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

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.

This ILC product is doubly unusual:

• it contrasts by its size with the usual drafts adopted by the Commission which are normally self-sufficient and stand by themselves, independently of the commentaries adopted by the Commission, while, in the present case, the ILC specified that ‘the commentaries are an integral part of the Guide and an indispensable supplement to the guidelines’;

• it has been conceived from the start as a non-binding instrument with no prospects of being transformed into a convention, and is presented as such from the outset.

 The ILC decided at a very early stage of its study of the topic of reservations to treaties on the form the project was to take: instead of drafting an instrument eligible to be transformed into a convention, it was decided as early as 1995 that, subject to a possible change of mind, the Commission would draft a Guide to practice made of guidelines accompanied by commentaries. The reason at the origin of the decision was to stick to the existing treaty law as embodied in the three Vienna Conventions and to adopt a non-binding instrument whose aim would only be ‘filling the gaps and … removing the ambiguities in the existing rules, but without embarking on their amendment’ (Yrbk ILC (1995), at 154, para. 168).

 Therefore, the Guide to Practice has been conceived as a means to assist practitioners, not as a united collection of rules compulsory for them. As a result, the guidelines have very different legal values, from pure recommendations to fully binding rules – not because they appear in the Guide, but because they have acquired (independently of the Conventions and, a fortiori, of the Guide) the status of customary rules. This being said, none of the norms expressed by the guidelines is peremptory by nature – which means they are all derogable. In other words, states and international organizations are free to provide for a special and derogatory regime for reservations formulated vis-à-vis a given instrument.

 The Guide to Practice has sometimes been criticized for its length (a 630-page document) and lack of manageability. There is some truth in this, but adding new ambiguities to the existing ones would not have been of great help. Moreover, in such a technical and controversial topic, clear-cut solutions would have been hopeless. It is nevertheless to be hoped that in a majority of cases, the user will find in the Guide the answers to the questions he or she is confronted with.

 And it is for this reasons that the commentaries form an integral part of the Guide: in a way, the guidelines are only the outline, the table of content, of the Guide, the core of which is constituted by the commentaries. In my speech to the Sixth Committee last year, I insisted upon the symbiosis between the guidelines and the commentaries (A/C.6/68/SR.20, para. 2). The General Assembly acknowledged this in its resolution, by underlying, in operative paragraph 1, that “the Guide to Practice on Reservations to Treaties, include[s] the guidelines and a detailed commentary thereto”. In the same vein, operative paragraph 3 “[t]akes note of the Guide to Practice, presented by the Commission, including the guidelines, the text of which is annexed to the present resolution”. In this way, the Assembly made clear that the text of the guidelines, which was alone annexed to the resolution, was only one part of the Guide.

 The General Assembly also followed the ILC’s recommendation to encourage the Guide’s “widest possible dissemination” (operative paragraph 3 of A/RES/68/111). One may consider this to be quite an insignificant and soft recommendation. But one could hardly have expected better. Take, for instance, the reception reserved to the Draft Articles on Diplomatic Protection, which the GA ‘commends (…) to the attention of Governments’ (A/RES/62/67). A similar recommendation was made for the Articles on State Responsibility for International Wrongful Act (see A/RES/56/83). It is also true that in these two cases, the GA did not exclude the possibility for the Drafts to become conventions, which is obviously not the case for the Guide.

 Some Regrets

 The ILC had also adopted together with the Guide two further “recommendations”: on the one hand, ‘Conclusions on the Reservations Dialogue’, and, on the other hand, a ‘Recommendation of the Commission on Mechanisms of Assistance in Relation to Reservations to Treaties’.

 Concerning the text on the “reservations dialogue”, it must be noted that there exists no definition of this notion, which is not a term of art. I used it first in my eighth report to designate a process followed by States (mainly European at the time) by which States “inform the reserving State of the reasons why they think the reservation should be withdrawn, clarified or modified. Such communications may be true objections, but often they merely open a dialogue that could lead to an objection but could also result in the modification or withdrawal of the reservation” (doc. A/CN.4/535/Add. 1, at para. 87). As I tried to explain during the 2011 session, this expression alludes to the fact that, independently of the substantive and procedural rules applicable to reservations, contracting states and contracting international organizations could, and in many cases did, engage in an informal dialogue concerning the permissibility, scope, and meaning of reservations or objections to reservations formulated by a contracting state or a contracting organization.

 Such a dialogue, which can take place before as well as after a reservation was formulated, can take many forms and employ a wide variety of methods. As I stressed, the reservations dialogue had the advantages of preventing positions from becoming fixed, allowing the author of the reservation to explain its reasons, and facilitating better understanding among the parties concerned (ILC Report (2011), at 14–15, para. 66). The Commission was convinced and decided to attach, as an Annex to the Guide, the text of “Conclusions” on the subject, closing with a recommendation asking the General Assembly to “call upon States and international organizations, as well as monitoring bodies, to initiate and pursue such a reservations dialogue in a pragmatic and transparent manner” (Guide, at 602).

 Surprisingly, the General Assembly does not mention the “reservations dialogue” in resolution 68/111, and I must say that I am both concerned and disappointed with this silence. Indeed, during the discussions in the Sixth Committee, with the exception of some particularly conservative States, like Iran and France (see A/C.6/68/SR.22), the great majority of delegations gave a fair welcome to the ILC’s Conclusions on this point (see the positions expressed by Sweden, Switzerland, Portugal, United-States, United Kingdom, in A/C.6/68/SR.20; and those of Netherlands, The Czech Republic in A/C.6/68/SR.21; or Greece, Spain and India in A/C.6/68/SR.22). Delegations have thus insisted on the necessity for States to give reasons for their reservations and objections, which would allow dialogue on the matter and would possibly lead to the withdrawal of some reservations.

 There may be two reasons why the GA did not endorse the ILC’s recommendation on the reservations dialogue: first, some delegations, like Korea and Iran (A/C.6/68/SR.22) were concerned with a possible “internationalization” of the reservations dialogue. This was perceived as a drift. Even if it were so, what would be the problem with the internationalisation of this exchange of views? In any case, the ILC’s conclusions on the reservations dialogue did not bring other form of internationalization other than the usual, bilateral dialogue, between the reserving and the objecting State.

 The second reason, possibly related to the first, comes from the fact that the ILC had made another recommendation, concerning what it called “a reservations assistance mechanism” (ILC 2011 Report, p. 18). According to the ILC, this mechanism could take the form of an “observatory” on reservations to treaties, within the Sixth Committee. The ILC also recommended “that States consider establishing similar ‘observatories’ at the regional and subregional levels” (ILC 2011 Report, p. 18). This proposal was inspired by the Observatory of Reservations to International Treaties, already functioning within the Committee of Legal Advisers on Public International Law of the Council of Europe (CAHDI). The ILC recommendation was already more ambiguous than I would have wished in respect of the settlement of disputes. Instead of being included in the Guide itself, it is lost in the Report of the Commission where it has neither a clear status nor any visibility. I have my part of responsibility for this botching: the proposal for an observatory was done very late – in 2011 only, as an addendum to my 17^th Report (A/CN.4/647/Add.1); it was poorly argued and it mixed up elements of assistance with some aspects for the settlement of disputes. Both can be useful, the problem is that the latter is less welcome than the first, considering the resurgence of sovereignty-minded attitudes among States – or their representatives.

 It must be said that the delegations at the Sixth Committee showed many… reservations towards this observatory. There were States in favour (the Nordic States, US, UK, Portugal and Chile – see in A/C.6/68/SR.20), certainly more numerous than those against (Iran, Singapore and France – see in A/C.6/68/SR.22), but no enthusiasm was expressed and no State became the champion of the cause. In any case, the observatory would have needed budgetary support, which States are unlikely to provide. This initiative is doomed to be forgotten, undoubtedly.

 In any case, the non-endorsement of the ILC’s recommendations on the mechanisms of assistance or the “observatories” does not directly impact upon the reservations dialogue: indeed the annex on the reservations dialogue is an integral part of the Guide, whereas the recommendation on the assistance is part of the ILC’s Report. The Annex on the Reservations Dialogue thus has the same (persuasive) value as the Guide itself.

 Despite these shortcomings, the GA resolution is on the whole satisfactory, since it apprehended the Guide in its true nature and scope. And, after all, “let time take its course”!

 For an analysis of the main substantial issues raised by the Guide to Practice, see Symposium: The International Law Commission’s Guide to Practice on Reservations to Treaties, EJIL vol. 24 (2013) No. 4 and Journée d’études de la SFDI, Actualités des réserves aux traités, Paris, Pedone, 2014.