”, Revue générale de droit in- “Reservations to treaties”, Collected Courses of The Hague Acad- ternational public, vol. XCIII, part 1, 1989, pp. 69–95. emy of International Law, 1975–III. Leyden, Sijthoff, 1977. Vol. 146, pp. 95–218. ZEMANEK,K. “Some unresolved questions concerning reservations in the Vienna RUIZ-MORENO,Isidoro Convention on the Law of Treaties”, Essays in International “Reservations to treaties relating to human rights”, Report of the Lawin Honour of Judge Manfred Lachs.The Hague, Boston, Fifty-fourth Conference held at The Hague, August 23rd– Lancaster, Martinus Nijhoff (Institut of State and Law of the 29th, 1970. London, International Law Association, 1971, Polish Academy of Sciences), 1984, pp. 323–336. pp. 642–645. ZOLLER,E. SCHABAS,William A. “L’affaire de la délimitation du plateau continental entre la République “Reservations to human rights treaties: time for innovation and re- française et le Royaume-Uni de Grande-Bretagne et d’Irlande du form”, Canadian Yearbook of International Law, vol. XXXII, Nord (cid:237) Décision du 30 juin 1977”, Annuaire français de droit in- 1994, pp. 39 et seq. ternational, vol. XXIII, 1977, pp. 359–407. ________________ 126 Documents of the forty-seventh session Introduction 1. At the forty-fourth session of the Commission, in include the topic in its agenda was generally endorsed. It 1992, the Planning Group of the Enlarged Bureau estab- was pointed out that the topic had the merit of precision, lished a working group to consider a limited number of responding to clear, current needs of the international topics to be recommended to the General Assembly for community and offering ILC an opportunity to make a inclusion in the programme of work of the Commission.1 direct contribution, on a realistic timescale, to the forma- These included the law and practice relating to reserva- tion and development of State practice.7 tions to treaties, which had been suggested as a possible topic by various delegations at the forty-sixth session of 5. Accordingly, in resolution 48/31 of 9 December the Assembly.2 1993, the General Assembly endorsed the ILC decision to include in its agenda the topic of “The law and prac- 2. This topic, which had aroused special interest tice relating to reservations to treaties”, “on the under- among the members of the Commission,3 formed the standing that the final form to be given to the work on subject, in accordance with the procedure fixed by the [this topic] shall be decided after a preliminary study is Commission on the recommendation of the Planning presented to the General Assembly”. Group,4 of an explanatory outline indicating: (a) the major issues raised by the topic; (b) any applicable trea- 6. At its forty-sixth session, the Commission appointed ties, general principles and relevant national legislation the Special Rapporteur for this topic.8 or judicial decisions; (c) existing doctrine; and (d) the advantages and disadvantages of preparing a report, a 7. The present report has no doctrinal pretensions, in study or a draft convention, if the Commission decided to that it endeavours to enumerate the main problems raised proceed with the topic.5 by the topic, without in any way prejudging the possible response of the Commission regarding their substance. 3. After considering the outline, the working group On the other hand, in keeping with the General Assem- established by the Planning Group recommended the bly’s wish to have a preliminary study to determine “the inclusion in the agenda of the Commission of the topic final form to be given to the work” on this topic, it has entitled “The law and practice relating to reservations to been deemed advisable to submit to the Commission treaties”. For reasons that will be discussed below, the comparatively precise proposals in this regard. Further- Commission adopted this recommendation at its forty- more, as the topic has already been taken up on a number fifth session and decided that, subject to approval by the of occasions by the Commission in connection with ear- General Assembly, the topic would be included in the lier, more general studies, this report tries to give an agenda.6 overview of that work and to suggest solutions that will not jeopardize earlier advances yet will allow for the 4. In the debate in the Sixth Committee of the General codification and progressive development of the law on Assembly at its forty-eighth session, the ILC decision to reservations to treaties. To this end, it will consist of _________ three chapters dealing with the previous work of the Commission on reservations (chap. I), the problems left in 1 See Yearbook … 1992, vol. II (Part Two), p. 54, para. 368. abeyance (chap. II) and the possible forms of the results of 2 See A/CN.4/L.469, para. 422. the work of the Commission on the topic (chap. III). 3 See A/CN.4/L.473/Rev.1, para. 23. 4 See Yearbook ... 1992, vol. II (Part Two), p. 54, para. 369. _________ 5 See Yearbook … 1993, vol. II (Part One), pp. 228–237, document A/CN.4/454. 7 See A/CN.4/457, para. 433. 6 Ibid., vol. II (Part Two), pp. 96–97, paras. 427–430 and 440. 8Yearbook … 1994, vol. II (Part Two), p. 179, para. 381. CHAPTER I The previous work of the Commission on reservations and the outcome 8. Three topics considered by the Commission since 9. These three topics led to the adoption by diplomatic its inception have caused it to study, from different conferences of three conventions, the Vienna Convention standpoints, the question of reservations to treaties. It has on the Law of Treaties (hereinafter called the 1969 Vienna done so in the context of the codification of: Convention), the Vienna Convention on Succession of States in respect of Treaties (hereinafter called the 1978 (a) The law of treaties; Vienna Convention) and the Vienna Convention on the (b) Succession of States in respect of treaties; Law of Treaties between States and International Organi- zations or between International Organizations (hereinafter (c) The question of treaties concluded between called the 1986 Vienna Convention). All three instruments States and international organizations or between two or contain provisions on reservations. more international organizations. The law and practice relating to reservations to treaties 127 A. The law of treaties (a) In the course of its work on the codification of the law of treaties, to study the question of reservations to multilateral conven- tions both from the point of view of codification and from that of the 10. The Special Rapporteurs of the Commission on the progressive development of international law; to give priority to this topic of the law of treaties, Mr. James L. Brierly, Sir study and to report thereon, especially as regards multilateral conven- Hersch Lauterpacht, Sir Gerald Fitzmaurice and Sir tions of which the Secretary-General is the depositary, this report to be Humphrey Waldock, engaged in a study of the question considered by the General Assembly at its sixth session; of reservations to treaties. All of them laid special em- phasis on the problem of the admissibility of reserva- (b) In connexion with this study, to take account of all the views expressed during the fifth session of the General Assembly, and par- tions. ticularly in the Sixth Committee. 11. A turning point came, however, in the position of 15. Further to this request, the Commission had before it, the Commission on this point in 1962, following the first at its third session, a report by the Special Rapporteur,13 report by Sir Humphrey Waldock;9 from then on, the and two memorandums, submitted by Messrs Gilberto Commission gave up the rule of unanimity it had advo- Amado and Georges Scelle.14 cated thus far and favoured the flexible system adopted by ICJ in its advisory opinion of 28 May 1951 on Reser- 16. In his report, the Special Rapporteur argued that: vations to the Convention on the Prevention and Pun- ishment of the Crime of Genocide.10 ... In approaching this task it would appear that the Commission has to bear in mind two main principles. First there is the desirability 1. THE WORK OF THE COMMISSION FROM 1950 TO 1961 of maintaining the integrity of international multilateral conventions. It is to be preferred that some degree of uniformity in the obligations of all parties to a multilateral instrument should be maintained. One of (a) Consideration of the reports of Mr. James L. Brierly the ways in which international law is developed is by a consistent rule (1950–1951) of general application being laid down in multilateral (or what amounts in practice to the same thing, a succession of closely similar 12. In his first report on the law of treaties, submitted to bilateral) conventions. An example of this may be seen in the rule, now fairly generally accepted, and yet of entirely conventional origin, the Commission at its second session, in 1950, the first that consuls de carrière possess certain personal immunities, though Special Rapporteur on this topic, Mr. Brierly, briefly under customary international law they originally possessed none. took up the question of reservations and was very clearly Frequent or numerous reservations by States to multilateral conven- in favour of the unanimity rule, which was formulated in tions of international concern hinder the development of international law by preventing the growth of a consistent rule of general draft article 10, paragraph 3, proposed to the Commis- application. sion, in the following terms: … Secondly, and on the other hand, there is the desirability of the The acceptance of a treaty subject to a reservation is ineffective unless widest possible application of multilateral conventions. It may be or until every State or international organization whose consent is assumed, from the very fact that they are multilateral, that the subjects requisite to the effectiveness of that reservation has consented with which they deal are of international concern, i.e., matters which thereto.11 are not only susceptible of international regulation but regarding which it is desirable to reform or amend existing law. If they are to be effec- 13. This principle was adopted with virtually no discus- tive, multilateral conventions must be as widely in force or as gener- sion by the Commission, which, in its report to the Gen- ally accepted as possible. An example of this may be seen in the Red Cross Convention of 1949 signed by some 60 States. These are Con- eral Assembly on its second session, said that: ventions to which it is clearly desirable to have as many ratifications as possible.15 ... a reservation requires the consent at least of all parties to become effective. But the application of these principles in detail to the great 17. The Special Rapporteur concluded that the best variety of situations which may arise in the making of multilateral treaties was felt to require further consideration.12 solution would be to include express provisions tailored to the different types of treaty, some examples of which 14. The problem resurfaced, however, in the same year. he gave in annex E of his report.13 He also thought it Following the debate in the Sixth Committee of the Gen- necessary to envisage the possibility that States would eral Assembly on reservations to the Convention on the not follow this recommendation and to give guidance to Prevention and Punishment of the Crime of Genocide, on the depositary if the treaty was silent on that point; how- 16 November 1950, the Assembly adopted resolution ever, having noted that the opinions of writers were far 478 (V) in which it requested an advisory opinion by ICJ from unanimous and the practice far from homo- on the matter and it also invited ILC: geneous,16 he thought that the drafting should wait _________ _________ 9 See Yearbook ... 1962, vol. II, pp. 31–35, 60–68 and 73–80, docu- ment A/CN.4/144, arts. 1 (l) and 17–19, and appendix (Historical 13Yearbook ... 1951, vol. II, p. 1, document A/CN.4/41. The report summary of the question of reservations to multilateral conventions). had five annexes (A. Summary of debates in the Sixth Committee of A fundamental change in the Commission’s approach to reservations the General Assembly; B. Opinions of writers; C. Examples of clauses was noted by Sinclair in The Vienna Convention on the Law of Trea- in conventions regarding reservations; D. Practice with regard to ties, pp. 58–61. reservations; E. Draft articles on reservations). 10I.C.J. Reports 1951, p. 15. 14 Ibid., pp. 17 and 23 respectively, documents A/CN.4/L.9 and 11Yearbook … 1950, vol. II, pp. 238–242, document A/CN.4/23, in A/CN.4/L.14. particular p. 240. 15 Ibid., pp. 3–4, document A/CN.4/41, paras. 11–12. 12 Ibid., p. 381, document A/1316, para. 164. 16 Ibid., pp. 2–4, paras. 8–11. 128 Documents of the forty-seventh session for the advisory opinion of ICJ requested by the General (4) If a multilateral convention is intended to enter into force as a Assembly. consequence of signature only, no further action being requisite, a State which offers a reservation at the time of signature may become a party to the convention only in the absence of objection by any State 18. The Court rendered its opinion on 28 May 195110 which has previously signed the convention; when the convention is and the discussion in the Commission focused basically open to signature during a limited fixed period, only in the absence of on this opinion, which Mr. Scelle had vigorously criti- objection by any State which becomes a signatory during that period. cized in his memorandum14 which found hardly any sup- (5) If ratification or acceptance in some other form, after signa- port among the other members of the Commission during ture, is requisite to bring a multilateral convention into force, the discussions. (a) A reservation made by a State at the time of signature should have no effect unless it is repeated or incorporated by reference in the 19. In its report on the work of its third session, the later ratification or acceptance by that State; Commission noted that: (b) A State which tenders a ratification or acceptance with a reservation may become a party to the convention only in the absence the criterion of the compatibility of a reservation with the object and of objection by any other State which, at the time the tender is made, purpose of a multilateral convention, applied by the International has signed, or ratified or otherwise accepted the convention; when the Court of Justice to the Convention on Genocide, is not suitable for convention is open to signature during a limited fixed period, also in application to multilateral conventions in general. It involves a classi- the absence of objection by any State which signs, ratifies or otherwise fication of the provisions of a convention into two categories, those accepts the convention after the tender is made but before the expira- which do and those which do not form part of its object and purpose. It tion of this period; provided, however, that an objection by a State seems reasonable to assume that, ordinarily at least, the parties regard which has merely signed the convention should cease to have the the provisions of a convention as an integral whole, and that a reserva- tion to any of them may be deemed to impair its object and purpose.17 effect of excluding the reserving State from becoming a party, if within a period of twelve months from the time of the making of its objection, the objecting State has not ratified or otherwise accepted the The Commission declared itself convention.20 ... impressed with the complexity of the task which he [the Secretary- 21. After lengthy debate, the Sixth Committee of the General] would be required to discharge if reserving States can be- General Assembly adopted by a narrow majority the text come parties to multilateral conventions despite the objections of some of the parties to their reservations.18 that was to become resolution 598 (VI) of 12 January 1952.21 In paragraph 3, the General Assembly: 20. While noting that “multilateral conventions are so diversified in character and object that, when the negoti- Requests the Secretary-General: ating States have omitted to deal in the text of a conven- (a) In relation to reservations to the Convention on the Prevention tion with the admissibility or effect of reservations, no and Punishment of the Crime of Genocide, to conform his practice to single rule uniformly applied can be wholly satisfac- the advisory opinion of the [International] Court [of Justice] of 28 May tory”,19 the Commission nevertheless suggested that: 1951; (b) In respect of future conventions concluded under the auspices in the absence of contrary provisions in any multilateral convention of the United Nations of which he is the depositary: and of any organizational procedure applicable, the following practice should be adopted with regard to reservations to multilateral conven- (i) To continue to act as depositary in connexion with the tions, especially those of which the Secretary-General of the United deposit of documents containing reservations or objections, Nations is the depositary: without passing upon the legal effect of such documents; and (1) The depositary of a multilateral convention should, upon receipt of each reservation, communicate it to all States which are or (ii) To communicate the text of such documents relating to which are entitled to become parties to the convention. reservations or objections to all States concerned, leaving it to each State to draw legal consequences from such com- (2) The depositary of a multilateral convention, in communicating munications. a reservation to a State which is entitled to object, should at the same time request that State to express its attitude towards the reservation 22. This “non-decision” was poorly received by writers within a specified period, and such period may be extended if this is on law,22 but it nevertheless constituted the guidance deemed to be necessary. If, within the period so specified or extended, followed by the Secretary-General in his practice as a State fails to make its attitude towards the reservation known to the depositary, or if, without expressing an objection to the reservation, it signs, ratifies, or otherwise accepts the convention within the period, it should be deemed to have consented to the reservation. (3) The depositary of a multilateral convention should communi- cate all replies to its communications, in respect of any reservation to _________ the convention, to all States which are or which are entitled to become parties to the convention. 20 Ibid., pp. 130–131, para. 34. _________ 21 Adopted by 23 votes to 18, with 7 abstentions. For the debate, see Official Records of the General Assembly, Sixth Session, Sixth Com- 17 Yearbook … 1951, vol. II (A/1858), p. 128, para. 24. It can be mittee, 264th–278th meetings, and ibid., Annexes, agenda item 49, noted that in general terms the majority position in the Commission at pp. 8–11, document A/2047. that time was broadly the same as the position stated in the joint dis- senting opinion of Judges Guerrero, Sir Arnold McNair, Read and Hsu 22 See in particular Fenwick, “When is a treaty not a treaty?”, espe- Mo attached to the ICJ advisory opinion of 28 May 1951 (I.C.J. cially p. 296: “The decision of the General Assembly of the United Reports 1951, pp. 31–48). Nations on 12 January in the matter of reservations to multilateral treaties cannot be said to have clarified the situation. Rather it would 18Yearbook … 1951, vol. II (A/1858), p. 129, para. 25. seem only to have added to the confusion and left us with a rule which 19 Ibid., para. 28. is no rule at all.” The law and practice relating to reservations to treaties 129 depositary23 until 1959, when the problem resurfaced in the Commission, for reasons stated in the comment which follows, is connection with the declaration made by India on the not now of the view that it constitutes a satisfactory rule and that it can—or ought to—be maintained.27 occasion of the deposit of its instrument of acceptance of the Convention on the Inter-Governmental Maritime 26. From that time on, the four alternative proposals Consultative Organization.24 Once again, the debates weakened the rigour of the principle. The “principal were inconclusive and their only concrete consequence considerations underlying the alternative drafts” were was the invitation to the Secretary-General, in General presented by the Special Rapporteur in the following Assembly resolution 1452 B (XIV) of 7 December 1959, way: to apply the above-mentioned paragraph 3 (b) of resolu- tion 598 (VI) to all the agreements of which he was the A. It is desirable to recognize the right of States to append reser- depositary, which did not contain provisions to the con- vations to a treaty and become at the same time parties to it provided trary, even if they had been concluded before 1952. these reservations are not of such a nature to meet with disapproval on the part of a substantial number of the States which finally accept the obligations of the treaty; (b) The reports of Sir Hersch Lauterpacht (1953–1954) B. It is not feasible or consistent with principle to recognize an unlimited right of any State to become a party to a treaty while ap- pending reservations however sweeping, arbitrary, or destructive of the 23. The position taken by the Commission in 1951 was reasonably conceived purpose of the treaty and of the legitimate inter- to have a powerful influence on its work on reservations ests and expectations of the other parties; to treaties in subsequent years. C. The requirement of unanimous consent of all parties to the treaty as a condition of participation in the treaty of a State appending 24. In his first report on the law of treaties (1953), Sir reservations is contrary to the necessities and flexibility of interna- Hersch Lauterpacht, who had succeeded Mr. Brierly as tional intercourse.28 Special Rapporteur, took up the problem of reservations once again. He proceeded in a rather unusual manner by 27. There is no need to go into the details of each of proposing a draft article de lege lata, but matching it with these alternatives—some of which proposed bold solu- four alternative proposals de lege ferenda, which gave tions.29 As Ruda pointed out, “The main characteristics of the impression that the Special Rapporteur thought that these Alternatives is that they were offered as new pro- the existing laws were not satisfactory and that he hoped posals, as a compromise between the unanimity rule and to have them modified by persuading the Commission to the principle of a sovereign right to formulate reserva- engage in the progressive development of international tions. They had the flexibility of the Pan-American rules, law.25 but they provided more guarantees against the abuse on making reservations. ... The impact of the new realities of 25. Draft article 9 stated the principle of unanimity very international life and the Advisory Opinion of the Inter- clearly: national Court of Justice had begun to shake the basis of a well-established rule of international law”.30 A signature, ratification, accession, or any other method of accept- ing a multilateral treaty is void if accompanied by a reservation or 28. Apart from one small change to the draft article de reservations not agreed to by all other parties to the treaty.26 lege lata, the Special Rapporteur repeated his 1953 pro- posals in 1954.31 In his second report on the law of trea- According to the Special Rapporteur, ties, he argued forcefully in favour of a progressive de- velopment of the existing rules and commented, not … without malice: article 9 as here drafted must be regarded as probably still representing the existing law. It is a matter for reflection that while the International Court of Justice, … whose function is to apply existing law, in its advisory opinion on the question of Reservations to the Convention on Genocide, devoted However, although nothing decisive has occurred to dislodge the itself mainly to the development of the law in this sphere by laying principle of unanimous consent as a rule of existing international law, down the novel principle of compatibility of reservations with the purpose of the treaty, the International Law Commission whose task is _________ both to codify and develop international law, limited itself substan- tially to a statement of existing law.32 23 See “Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties” (ST/LEG/7), particularly p. 39, para. 80. 24 On this problem, see, inter alia, the report of the Secretary-General _________ to the fourteenth session of the General Assembly (Official Records of the General Assembly, Fourteenth Session, Annexes, pp. 2 et seq., 27 Ibid., pp. 123–124. document A/4235), the records of the debates of the Sixth Committee 28 Ibid., p. 125. at the fourteenth session of the Assembly (ibid., Fourteenth Session, Sixth Committee, 614th–629th meetings), and the report of the Secre- 29 Such as the solution of entrusting the Chamber of Summary Pro- tary-General submitted in accordance with General Assembly resolu- cedure of ICJ with responsibility for ruling on the admissibility of tion 1452 B (XIV) (document A/5687). See also Schachter, “The reservations (alternative D) (ibid., p. 134). question of treaty reservations at the 1959 General Assembly”. 30 Ruda, “Reservations to treaties”, p. 158. 25 Yearbook ... 1953, vol. II, pp. 91 and 123–136, document 31 See Yearbook ... 1954, vol. II, pp. 131–133, document A/CN.4/87. A/CN.4/63. It must be pointed out that, since the Commission did not The Special Rapporteur proposed that the words “Unless otherwise state a view, the report reflects the views of the Special Rapporteur provided by the treaty,” should precede the text of draft article 9 alone. (para. 25 above). 26 Ibid., p. 91. 32 Ibid., p. 131, para. 3.