Report of the International Law Commission on the work of its sixty-second session (Agenda item 79)
Chap. IV. Reservations to Treaties
We were deeply saddened to learn of the death of Mrs Paula ESCARAMEIA, an eminent member of the International Law Commission and one whose human qualities were appreciated by all.
In the name of my delegation, may I firstly applaud the provisional adoption of the International Law Commission’s Guide to Practice on Reservations to Treaties. The amount of work produced is in proportion to the quality of the Guide to Practice which will, without doubt, become an essential practical tool for States and international organizations. We join with the Commission in expressing our gratitude to the Special Rapporteur Mr Alain PELLET for his invaluable work on this question.
At its 62th session, the Commission provisionally adopted all the draft guidelines of the Guide to Practice on Reservations to Treaties. It is now up to Governments and International Organizations to make their comments on this project known before January 31st 2011. France will give its detailed opinion in writing on the whole Guide to Practice within the allotted time. This being the case, I will today merely share with you some preliminary thoughts on some of the issues dealt with this year by the Commission.
As regards the third part of the Guide dealing with "The permissibility of reservations and interpretative declarations", I will not repeat the comments I made last year on the draft guidelines concerning the permissibility of reactions to reservations, since I feel that they are still relevant. After reading of the draft guidelines and the comments thereon, I feel that several points would nevertheless seem to warrant further remarks on my part.
Firstly, as regards the connection between draft guidelines 3.3.3 and 3.4.1, it is strange that the consequences of a collective acceptance of an impermissible reservation are not taken into account in draft article 3.4.1, entitled "Permissibility of the acceptance of a reservation". Thus individual acceptance of an impermissible reservation may itself be impermissible, but this would not always be the case depending on whether this acceptance is express or tacit and, in similar fashion, an impermissible reservation could be "deemed to be permissible" if accepted by all the States. I find it difficult to understand the justification of the affirmation of the impermissible nature of the express acceptance of an impermissible reservation. Does not such a statement run directly counter to the possibility for States, albeit only collectively, to accept a reservation said to be "impermissible"? As for this latter possibility, does not it also run directly counter to the purely objective logic of the notion of permissibility retained here and regarding which, incidentally, my delegation still has misgivings?
France was impatiently awaiting the 4th part of the Guide to Practice dealing with the "Legal effects of reservations and interpretative declarations". We have thus looked closely at the addendum 2 to the 14th report, together with the 15th report of professor PELLET. The amount of work done this year by the Commission is such as not to allow us to go into each of these draft guidelines in detail. I will therefore restrict my remarks to the provisions which have given rise to the greatest number of questions. As I have mentioned we shall not fail to transmit our detailed comments to the Secretary general in the allotted time.
Further clarifications are needed regarding the conditions of the entry into force of the Agreement with respect to the State or the organization making reservations as provided for in draft guidelines 4.2.1 to 4.2.3. Under Article 2, paragraph 1 f) of the Vienna Convention on the Law of Treaties of 1969 "’contracting State’ means a State which has consented to be bound by the treaty, whether or not the treaty has entered into force". In its current wording draft guideline 4.2.1 seems inconsistent with this provision since it provides that a State shall only become a contracting State once the reservation is established (i.e that it is formally and substantially permissible and has been accepted within the meaning of draft guideline 4.1). I must admit to having serious doubts here. Establishing the reservation has consequences solely as to the applicability of the Treaty between the reserving State and the accepting State. It does not have any effect on the entry into force of the Treaty. Thus, and in line with the previous remark, under draft guideline 4.3.1, an objection, even when its scope is "widened", raised to a permissible reservation by a contracting State does not preclude the entry into force of the Treaty between the objecting State and the reserving State. We do indeed understand that the question is not couched in such terms but rather focuses on the effects which acceptance or objection should be acknowledged as having on the applicability of the Treaty between the reserving State and the accepting State or between the reserving State and the objecting State.
As regards draft guideline 4.4.3, the reference to peremptory norms of general international law (jus cogens) raises the issue of the scope of such a notion, the undefined content of which remains to be specified.
As regards draft guideline 4.5.2, my delegation reaffirms the position which it has expressed on many occasions as to the cardinal importance of the principle of consensualism which underlies the law of Treaties. I feel it necessary to remind my audience that it is not possible to compel a reserving State to comply with the provisions of the Treaty without the benefit of such a reservation, unless it has made clear its intention to do otherwise. In this respect, it seems to us that solely the reserving State is in a position to indicate the exact role of this reservation in the expression of its consent to be bound by the Treaty. We have difficulties in imagining that another State than the State involved be in a position to appraise the extent of the consent thus given.
As regards the 5th part dealing with "Reservations, acceptance of and objections to reservations and interpretative declarations in the context of succession of States", this complex part involves both codification and the progressive development of International law. We shall not fail to transmit to the Secretariat our detailed comments on this point.
I shall conclude by a remark on the topic of "Immunity of State officials from foreign criminal jurisdiction" France attaches great importance to the examination of this topic which in our opinion warrants in-depth study and for which work on codification by the Commission is useful. We thus regret that the Commission was not able to look into this issue during its 62nd session. We hope that work on this topic will be on the agenda of the next session of the Commission.
I thank you for your attention./.