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2.8.12 Final nature of acceptance of a reservation |
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Acceptance of a reservation cannot be withdrawn or amended. Commentary Although they deal with objections, neither the 1969 nor the 1986 Vienna Convention |
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contains provisions concerning the withdrawal of the acceptance of a reservation. They neither authorize it nor prohibit it. (2) The fact remains that article 20, paragraph 5, of the Vienna Conventions and its ratio legis logically exclude calling into question a tacit (or implicit) acceptance through an objection formulated after the end of the 12-month time period stipulated in that paragraph (or of any other time period specified by the treaty in question): to allow a "change of heart" that would call into question the treaty relations between the States or international organizations concerned to be expressed several years after the intervention of an acceptance that came about because a contracting State or an international organization remained silent until one of the "critical dates" had passed would pose a serious threat to legal certainty. While States parties are completely free to express their disagreement with a reservation after the end of the 12-month period (or of any other time period specified by the treaty in question), their late "objections" can no longer have the normal effects of an objection, as provided for in article 20, paragraph 4 (b), and article 21, paragraph 3, of the Vienna Conventions. A comparable conclusion must be drawn with regard to the question, of widening the scope of an objection to a reservation. (3) There is no reason to approach express acceptances any differently. Without there being any need for an in-depth analysis of the effects of an express acceptance - which are no different from those of a tacit acceptance - suffice it to say that, like tacit acceptances, the effect of such an acceptance would in theory be the entry into force of the treaty between the reserving State or international organization and the State or international organization that has accepted the reservation and even, in certain circumstances, among all States or international organizations that are parties to the treaty. It goes without saying that to call the legal consequences into question a posteriori would seriously undermine legal certainty and the status of the treaty in the bilateral relations between the author of the reservation and the author of the acceptance. This is certainly true where acceptance has been made expressly: even if there is no doubt that a State's silence in a situation where it should have expressed its view has legal effects by virtue of the |
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(1) |
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principle of good faith (and, here, the express provisions of the Vienna Conventions), it is even more obvious when the State's position takes the form of a unilateral declaration; the reserving State, as well as the other States parties, can count on the manifestation of the will of the State author of the express acceptance. (4) The dialectical relationship between objection and acceptance, established and affirmed by article 20, paragraph 5, of the Vienna Conventions, and the placement of controls on the objection mechanism with the aim of stabilizing the treaty relations disturbed, in a sense, by the reservation necessarily imply that acceptance (whether tacit or express) is final. This is the principle firmly stated in guideline 2.8.12 in the interests of the certainty of treaty-based legal relations, even though some members of the Commission contended that it would have been preferable for a State to be able to go back on a previous acceptance provided that the 12-month period set in guideline 2.6.13 had not expired. 2.9 Formulation of reactions to interpretative declarations 2.9.1 Approval of an interpretative declaration "Approval" of an interpretative declaration means a unilateral statement made by a State or an international organization in reaction to an interpretative declaration in respect of a treaty formulated by another State or another international organization, whereby the former State or organization expresses agreement with the interpretation proposed in that declaration. |
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(1) |
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Commentary It appears that practice with respect to positive reactions to interpretative declarations is |
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virtually non-existent, as if States considered it prudent not to expressly approve an interpretation given by another party. This may be due to the fact that article 31, paragraph 3 (a), of the Vienna Conventions provides that, for the interpretation of a treaty,, "There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions." (2) The few instances of express reactions that can be found combine elements of approval and disapproval or have a conditional character, subordinating approval of the initial interpretation to ... the interpretation given to it by the reacting State. |
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(3) For example, Multilateral treaties deposited with the Secretary-General includes a text submitted by Israel reacting positively to a declaration submitted by the Arab Republic of Egypt 640 concerning the United Nations Convention on the Law of the Sea: "The concerns of the Government of Israel, with regard to the law of the sea, relate principally to ensuring maximum freedom of navigation and overflight everywhere and particularly through straits used for international navigation. In this regard, the Government of Israel states that the regime of navigation and overflight, confirmed by the 1979 Treaty of Peace between Israel and Egypt, in which the Strait of Tiran and the Gulf of Aqaba are considered by the Parties to be international waterways open to all nations for unimpeded and non-suspendable freedom of navigation and overflight, is applicable to the said areas. Moreover, being fully compatible with the United Nations Convention on the Law of the Sea, the regime of the Peace Treaty will continue to prevail and to be applicable to the said areas. It is the understanding of the Government of Israel that the declaration of the Arab Republic of Egypt in this regard, upon its ratification of the [said] Convention, is ~onsonant with the above declaration."641 It appears from this declaration that the interpretation put forward by Egypt is regarded by Israel as correctly reflecting the meaning of chapter III of the Montego Bay Convention, assuming that it is itself compatible with the Israeli interpretation. The Egyptian interpretation is, in a manner of speaking, confirmed by the reasoned "approbatory declaration" made by Israel. |
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640 "The provisions of the 1979 Peace Treaty between Egypt and Israel concerning passage through the Strait of Tiran and the Gulf of Aqaba come within the framework of the general regime of waters forming straits referred to in part III of the Convention, wherein it is stipulated that the general regime shall not affect the legal status of waters forming straits and shall include certain obligations with regard to security and the maintenance of order in the State bordering the strait" (Multilateral Treaties ..., (footnote 532 above), chap. XI.6). 641 Ibid. In fact, this statement expresses approval of both the classification and the substance of the Egyptian declaration; given the formulation of these declarations, it may be wondered whether they might have been made as a result of a diplomatic agreement. |
incorporated by the Drafting Committee in the provisional text of article 17, this passage was ultimately deleted from the final text of the Convention by the Committee of the Whole "on the understanding that the question of objections to reservations to constituent instruments of international organizations formed part of a topic already before the International Law Commission [the question of relations between international organizations and States], and that meanwhile the question would continue to be regulated by general international law". 636 it became apparent in the work of the Drafting Committee that the formulation of the American amendment was not very clear and left open the question of the legal effects of such an objection. 637 (4) In actual fact, it is hard to understand why member States or international organizations could not take individual positions on a reservation outside the framework of the international organization and communicate their views to interested parties, including to the organization. In all likelihood, taking such a position would probably have no concrete legal effect; however, it has happened more than once, and the absence of a legal effect stricto sensu of such declarations does not rob them of their importance638 - they provide an opportunity for the reserving State, in the first instance, and, afterward, for other interested States, to become aware of and assess the position of the State that is the author of the unilaterally formulated acceptance or objection, and this, in the end, could make a useful contribution to the debate within the competent organ of the organization and could also form the basis for launching a "reservations dialogue" among the protagonists. Such a position might also be taken into consideration, where appropriate, by a third party who might have to decide on the permissibility or scope of the reservation. (5) In the Commission's opinion, guideline 2.8.11, which does not question the necessary and sufficient nature of the acceptance of a reservation by the competent organ of the international organization,639 is in no way contrary to the Vienna Conventions, which take no position on this matter. |
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636 Documents of the Conference (A/CONF.39/11/Add.2) (footnote 557 above), pp. 137-138, para. 186. 63 Summary Records (A/CONF.39/1 1) (footnote 567 above), 72nd meeting, 15 May 1968, pp. 425-426, paras. 4-14. 638 See also Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), p. 218 on "pre-emptive objections". 639 See article 20, para. 3, of the Vienna Conventions and guideline 2.8.7. |
