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The ILC’s Clever Compromise on the Validity of Reservations to Treaties: A Rejoinder to Marko Milanovic and Linos-Alexandre Sicilianos

Published on April 11, 2014        Author: 

In ‘The ILC’s Clever Compromise on the Validity of Reservations to Treaties’, Marko Milanovic and Linos-Alexandre Sicilianos say the ILC Guide to Practice on Reservations to Treaties strikes a clever compromise by holding on to a general regime on reservations to treaties and, at the same time, making human rights lawyers happy.  They also characterise the ILC Guide as a ‘Vienna Plus’ regime – indicating that the ILC Guidelines go beyond the rules of the VCTL and, in many respects, adapt the VCTL to present day conditions.

We agree that the new regime proposed is indeed a ‘Vienna-plus regime’. We also agree that the ILC special rapporteur on reservations, Alain Pellet, changed his views on objections to reservations within the context of international human rights law between when the study started in 1993 (Report of the ILC on the work of its forty-fifth session, para. 430) and ended in 2011 (Report of the ILC, sixty-third session). We, however, wish to highlight one point of reminder and one point of query with regard to the clever compromise.

First, the solution offered by the ILC report suggesting that an objective validity test under Article 19 comes prior to the subjective objections of states under Article 20 was originally proposed by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1999, pursuant to the Sub-Commission decision 1998/113 entitled “Reservations to human rights treaties”. Second, the ILC report goes further than current UN human rights law practice when it comes to the assessments of the human rights treaty bodies with regard to the invalidity of reservations. It takes a more radical step than current practice.

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The ILC Guide to Practice on Reservations to Treaties: Some General Remarks

Published on March 24, 2014        Author: 

On 16 December 2013, by adopting resolution 68/111, the General Assembly completed a 21-year study on the codification and progressive development of the law on reservations to treaties. In its resolution, the GA takes note of the Guide to Practice on Reservations to Treaties, the text of which had been adopted by the International Law Commission (ILC) on 11 August 2011. The full text is an addendum to the 2011 Report of the ILC (available at http://legal.un.org/ilc/reports/2011/english/addendum.pdf).

A Special Kind of Instrument

I was appointed the Special Rapporteur of the ILC on the topic of “Reservations to Treaties” in 1994. With excessive confidence – or recklessness – I then declared that ‘[i]t does not seem unrealistic to think that the Commission would be in a position to adopt an initial set of draft articles, or a first draft to serve as a “guide” …, within three or four years of the subject being included on its agenda and the appointment of a Special Rapporteur” (Yrbk ILC (1993), ii(1), at 335, para. 55). I rapidly became disillusioned and realized that, as my illustrious predecessors had noted, ‘the subject of reservations to multilateral treaties is one of unusual – in fact baffling – complexity and it would serve no useful purpose to simplify artificially an inherently complex problem’ (Sir Hersch Lauterpacht, Report on the Law of Treaties, doc. A/CN.4/63, Yrbk ILC (1953), ii, at 124) moreover, the topic brings with it an emotional charge at the political level which I had underestimated and which made things even more complicated. The ‘sharia reservations’ are but the most striking example of the political sensitivity of the subject. More generally, reservations to human rights conventions, although they are by no means special legally speaking, are the object of harsh doctrinal and ideological debates. Read the rest of this entry…

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The ILC’s Clever Compromise on the Validity of Reservations to Treaties

This post, adapted from our introduction to the symposium on the International Law Commission’s Guide to Practice on Reservations to Treaties in the current issue of the EJIL, looks at one specific topic addressed by the ILC – the rules governing the validity of reservations and the consequences of invalidity. This is not only the most controversial and vexing of all of the issues addressed in the Guide, but also the one where the Guide makes it perhaps most important contribution. Here we not only have a meticulous analysis of a technical topic, but nothing short of an existential story of international law as a unified system as opposed to a set of fragmented sub-regimes. How so? When one reads Articles 19-22 VCLT, particularly in light of the ICJ’s Reservations to the Genocide Convention opinion, one cannot avoid the impression that the process of determining whether a reservation was invalid as being contrary to the object and purpose of a treaty was meant to be more or less inter-subjective: each state should determine for itself whether a given reservation was compatible with the treaty’s object and purpose, and if it was not it should make an objection to that effect.

But such an inter-subjective approach looks remarkably unappealing from the perspective of major multilateral normative treaties, particularly in the human rights context. The rights of individuals, so the reasoning among many human rights lawyers went (as exemplified most notably in Human Rights Committee’s General Comment No. 24), should not depend on the existence of objections, vel non, by third states, especially when reciprocity of state obligations has little place in the human rights context and when for a variety of reasons states routinely fail to object to reservations even when there manifestly are perfectly good reasons to do so. While objections to reservations would be probative, they could not be dispositive. It would indeed primarily be upon courts or treaty bodies to determine whether a reservation is compatible with the object and purpose of the human rights treaty, while the consequence of invalidity would normally not only be the nullity of the reservation, but also its severability, so that the reserving state would remain bound by the human rights treaty without the benefit of its reservation. Human rights protection would thus always be maximized.

Many governments were less than pleased with what they saw as a power-grab by human rights bodies and a usurpation of their sovereign prerogatives. The ILC, being the bastion of international law orthodoxy, was no more pleased, nor was Alain Pellet as its Special Rapporteur. How could international law survive as a coherent, unified system if more of its branches followed the human rights example and asserted that because they were special they needed special rules, rather than the outdated Vienna framework. If that was true for human rights, why would it not be true for trade, the environment, or whatever other topic people became strongly devoted to. Fragmentation beckoned, and it needed to be resisted.

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EJIL Reservations Symposium – Jean Monnet Papers

Published on February 25, 2013        Author: 

I am happy to announce that the EJIL will be publishing a symposium on the International Law Commisssion’s Guide to Practice on Reservations to Treaties.  The symposium was edited by Linos-Alexandre Sicilianos and myself, and features contributions from Alain Pellet, Michael Wood, Daniel Mueller, and Ineta Ziemele and Lasma Liede. It will most likely be coming out in issue 3 of this year’s volume of the Journal, but because of the symposium’s topicality we have decided to post the unedited drafts online in the meantime, as part of NYU’s Jean Monnet Working Papers Series.  Comments are of course welcome, and we will likely be hosting a further discussion on the symposium on the blog once the final papers come out in the Journal.

After a short introduction by the editors, in which we reflect on the Guide’s innovative approach to the validity of reservations, the Symposium begins with a general presentation by Special Rapporteur Alain Pellet, giving a clear (and often critical picture) of the process followed within the Commission, focusing both on its more orthodox aspects and on the specificities (and novelties) of the instrument adopted. The Special Rapporteur then gives us his own views on the main issues, the solutions adopted and any deadlocks within the Commission in respect of each Part of the Guide. He deals inter alia with the questions of the validity and invalidity of reservations, politically controversial cases such as general ‘sharia’ reservations, and the establishment of reservations. In short, the piece presents and defends the general conceptual framework and innovations of the Guide.

Sir Michael Wood, a member of the ILC who was very active on the issue of reservations, examines the institutional aspects of the Guide: the role of depositaries (regretting that the Guide to practice does not take a more progressive stance in this respect); assessment of validity of reservations by dispute settlement and treaty monitoring bodies (giving his own view about this highly debated issue); the series of nine conclusions on the ‘reservations dialogue’ (appearing as an annex to the Guidelines); and finally the ILC recommendation to the UN General Assembly on mechanisms of assistance in relation to reservations (an innovative idea largely inspired by the relevant practice of the Council of Europe).

Judge Ineta Ziemele of the European Court of Human Rights and Lasma Liede, a lawyer in the Court’s Registry, examine in detail a topic that we have already touched upon, i.e. reservations to human rights treaties. They focus on the specific characteristics of such treaties, on the approach adopted mainly by the European Court, but also by other universal and regional human rights bodies, before examining in some detail the response of the ILC throughout its work on the Guide, and how rather than being confrontational it ultimately adopted a conciliatory approach.

Last but not least, Daniel Mueller, researcher at the CEDIN and assistant to the Special Rapporteur in his work on reservations, skillfully analyses a technical but also very practical topic: reservations and time. He focuses on premature and late formulations of reservations as well as on premature and late formulation of objections. Mueller thus explains how the Guide tries to put ‘some order into the chaos and the uncertainties resulting from the Vienna regime.’ He regrets the ‘absolute position’ of the ILC to exclude all reservations formulated prematurely, while praising the Commission for adopting a more flexible stance in respect of late reservations. He also examines the so-called ‘pre-emptive objections’ (in fact a negotiation tool), while admitting that a late objection cannot unmake consent expressed or assumed according to the terms of the Vienna Convention.

We hope the contributions that follow will shed light on the debates that took place and the solutions adopted over almost two decades of work by the ILC. We are sure that they will be read for many years to come, and would like to warmly thank the contributors for their participation.

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