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 some remarks with regard to Chapter VI of the International Law Commission’s report entitled “Reservations to Treaties”.
The topic of reservations to treaties has been on the Commission’s agenda for many years now. As we are all aware, the Vienna Conventions of 1969, -78 and -86 set out some important principles concerning reservations to treaties, but in terms that left certain aspects open for further clarification. Adding clarity and consistency to a regime of such practical importance to state relations is of course a much welcome effort by the Commission and the Nordic countries are grateful for its dedicated work, as well as that of Special Rapporteur Professor Alain Pellet.
We are well aware that developing a Guide to Practice, an instrument much different from a treaty, on such a complex issue, does require careful thought and debate. We are pleased to take note from the Special Rapporteur that he finds it reasonable that the second part of the Guide to Practice might be concluded at the Commission’s sixty-first session.
The consideration at this session of the Special Rapporteur’s thirteenth report and the Commission’s referral of several draft guidelines to the Drafting Committee have both shed light on the question of interpretive declarations and substantially progressed the work on many of the procedural questions relating to the formulation and objection to reservations.
Before going in to some of the specifics of the Special Rapporteur’s report I first wish to give our support to the general notion of thoroughly considering interpretive declarations and reactions to them together with the current consideration of reservations. The view of the Nordic countries is that it would not be helpful to exclude their consideration on the basis that they could be argued to fall outside the scope of reservations. The use of interpretive declarations is widespread. In all too many cases do they cause difficulties from, inter alia, their similarity with reservations. We also agree that it is wise to consider them separately, and not simply transposing the regime applicable to reservations onto them. In our view a Guide to Practice on reservations would not be complete without also elaborating on the use of interpretive declarations.
This having been said, we must voice some caution as to how we approach the topic. As stated in the Special Rapporteur’s report, the Vienna Conventions do not elaborate on interpretive declarations and there is little else to guide us but careful analogy with the regime applicable to reservations.
We can also draw some conclusions from this fact. In our view the reasons are quite simple. Just as the Vienna Convention on the Law of Treaties states - if a unilateral statement, however phrased or named, purports to exclude or modify the legal effect of certain provisions, we are in fact dealing with a reservation. The key wording here is “however phrased or named”. When a unilateral statement does not purport to exclude or modify the legal effect of the treaty obligation we are dealing with something else. This is also apparent from draft guidelines 1.1 and 1.2.
Consequently, a statement is either a reservation for which we have an already established practice, or we have something else that have to be understood in the light of other existing provisions of the Vienna Convention. In doing so, we can avoid creating new problems. We should to a large extent be able to find sufficient guidance in the rules for the interpretation of treaties.
As a result, even though we found the categorization of possible reactions to interpretive declarations very illustrative, we are not entirely convinced of the need for new terminology and we fear that it might only give rise to new questions. The terms “approval” and “opposition” does not create any concerns per se, as the meaning of these expressions are self evident. In our discussion we can benefit from being able to discern between actions related to interpretive declarations from actions related to reservations. The term “Reclassification”, however, in our opinion, indicate something more, which might require specific action and imply further unclarity.
As I elaborate further on this I will also take into account the questions that have been raised by the Commission. Mr. Chairman,
As indicated, the view of the Nordic countries is of course that the existing rules of the Vienna Convention on the Law of Treaties must be given full effect. An interpretive declaration, which is in fact a “reservation in disguise”, must then simply be treated as a reservation and not as a new category. The wording “reclassification” we believe creates ground for misinterpretation about its categorization. It also risk to give the impression that at some point the “reservation in disguise”, could have been, or was in fact, an interpretive declaration until we “reclassified” it to its true category.
What we in fact are trying to do is to “interpret” the interpretive declaration and decide whether or not it purports to exclude or modify the legal effect of certain provisions of the treaty at hand. How it is named might at times give us some guidance, but is not at all decisive. This uncertainty has even given rise to a rather peculiar practice where we have seen interpretive declarations to interpretive declarations being made with the purpose to make certain that it is in fact an interpretive declaration and nothing else.
Having successfully reached the conclusion that it is in fact a “true” interpretive declaration, States then have a possibility to react but action is not compulsory. Should the declaration however constitute a reservation, then States are obliged to react if we wish to object to it in accordance with the rules of the Vienna Convention. Unless, of course, it is a reservation deemed to be incompatible with the object and purpose of the treaty. As it is clear from Article 19 of the Vienna Convention those reservations were not intended to be included in treaty relations between States. Such reservations therefore have no legal effect and they should, as the Commission previously have stated, be considered null and void.
Regarding such reservations, the Nordic countries have previously stated that an objection is not necessary. An objection to such a reservation can only be considered as a way to draw attention to this fact. Our view is simply that all States that become parties to a treaty should, at the very least, commit themselves to the object and purpose of the treaty.
In this context I briefly wish to draw your attention to that the Nordic countries have previously pointed out that a growing number of States, including our own, are developing the practice of severing invalid reservations from the treaty relation between the States concerned. The practice of severing reservations which are incompatible with the object and purpose of a treaty accords well with Article 19 of the Vienna Convention. Instead of excluding bilateral treaty relations entirely when objecting to invalid reservations, the option of severability secures bilateral treaty relations and opens the possibility of dialogue within the treaty regime. Account must of course be taken of the will of the reserving State regarding the relationship between ratification of a treaty and the reservation. Mr. Chairman,
Before returning to the issue of “true” interpretive declarations - just a short word about conditional interpretive declarations. We agree with the notion contained in draft guideline 1.2.1 that they to a large extent resemble reservations and therefore often have to be treated as such. They differ however in that they could be considered as interpretive declarations if the interpretation contained therein is acceptable. If however the interpretation is deemed to exclude or modify the legal effect of the treaty obligation we need to react in the same way as with reservations.
If we have concluded that we in fact are dealing with a “true” interpretive declaration we believe draft guideline 2.9.8 to be a prudent inclusion as it states the obvious fact. A true interpretive declaration can not be given any other relevance than that the rules governing the interpretation of treaties possible might give them.
We can therefore also agree with the first part of suggested guideline 2.9.9, that as a general rule silence can not be interpreted as consent. We should also in this context be aware that the common meaning of silence must not be given too much weight since there are possibilities that States communicate their views in other manners.
Furthermore, we do not believe it helpful trying to create a separate regime where acquiescence could play a specific role in regard to interpretive declarations. As approval of an interpretive declaration constitutes a subsequent agreement on the interpretation, in accordance with Article 31.3 (a) of the Vienna Convention, the general rules governing how an agreement can be to entered into is sufficient.
In conclusion, the view of the Nordic countries is simple, we only have two categories to consider when a State makes a statement - it is either a reservation or an interpretive declaration. Also a conditional interpretive declaration has to be treated either as a reservation or an interpretive declaration.
For either category actions of objection or opposition is an effort to avoid possible effects of the statement. In the case of reservations we have an obligation to act to avoid its consequences, with the already stated exception of those that are against the object and purpose of a treaty. In the case of interpretive declarations we do not have a similar obligation, or rather we have a choice.
The difference is thus mainly in what we attribute to silence. Silence against a reservation constitutes acceptance, with the one exception for those reservations which run counter to the object and purpose of the treaty, while silence against an interpretive declaration can never give raise to any legal effects beyond those that are contained in existing rules of interpretation of treaties.
I would again like to emphasize the importance that the Nordic countries attach to this topic on the Commission’s agenda. We appreciate this opportunity to express our views and look forward to continue the discussion, and to see the final results of the Special Rapporteur’s as well as the Commission’s comprehensive work on this topic.
Thank you.