Trickier & Treatier

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Delivery and Returns see our delivery rates and policies thinking of returning an item? See our Returns Policy. Visit our Help Pages. Audible Download Audio Books. Shopbop Designer Fashion Brands. As explained in the Introduction to the Guide:. 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.

The Introduction to the Guide distinguishes between three levels of obligatoriness for the guidelines:. Some of them simply reproduce provisions of the Vienna Conventions which set out norms that were either uncontroversial at the time of their inclusion in the Conventions or have since become so as such, while not peremptory in nature, they are nevertheless binding on all States or international organizations, whether or not they are parties to the Conventions;. Other rules contained in the Vienna Conventions are binding on the parties thereto, but their customary nature is open to question; reproducing them in the Guide to Practice should contribute to their crystallization as customary rules;.

In some cases, guidelines included in the Guide supplement Convention provisions that are silent on modalities for their implementation but these rules are themselves indisputably customary in nature or are required for obvious logical reasons;. In other cases, the guidelines address issues on which the Conventions are silent but set out rules the customary nature of which is hardly in doubt;. At times, the rules contained in the guidelines are clearly set out de lege ferenda and, in some cases, are based on practices that have developed in the margins of the Vienna Conventions;.

Other rules are simply recommendations and are meant only to encourage. This last category is particularly significant: The Guide has sometimes been criticized for its length 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 reason that the commentaries form an integral part of the Guide: This being said, even if the rules stated or proposed in the Guide should be followed in the absence of contrary special norms, none of them is peremptory by nature — which means that all are derogable.

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. Although partly followed, my proposition to adopt another resolution, this time conceived as a recommendation to the General Assembly concerning technical assist ance and assistance in the settlement of disputes concerning reservations, was less successful. The recommendation is finally more ambiguous than I would have wished in respect of the settlement of disputes and, 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.

Consider establishing a reservations assistance mechanism, which could take the form described in the annex to this recommendation;. But it remains a good starting point to evaluate the difficulties of the topic. Some are general in nature, others are more specific — not much easier to solve however. Going into all these difficulties would go far beyond the scope of the present article. But it can be noted that many aspects which seem secondary in an overall perspective are sources of difficulties in the day-to-day practice of legal divisions of ministries of Foreign Affairs or international organizations, and give serious problems to practitioners, whether they are advocates or judges.

Besides a general Introduction explaining its object and scope, the Guide to Practice on Reservations to Treaties is comprised of five different parts: Each of these rubrics has raised unequally difficult issues. But it is worth noting that, if the ILC has promoted a single legal regime for all kind of reservations, 94 this was possible only after it had taken a clear position on the necessary unity of the Vienna regime.

As explained above, at the very beginning of the study I deemed it indispensable to discuss a preliminary general issue: Although the question could be asked for several kinds of treaties, it is raised with particular insistence in respect to human rights treaties. Since the answer to this question conditioned the drafting of several parts of the future Guide to Practice, it was dealt with in the second report on reservations to treaties. And it could happen that a general practice of promoting special rules on reservations concerning certain types of treaties could be at the origin of a new customary regime, specific to those treaties.

But, interestingly, this has not happened: This is probably a sign that the negotiators of the treaties at least find the Vienna regime satisfactory and suitable. And the issue was discussed at some length during the elaboration of the Vienna Conventions. However, after some rather heated exchanges, 97 the Commission:.

And indeed these treaties which have to be applied in their entirety and the constituent instruments of international organizations are the only kinds of treaties for which the Vienna Conventions contain partially derogatory rules. Moreover, concerning human rights treaties more specifically, it can be recalled that the flexible regime adopted at Vienna has its at least immediate origin in the Advisory Opinion of the ICJ which was precisely given in relation to the fundamental and pioneering universal human rights instrument: It strikes the right balance between the need for universality and the preservation of the integrity of the treaty — a balance which is sought for all kinds of treaties and which inspired both the majority and the minority in the case concerning Reservations to the Genocide Convention.

The new rule is well-tailored to the new conditions of international relations: Except for purely ideological reasons, there is no more ground for the allegation that by essence human rights treaties are not open to reservations. In its most debatable General Comment No. In an instrument which articulates very many civil and political rights, each of the many art icles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.

Taken literally, this position would render invalid any general reservation bearing on any one of the rights protected by the Covenant. However, the Committee itself does not go that far and recognizes that reservations may usefully encourage a wider acceptance of the Covenant.

Tricky treaties

It remains that reservations to general human rights treaties raise specific difficulties. But this is caused not by their human rights object but by their global character. The control of the compatibility of a reservation with the object and purpose of the treaty by independent bodies constitutes a guarantee of a more objective assessment of this rather subjective test. Monitoring consequently constitutes clear progress in the application of the Vienna rules, and therefore contributes to ensuring the integrity of the treaty in question by permitting an objective assessment of the compatibility of a given reservation with the object and purpose of the treaty — whether a human rights treaty or not.

Part 1 may look the least problematic since the three Vienna Conventions give a similar definition of reservations. However, it is an important topic since the application or not of the reservations regime depends upon it — and the ILC devoted quite a long time to the related issues. Given the dissimilarity in the definitions, I had systematically proposed draft guidelines dealing with the legal regime of these specific interpretation declarations.

First, I had — and from the very beginning of the research — deliberately envisaged clearly distinguishing between the definition of reservations and the issue of their validity. Going even further, I was — and am still — convinced that you can decide whether a reservation is valid or not only if you define the controversial statement as a reservation; in other terms, the definition must cover valid as well as invalid reservations. However, this validity and these effects are not otherwise affected by the definition, which requires only that the relevant rules be applied.

It is true — and this is the second issue — that the Vienna definition itself is confusing, since it includes a temporal element which comes closer to a condition for its admissibility than to a definitional component. On the other hand, this is a very formal view and it is logical and, I would think, easily acceptable to consider the time factor as a condition of validity of a reservation.

But this approach does not solve the problem: This might be so in abstract law, but not in real life where examples can easily be found of reservations formulated late and producing all the consequences attached to a valid reservation with the approval of all the parties to the treaty. This reasonable solution coincides with the dominant practice and in tegrally preserves the consent principle. The third troubling issue concerning reservations is of the same nature, but less difficult — and it has given rise to fewer controversies.

As for the rest, Part 1 of the Guide to Practice brings various clarifications to the definitions of reservations and interpretative declarations, the method of discriminating between the two, other unilateral statements, and various alternatives to reservations and interpretative declarations. Of all five parts, part 2 raised the least controversial issues except for the question of the late formulation of reservations.

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The guidelines comprising it were, however, carefully drafted and commented on, given the considerable practical importance of the issues concerned. There is not much to be said on sections 2. More interesting, at least from an academic perspective, are sections 2. This is a prominent element of the essentially consensual nature of the law of reservations: Nothing special deserves to be discussed in respect of the formulation of acceptances of reservations.

Part 3 of the Guide starts with guideline 3. To this end, guideline 3. This article is not the place to comment on each of these points, which are the object of abundant commentaries. I was prepared to meet huge difficulties in respect to the former, but I did not expect tricky discussions on the latter.

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The religious war did not come where it was anticipated: At the same time, I was and still am sincerely convinced that the issue was by no means the sharia by itself but the inacceptable specificities of certain reservations based on the sharia, specificities which can be found also in other reservations having no relation with the sharia or with Islam. Contrary to my fears, this view was endorsed without any difficulty by the Commission and, to my knowledge, did not lead to protests in the Sixth Committee.

As the ILC notes in its commentary on guideline 2. As for the admissibility of reservations to treaty provisions reflecting a norm of jus cogens , I had, with hesitation, proposed a draft guideline resting on a different assumption from the guideline relating to reservations to provisions reflecting a customary rule: A reservation to a treaty provision which reflects a peremptory norm of general international law jus cogens does not affect the binding nature of that norm, which shall continue to apply as such between the reserving State or organization and other States or international organizations.

A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law. This formulation implicitly recognizes that reservations to provisions reflecting a peremptory norm are subject to the same rules as reservations to provisions which reflect customary rules.

It would have been simpler and franker to say it expressly, but some measure of hypocrisy sometimes makes consensus easier …. The other sections of Part 3 of the Guide to Practice are devoted to the assessment of permissibility of reservations 3. The general idea is that three conditions must be met:. Of course, these effects are partly paralysed when another state makes an objection to a valid reservation, as rather extensively developed in Section 4. The important point is the variations of the consequences of an objection, depending on the will of the objecting state. In this respect, without contradicting the Vienna Conventions, the Guide goes beyond their provisions, which envisage only two hypotheses: The author of a valid reservation is not required to comply with the provisions of the treaty without the benefit of its reservation.

But the question of the effects of objections is a different matter when they react to an invalid reservation. The status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty.

Unless the author of the invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State or a contracting organization without the benefit of the reservation. Notwithstanding paragraphs 1 and 2, the author of the invalid reservation may express at any time its intention not to be bound by the treaty without the benefit of the reservation.

If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State or international organization intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment.

The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation. Both texts left the way open for less drastic and general solutions and, in effect, guideline 4. On the other hand, it has taken an important step towards the position of the human rights bodies in that it accepts the principle of a rebuttable presumption in favour of the severability of the reservation that is of the super-maximum effect of the reservation.

However, several remarks can be made:. When an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified. The intention of the author of the reservation shall be identified by taking into considera tion all factors that may be relevant to that end, including:.

Statements made by the author of the reservation when negotiating, signing or ratifying the treaty, or otherwise expressing its consent to be bound by the treaty. The provision or provisions to which the reservation relates. The object and purpose of the treaty. And, unfortunately, it is unlikely that they will try to find any better compromise solution when the Guide to Practice is discussed again in And concerning guideline 4. And the views expressed by the states in the Sixth Committee or outside should indeed be taken into consideration. However — and quite unfortunately — the chances are better than not that, instead of trying to define a common reasonable and consensual position on the most difficult issues, the delegates in the Sixth Committee will, as usual, give such cacophonic speeches that the message will be inaudible.

Therefore whether the General Assembly takes note of the Guide to Practice or not, it will live its own life; practice alone will be the judge of its adaptation to the needs of the international community of states and international organizations or whether it is desirable to adapt some of the rules it recommends following, to leave some aside or to adopt or progressively develop others. The non-binding nature of the Guide fits in this process of continuous adaptation.

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Close mobile search navigation Article navigation. Abstract The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports.

The commentaries are nevertheless of the utmost importance in understanding and interpreting the ILC drafts, but they are not part of them and the drafts in question are, in principle, meant to be transformed into conventions — which is not the case with the Guide. Regrettable as it may be, most members of the ILC while all very respectable individuals are no longer highly qualified international lawyers.

Special mention must be made in this respect to the Chinese member, Mr Huikang Huang, whose most regrettable anti-scientific attitude threatened the completion of the study and the final adoption of the Guide during the very last days of the 63rd session This decision was approved by GA res. Mr Paul Reuter, 10th report on the question of treaties concluded between States and international organizations or between two or more international organizations, Doc.

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. The elaboration of other ILC drafts has lasted even longer. And this is why I tend to disapprove of the usual practice of the Commission of waiting until the last minute to decide on the form of its drafts.

Concerning the Guide to Practice, the early decision taken on this point had important consequences for the substance of the guidelines. In the present article, absent a precision to the contrary, I will reason on the basis of the Vienna Convention. However, it must be noted that the guidelines included in the Guide to Practice follow the model of the Convention which is more comprehensive, in that it includes the rules applicable to treaties to which an international organization is a party.

On this opposition see, e. Bowett can be seen as one of the main advocates of the permissibility school: In spite of an attempt to introduce alternative model clauses on the deferment of the effective date of the withdrawal of a reservation, on an earlier effective date of withdrawal of a reservation, and on the freedom to set the effective date of withdrawal of a reservation Report of the ILC on the Work of its 54th Session, Yrbk ILC , II 2 , at 19, para. A of the first ch. B of this first ch.

For a detailed presentation of the reasons for this urgency see ibid. Switzerland , Series A, No. See the extremely critical remarks on General Comment No. Good evidence of their balanced character is that they were not only criticized by the human rights bodies and activists, but also by many states from various sensitivities: See 14th Report on Reservations to Treaties, Doc. See infra, in particular the solution retained in guideline 4.

May I say that it was a fortunate infringement and that the ILC may find it beneficial for its future projects to consult more with other expert bodies? The Special Rapporteur submitted 17 reports between and inclusive no report was prepared in ; two were circulated in ; all of which can easily be found on the website of the Commission. The easiest way to find them being to use the Analytical Guide http: Memorandum by the Secretariat, Doc.

In only three instances did the Commission postpone the referral of draft guidelines to the Drafting Committee such was the case for draft guideline 3. Globally, I have enjoyed this usually very fruitful — sometimes exasperating — exercise.