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Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations

Published online by Cambridge University Press:  27 February 2017

Palitha T. B. Kohona
Palitha T. B. Kohona*
Affiliation:
Office of Legal Affairs, United Nations
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Extract

This Note will examine developments in the practice of the United Nations secretary-general on reservations and declarations to treaties, particularly since 1994 when the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties was last updated. This period was marked by some notable developments in the previous practice, especially in connection with human rights treaties.

The Vienna Convention on the Law of Treaties of 1969 (Vienna Convention) provides the framework for the functions of the secretary-general in his role as depositary of multilateral treaties. Most aspects of the law relating to reservations and declarations to treaties are also codified in the Vienna Convention.

Over five hundred multilateral treaties are deposited with the secretary-general. The complex requirements relating to these treaties and the concerns of the many disparate states that may undertake treaty actions with regard to them have significantly influenced his practice. He is also conscious of the political sensitivities surrounding his decisions and the need to protect his own integrity and impartiality.

Type
Current Developments
Information
American Journal of International Law , Volume 99 , Issue 2 , April 2005 , pp. 433 - 450
Copyright
Copyright © American Society of International Law 2005

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References

1 Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc. ST/LEG/8/Rev. 1 (1994) [hereinafter Summary of Practice]. It is available online at the UN treaty Web site, UN Treaty Collection on the Internet (UNTC), which is accessible by subscription only, <http://www.untreaty.un.org>. That version will be cited in this Note. A nonexhaustive bibliography on reservations is available in UN Doc. A/CN.4/478/Rev. 1 (1996). Treaty actions and texts of reservations and declarations deposited with the secretary-general are regularly recorded in Multilateral Treaties Deposited With the Secretary–General, Status As At 31 December [year], UN Doc. ST/LEG/SER.E/[number] [hereinafter Multilateral Treaties], It is also available at the UNTC supra, and that version will be cited in this Note.

2 A further update of the Summary of Practice will be undertaken at a future date, resources permitting.

3 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [hereinafter Vienna Convention].

4 Id., Arts. 19–23. The law relating to reservations and declarations, which initially developed through customary international law, continues to be elaborated through state practice and the practice of the depositaries.

5 These include treaties deposited with him since the establishment of the United Nations and those for which he accepted custody pursuant to General Assembly Resolution 24(I), part 1A, of February 12, 1946.

6 The secretary–general is by far the largest depositary in the world and the treaties in his charge cover almost every aspect of international interaction. See Multilateral Treaties, supra note 1.

7 Report of the International Law Commission on the Work of Its Forty–fifth Session, UN GAOR, 48th Sess., Supp. No. 10, paras. 427, 440, UN Doc. A/48/10 (1993); GA Res. 48/31, para. 7 (Dec. 9, 1993).

8 Report of the International Law Commission on the Work of Its Forty–sixth Session, UN GAOR, 49th Sess., Supp. No. 10, at 382, para. 382, UN Doc. A/49/10 (1994). Many of the ILC documents cited below are available online at <http://www.un.org/law/ilc>.

9 Report of the International Law Commission on the Work of Its Fifty–third Session, UN GAOR, 56th Sess., Supp. No. 10, para. 103, UN Doc. A/56/10 (2001) [hereinafter ILC 2001 Report]. In addition, he has consulted treaty bodies. See GA Res. 52/156 (Dec. 15, 1997).

10 UN Doc. A/CN.4/544 (2004).

11 See Report of the International Law Commission on the Work of Its Fifty–first Session, UN GAOR, 54th Sess., Supp. No. 10, para. 470, UN Doc. A/54/10 (1999).

12 See Vienna Convention, supra note 3, Art. 2(1)(d).

13 UNTC, supra note 1.

14 See Vienna Convention, supra note 3, Art. 7; 1976 UN Jurid. Y.B. 211 (advice of UN legal counsel); Summary of Practice, supra note 1, para. 161.

15 The Council of Europe and the Organization of American States adopted a different approach and permit reservations to be formulated in letters from permanent representatives to these organizations. ILC, Sixth Report on Reservations to Treaties, UN Doc. A/CN.4/518/Add. 1, para. 64 (2001). The special rapporteur also appears to favor such a flexible approach. See id. at 11.

16 The permanent full powers granted to the permanent representative of the United Kingdom to the United Nations reads:

We hereby invest . . . . with Full Powers to sign, on Our behalf in respect of Our United Kingdom of Great Britain and Northern Ireland, subject, unless otherwise indicated, to ratification, acceptance or approval, all treaties and other international instruments deposited with the Secretary–General of the United Nations or concluded with the United Nations, and to sign all notifications and perform any other act relating to such treaties and international instruments.

The document is signed by Queen Elizabeth II and dated November 27, 2002 (on file with UN Secretariat).

17 ILC 2001 Report, supra note 9, para. 124.

18 Summary of Practice, supra note 1, para. 205. Initially, this was not the secretary–general’s approach. He had taken the view that a state that did not formulate a reservation at the time of expressing its consent to be bound was not entitled to make one later. 1976 UN Jurid. Y.B. 221.

19 See 1984 UN Jurid.Y.B. 183.

20 See Note Verbale Issued by the Legal Counsel, UN Doc. LA 41 TR/221 (23–1) (Apr. 4, 2000), available at <http://www.untreaty.un.org>.

21 1978 UN Jurid.Y.B. 199; Summary of Practice, supra note 1, para. 205.

22 The reservation lodged by the government of Malaysia on acceding to the Convention on July 5, 1995, read as follows:

The Government of Malaysia declares that Malaysia’s accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Sharia’ law and the Federal Constitution of Malaysia. With regards thereto, further, the Government of Malaysia does not consider itself bound by the provisions of articles 2(f), 5(a), 7(b), 9 and 16 of the aforesaid Convention.

In relation to article 11, Malaysia interprets the provisions of this article as a reference to the prohibition of discrimination on the basis of equality between men and women only.

Multilateral Treaties supra note 1, pt. I, ch. 4.

23 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 1249 UNTS 13.

24 Multilateral Treaties, supra note 1, pt. I, ch. 4.

25 Id.

26 Id.; Depositary Notification, UN Doc. C.N.934.2000.TREATIES–15.

27 Supra note 23.

28 The original reservation was very broad and read as follows:

The Government of the Republic of Maldives will comply with the provisions of the Convention, except those which the Government may consider contradictory to the principles of the Islamic Sharia upon which the laws and traditions of the Maldives is founded.

Furthermore, the Republic of Maldives does not see itself bound by any provisions of the Convention which obliges to change its Constitution and laws in any manner.

Multilateral Treaties, supra note 1, pt. I, ch. 4.

29 Id.

30 At the time, organizational factors and technical limitations prevented depositary notifications from being distributed in paper form for weeks (sometimes months).

31 See notes appended to the table on the Convention on the Elimination of All Forms of Discrimination Against Women, in Multilateral Treaties, supra note 1, pt. I, ch. 4.

32 Id. The different terminology employed in the German objection to the Maldives modification and the French objection to the Malaysian modification raises interesting issues.

33 Id. Germany had previously taken a much more moderate approach to a late reservation. See note 4 appended to the Convention Providing a Uniform Law for Cheques, Mar. 19, 1931, 143 LNTS 355, in id., pt. II:

The Government of the Federal Republic of Germany has taken note of the communication of the French Government on the Convention of 19 March 1931 providing a Uniform Law for Cheques, which was received by the Secretary–General of the United Nations on 7 February 1979 and distributed with circular note C.N.29.1979.Treaties–l of 10 February 1979 of the Acting Director of the General Legal Division and which informed about the modification of France’s membership of the Convention effected by the said communication, and raises no objections thereto.

34 UN Doc. LA 41 TR/221, supra note 20.

35 International Covenant on Civil and Political Rights, Optional Protocol, Dec. 16, 1966 Google Scholar, 999 UNTS 302.

36 Multilateral Treaties, supra note 1, pt. I, ch. 4.

37 Id .

38 For the views of the Human Rights Committee, see Communication No. 845/1999, UN Doc. CCPR/C/67/D/845/1999.

39 This raises the question of the role of human rights bodies in determining the legality of reservations lodged by parties to a human rights treaty.

40 Trinidad and Tobago Ministry of Foreign Affairs, Notice to Denounce the Optional Protocol to the International Covenant on Civil and Political Rights (Mar. 27, 2000) (on file with UN Secretariat).

41 Supra note 35.

42 Multiiateral Treaties, supra note 1, pt. I, ch. 4.

43 Id.

44 For example, no reservation or exception may be made to the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28, 1994, 1836 UNTS 41, except where expressly permitted elsewhere in the agreement. Similarly, Article 120 of the Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, corrected through Jan. 16, 2002, at <http://www.icc–cpi.int>, prohibits reservations.

45 See Vienna Convention, supra note 3, Art. 2(1)(d).

46 Summary of Practice, supra note 1, para. 191.

47 Supra note 44.

48 Multilateral Treaties, supra note 1, pt. I, ch. 18.

49 Id.

50 See the next section, “Determining the Acceptability of a Reservation.”

51 See Summary of Practice, supra note 1, para. 161.

52 See UN Human Rights Committee, General Comment No. 24 (52), UN Doc. CCPR/C/21/Rev.1/Add.6 (1994) [hereinafter General Comment No. 24]; see also Goodman, Ryan, Human Rights Treaties, Invalid Reservations, and State Consent, 96 AJIL 531 (2002)CrossRefGoogle Scholar.

53 It has been said with regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221, that

the obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves.

Austria v. Italy, 1961 Y.B. Eur. Conv. on H.R. 116, 140 (Eur. Comm’n on H.R.); see also France v. Turkey, 35 Eur. Comm’n H.R. Dec. & Rep. 143 (1984).

54 In its General Comment No. 24, supra note 52, para. 18, the Human Rights Committee considered that

[i]t necessarily falls to the Committee to determine whether a specific reservation is compatible with the object and purpose of the Covenant. This is in part because . . . it is an inappropriate task for States parties in relation to human rights treaties, and in part because it is a task that the Committee cannot avoid in the performance of its functions.

See Effective Implementation of International Instruments on Human Rights, Including Reporting Obligations Under International Instruments on Human Rights, Note by the Secretary-General, UN Doc. A/47/628, para. 36 (1992).

55 See ILC, Second Report on Reservations to Treaties, UN Doc. A/CN.4/477 & Add.1, para. 163 (1996)Google Scholar.

56 See Committee on the Rights of the Child, UN Doc. CRC/C/SR. 179, para. 7 (1994)Google Scholar (discussing Argentina).

57 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 28, 999 UNTS 171.

58 General Comment No. 24, supra note 52, para. 18. See also the draft guideline formulated by the special rapporteur: “The fact that a reservation is found impermissible by a body monitoring the implementation of the treaty to which the reservation relates does not constitute the withdrawal of that reservation.” ILC, Seventh Report on Reservations to Treaties, UN Doc. A/CN.4/526/Add.2, para. 114 (2002) [hereinafter 7th Reservations Report],

59 Observations by the United States on General Comment No. 24 (52), No. 5 (Mar. 28, 1995), reprinted in 16 Hum. Rts. L.J. 422, 423 (1995).

60 See text at notes 35–40 supra.

61 Report of the International Law Commission on the Work of Its Fifty–fourth Session, UN GAOR, 57th Sess., Supp. No. 10, at 113, UN Doc. A/57/10 (2002) [hereinafter ILC 2002 Report].

62 Statement by the New Zealand Representative (Oct. 31,2002), available at <http://www.mfat.govt.nz/speech/pastspeeches/speeches2002/31oct02.html>.

63 Some states have suggested that the depositary should refuse to communicate a reservation that was manifestly impermissible. See ILC 2002 Report, supra note 61, at 112–13.

64 And in the practice of the secretary–general with regard to late reservations.

65 See the current discussion on the scope and effect of objections, UN Doc. A/CN.4/544, supra note 10.

66 Vienna Convention, supra note 3, Art. 20(5).

67 But Aust argues that this has not been established as a rule of customary international law. Aust, Anthony, Modern Treaty Law and Practice 127 (2000)Google Scholar.

68 A study (yet unpublished) undertaken by the Treaty Section of the United Nations with regard to reservations to treaties deposited with the secretary–general suggests a relationship between objections to reservations and their subsequent withdrawal or modification.

69 The acceptance of late objections and their circulation by the secretary–general may reflect the circumstance, noted above, see text at note 30 supra, that in the past reservations were not always circulated in time for other states to respond to them within the stipulated time. See Summary of Practice, supra note 1, para. 213.

70 See ILC, Report on the Work of Its Fifty–second Session, UN GAOR, 55th Sess., Supp. No. 10, para. 657, UN Doc. A/55/10 (2000)Google Scholar.

71 Vienna Convention, supra note 3, Art. 20(4)(b).

72 Multilateral Treaties, supra note 1, pt. I, ch. 4.

73 Id.

74 Such advice is not unusual in objections to reservations, which suggests that the objecting states expect that it might have some effect. See id.

75 See note 68 supra.

76 The Council Working Group for Public International Law or COJUR is one of the working groups established within the Council. It deals with general public international law issues. It is formally a “second pillar” group (the second pillar refers to the EU common foreign and security policy) and does not normally address international legal issues connected with “first pillar” activities (i.e., subject matter within “Community” competence), such as trade issues (e.g., the WTO, the environment, and transportation).

77 It is also known that countries will employ bilateral channels to exert pressure on those countries which have lodged reservations to human rights treaties, with a view to having them modified or withdrawn.

78 Reservations are withdrawn more frequently today than in the past. See 7th Reservations Report, supra note 58, para. 63.

79 1974 UN Jurid. Y.B. 190; Summary of Practice, supra note 1, para. 216. The Council of Europe appears to follow a different practice. See 7th Reservations Report, supra note 58, para. 129.

80 See UN Doc. LA 41 TR/221, supra note 20.

81 See ILC, Report on the Work of Its Fiftieth Session, UN GAOR. 53d Sess., Supp. No. 10, para. 498, UN Doc A/53/10 (1998)Google Scholar [hereinafter ILC 1998 Report].

82 See Vienna Convention, supra note 3, Art. 29. Some treaties themselves provide for parts of the territory of a party to be excluded from their application. Similarly, the federal clause that used to be employed in treaties dealing with commercial and trade matters permitted subunits of a state to be excluded from the application of the treaty.

83 See, for example, the ratification of the Rome Statute of the International Criminal Court, supra note 44, by New Zealand, which contains the following statement:

[Consistent with the constitutional status of Tokelau and taking into account its commitment to the development of self–government through an act of self–determination under the Charter of the United Nations, this ratification shall not extend to Tokelau unless and until a Declaration to this effect is lodged by the Government of New Zealand with the Depositary on the basis of appropriate consultation with that territory.

Multiijvteral Treaties, supra note 1, pt. I, ch. 18. Portugal has also excluded (or extended) the application of certain treaties to its external territories in the past.

84 Denmark, for example, has excluded one or both of these territories from the application of the following: the International Convention for the Suppression of Terrorist Bombing of 1997; the Rome Statute of the International Criminal Court of 1998; the International Convention for the Suppression of the Financing of Terrorism of 1999; the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography of 2000; the United Nations Convention Against Transnational Organized Crime of 2000; the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Supplementing the United Nations Convention Against Transnational Organized Crime of 2000; and the Stockholm Convention on Persistent Organic Pollutants of 2001. Multilateral Treaties, supra note 1.

85 Given the gradual enhancement of the international position of the Cook Islands and Niue, New Zealand’s exclusions now relate only to Tokelau.

86 United Nations Convention Against Transnational Organized Crime, GA Res. 55/25, Annex I (Nov. 15, 2000)Google Scholar.

87 Multilateral Treaties, supra note 1, pt. I, ch. 18.

88 Id.

89 See Aust, supra note 67, at 167.

90 “Today, as in the past, many territories are small (some very small), but most have internal self–government. Given their circumstances, they do not necessarily want, or need, every multilateral treaty to apply to them.” Id. at 168.

91 The United Kingdom, which became a party to the Basel Convention on the Control of Transboundarv Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 UNTS 57, 28 ILM 657 (1989), on February 7, 1994, extended its application to the Isle of Man only on December 12, 2001. Likewise, its application was extended to the Bailiwick of Guernsey on November 27, 2002. Multilateral Treaties, supra note 1, pt. II, ch. 27.

92 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 2167 UNTS 3, 34 ILM 1542 (1995) [hereinafter 1995 Agreement].

93 See the UK statement under the entry for the 1995 Agreement, supra note 92, in Multilateral Treaties, supra note 1, pt. I, ch. 21:

It will be recalled that on 4 December 1995, the Agreement was signed by the Government of the United Kingdom of Great Britain and Northern Ireland on behalf of Bermuda, British Indian Ocean Territory, British Virgin Islands, Falkland Islands, Pitcairn Islands, South Georgia and the South Sandwich Islands, St. Helena including Ascension Island, and Turks and Caicos Islands. Further, in a communication received on 19 January 1996, the Government of the United Kingdom informed the Secretary–General that the signature of 4 December 1995 would also apply to Anguilla.

Subsequently, on 27 June 1996, the Agreement was signed by the United Kingdom for the United Kingdom of Great Britain and Northern Ireland.

On 3 December 1999, an instrument of ratification was lodged by the United Kingdom on behalf of Pitcairn, Henderson, Ducie and Oeno Islands, Falkland Islands (Malvinas), South Georgia and South Sandwich Islands, Bermuda, Turks and Caicos Islands, British Indian Ocean Territory, British Virgin Islands and Anguilla with the following declarations.

Because of the unusual nature of this action, and following extensive consultations with the depositary, the above instrument of ratification of the United Kingdom was accepted in deposit on December 10, 2001.

94 ILC, Third Report on Reservations to Treaties, UN Doc. A/CN.4/491/Add.3, paras. 182–90 (1998)Google Scholar [hereinafter 3d Reservations Report]; ILC 1998 Report, supra note 81, at 182–83, 195, 206–09; see also ILC, Report on the Work of Its Fifty–fifth Session, UN GAOR, 58th Sess., Supp. No. 10, at 167, UN Doc. A/58/10 (2003)Google Scholar [hereinafter ILC 2003 Report].

95 See 3d Reservations Report, supra note 94, para. 185.

96 See, for example, Article 310 of the United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397, which states:

Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.

97 For example, the Yemen Arab Republic signed the Convention on the Law of the Sea on December 10, 1982, with declarations, including the following: “The fact that we have signed the said Convention in no way implies that we recognize Israel or are entering into relations with it.” Multilateral Treaties, supra note 1, pt. I, ch. 21.

The declaration Argentina made on signing the 1995 Agreement, supra note 92, stated:

The Argentine Republic rejects the inclusion of and reference to the Malvinas, South Georgian and South Sandwich Islands by the United Kingdom of Great Britain and Northern Ireland as dependent territories in its signing of the [said] Agreement, and reaffirms its sovereignty over those islands, which form an integral part of its national territory, and over their surrounding maritime spaces.

The Argentine Republic recalls that the United Nations General Assembly has adopted resolutions 2065 (XX), 3160 (XXVIII), 31/49, 37/9, 39/6, 40/21, 41/40,42/19 and 43/25, in which it recognizes the existence of a sovereignty dispute and requests the Governments of the Argentine Republic and the United Kingdom of Great Britain and Northern Ireland to initiate negotiations with a view to finding the means to resolve peacefully and definitively the problems pending between both countries, including all aspects on the future of the Malvinas Islands, in accordance with the Charter of the United Nations.

Id.

98 See Argentina’s declaration on signing the Convention on the Law of the Sea. Id.

99 Draft guideline 1.4.4 reads:

A unilateral statement formulated by a State or by an international organization whereby that State or that organization expresses its views on a treaty or on the subject matter covered by the treaty, without purporting to produce a legal effect on the treaty, constitutes a general statement of policy which is outside the scope of the present Guide to Practice.

ILC 2003 Report, supra note 94, at 171.

100 United Nations Convention on the Law of the Sea, supra note 96, Annex IX, Art. 2.

101 Multilateral Treaties, supra note 1, pt. I, ch. 21.

102 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3.

103 Multilateral Treaties, supra note 1, pt. I, ch. 4.

104 Id.

105 Summary of Practice, supra note 1, para. 217.

106 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85.

107 Multilateral Treaties, supra note 1, pt. I, ch. 4.

108 See text following note 96 supra.