Mr Chairman,
I have the honour to speak on behalf of the five Nordic countries, Denmark, Finland, Iceland, Norway and my own country Sweden. I would like to make a few comments regarding Chapter VIII of the Commission's report, entitled Reservations to treaties.
General comments on reservations to treaties
The issue of reservations to treaties has been on the agenda of the International Law Commission for many years. It is a process which the Nordic countries consider of particular importance. The Nordic countries welcome the eighth report of the Special Rapporteur, Professor Alain Pellet. It is important that the work be carried further. Surely, the future "Guide to Practice" will be of practical value to our governments and others who are interested in the intricacies of the law of treaties.
We would like to take the opportunity to welcome the decision of the Sub-Commission of the Commission of Human Rights on Promotion and Protection of Human Rights to request Ms Françoise Hampson to submit a final paper on reservations to human rights treaties. Her findings could contribute to the work of the Special Rapporteur and the ILC.
We are happy to see that the Special Rapporteur now has commenced the difficult task of scrutinising the legal practice pertaining to objections to reservations. We welcome the Special Rapporteur's intention to include a separate section on what he calls the dialogue réservataire. We would furthermore welcome an in-depth study on the practice relating to permissibility or validity of reservations, something which is inevitably brought to the fore when the issue of objections is on the agenda.
Definition of objections
The Commission has asked member States for their comments on the definition of objections proposed by the Special Rapporteur. The Nordic countries share the view expressed by several members of the Commission that the definition proposed in chapter II of the Special Rapporteur's report [draft guideline 2.6.1] is too narrow.
It is the practice of the Nordic countries to object to reservations that are considered incompatible with the object and purpose of a treaty. This is especially so with regard to reservations to human rights treaties. It is the view of the Nordic countries that incompatible reservations are invalid ipso facto and therefore impermissible. This means that tacit acceptance from other States would not "heal" the impermissibility and it would not make the reservations "permissible". It could therefore be argued that objections to such reservations are not really necessary since such reservations have no legal effect anyway. However, the Nordic countries believe that objections to impermissible reservations have the advantage of spelling out the view of other convention States and make clear their legal position, thus bringing the matter more clearly into the public domain.
To object formally to impermissible reservations is thus an important marker and serves as a communication to the State which made the impermissible reservation in question. Such an objection makes both the reserving State and other States parties aware of the fact that the reservation is considered incompatible with the object and purpose of the treaty and therefore to be considered null and void.
The reserving State is not able to invoke an impermissible reservation in its treaty relations with the other parties. To allow for such a practice could seriously undermine the integrity of treaties. It is clearly unacceptable if major achievements in the development of international human rights law in recent times - instruments such as the Convention on the Elimination of All Forms of Discrimination against Women, the UN Convention against Torture and the Convention on the Rights of the Child - risk being seriously weakened due to an insufficient legal regime governing objections to impermissible reservations. These instruments came into existence through a strong, global effort for the protection of human rights but could be slowly undermined by States whose ratifications are combined with manifestly impermissible reservations.
From this does not necessarily follow that the State which made an impermissible reservation would not be in a treaty relation with those who have objected to the said reservation. However, the Special Rapporteur has wholly excluded from his definition of objections those objections that are directed at invalid reservations with the effect that the treaty relations between the reserving and objecting State remain in force without the reserving State benefiting from its reservation [i.e.the "severability-doctrine"]. There is now persistent State practice from the Nordic countries and an increasing number of other States making use of such objections in relation to invalid reservations to human rights treaties. A study conducted by the Finnish Foreign Ministry in 1998 found that altogether 33 objections made by States, in that case to reservations under the Convention on the Elimination of All Forms of Discrimination against Women and the Rights of the Child Convention, applied the severability doctrine. Today this figure has increased to 64 according to a recent study performed by the Danish Foreign Ministry. To exclude objections to such invalid "reservations" from the scope of a definition of objections would be to disregard an important part of existing State practice and also the practice of the European Court of Human Rights. And frankly, we fail to see convincing arguments in favour of States who accede to important multilateral treaties with a clear and declared intention to disregard some or all of its key provisions through sweeping impermissible reservations.
In relation to the specific question raised by the Commission concerning the Mer d'Iroise Case, the Nordic countries believe that the intention of the State which performs a unilateral act with regard to a treaty, be it a reservation, an objection or a mere unconditional interpretative declaration, is certainly the essential element when it comes to assessing both the purported and factual effect of such an act. It is a fundamental rule of treaty law that the intention of States takes precedence over the terms used. This being said, we do however believe that an assessment of possible effects of objections in detail is not necessary in order to produce a valid definition of what should constitute an objection. We believe that the question of purported effects could be dealt with separately and look forward to discussing that issue at a later stage.
For these reasons, the Nordic countries can agree to the definition proposed by the Special Rapporteur in his concluding remarks following the debate in the ILC (see para. 363 of the ILC-report). That definition describes an objection merely as a unilateral statement whereby a State or organisation seeks to prevent a reservation made by another State or organisation from having any or some of its effects. Such a definition would include situations in which an objecting State purports to point out that a certain reservation is null and void and therefore without any of its effects.
The usefulness of States or international organisations stating their reasons for objecting
Turning now to another question posed by the Commission, the Nordic countries share the view of the Special Rapporteur that objecting States and organisations should be encouraged to state their grounds for objecting to other States' and organisations' reservations. We would welcome a draft guideline to that effect to be included in the Guide to Practice. Objections should be specific and transparent, especially when a State or an international organisation objects to an impermissible reservation as being incompatible with the object and purpose of a treaty.
Express and explicit justifications are essential in order for the reserving State to understand the underlying reasons for an objection. This is even more important when the reason for making an objection is motivated by a desire to preserve the integrity of a treaty. Bringing the matter a bit further and in order to dispel any uncertainties and to ensure foreseeability, States should in fact not only be encouraged to state their reasons but also the desired effect of their objections in the text of the objections themselves. This latter proposal could be discussed when we consider the potential legal effects of objections.
Enlargement of the scope of a reservation - draft guideline 2.3.5
Regarding the question of modifications of reservations purporting to enlarge the scope of a reservation, the Nordic countries align themselves with the view that such modifications can be dealt with in the same way as late reservations. In our opinion this pertains to a rather rare situation and draft guideline 2.3.5 as it is currently drafted would fulfil that purpose together with an adaptation of draft guideline 2.3.3.
I would like to conclude by emphasising the importance which the Nordic countries attach to questions of impermissible reservations and objections as a means to develop international law and we are looking forward to see the result of the work of the ILC in this field.
Thank you Mr Chairman.