Mr Chairman:

I wish to extend the congratulations and gratitude of my delegation to the Chairman of the International Law Commission, Professor Alain Pellet for his lucid introduction of the Commission's Report.

My delegation is also pleased to extend our gratitude to Professor Pellet, the Commission's Special Rapporteur for this topic, for the presentation of his second Report as well as for the guidance he continues to give the Commission on this topic.

This topic was entrusted to the Commission in 1993 by the General Assembly. The Commission's work on the topic commenced in 1994, and the first Report of the Rapporteur was presented in 1995, so that substantive work on the topic has only been done by the Commission over three sessions. Against that background, and in the context of the traditional working methods of the Commission, it was a little surprising to find that the Commission was able to arrive at Preliminary Conclusions on Reservations to Normative Multilateral Treaties, Including Human Rights Treaties. This level of expeditiousness has only been matched in recent years by the Commission's work on the International Criminal Court. It is, of course, good that the Commission is able to work speedily on some topics. But whether it is appropriate in a particular case for the Commission to produce results, albeit of a preliminary nature, quickly, will always depend on the circumstances of the particular item, including its complexity, policy implications and the extent of interaction between the Commission and States in general, and the Sixth Committee and the General Assembly in particular.

While paragraphs 1 to 4 of the Conclusions are not problematic, the remaining paragraphs, which deal with the question of the role of monitoring bodies in relation to reservations to human rights treaties, present certain difficulties, and require very careful consideration.

Reservations to treaties, whether they deal with human rights or not, serve the purpose of augmenting participation by States in the treaty regime, thereby enhancing the universality of that regime. Articles 19 and 20 of the Vienna Convention on the Law of Treaties reflect an approach to reservations which, while flexible, is designed to ensure the integrity of the treaty regime. An essential feature of the Vienna regime on reservations is the role that it gives to contracting States, in express terms, in the acceptance of reservations under Article 20, and impliedly, in the formulation of reservations under Article 19. This is, of course, consistent with the general consensual basis of treaties, which is reflected in the Vienna Convention.

It is essentially for States Parties to determine the permissibility and consequences of a reservation in accordance with Articles 19 and 20 of the Vienna Convention, unless they decide otherwise, for example, by attributing that role to a dispute settlement mechanism or some other body.

General Comment No.24 of the United Nations Human Rights Committee explained its decision to pass on the permissibility of a reservation on the basis of functional necessity - it was required to do so in order to discharge its functions. The doctrine of institutional effectiveness employed by the ICJ in the case, Certain Expenses of the UN, ICJ Reports 1962 p.168, does not readily provide a foundation or justification for the competence which the Committee has arrogated to itself. It is not inevitable that the Committee in the performance of its functions have the competence to pass on the permissibility and acceptability of reservations.

Other human rights bodies have, in the past, dealt with reservations differently, and in a manner that pays due regard to the role of States Parties.

In its limited experience Jamaica has had two cases with human rights bodies in relation to reservations, and the matters were both settled without the body assuming the role claimed by the Human Rights Committee in General Comment No. 24. Certainly, there was no assertion by any of the two bodies that the treaty would be applied to Jamaica without the benefit of the reservation. Both Committees carried out consultations with Jamaica, the necessary legislative action was taken at the domestic level, and the reservations were withdrawn. Not every country is as reasonable and as moderate as Jamaica. But these examples indicate the possibility of human rights bodies dealing with reservations in a manner different from that set out in General Comment No. 24.

Paragraph 5 of the Conclusions provides that "where these treaties are silent on the subject, the monitoring bodies established thereby are competent to comment upon and express recommendations with regard, inter alia, to the admissibility of reservations by States, in order to carry out the functions assigned to them".

One of the difficulties with this paragraph is that it is not clear whether the Conclusion reflects lex lata or de lege ferenda. In the absence of any provision in a treaty on this question, a determination as to whether a monitoring body has competence to comment on a reservation would require an analysis and interpretation of that treaty, as well as an examination of the practice in relation to that treaty and others of a similar character. Such a determination cannot be made in abstracto. The Commission's Report does not evidence that kind of analysis and examination which would ground a conclusion reflecting lex lata. If the Conclusion reflects de lege ferenda, the reasons for moving the law in that direction are not sufficiently identified in the Report.

A reading of the Report suggests that the intention here is to confine the monitoring body to comments on admissibility, and to preclude them from commenting on the consequences of a reservation - in the latter respect, differing from the approach of the Human Rights Committee. For that reason, it is not clear why the phrase "inter alia" is used, since it suggests that matters other than admissibility, including consequences, could be the subject of comment. This paragraph would be better formulated in its relevant part: "…the monitoring bodies established thereby are, without prejudice to their other functions, competent to comment upon and express recommendations with regard to the admissibility of reservations, in order to carry out the functions assigned to them".

In accordance with paragraph 5, a monitoring body could comment that a reservation is impermissible as being incompatible with the object and purpose of a treaty, but it could not determine, as is suggested by General Comment No. 24, that the treaty is operative for the reserving State without the benefit of the reservation; the determination of consequences is a matter for the States Parties (see paragraph 82(b) and 83 of the Report).

This appears to be a half measure that may not assist the human rights body in discharging its functions. For if it is unable to deduce from its finding of impermissibility that the reserving State is bound by the treaty as a whole, how will it be able to perform its functions in relation to that State's obligations under the treaty? If it can make no finding as to the application of the treaty to the reserving State in relation to the reservation, then it will be in no position to assess that State's discharge of its obligations as they relate to the treaty provision that is the subject of the reservation.

And it may not be able to rely on the reaction of States Parties to the reservation, since, according to the Human Rights Committee, State Practice is remarkable for the general absence of such reaction. The Comment asserts that "Objections have been occasional; made by some States, but not others, and on grounds not always specified" (see paragraph 17 of the General Comment No. 24).

How is it consistent to stress the paramountcy of the will of the States Parties to a treaty, that is, the consensual character of a treaty, in relation to the consequences to be drawn from a reservation, but totally ignore that same feature in relation to the question of the permissibility of a reservation?

Another difficulty is the possibility of conflict between the role assigned to the monitoring body and to the States Parties. The monitoring body may comment that a reservation is impermissible, but acceptance of the reservation may result from the lack of objection of States Parties, through the operation of Article 20(5) of the Vienna Convention. We agree that, in principle, Article 20 applies to a reservation that is permissible in accordance with Article 19. However, in practical terms, in the absence of any objective, independent way to determine the permissibility of a reservation through a dispute settlement body or some other body, a conflictual situation will develop in the case outlined, unless one applies the permissibility school's concept of the inherent invalidity of a reservation that is contrary to the object and purpose of a treaty.

Though the role of human rights bodies in relation to reservations is a difficult and complex one, at this time we come down on the side of those who contend that those bodies which, in accordance with their constituent instruments, have no legally binding decision-making powers, have no authority to pass on the permissibility and consequences of a reservation, that authority being the province of States Parties, unless they have given it to some other body. We stress at this time, because we are still considering the matter and are particularly interested in the views of other delegations, as well as those of human rights bodies.

Paragraph 10 of the Conclusions states that it is the responsibility of the reserving State to take action, e.g. by modifying or withdrawing its reservation or by foregoing becoming a party to the treaty. Paragraph 12 provides that the Conclusions are without prejudice to the practice and rules developed by monitoring bodies within regional contexts. We believe the emphasis on regional contexts is misconceived.

In assessing the legal effect of the role of monitoring bodies in relation to reservations, a distinction has to be made between bodies which, by virtue of an agreement, are vested with legally binding decision-making powers and those which are not so vested, and merely have the competence to make recommendations and non-binding findings. An example of the former is the Inter-American Court of Human Rights, and an example of the latter is the Inter-American Commission on Human Rights. One is more likely to find the former at the regional than the global level, because of the potential for a higher degree of agreement at that level. But that is not a solid reason to isolate regional institutions; the proper enquiry is whether the body has legally binding decision-making powers; the location of the body, whether regional or global, is not the issue. It is not all regional human rights bodies that have legally binding decision-making powers. In this regard, the Inter-American Commission on Human Rights is in the same position as the UN Human Rights Committee in relation to its powers, which are recommendatory and non-binding.

A body which has legally binding decision-making powers, such as a Court, would clearly be competent to pass on a reservation in a manner that binds the reserving State; on the other hand, a body which has merely recommendatory powers would not have that competence; in the latter case, whether a reserving State responds by modifying or withdrawing its reservation, or by foregoing becoming a party to the treaty is entirely a matter for it to decide.

A related issue is the question whether reservations can be made to provisions of a treaty that reflect customary international law or jus cogens.

The Human Rights Committee, in paragraph 8 of General Comment No. 24, expressed the view that "provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations". On the other hand, the Commission's Report at paragraph 106 reflects the view that reservations may be made to provisions restating a rule of customary law, and possibly even to a rule of jus cogens, though in the latter case the reservation could not deal with the substance of the provision.

A reservation to a rule of customary law would more than likely be inconsistent with the object and purpose of the treaty. However, a reservation to a rule of jus cogens would certainly be inconsistent with the object and purpose of the treaty and, in principle, void since there can be no derogation from a peremptory norm of general international law. While, arguably, States may agree to derogate from a rule of customary international law, they cannot so agree in relation to a rule of jus cogens. But the effect of such a reservation takes us back to the insoluble problems of the permissibility and opposability schools. Are such reservations void ab initio or is there a need for the reaction - implementation system of Article 20 to operate to determine their acceptability? In the absence of a dispute settlement mechanism, who is to determine inconsistency of such reservations with the object and purpose of a treaty, and who is to determine whether certain provisions constitute rules of customary international law or jus cogens? But, is it necessary to have a third party rule on such palpably invalid reservations as a reservation to engage in the slave trade?

Mr Chairman:

We would wish to offer some ideas as to an approach to the treatment of the role of monitoring bodies in relation to human rights treaties. But we stress that we do so tentatively, and, like the Commission, in a preliminary way, because the subject is complex and we are still studying it and considering the views of other States as well as human rights bodies.

First, the Vienna regime applies to all treaties, including human rights treaties. In that regard, we are in full agreement with the Commission.

Second, any system to deal with the role of monitoring bodies in relation to reservations to human rights treaties must acknowledge the paramountcy of the will of the States Parties to a treaty and the consensual foundation of a treaty, which reflects customary international law, and is reflected in Articles 19 and 20 of the Vienna Convention.

Third, a distinction has to be made between monitoring bodies which exercise a legally binding decision-making power, and those which do not, but rather, have a recommendatory, consultative function; on the other hand, a distinction between regional and global bodies is not warranted.

Fourth, monitoring bodies, whether regional or global, which exercise a legally binding decision-making power, such as courts, will have, in accordance with their constituent instruments, the competence to rule on a reservation relating to a case before them. This ruling will, in accordance with the relevant treaty, bind the reserving State.

Fifth, monitoring bodies, whether regional or global, which, in accordance with their constituent instruments, only have the competence to make recommendations and non-binding findings, should consult the reserving State and other States Parties about a reservation, leaving it to the States Parties to make a determination about the reservation on the basis of Articles 19 and 20 of the Vienna Convention. The reserving State should determine its position in the light of the consultations, that is, whether to maintain or modify the reservation, or to withdraw from the treaty.

Sixth, notwithstanding paragraph 5, monitoring bodies referred to in paragraph 5 may, however, comment on a reservation if the States Parties so agree; this agreement could result from consultations. Moreover, if such bodies proceed to comment on a reservation without the prior agreement of the Parties, the subsequent conduct of those parties as evidenced in their failure to object, could be taken as ratification of the action of the bodies and an approval of their competence in that regard - thus could be developed a practice akin to that in the ILO whereby the depositary may rule on an interpretative declaration that amounts to a reservation.

Seventh, is there an answer to the characterization of the Commission's approach as a half measure, in that, if the monitoring body can only comment on the permissibility, but not on the consequences of a reservation, because the latter is a matter for States Parties, it will not be assisted in discharging its functions, since, ex hypothesi, it would not be in a position to determine the obligations of the reserving State under the treaty.

This is a most difficult problem, for which we have no ready solution. And, in that regard, we have to acknowledge that the Commission's approach, while not perfect, is a commendable effort. For our part, we can only highlight the following as some of the issues that arise.

(a) Attributing to human rights bodies the competence to comment on the consequences of a reservation would derogate from the will of the States Parties as the essential consensual foundation of a treaty, unless the Parties decide otherwise.

(b) Attributing to human rights bodies such a role might come close to transforming their role to a decision-making function - an exercise which would, of course, require an amendment of the treaty.

(c) State Practice does not inspire confidence in relying on States Parties to respond to reservations.

Eighth, the General Assembly should adopt a resolution which would -

(a) bring to the attention of States Parties to treaties, including human rights treaties, the need for them to become more reactive to reservations on the basis of the provisions of Articles 19 and 20 of the Vienna Convention. It should not, however, be assumed that lack of objection to reservations is always the result of inadvertence or administrative inertia, and it should be borne in mind that Article 20(5) of the Vienna Convention attributes certain consequences to the failure to object;

(b) encourage States Parties to normative ultilateral treaties, including human rights treaties with monitoring bodies, to adopt protocols conferring competence on those bodies to pass on the permissibility of a reservation - this reflects paragraph 6 of the Commission's Conclusions;

(c) encourage States Parties to normative multilateral treaties, including human rights treaties, which have no monitoring bodies, to adopt protocols for settling disputes relating, inter alia, to reservations;

(d) encourage States Parties to new multilateral treaties, including human rights treaties, to include in them provisions which specifically address the permissibility of a reservation, e.g. by identifying those provisions whose non-application would breach the treaty's object and purpose, that is, going beyond the traditional formulation allowing reservations, provided they are not inconsistent with the treaty's object and purpose; another example is the approach reflected in Article 20(2) of the Convention on the Elimination of Racial Discrimination, which provides that a reservation is incompatible if at least two-thirds of the States Parties object to it.

We wish, once again, to express our gratitude to the Special Rapporteur and the Commission for their efforts on this difficult and sensitive issue. We have every confidence that in the near future these efforts will be crowned with success.

Permanent Mission of Jamaica to the United Nations
New York