Sixth Committee
1 November 2006
Report of the International Law Commission on the Work of its 58th Session
Unilateral Acts of States and Reservations to Treaties
Statement by Mia Goldsmith
Adviser
of Australia to the United Nations
(Check against delivery)
Mr Chairman, and distinguished members of the International Law Commission,
Australia acknowledges the outstanding work done by the Commission, and its Special Rapporteur, Mr Victor Rodriguez Cedeno, to develop Guiding Principles applicable to unilateral declarations of States which are capable of creating legal obligations.
Australia has maintained a strong interest in this issue since our involvement in the Nuclear Tests cases before the International Court of Justice, which involved a unilateral declaration by France that it would cease atmospheric tests. The Guiding Principles have been commended to the General Assembly, and we look forward to a period of reflection on the principles after this session.
We endorse the Commission’s view in Guiding Principle 3 that the legal effects of declarations must take into account their content, factual circumstances and reactions. These conditions are appropriate to ensure the declaration is understood in its context. In our view, it is also important to examine the intention of the person making the declaration, as recognised separately in Guiding Principle 1. It is crucial, as reflected in Guiding Principle 4, that declarations are only binding if made by an authority vested with the power to do so. Finally, we note that the circumstances in which the revocation of a declaration could be said to be arbitrary could benefit from further clarification.
Mr Chairman,
Australia commends the ongoing work of the Commission, and especially its Special Rapporteur, Mr Alain Pellet, on the topic of reservations to treaties. The Commission’s approach to this topic, which aims to produce a guide to practice with commentaries, should ultimately prove to be of great benefit to States and international organisations.
This last year the Commission has continued to focus on the validity of reservations and interpretative declarations. Australia notes that this work has raised some conceptually difficult issues, such as seeking to concisely define the object and purpose of a treaty. The Commission’s draft guideline 3.1.3, which effectively states that any reservation must not be incompatible with the object and purpose of the treaty is appropriate.
While the Commission has not wished to amend or modify the text of the Vienna Convention on the Law of Treaties, it has appropriately taken account of developments in international law and practice since those treaties were drafted. These developments include the establishment of treaty monitoring bodies, such as those that monitor compliance with the human rights treaties, and whether such bodies should be able to assess the validity of reservations to the treaties they monitor.
Australia notes that the Special Rapporteur’s draft guideline 3.2.1 spells out that any assessment as to the validity of a reservation made by a treaty monitoring body should go no further than its general mandate authorises. In most cases this will be an expression of a view on the matter rather than a binding determination.
Notwithstanding this fact, it is Australia’s view that it is not appropriate for treaty monitoring bodies to have a role in assessing the validity of reservations. The fundamental role of such bodies is to assess States Parties’ implementation of the relevant treaty. It is not the role of treaty monitoring bodies to assess the basis upon which States become Parties to the relevant treaty. Furthermore, giving treaty monitoring bodies such a role will exacerbate the problem of conflicting conclusions being reached by bodies which assert competency to assess the validity of reservations.
Australia notes that draft guideline 2.1.8 proposed by the Commission provides that ‘where, in the opinion of a depositary, a reservation is manifestly invalid, the depositary shall draw the attention of the author of the reservation to what, in the depositary’s view, constitutes the grounds for the invalidity of the reservation’. The draft guideline goes on to provide that, if the author maintains the reservation, the depositary is required to communicate the text of that reservation to Parties to the treaty ‘indicating the nature of the legal problems raised by the reservation’.
Requiring the depositary to arrive at its own legal view on the nature of a reservation, and to advise States Parties to that treaty of that view, goes beyond the role of the depositary as set out in Article 77 of the Vienna Convention on the Law of Treaties. Such a role does not come within the existing functions of the depositary, such as examining whether a communication relating to the treaty is in due and proper form, as Article 77(1)(d) requires; and informing Parties of acts, notifications and communications relating to the treaty, as Article 77(1)(e) requires.
Of course, where a depository is also a State Party to the treaty, it is then open to the depositary to communicate its views on the validity of a reservation in its capacity as a State Party, given that any State Party may share its views on such a matter. But it is not for the depositary to rule on the validity of the actions of a State Party.
Australia would therefore recommend that the Commission consider draft articles 3.2.1 and 2.1.8 carefully at its next session. We look forward to reviewing the Commission’s report on this topic next year.
Thank you, Mr Chairman.