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reservations of treaties in international law

75 and 76, and Add.1. At its fifty-fourth session, in 2002, the Commission had before it the Special Rapporteur’s seventh report31 relating to the formulation, modification and withdrawal of reservations and interpretative declarations. In addition, he proposed three revised draft guidelines: 2.4.3 (Time at which an interpretative declaration may be formulated or modified), 2.4.6 (Late formulation or modification of an interpretative declaration), and 2.4.8 (Late formulation or modification of a conditional interpretative declaration),36 so as to accommodate modification alongside the formulation of interpretative declarations. At its forty-eighth session, in 1996, the Commission had before it the Special Rapporteur’s second report8 as well as a bibliography.9 The report dealt with the issue of the unity or diversity of the legal regime of reservations to treaties, especially reservations to human rights treaties. While the former governs the effect of unilateral undertakings by States, the latter governs, inter alia, the formation, interpretation, termination, and suspension of treaties.In 2011, the International Law Commission (ILC) concluded a two-decade study on reservations. 67 See Official Records of the General Assembly, Sixty-sixth session, Supplement No. After considering the report, the Commission decided to refer to the Drafting Committee the following proposed draft guidelines: 2.3.5 (Enlargement of the scope of a reservation), 2.4.9 (Modification of interpretative declarations), 2.4.10 (Modification of a conditional interpretative declaration), 2.5.12 (Withdrawal of an interpretative declaration) and 2.5.13 (Withdrawal of a conditional interpretative declaration).37, At the same session, the Commission provisionally adopted the following eleven draft guidelines (with three model clauses) as well as the commentaries thereto: 2.5.1 (Withdrawal of reservations), 2.5.2 (Form of withdrawal), 2.5.3 (Periodic review of the usefulness of reservations), 2.5.4 [2.5.5] (Formulation of the withdrawal of a reservation at the international level), 2.5.5 [2.5.5 bis, 2.5.5 ter] (Absence of consequences at the international level of the violations of internal rules regarding the withdrawal of reservations), 2.5.6 (Communication of withdrawal of a reservation), 2.5.7 [2.5.7, 2.5.8] (Effect of withdrawal of a reservation), 2.5.8 [2.5.9] (Effective date of withdrawal of a reservation, including model clauses A, B and C), 2.5.9 [2.5.10] (Cases in which a reserving State or international organization may unilaterally set the effective date of withdrawal of a reservation), 2.5.10 [2.5.11] (Partial withdrawal of a reservation) and 2.5.11 [2.5.12] (Effect of a partial withdrawal of a reservation).38. At its forty-seventh session, in 1995, the Commission had before it the first report4 of the Special Rapporteur. The Special Rapporteur proposed the following draft guidelines: draft guidelines: 2.1.7 bis (Case of manifestly impermissible reservations), 2.5.1 (Withdrawal of reservations), 2.5.2 (Form of withdrawal), 2.5.3 (Periodic review of the usefulness of reservations), 2.5.4 (Withdrawal of reservations held to be impermissible by a body monitoring the implementation of a treaty), three alternative versions of guideline 2.5.5 (Competence to withdraw a reservation at the international level; the third version entitled “Competence to withdraw a reservation”), 2.5.5 bis (Competence to withdraw a reservation at the internal level), 2.5.5 ter (Absence of consequences at the international level of the violation of internal rules regarding the withdrawal of reservations), two alternative versions of guideline 2.5.6 (Communication of withdrawal of a reservation), 2.5.6 bis (Procedure for communication of withdrawal of reservations), 2.5.6 ter (Functions of depositaries), 2.5.7 (Effect of withdrawal of a reservation), 2.5.8 (Effect of withdrawal of a reservation in cases of objection to the reservation and opposition to entry into force of the treaty with the reserving State or international organization), 2.5.9 (Effective date of withdrawal of a reservation, including model clauses A, B and C), 2.5.10 (Cases in which a reserving State may unilaterally set the effective date of withdrawal of a reservation), 2.5.11 (Partial withdrawal of a reservation), 2.5.11 bis (Partial withdrawal of reservations held to be impermissible by a body monitoring the implementation of a treaty), 2.5.X (Withdrawal of reservations held to be impermissible by a body monitoring the implementation of a treaty) and 2.5.12 (Effect of a partial withdrawal of a reservation). The Special Rapporteur also proposed a draft resolution of the International Law Commission on reservations to normative multilateral treaties, including human rights treaties, which was addressed to the General Assembly for the purpose of drawing attention to and clarifying the legal aspects of the matter. The Special Rapporteur also tentatively proposed the following draft guidelines concerning the distinction between reservations and interpretative declarations: 1.3.0 (Criterion of reservations), 1.3.0 bis (Criterion of interpretative declarations) and 1.3.0 ter (Criterion of conditional interpretative declarations). 10 (A/65/10), para. 2 Preface to the Series: Introduction to the Laws of Iraq and Iraqi Kurdistan Iraq and Iraq's Kurdistan Region is at a compelling juncture in their histories. The Special Rapporteur proposed the following draft guidelines: 2.2.1 (Reservations formulated when signing and formal confirmation), 2.2.2 (Reservations formulated when negotiating, adopting or authenticating the text of the treaty and formal confirmation), 2.2.3 (Non-confirmation of reservations formulated when signing [an agreement in simplified form] [a treaty that enters into force solely by being signed]), 2.2.4 (Reservations formulated when signing for which the treaty makes express provision), 2.3.1 (Reservations formulated late), 2.3.2 (Acceptance of reservations formulated late), 2.3.3 (Objection to reservations formulated late), 2.3.4 (Late exclusion or modification of the legal effects of a treaty by procedures other than reservations), 2.4.3 (Times at which an interpretative declaration may be formulated), 2.4.4 (Conditional interpretative declarations formulated when negotiating, adopting or authenticating or signing the text of the treaty and formal confirmation), 2.4.5 (Non-confirmation of interpretative declarations formulated when signing [an agreement in simplified form] [a treaty that enters into force solely by being signed]), 2.4.6 (Interpretative declarations formulated when signing for which the treaty makes express provision), 2.4.7 (Interpretative declarations formulated late) and 2.4.8 (Conditional interpretative declarations formulated late). 480. The central principle of treaty law is … 8 Document A/CN.4/477 and Add.1 (see Analytical Guide). 38 See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. The Commission also provisionally adopted the titles of sections 2.8 and 2.9. b)The treaty provides that only specified reservations may be made: c)The reservation is incompatible with the object and purpose of the treaty (the compatibility test). After considering the first part of the report, the Commission referred the proposed draft guidelines to the Drafting Committee.23, At the same session, the Commission provisionally adopted the following five draft guidelines as well as the commentaries thereto: 1.1.8 (Reservations made under exclusionary clauses), 1.4.6 [1.4.6, 1.4.7] (Unilateral statements made under an optional clause), 1.4.7 [1.4.8] (Unilateral statements providing for a choice between the provisions of a treaty), 1.7.1 [1.7.1, 1.7.2, 1.7.3, 1.7.4] (Alternatives to reservations) and 1.7.2 [1.7.5] (Alternatives to interpretative declarations).24 The Commission deferred consideration of the second part of the fifth report to the following session.25, At its fifty-third session, in 2001, the Commission again had before it the second part of the fifth report26 relating to questions of procedure regarding reservations and interpretative declarations. The second doctrine is the backlash doctrine. The regulation of fresh water has primarily developed through the conclusion of treaties concerning international watercourses. II (Part Two), para. At its fiftieth session, in 1998, the Commission had before it the Special Rapporteur’s third report,13 which dealt with the definition of reservations and interpretative declarations to treaties. Finally, it outlined the scope and form of the Commission’s future work, guided by the preservation of what had been achieved, and proposed the form that the results of the Commission’s work might take. 489. 2 See Yearbook of the International Law Commission, 1993, vol.II (Part Two), paras. 22 VCLT art 2. (see Analytical Guide). In principle, 21 Ibid. The law of treaties with regard to reservations is, in our experience, one of the hardest areas of law to grasp, teach, or condense and simplify without loss of accuracy. 329 and 330. On the basis of the report of the Drafting Committee, the Commission further considered and provisionally adopted draft guidelines 2.3.5 (“Widening of the scope of a reservation”), 2.4.9 (“Modification of an interpretative declaration”), 2.4.10 (“Limitation and widening of the scope of a conditional interpretative declaration”), 2.5.12 (“Withdrawal of an interpretative declaration”), and 2.5.13 (“Withdrawal of a conditional interpretative declaration”), with commentaries thereto.40. At its fifty-sixth session, in 2004, the Commission had before it the ninth report of the Special Rapporteur.39After considering the report, it decided to refer draft guidelines 2.6.1 “Definition of objections to reservations” and 2.6.2 “Objection to the late formulation of widening of the scope of a reservation” to the Drafting Committee. II (Part Two),para. The Commission also adopted the commentaries to the above-mentioned draft guidelines.60, Thus, the Commission was able to provisionally adopt the entire set of draft guidelines of the Guide to Practice on Reservations to Treaties (with commentaries).61 The Commission also indicated that it intended to adopt the final version of the Guide to Practice during its sixty-third session in 2011, taking into consideration the observations of States and international organizations as well as the organs with which the Commission cooperates, made since the beginning of the examination of the topic, together with further observations received by the Secretariat of the Commission before 31 January 2011.62, At the sixty-third session in 2011, the Commission had before it the seventeenth report of the Special Rapporteur,63 as well as comments and observations received from Governments64 on the provisional version of the Guide to Practice on Reservations to Treaties adopted by the Commission at its sixty-second session in 2010. Customary International Law is formed when states consistently act in a certain way (state practice) out of a sense of legal obligation (opinio juris). ISSUE: If too may reservations to a treaty then it could seriously dislocate the whole purpose of the agreement and lead to some complicated inter-relationships amongst states. Introduction. The Commission also considered and provisionally adopted draft guidelines 2.6.5 (Author [of an objection]), 2.6.11 (Non-requirement of confirmation of an objection made prior to formal confirmation of a reservation), 2.6.12 (Requirement of confirmation of an objection made prior to the expression of consent to be bound by a treaty) and 2.8 (Forms of acceptance of reservations) as well as commentaries to the above-mentioned draft guidelines.51, At the sixty-first session in 2009, the Commission had before it the fourteenth report52 of the Special Rapporteur.The Commission also had before it a memorandum by the Secretariat on reservations to treaties in the context of succession of States.53 The Commission considered and provisionally adopted draft guidelines 2.8.1–2.8.11, as well as draft guidelines 2.4.0, 2.4.3 bis, 2.9.1–2.9.10 and 3.2, 3.2.1–3.2.5 and draft guidelines 3.3 and 3.3.1. 113. What is a Treaty? 46 See Official Records of the General Assembly, Sixty-first session, Supplement No.10 (A/61/10), paras. II (Part Two), para. 34 See Yearbook of the International Law Commission, 2002, vol. A reservation is a declaration by a state made upon signing or ratifying a treaty that the state reserves the right not to abide by certain provisions of the treaty.. Reservations are formally defined in Article 2.1(d) of the 1969 Vienna Convention on the Law of Treaties. 43 Document A/CN.4/558/Add.1 and Corr.1 and Corr.2 and Add.2 (see Analytical Guide). 638. The Commission noted that draft guidelines 1.3.0, 1.3.0 bis and 1.3.0 ter concerning the distinction between reservations and interpretative declarations were tentatively proposed by the Special Rapporteur for the purpose of determining a series of criteria stemming from the general definitions of reservations and interpretative declarations. Even when a reservation is not prohibited under Article 19(a), (b) or (c), other contracting states can still object to it for any reason of law or policy. 50 Document A/CN.4/586 (see Analytical Guide). 1. 10 (A/60/10), paras. 24 Chemical Weapons Convention (CWC) (adopted 3 September 1992, entered into force 29 April 1997) 1975 UNTS 45. The two draft guidelines were in square brackets pending a decision by the Commission on the fate of all of the draft guidelines on conditional interpretative declarations. Treaties, also called conventions, play the role of statutes in international legal research. The purpose of this chapter is to examine US treaty-making practice in the particular context of reservations to human rights treaties. 28 See Yearbook of the International Law Commission, 2001, vol. These guidelines would, if necessary, be accompanied by model clauses.5 In the view of the Commission, those conclusions constituted the results of the preliminary study requested by the General Assembly in resolutions 48/31 of 9 December 1993 and 49/51 of 9 December 1994.6 The Commission authorized the Special Rapporteur to prepare a detailed questionnaire on reservations to treaties to ascertain the practice of, and the problems encountered by, States and international organizations, particularly those which are depositaries of multilateral conventions.7. The Commission further considered and provisionally adopted draft guidelines 2.6.1 (Definition of objections to treaties) and 2.6.2 (Definition of objections to the late formulation or widening of the scope of a reservation) with commentaries thereto.42. 39 Document A/CN.4/544 (see Analytical Guide). 59 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 41 Document A/CN.4/558 and Corr.1, Add.1 and Add.1/Corr.1 (see Analytical Guide). The Commission also decided to continue its consideration of the tenth report during its fifty-eighth session (2006). Articles 19-23 govern the process of making and withdrawing reservations. 66 Document A/CN.4/647 and Add.1. Start studying International Law: treaties II reservations etc.. ... treaties concluded in order to deviate from rules of customary international law, or reservations made to treaty provisions imply underlying ius dispositivum. RESERVATION TO TREATIES : A reservation is defined in article 2 of the Convention as: “a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the … This covers both conventions concluded outside the Council of Europe, in particular those drawn up within the United Nations, and … Moreover, the Commission provisionally adopted draft guidelines 1.6 (Scope of definitions) and 2.1.8 [2.1.7 bis] (Procedure in case of manifestly invalid reservations) as redrafted. Reservations are formally defined in Article 2.1(d) of the 1969 Vienna Convention on the Law of Treaties. 20 See Yearbook of the International Law Commission, 1999, vol. 18 Document A/CN.4/478/Rev.1 (see Analytical Guide). The General Assembly, in resolution 48/31 of 9 December 1993, endorsed the above decision of the International Law Commission on the understanding that the final form to be given to the work on the topic would be decided after a preliminary study was presented to the Assembly. 54 See Official Records of the General Assembly, Sixty-fourth session, Supplement No.10 (A/64/10), paras. 10 (A/59/10), paras. II (Part Two), para. After considering the report, the Commission referred the proposed guidelines to the Drafting Committee.30. make reservations to an international treaty illustrates the principle of sovereignty of states.”6 As a matter of fact, the idea of state consent, which derives from sovereignty, is the main characteristic and the basis of international law. 294 and 295. Generally, it outlines, among other things, that: Reservations cannot be … 10 (A/58/10), paras. 1 The topic is very technical and the Guide itself gigantic, standing, together with its commentaries, at over 600 pages. Summaries of the Work of the International Law Commission Reservations to treaties 1. Yet a number of other legal regimes also apply to the governance of fresh water. WHAT IF SOMEONE OBJECTS ? After considering part of the report, the Commission referred draft guidelines 1.1, 1.1.1–1.1.8, 1.2 and 1.4 to the Drafting Committee.14, At the same session, the Commission provisionally adopted the following seven draft guidelines as well as the commentaries thereto: 1.1 (Definition of reservations), 1.1.1 [1.1.4]15 (Object of reservations), 1.1.2 (Instances in which reservations may be formulated), 1.1.3 [1.1.8] (Reservations having territorial scope), 1.1.4 [1.1.3] (Reservations formulated when notifying territorial application), 1.1.7 [1.1.1] (Joint formulation of a reservation) and a draft guideline with no title or number concerning the relation between the definition and the permissibility of reservations.16, At its fifty-first session, in 1999, the Commission again had before it part of the Special Rapporteur’s third report, which it had not had time to consider at its fiftieth session, the fourth report on the topic17 as well as a revised bibliography.18 In the fourth report, the Special Rapporteur continued the consideration of the definition of reservations and interpretative declarations and proposed a revised version of draft guideline 1.1.7 (1.1.7 bis) (Statements of non-recognition) which was already before the Drafting Committee. (Definition of objections to reservations), 2.6.1 bis (Objection to late formulation of a reservation) and 2.6.1 ter (Object of objections). Modern Treaty Law and Practice, pg. 1 At its forty-seventh session, in 1995, the Commission concluded that the title of the topic should be amended to read as above rather than “The law and practice relating to reservations to treaties”. The Guide will thus inevitably be of the greatest interest to those among us who deal with reservations regularly, for instance legal advisers in ministries of foreign affairs. The Commission recognized the need not to challenge the regime established in articles 19 to 23 of the 1969 Vienna Convention on the Law of Treaties, but nonetheless considered that these provisions could be clarified and developed in draft protocols to existing conventions or a guide to practice.2. 488. The General Assembly, in resolution 49/51 of 9 December 1994, again endorsed the decision of the Commission on the understanding reflected above. II (Part Two), para. HOW CAN WE FIND OUT WHETHER A INTEPRETATIVE DECLARATION CONSTITUTES AS RESERVATION ? II (Part Two), para. The Guide to Practice in the form of draft articles with commentaries would provide guidelines for the practice of States and international organizations in respect of reservations. Treaties are comparable to contracts, in the sense that both are means of willing parties assuming obligations among themselves. Entering into force on January 27, 1980, it is an international agreement between the states to govern and regulate treaties. The Commission concluded that the criteria were inherent in the definitions and that these three draft guidelines did not add a new element. 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