STATEMENT OF PORTUGAL TO THE SIXTH COMMITTEE OF THE 60th SESSION OF THE UN GENERAL ASSEMBLY

NEW YORK, 28 OCTOBER 2005
STATEMENT BY MS. PATRÍCIA GALVÃO TELES, DEPARTMENT OF LEGAL AFFAIRS OF THE MINISTRY OF FOREIGN AFFAIRS, TO THE SIXTH COMMITTEE OF THE 60^th SESSION OF THE GENERAL ASSEMBLY – Item 80: Report of the International Law Commission on the work of its Fifty-Seventh Session (Chapter IV: Shared Natural Resources; Chapter IX: Unilateral Acts of States; Chapter X: Reservations to Treaties)

Mr. Chairman,

I have the honour to take the floor today on Chapters IV, IX and X of the Report of the International Law Commission (ILC) on the work of its Fifty-Seventh Session.

Shared Natural Resources (Chapter IV of the Report)

I will start with the topic of Shared Natural Resources.

My delegation would like to commend the Special Rapporteur, Mr. Yamada, for the progression of the work regarding transboundary aquifers.

The Commission had before it a complete set of 25 articles on the law of transboundary aquifers prepared by the Rapporteur.

Portugal is still carefully analysing this set of draft articles as well whether there is any relevant national practice in order to reply to the questionnaire prepared Special Rapporteur.

We, therefore, reserve the possibility of further commenting on the draft articles presented to the Commission.

We followed attentively the discussions in the Commission, especially concerning the issue of the threshold of "significant" harm included in two of the key provisions of the draft articles 7 (Obligation not to cause harm) and 14 (Prevention, reduction and control of pollution), as well as the potential relation of these draft articles with general international law, namely with the law on international responsibility and liability.

We are also interested in the progress of the discussion of the content of draft article 3 (Bilateral and regional arrangements), namely with regard to the reference to the wording "to a significant extent" in paragraph 1 and the interconnection of the several agreements that may come into play.

Another issue that merited our attention was that of the final form of the work on the topic. Without waiting to take a position on this matter as of yet, my delegation feels, nonetheless, that there must be correspondence between the form and the content of the instrument.

Mr. Chairman,

The ILC decided that the initial part of the topic on Shared Natural Resources would deal with transboundary aquifers. This decision was welcomed by my delegation. The intention has already been expressed that to further the work on transboundary resources, oil and gas should follow. This has been the view within the Commission and was shared by the Secretary-General's High-level Panel on Threats, Challenges and Change in paragraph 93 of its Report.

The Special Rapporteur also noted at paragraph 100 of the Report of the ILC that there were many similarities between groundwaters and oil and gas, and that the elaboration of draft articles on groundwaters would have implications on oil and gas and conversely State practice on oil and gas has a bearing on groundwaters.

Nevertheless, we are still reflecting on whether, given the different characteristic of these natural resources, the principles which are being developed with regard to aquifers would apply in their entirety to oil and gas. An open mind has to be kept, in our opinion, in this regard.

Unilateral Acts of States (Chapter IX of the Report)

Mr. Chairman,

Let me turn now to the topic of Unilateral Acts of States.

We note that the Special Rapporteur presented this session to the Commission an analysis of eleven cases of State practice and the conclusions thereof, following the grid that was established to treat the survey of practice in a uniform and analytical way.

My delegation continues to believe that the role played by unilateral acts of States is very rich and full of varied effects, meeting the needs of States and of the international community.

As we stressed last year, the Commission should conclude its study soon by way of presenting its conclusions on the topic accompanied by examples of State practice.

Therefore, we welcome the intention announced that soon the Commission will conclude its study and encourage it to present the possible results at the next session in 2006.

Reservations to Treaties (Chapter X of the Report)

Mr. Chairman,

I will conclude Portugal 's statement of today by addressing the topic of Reservations to Treaties.

We note with satisfaction that the Commission was able to achieve significant progress with regard to some of the most important issues that have to be addressed within the topic.

In this regard we commend the Rapporteur, Mr. Pellet for having presented 14 new "guidelines" in his 10th Report dealing with the validity of reservations and the definition of object and purpose of the treaty.

We also commend the Commission for having adopted provisionally 2 new guidelines on: a) the definition of objection to a reservation; and b) the definition of objection to late formulation or widening of the scope of reservation. We hope to comment again on these guidelines as well on other issues before the second reading.

I shall focus my comments today on two issues. First, I will make some comments on the approach of the Special Rapporteur on the issue of validity and also concerning some of the 14 guidelines proposed by him. Secondly, we shall offer our views on the specific questions addressed by the Commission to States.

I. Guidelines proposed by the Special Rapporteur in his 10th Report (3.1 to 3.14)

Mr. Chairman,

As a background to the guidelines proposed by the Special Rapporteur, the issue of validity/invalidity of reservations is discussed and this point also attracted the attention of the Commission, as paragraphs 391 and following show.

While we understand the reasons behind the desire of the Special Rapporteur to qualify reservations as valid or invalid, we feel that such qualification is premature, and should only arise after the issue of the legal effects of reservations is discussed.

The sole distinction that seems to my delegation to constitute a good starting point is the one made in paragraph 355 of the Report. That is to say, the distinction between the position of those who consider that reservations are intrinsically prohibited because they are incompatible with the object and purpose of the treaty, and the position of those who defend that the effectiveness of reservations depends only on the reactions of other States.

Keeping in mind this distinction for the moment, rather opting for a qualification of reservations as valid or invalid, would have, in our view, significant advantages:

It avoids mirror games between words, qualifications and their translations into different languages;

Being a more neutral distinction, it permits to better analyse, in one sense or another, State practice on the issue (that the Commission in now seeking from States) as well as the eventual intervention of independent judicial or quasi-judicial bodies, such as courts, tribunals or treaty-monitoring bodies.

After this path, we do believe that the Special Rapporteur will be in a better position to qualify the effect of a reservation that is not acceptable in the context of a given treaty.

Mr. Chairman,

Anyway, we may, as a preliminary statement on the issue, as already done last year, question whether there is any added-value of having a qualification as that of "validity/invalidity" of the reservations. The practice seems to show that the Vienna Convention on the Law of Treaties regime is sufficient in this respect and that emphasis should be put on the scope of the effects of the reservation, rather than on the qualification issue.

We are not sure whether in the practice of States, namely in that that we know better and follow closely in forums within the European Union or the Council of Europe, where these issues are regularly discussed and views exchanged, a single direction can be pointed out.

Two issues, we believe, contribute to this effect. First, the fact that the Vienna Convention on the Law of Treaties is itself silent in this respect, whereas, on the other hand it provides clear provisions regarding the validity and invalidity of treaties in articles 46 and following.

The second one has to do with the specific and contractual nature of the institute of reservations and the central role that the Vienna Convention confers upon States that are parties to the treaty to monitor this system, in the absence (in most instances) of a third party independent body.

More significantly, the fact that a State does not object to a reservation does not necessarily mean that it considers a reservation as valid. If no State objects to a reservation this does not necessarily mean that the reservation is valid, whereas the converse is also true.

Silence on the part of States, the guardians of the integrity of the treaty, cannot be transformed into an implicit system of validation of reservations.

Mr. Chairman,

Turning specifically to the guidelines, while we agree with the general thrust of the proposals of the Special Rapporteur, some comments are warranted in our view.

For instance, Guideline 3.1.5 on the "Definition of the object and purpose of the treaty" could result better if combined with what is said in paragraph 375 of the Report of the ILC. That is to say, in order to better define what is the raison d'être, room has to be left for doctrine and case law to turn a subjective definition into an objective one.

Likewise and for the same purpose, Guideline 3.1.6 on "Determination of object and purpose of the treaty", that recalls articles 31 and 32 of the Vienna Convention on the Law of Treaties, could be merged with the previous one, or otherwise seems superfluous. The discussions in the Commission also point in this direction.

With regard to Guideline 3.1.13 on "Reservations to treaty clauses containing dispute settlement or the monitoring of the implementation of the treaty", we would like to make to following remarks:

In our view, it is preferable to maintain the issues of reservations and dispute settlement separate or, in other words, treat these reservations just like other reservations.

On the one hand, we agree that it would be an ideal solution, on the other hand, we note that many times States accept being parties to a treaty if they can exclude the dispute settlement or implementation mechanism.

It even happens in practice that a State that has a reservation to such mechanism accepts it in a case by case basis and without revoking the reservation.

On the contrary, if the guideline is maintained we fear that many States would hesitate in participating in the treaty because they are not allowed to make a reservation excluding the dispute settlement or implementation mechanism and this can undermine the quest for universality in multilateral conventions.

Regarding Guideline 3.1.7 on "Vague and general reservations", while we are of the view that the practice should be discouraged, the automatic qualification of such reservations as incompatible with the object and purpose of the treaty seems, at first sight, too severe.

Finally, while we agree with the proposals set forth in Guideline 3.1.8 on "Reservations to a provision that sets forth a customary norm", it will be interesting to follow if and how such guideline will encompass future practice.

II. Specific issues on which comments would be of particular interest to the Commission

Allow me now, Mr. Chairman, to turn to my second point which deals with the specific issues that the ILC is interested in comments from the States with regard to the present topic.

Concerning the practice of objecting to reservations relating to treaties which States do not oppose to the entry into force, my delegation recognises that it is our most common objection to a reservation. Portugal objects normally under article 20 (4) (c) and not under 20 (4) (a) of the Vienna Convention; that is what we can call a "simple" objection (by opposition to "qualified" objection).

The expected legal effects are merely the ones that result from article 21 (3) of the Convention, which are that the provision subject to a reservation does not apply to in the relations between the author of the reservation and that the one that objects the said reservation.

Mr. Chairman,

We do understand the range of the question of the Special Rapporteur concerning the compatibility between the practice referred above and article 19 (c) of the Vienna Convention. In fact, presenting a "simple" objection to a reservation invoking its incompatibility with the object and purpose of the treaty may seem a contradiction in terms.

It was the Vienna Convention, and their authors, that opened up the possibility to have such an outcome when a State presents a simple objection even when considering the reservation not compatible with the end and the purpose of a given treaty. That is simply what results from the combined regime of articles 19 (c), 20 (4) (c) and 21 (3).

This scenario, seen with a simple look seems incoherent. And that maybe the result of less thoughtful established practise or, alternatively, when States want to substantiate the reservation in the legal regime of the Vienna Convention. We must be aware that sole article 19 provides legal ground for it in its paragraph (c).

The Special Rapporteur work on the topic seems to open up a "door" that most States have been overlooking: the one that allows the States to object reservations for other reasons than the one provided in article19 (c). And this can be a way to explore in the future, since the Vienna Convention is silent on the possible grounds for objections.

In spite of this, the practice at stake can somehow and sometimes be useful for States.

Firstly, "simple" objections to reservations grounded in the incompatibility with the object and the purpose of the treaty do not mean necessarily that the two States are automatically left with a non-treaty, since the object and purpose of a treaty may be a sum of different equally important parts.

Secondly, a State may consider the reservation totally offensive of the object and the purpose of the treaty but prefers to present a "simple" objection in order to maintain the reserving State within the treaty with respect to itself.

Thirdly, the use of "simple" reservations grounded in article 19 (c) may too serve political reasons, for example, to dramatize the objection (especially if done simultaneously by a significant group of States) in order to lead the reserving State to modify or withdraw the reservation.

We think, although the appropriateness of the reasoning of the Special Rapporteur, a careful approach in this field is indispensable: it is fundamental to have some flexibility in the legal regimes concerning the celebration of treaties, where States feel comfortable in having options regarding some institutes.

A flexibility that goes so far that allows the same multilateral treaty to shelter within it several bilateral relationships between State parties. If it was not like this, the different legal and political approaches from States would keep them away from ratification.

As more universal an instrument aspires, probably the more different bilateral relationships it shelters. And reservations are one of the legal institutes that easily lead to a phenomenon like this.

Mr. Chairman,

Allow me to terminate my delegations' intervention today by expressing support for the Special Rapporteur's desire to organise a meeting at the next session with all the human rights treaty bodies. Like other delegations, we believe that this meeting could be very interesting and look forward to hear about its results.

Thank you, Mr. Chairman.