EJIL Reservations Symposium – Jean Monnet Papers

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.