REPUBLIC OF HUNGARY

PERMANENT MISSION TO THE UNITED NATIONS

227 EAST 52nd STREET, NEW YORK, N.Y. 10022

55th SESSION

OF THE UNITED NATIONS GENERAL ASSEMBLY

SIXTH COMMITTEE

AGENDA ITEM

REPORT OF THE INTERNATIONAL LAW COMMISSION

ON THE WORK OF ITS 52^nd SESSION

CHAPTER VII

RESERVATION TO TREATIES

STATEMENT BY

H. E. AMBASSADOR DR. GYÖRGY SZÉNÁSI

HEAD OF THE INTERNATIONAL LAW DEPARTMENT

MINISTRY FOR FOREIGN AFFAIRS

NEW YORK

NOVEMBER 1, 2000

Mr. Chairman,

The Hungarian delegation has listened with great interest to the introductory statement made by the distinguished Chairman of the ILC, Ambassador Yamada, on the topic of "Reservations to treaties". Continuous attention to this item is justified by both the importance of its subject matter that has a direct bearing on the basic tenets of the law of treaties and, also, by the far-reaching implications of the related State practice. I take this opportunity to congratulate Professor Alain Pellet for his excellent fifth report on this very complicated subject-matter.

We note with satisfaction that both the Special Rapporteur and the International Law Commission have continued to uphold their ultimate goal of producing a Guide to Practice relating to the legal régime of reservations and interpretative declarations. We agree with the Special Rapporteur that the Guide to Practice would merely systematise the prevailing State practice. We also share his view that reservations and their alternatives are useful in that they may be conducive to States becoming party to multilateral treaties and thereby contributing to the general acceptance of international legal norms.

Mr. Chairman,

I would like to address a few issues contained in the fifth report of the Special Rapporteur (A/CN.4/508 and Add. 1-4).

My delegation welcomes with satisfaction the overview by the Special Rapporteur of the activities of some important legal regional bodies in this field. Being a member of the Committee of Legal Experts in Public International Law (CAHDI) of the Council of Europe, I could attest to the great attention with which the issue of reservations has been considered in this framework. The Special Rapporteur has rightly pointed to the document adopted in Berlin last March concerning the "Guide to practice concerning reservations to international treaties". The consideration of this document by the last session of CAHDI led again to a very fruitful exchange of views in Strasbourg.

We also note with satisfaction that five important guidelines on reservations have been adopted by the Commission, with commentaries. We agree with the approach taken by the Special Rapporteur and that of the Drafting Committee that in each of the guidelines, international organisations - in addition to States - are also included as major actors in the field of making reservations or statements to treaties. This approach rightly reflects the increasing role and importance played by international organisations in law-making, and we cannot but endorse this encouraging trend in international relations.

The Hungarian delegation has no major difficulty in accepting the content and wording of the five guidelines as contained in the Report. In addition to our endorsement of the five guidelines, we also take note of the texts of the commentaries based on thorough research and analysis. I would nevertheless like to make some comments on one of the aspects of the commentary attached to the first guidelines on the "Reservations made under exclusionary clauses".

The commentary to this guideline devotes almost ten pages of survey and analysis to the practice of the International Labour Organisation in this field. We duly note that the position of the ILO has been highlighted by eminent international lawyers. According to this, reservations to international labour Conventions are incompatible with the object and purpose of these Conventions. The procedural arrangements concerning reservation are entirely inapplicable to the ILO by reason of its tripartite character as an organisation in which "representatives of employers and workers" enjoy "equal status with those of governments." On the other hand, the commentary points out that ILO member States are entitled and, at times, even required to attach optional or compulsory declarations when they ratify the instruments concerned. The conclusion of the Commission states that the reasoning of the ILO "reflects a respectable tradition, but is somewhat less than convincing", because, among other reasons, "the position traditionally taken by ILO reflects a restrictive view of the concept of reservations which is not reflected in the Vienna Conventions and the present Guide to Practice."

Mr. Chairman,

There is no need for the Hungarian delegation to defend the position and practice of the ILO in the field of reservations. We do believe, however, that the system should be flexible enough to incorporate specific rules in this field, especially in certain cases. In our view, such is the case with the ILO Constitution by which a sui generis tripartite system was created with the participation of representatives of States, employers and employees. Furthermore, I would like to add two more arguments in favour of some flexibility:

First, there are indeed important examples when the treaty itself prohibits reservations (e.g. The United Nations Convention on the Law of the Sea, as well as the Rome Statute of the International Criminal Court). We believe that these prohibitions are more the result of an intentional choice rather than of a terminological vagueness. In this regard, my delegation cannot share one of the arguments put forward by the Commentary on page 238 of the Report. In that case the Special Rapporteur says and I quote: "…. the fact that certain multilateral conventions prohibit any reservations while allowing some statements which may be equated with exclusionary clauses (see Art. 124 of the Statute of the International Criminal Court) is not in itself decisive, it too no doubt more the result of terminological vagueness than of an intentional choice aimed at achieving specific legal effects." As I just said, Mr. Chairman, it was indeed a deliberate choice in Rome to make a distinction between reservations and some statements by which certain parts of the Statute will not be obligatory for those States which are going to make such statements.

Second, the very definition of the reservations made under exclusionary clauses contains an important reference to a clause in the treaty which should authorise the parties "to exclude or to modify the legal effect of certain provisions….". As far as the opt-in or opt-out clauses are concerned, the second and third guidelines themselves underline that this kind of restriction, condition or choice does not fall within the scope of the present Guide.

Mr. Chairman,

Finally, I would like to deal with that part of the Report of the Special Rapporteur which, due to time-constraints, has not been considered by the ILC, but was nevertheless introduced by him. We recall that this second part of the fifth Report is dealing mainly with procedural matters regarding reservations and interpretative declarations, beginning with their formulation.

The Hungarian delegation wishes to express its appreciation once again to Professor Alain Pellet for this excellent second part of his report and for his introductory statement made in the Commission on 3 August 2000. In general, we agree with his approach, addressing mainly those questions concerning reservations and declarations which have been left pending both in theory and practice. At this juncture, we wish to make only a few comments on this part of the Report:

We agree with the Special Rapporteur that the rule formulated by the Vienna Convention of 1969 on the formal confirmation of a reservation when expressing consent to be bound was "more akin to the progressive development of international law, but, since then, had become a generally accepted rule…". We also agree with him that this rule has, nevertheless, its advantages and disadvantages. As for the latter, this rule tends to discourage States from formulating reservations at the time of the adoption or signing of a treaty. For these reasons, we agree with guideline 2.2.2., concerning "Reservations formulated when negotiating, adopting or authenticating the text of the treaty and formal confirmation."

The Hungarian delegation also feels that one of the most important novelties, which are highlighted in the second part of the Report of the Special Rapporteur, is the problem of late reservations. This issue certainly deserves our full attention in view of the practice of several depositories in this field, particularly the one followed by the Secretary-General of the United Nations. The guidelines on reservations formulated late, acceptance of and objections to such reservations do indeed reflect the developing practice of States and international organisations. At the same time, we also share the view of the Special Rapporteur that the overall formulation of these rules will also have to do more with the progressive development of international law than with codification in its strict sense.

Thank You Mr. Chairman.