Mr. Chairman,

In my brief statement I will make a few comments on reservation to treaties. We commend the valuable work of the Special Rapporteur, professor Pellet, on this topic and reiterate our support to the Commission’s general approach that the Vienna conventions on the Law of Treaties have established a practical general regime for reservations applicable to all types of treaties. We concur with the Commission’s decision not to undertake a major revision of the Vienna regime, which has functioned fairly well over the years, and has facilitated universal adherence to multilateral treaties of general interest. We believe that the Commission’s focused work on removing discrepancies and providing clarity to possible areas of ambiguities through preparation of guidelines to practice is a step in the right direction.

We note with appreciation that the Commission has adopted 11 additional draft guidelines dealing with formulation and communication of reservations and interpretative declarations, and considered the Special Rapporteur’s seventh report and referred 15 more draft guidelines, relating to withdrawal and modification of reservations, to the Drafting Committee.

The guiding principles adopted by the Commission should be assessed in the light of their compatibility with the Vienna regime. It seems to us that the guidelines that have so far been adopted by the Commission are useful practical recommendations for consideration of States while formulating, modifying and withdrawing their reservations to treaties. However, there are two points that require further reflection in terms of their consistency with the Vienna conventions as well as with the State practice.

Guideline 2.1.8, which deals with the procedure in case of impermissibility of reservations to treaties, requires further careful reflection. In our view, in accordance with the Vienna regime the question of testing the compatibility of a reservation with a specific treaty rests with States Parties to a given treaty. If contracting parties to a treaty find a reservation made by a party to be incompatible with that treaty, they have the right to make objections to such a reservation, which should be distributed to other parties through the depositary. This right cannot be relegated to the depository. If a depositary shares its findings as regards the impermissibility of a reservation with other contracting parties, it would be an inference in a matter, which has been left for the interaction of States parties only. Such interference could be viewed as provoking other States to react, which would not be helpful for resolution of the problem. Simply put, such an action by a depositary is not commensurate with the duties of the depositary. Consequently, we cannot agree with the second sentence of the said guideline, and prefer its deletion.

Guidelines 2.5.4 and 2.5.X, which deal with the question of findings of monitoring bodies, and its effect on the reserving State, also require further study. As it has been pointed out by some members of the Commission, in accordance with the Vienna regime the power to decide the impermissibility of reservations is left to the States parties to a given treaty only. The Vienna regime stipulates general norms governing the reservations, and as I stated earlier, the guideline should follow the applicable regime. However, we are mindful of recent developments concerning the new role relegated to some exceptional monitoring bodies on assessing reservations to a given treaty. In our opinion, it is an exception and should not be covered by the guidelines under preparation which has to be in harmony with the legal regime as set out in the Vienna conventions on the law of treaties.

Finally, we wish to express our hope that the work of the Commission on the subject under consideration would be completed at the current quinquennium of the Commission.

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