Statement by Darin E. Johnson, Attorney Adviser, Office of the Legal Adviser, Department of State, on Agenda Item 79: Report of the International Law Commission on the Work of its Sixty-Second Session (Part One), in the Sixth Committee

Darin E. Johnson, Attorney Adviser, Office of the Legal Adviser, Department of State
New York, NY
October 26, 2010


Thank you, Madame Chairperson.

My government appreciates your efforts in guiding the work of this Committee and welcomes the opportunity to submit a few observations on topics considered by the International Law Commission at its 62nd Session.

The United States recognizes that universal respect for international law is essential to orderly and peaceful relations among States and commends the International Law Commission on its contributions to the progressive development and codification of international law. We would like to convey our special thanks to the Chairman of the Commission, Mr. Nugroho Wisnumurti for his fine stewardship. We would also like to thank Madame Hanqin Xue for her chairmanship of the Commission during the first half of its summer session and for her years of service to the Commission. We congratulate her on her election to the International Court of Justice and appreciate her continued service to the international legal community. We would also like to congratulate Mr. Huikang Huang on his election to the Commission. We wish to thank the Special Rapporteurs for the topics discussed at the Commission’s past session for the manner in which they have diligently guided the Commission on important – and complex – topics.

We would particularly like to take a moment to express our heartfelt remorse at the untimely passing of Ms. Paula Escarameia. We express our deepest condolences to her friends, family, and colleagues as well as to the people of Portugal. We acknowledge and commend her invaluable service to the Commission and the international legal community.

Madame Chairperson, I will comment today on the first cluster of items on the Committee’s agenda.

Specific Issues on Which Comments Would Be Of Particular Interest to the Commission
We believe the work of the Commission benefits from the views provided by States and international organizations. We are pleased that the Commission has requested views from governments on the “Reservations to Treaties” draft guidelines adopted this year and, in the context of the “Treaties Over Time” topic, examples of subsequent agreement or subsequent practice that have been particularly relevant in the interpretation and application of treaties. We plan to provide detailed responses to each of the Commission’s requests in a timely manner.

Reservations to Treaties
On the subject of Reservations to Treaties, I would like to compliment the Special Rapporteur on the impressive work that has gone into the draft guidelines and pay tribute to Mr. Pellet’s mastery of the subject. We are grateful for the scholarship Mr. Pellet has brought to bear on this important topic and the patience he has shown over the years in guiding this work so carefully. Further, we congratulate the Commission on its provisional adoption of a complete set of draft guidelines on this topic at its last session. We intend to review the entire draft and provide more comprehensive thoughts and suggestions on the topic prior to the Commission’s consideration of the guidelines at its sixty-third session in 2011, as the Commission has requested. Today, I will only raise a few questions regarding the most recent work done on “invalid” or “impermissible” reservations, which we think may deserve further consideration.

Now included in Part 3 is the recently proposed guideline that provides that even if a reservation is invalid, if no party objects to it after having been expressly informed of its invalidity by the depositary at the request of a party, the reservation “shall be deemed permissible.” The commentary explains that the theory behind this guideline is that such a tacit acceptance of the reservation could constitute a subsequent agreement among the parties modifying the original treaty and enabling the particular reservation to be made. Assuming arguendo that this is a workable theory, there are at least two questions we would raise regarding the guideline’s approach. First, if a subsequent agreement can be made among the parties through a tacit acceptance of the invalid reservation, why wouldn’t this be true regardless of whether the depositary had separately circulated a second notice at the request of a contracting state indicating that the reservation is invalid? In other words, the logic of this guideline appears to lead to the conclusion that any reservation that is invalid, which has been circulated and not objected to by the parties has been “collectively accepted” and thus “shall be deemed permissible.” It is difficult to understand why, if a tacit acceptance is enough, a second notice is necessary in order for the reservation to be “deemed accepted.” Second, this guideline seems impractical. Is it likely that another State would ask the depositary to bring attention to the fact that the reserving State’s reservation is invalid, but not object to it?

In Part 4, a new approach has been suggested regarding the consequences of making an invalid reservation that is not collectively accepted by the parties to a treaty. The draft guidelines provide that when an invalid reservation has been formulated, the reserving State is considered a party to the treaty without benefit of the reservation, unless the reserving State has expressed a contrary intent. We have a number of concerns and questions regarding this approach. It is the long-standing view of the United States that an attempt to assign an obligation expressly not undertaken by a country, even if based on an invalid reservation, is inconsistent with the fundamental principle of consent, which is the foundation upon which the law of treaties is based, as the Special Rapporteur himself has recognized. When you combine this principle of consent with a good faith assumption that States do not make reservations lightly and should be presumed to do so only when such reservations are an essential condition of the reserving State’s consent to be bound by the treaty, the presumption in the proposed guidelines appears to be leaning in the wrong direction. In other words, it seems to us that when an invalid reservation has been formulated, the reserving State should only be considered a party to the treaty without benefit of the reservation if the reserving State has expressly indicated that upon objection, the reserving State would effectively withdraw the reservation and thus be a party without the benefit of the reservation.

In addition, we are concerned that the presumption, as currently set forth, would be difficult to apply in practice and could undermine the stability of treaty obligations that the Vienna Conventions were designed to foster. For example, a reserving State could consider its reservation valid, despite an objecting State’s view that it is not and in such a case, if the objecting State had decided on its own that the presumption had been overcome by the reserving State based on the factors listed in the proposed guideline, there would be no consensus among the parties regarding whether the reserving State was bound at all to the treaty.

Furthermore, in order to most effectively rebut the presumption, the reserving State would presumably indicate when making a reservation whether it is willing to be bound without benefit of the reservation if it turns out that the reservation is considered invalid. Yet, to do so would suggest that the reserving State is concerned that the reservation is invalid. Thus, to most effectively rebut the presumption a State is, in a sense, forced to concede that its actions may be impermissible. It is not obvious to us that this approach is practical or would improve the process for clarifying the effect of reservations in treaty relations among states.

Finally, it is worth noting that the draft guidelines leave the reserving state that has made an invalid reservation with only two choices – to become a party without the benefit of the reservation consistent with the presumption, or to refrain from becoming party to the treaty at all. This does not allow for the possibility that the objecting State may prefer to have a treaty relationship, even with the invalid reservation, than no treaty relationship at all, assuming the reserving State has overcome the presumption. From a practical perspective, as we all know, there are times when it may be better to continue to have a treaty relationship with a State, despite the existence of an impermissible reservation. While this is not an ideal scenario, it is important not to rule this out.

The questions being addressed in these particular guidelines are of fundamental importance. Furthermore, these draft guidelines address an issue not clearly articulated in the Vienna Conventions and on which, as is noted in the commentary, there are widely varying views and thus no customary international law rules to codify. Under such circumstances, substantial caution in the approach taken is warranted and perhaps more time should be devoted to this issue. We certainly will be interested in the views of others on this complex topic.

Thank you, Madame Chairperson.


PRN: 2010/257