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Statement by Mr. MA Xinmin at the Sixth Committee of the 61st Session of the UN General Assembly on Item 78: Report of the International Law Commission on the work of its fifty-eighth session (Reservations to Treaties, Unilateral Acts of States)

2006-10-31 00:00

Mr. Chairman,

I'd like to make a statement on the two topics of reservations to treaties and unilateral acts of states.

1. Reservations to Treaties

At its 58th session held this year, the International Law Commission continued its consideration of the 10th report of the Special Rapporteur, focusing on "competence to rule on the validity of reservations", "consequences of the non-validity of reservations" and the Special Rapporteur's supplementary report on the definition of the "object and purpose of the treaty." We'd like to express our appreciation to Mr. Alain Pellet, the Special Rapporteur, for his outstanding work. Now, I would like to make some brief comments on several issues in this connection.

(1) Treaty implementation monitoring bodies' competence to rule on the validity of reservations. Draft guideline 3.2 stipulates that those competent to rule on the validity of reservations include the contracting parties, treaties' dispute settlement bodies, and treaty implementation monitoring bodies. In our view, the function given by the draft guidelines to treaty bodies of ruling on the validity of reservations exceeds the usual function of assessment of treaty bodies, and goes beyond relevant provisions of the Convention on the Law of Treaties and state practice. Acceptance or objection of contracting parties to a reservation usually has substantive impacts on the effect of the reservation; whereas treaty bodies, in performing their functions, are concerned with treaty implementation based on established treaty relationship, instead of the readjustment of treaty relationship. Therefore, we propose to delete subparagraph 3 of draft guideline 3.2 on treaty bodies as well as draft guidelines 3.2.1, 3.2.2, and 3.2.3.

(2) Relationships among bodies competent to rule. Draft guideline 3.2.4 stipulates that a ruling by a treaty implementation monitoring body neither excludes nor affects rulings made by other contracting parties and dispute settlement bodies. We believe that first, as stated above, treaty bodies should not have the competence to rule on the validity of reservations. At the same time, in practice, different entities competent to rule may assess the same reservation differently, thereby resulting in conflicts and contradictions in treaty relationship. Therefore, we believe that the conclusion contained in draft guideline 3.2.4 is over subjective and not helpful to the resolution of practical problems. It is necessary to further study the relationship among the competences to rule of different entities and the hierarchy therein.

(3) Consequences of the non-validity of reservations. Draft guidelines 3.3 to 3.3.4 contain provisions on the legal consequences of situations in which reservations may not be formulated. In our view, the provisions in this part are not mature, and many view points need to be further discussed.

Draft guideline 3.3.2 stipulates that a reservation which may not be formulated is null and void and draft guideline 3.3.3 stipulates that the unilateral acceptance by a contracting party of a reservation shall not change the nullity of the reservation. In our view, the question concerning a reservation is more one of whether a reservation may be formulated or not, rather than that of validity or non-validity. According to the principle of voluntarism of treaties, other contracting parties are free to decide whether to accept a reservation of a party or not in order to determine their treaty relations with that party. In cases where some contracting parties accept a reservation while some other contracting parties object to it, it is difficult to say that the reservation is invalid from the beginning.

Paragraph 2 of draft guideline 3.3.4 stipulates that the treaty depository shall draw the attention of the relevant parties to the substance of the legal issues caused by a reservation. In our view, this provision is intended to make the treaty depository competent to judge on substantive legal issues and is thus not in accord with the idea that the depository's competence should mainly be confined to procedures. Therefore, we propose to delete this paragraph.

(4) The object and purpose of the treaty. We have noted that the Special Rapporteur put forward a new definition of the "object and purpose of the treaty." His efforts in this regard merit our appreciation. At the same time, we are of the view that in formulating this definition, it is necessary to further clarify the relationship between reservations, the raison d'etre and essential provisions of a treaty on the one hand and its object and purpose on the other.

(5) The issue of terminology. Since our study is based on Article 19, "Formulation of Reservations," of the 1969 Vienna Convention on the Law of Treaties, we have always believed that in the context of the study on this topic, the terms "validity" and "invalidity" should mean whether a reservation may be formulated or not. The formulation of reservations and the validity of reservations are two different concepts. Whether a reservation may be formulated or not does not automatically involve the issue of validity of the reservation itself. Since the Commission has already started the study on the consequences of the non-validity of reservations, in other words, legal effects of reservations which should not have been formulated, the use in the draft guidelines of the term "valid" or "validity" in regard to both the formulation of reservations and the validity of reservations will conceptually confuse "formulation" with "validity." We propose that the Commission should consider using different terms for these two different issues.

2. Unilateral Acts of States

As a result of a dozen years' efforts, the International Law Commission produced the "Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations" during this session, thus completing the consideration of this topic. We wish to express our congratulations to the Commission for this achievement.

With a very limited scope of application, the Guiding Principles are applicable only to unilateral acts stricto sensu in the strict sense, that is, states' unilateral acts in the form of formal declarations made on the basis of the states' subjective intention to assume international obligations. The application does not extend to unilateral declarations made under international law (such as a state's declaration, made under international law, on the limit of its territorial sea or a state's act of formulating a reservation to a treaty under the law of treaties), nor does it extend to unilateral acts intended to create rights under international law. Nevertheless, the adoption of the Guiding Principles is still of positive significance to the development of international law. To some extent, the Guiding Principles have clarified the specific state acts that may produce international obligations, and therefore may produce direct effects on international relations, thus helping to constrain state's willful acts, minimizing the occurrence of unintended legal consequences, and enhancing stability and predictability in international relations.

Thank you, Mr. Chairman.

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