Sixth Committee
26 October 2005
Report of the International Law Commission on the Work of its 57th Session: Reservations to Treaties
Statement by Georgia Woollett
Adviser
of Australia to the United Nations
(Check against delivery)
Mr Chair, distinguished members of the Commission,
Australia recognises the extensive work on the topic of reservations to treaties which has been done over the last eleven years by the Commission and, in particular, the Special Rapporteur, Mr Alain Pellet.
Before making specific comments on this topic, I would like to provide our continued support to the Austrian and Swedish initiative to revitalise Sixth Committee’s consideration of the Commission’s report. In particular, we believe that promoting more interactive discussions with Commission members has improved our work.
Turning to the topic of reservations to treaties, Australia congratulates the Special Rapporteur this year for seeking to clarify the interpretation of Article 19 of the Vienna Convention on the Law of Treaties. The draft guidelines in this year’s report provide definitions of ‘reservations’, ‘objections’ and the ‘object and purpose’ of a treaty. The guidelines also provide direction on what categories of reservations may be considered contrary to the object and purpose of a treaty under Article 19(c) of the Vienna Convention on the Law of Treaties. Australia appreciates that the draft guidelines are not intended to be a set of binding rules, but rather a code of recommended practices.
The Commission has requested Governments’ comments on the practice of a State objecting to a reservation, but not opposing the entry into force of the treaty between itself and the reserving State. In particular, it has asked what effect the reserving State should give to such an objection, and how this practice accords with Article 19(c) of the Vienna Convention on the Law of Treaties.
Australia, of course, expects a State making a reservation would only do so in good faith, and would not attempt to frustrate its own stated purpose of entering into the treaty.
Where a State makes a reservation in good faith upon becoming Party to a treaty, and that reservation is objected to by another State, Australia expects the provision to which the reservation relates would not apply between the reserving State and the objecting State.
There may also be instances where the objecting State objects to the treaty as a whole, and not just the provision to which the reservation relates, entering into force between itself and the reserving State. But Australia recognises there may be good reasons why the objecting State would not go down this route, and might instead prefer some elements, at least, of the treaty in question to apply between itself and the reserving State. It is difficult to identify all possible situations in which this may be the case.
The Vienna Convention on the Law of Treaties does, of course, address these issues. In particular, Articles 20 and 21 canvass the effect of an objection to a reservation upon the treaty in question entering into force between the reserving and objecting States. But it is possible these articles were not intended to apply to reservations prohibited by Article 19.
Australia wishes to close by again commending the Special Rapporteur for his work on this topic, which is proving very useful for informing ongoing discussion and debate. We look forward to reviewing the Commission’s report on this topic in the coming year.