Statement by Mrs. Aino Lepik von Wirén, Undersecretary for Legal and Consular Affairs in the Sixth Committee of the 63rd UNGA on the Report of the International Law Commission of its 60th session
At the outset, Mr. Chairman, allow me to congratulate you on your election as the Chairman of the Sixth Committee. I also would like to congratulate the other members of the Bureau on their election.
Before addressing the specific topic of my today’s intervention concerning the reservations to treaties I would like to take this opportunity to thank the International Law Commission for its excellent work and valuable contribution to the codification and development of the international law and the international lawmaking process.
Let me now turn to the topic on reservations to treaties. Estonia has been following with great interest the report on this issue. While strongly underlining the importance of the topic we would like to express our appreciation for the work done by the International Law Commission on the subject from 1993 onwards and we are looking forward to the final outcome. We would also like to thank the Special Rapporteur Mr. Alain Pellet for his valuable contribution in this process. We hope that the International Law Commission will be able to finish the work on this topic very soon and the Guide to Practice will be a valuable tool for States working on reservations, declarations and objections.
The topic on reservations to treaties is clearly very interesting and in many ways useful. But as also indicated in the reports of the International Law Commission and in the reports of the Special Rapporteur Mr. Pellet, in certain areas it may also be controversial.
We are convinced that the Member States of the United Nations need competent guidelines for everyday use. Therefore we appreciate the work of the International Law Commission done so far, especially on the parts 2.3 (late reservations), 2.4 (procedure for interpretative declarations) and 3.1 (permissible reservations) as they are controversially discussed in the literature and greater clarity will certainly be welcomed by the users of the guidelines. The Guide to Practice is already now a valuable source for aspects which are either not regulated or not regulated sufficiently in the Vienna Conventions on the Law of Treaties.
Nevertheless, in our opinion there are still some disputable aspects. For example, we have some legal concerns regarding the late reservations. We believe that late reservations can not be made as the Vienna Conventions on the Law of Treaties provide that the reservation can only be made when signing, ratifying, accepting, approving or acceding to a treaty. On this basis Estonia and some other States made objections to one late reservation last September. However, we find it satisfactory to see, that the International Law Commission’s report still preserves the possibility to object to the late formulation of a reservation, with the consequence that the reservation will not have any legal effect.
Having made the general comments on the Guide to Practice, I will now turn to the report of the 60th session of the International Law Commission concerning reservations. We would like to welcome the subject of the last report as it is of great interest to my delegation. The result of the study will definitely bring clarity to the regulations concerning the interpretative declarations which are not addressed by the Vienna Conventions on the Law of Treaties.
We are encouraged to see that the report is dealing with the topic of reclassification. The reclassification is quite often used in the states practice and certain guidelines on this subject would be very much appreciated. However, we do not fully agree with the presumption put forward in the guideline 2.9.4 that there is no time limit for the formulation of reclassification. Estonia would in its practice rather tend to presume the 12-month deadline as it is the case in objections to reservations and as this principle has already been applied in practice.
Furthermore, we have some doubts whether it is justified to qualify the declarations which purpose is to modify the legal effects of a treaty – the so called conditional interpretative declarations – as a subcategory of interpretative declarations. It seems to us that such kind of declaration resembles a reservation and could rather be qualified as a subcategory of reservations. Being of the opinion that interpretative declarations have the purpose to specify or bring some clarity to the meaning of some provisions without having a legal effect on the treaty relations and that conditional interpretative declarations have the purpose to modify the legal effects of the treaty, such a conclusion seems to be reasonable.
Finally, I would like to mention that in our view another very important aspect to Member States in connection with the topic of reservations to treaties is the question of the legal effect of the objection. We are convinced that the rules set forth in the Vienna Conventions on the Law of the Treaties need to be elaborated in the Guide of Practice to make it easier for States to reach the effect they wish to give to their objection. It seems to us that the legal effect the States often wish to give to their objections is not the same as described in the Vienna Conventions. The state practice is a confirmation of the mentioned phenomenon since the objections often include the expression “the convention will be operative between the two states without benefiting from the reservation”. Probably there is even a new customary law rule which modifies the rules described in the Vienna Conventions. Indeed, we are satisfied that the International Law Commission has taken this aspect under its consideration.
In concluding, I would like to assure Estonia’s support to the work on the topic of reservations to treaties. We hope to continue contributing to the work of the International Law Commission in the future. Today we have already pointed out some aspects we are concerned with and where we think a further elaboration is needed. We hope that a comprehensive Guide to Practice will be available for the Member States of the United Nations soon.
Thank you for your attention.