Guide State Participation in International Treaty Regimes

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Take the recent example of civil society advocacy on Malaysia's participation in the Transpacific Partnership TPP negotiations , where citizens demanded that they be involved in decision making. The TPP's investment chapter attracted particular attention. States negotiate investment treaties, and — depending on political systems — they provide the primary spaces for democratic accountability. International investment law also involves considerable authority being delegated to investor-state arbitral tribunals.

In El Salvador, civil society was able to access this process, submitting evidence to an investor-state arbitration related to a mining project. This shows how local to global civil society alliances can bring community perspectives to international arbitration processes.

The Birth of a Treaty

And as multiple states are grappling with similar challenges, there is considerable room for international lesson sharing and alliance building. So the sites of citizen action transcend the confines of nation states. The Malaysian case illustrates international alliance building at multiple levels — from sharing information and analysis among civil society groups in the 12 countries involved in TPP negotiations, through to joint letters calling for greater transparency signed by parliamentarians from different countries.

These two examples highlight the diversity of possible citizen engagement strategies — from engaging with individual arbitrations, to promoting systemic change in treaty making policies. They also reflect some of the dilemmas that civil society can face — engaging with a specific arbitration or negotiation, for example, might be perceived as lending legitimacy to a process or system that civil society organisations might not want to legitimise.

Significantly, harnessing law and politics and combining different approaches were important in both cases. In Malaysia, civil society advocacy ranged from public campaigning to directly engaging with government, and showed the value of creating alliances with politically influential social groups. In El Salvador, engagement with the legal process was also combined with social mobilisation to ensure key messages were heard.

Both experiences highlight the relevance of local-to-global alliances. In the El Salvador case, civil society engagement was underpinned by an alliance including grassroots groups based in the affected mining areas. In Malaysia, the diverse national coalition advocating on the TPP includes consumer groups, public health organisations and trade associations, creating a broad constituency. But coalitions of diverse interests can also be fragile. Malaysia's apparent determination to sign the TPP in the face of civil society advocacy shows the difficulties of achieving policy change on such politically sensitive issues.

Research can play an important role in facilitating lesson sharing and citizen debate. The combination of sensitive political choices and complex technical issues calls for both informed and inclusive debate.

The role of valuation and bargaining in optimising transboundary watercourse treaty regimes

In turn, this requires rigorous analysis of multiple considerations involved in concluding, renegotiating or terminating investment treaties. There is much scope for new collaborations that harness research and advocacy for greater citizen influence over policy choices affecting the future of international investment law. Lorenzo Cotula lorenzo. View the discussion thread. Improving the use of legal tools to strengthen local rights and voices in natural resource investments. More in this collection. Skip to main content. Investment treaties and citizens' power: lessons from experience.

Blog by. Lorenzo Cotula. Monitoring consequently constitutes clear progress in the application of the Vienna rules, and therefore contributes to ensuring the integrity of the treaty in question by permitting an objective assessment of the compatibility of a given reservation with the object and purpose of the treaty — whether a human rights treaty or not. Part 1 may look the least problematic since the three Vienna Conventions give a similar definition of reservations.

However, it is an important topic since the application or not of the reservations regime depends upon it — and the ILC devoted quite a long time to the related issues. Given the dissimilarity in the definitions, I had systematically proposed draft guidelines dealing with the legal regime of these specific interpretation declarations. First, I had — and from the very beginning of the research — deliberately envisaged clearly distinguishing between the definition of reservations and the issue of their validity.

Going even further, I was — and am still — convinced that you can decide whether a reservation is valid or not only if you define the controversial statement as a reservation; in other terms, the definition must cover valid as well as invalid reservations. However, this validity and these effects are not otherwise affected by the definition, which requires only that the relevant rules be applied.

It is true — and this is the second issue — that the Vienna definition itself is confusing, since it includes a temporal element which comes closer to a condition for its admissibility than to a definitional component. On the other hand, this is a very formal view and it is logical and, I would think, easily acceptable to consider the time factor as a condition of validity of a reservation. But this approach does not solve the problem: if the Vienna definition were to be taken literally, all reservations formulated late ought to be considered as invalid and without any effect whatsoever.

This might be so in abstract law, but not in real life where examples can easily be found of reservations formulated late and producing all the consequences attached to a valid reservation with the approval of all the parties to the treaty. This reasonable solution coincides with the dominant practice and in tegrally preserves the consent principle. The third troubling issue concerning reservations is of the same nature, but less difficult — and it has given rise to fewer controversies. As for the rest, Part 1 of the Guide to Practice brings various clarifications to the definitions of reservations and interpretative declarations, the method of discriminating between the two, other unilateral statements, and various alternatives to reservations and interpretative declarations.

Of all five parts, part 2 raised the least controversial issues except for the question of the late formulation of reservations.


The guidelines comprising it were, however, carefully drafted and commented on, given the considerable practical importance of the issues concerned. There is not much to be said on sections 2. Section 2. More interesting, at least from an academic perspective, are sections 2. Guideline 2. This is a prominent element of the essentially consensual nature of the law of reservations: states have a right to formulate reservations; the other parties or future possible parties have their own right not to be bound to partners which do not accept the negotiated text in its entirety — whatever the reasons, including by opposing the entry into force of the treaty as between the objecting state and the author of the reservation.

Nothing special deserves to be discussed in respect of the formulation of acceptances of reservations.

Part 3 of the Guide starts with guideline 3. To this end, guideline 3. This article is not the place to comment on each of these points, which are the object of abundant commentaries. I was prepared to meet huge difficulties in respect to the former, but I did not expect tricky discussions on the latter. The religious war did not come where it was anticipated: the exact opposite happened. At the same time, I was and still am sincerely convinced that the issue was by no means the sharia by itself but the inacceptable specificities of certain reservations based on the sharia, specificities which can be found also in other reservations having no relation with the sharia or with Islam.

Contrary to my fears, this view was endorsed without any difficulty by the Commission and, to my knowledge, did not lead to protests in the Sixth Committee. As the ILC notes in its commentary on guideline 2. As for the admissibility of reservations to treaty provisions reflecting a norm of jus cogens , I had, with hesitation, proposed a draft guideline resting on a different assumption from the guideline relating to reservations to provisions reflecting a customary rule: draft guideline 3. A reservation to a treaty provision which reflects a peremptory norm of general international law jus cogens does not affect the binding nature of that norm, which shall continue to apply as such between the reserving State or organization and other States or international organizations.

A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law. This formulation implicitly recognizes that reservations to provisions reflecting a peremptory norm are subject to the same rules as reservations to provisions which reflect customary rules. It would have been simpler and franker to say it expressly, but some measure of hypocrisy sometimes makes consensus easier …. The other sections of Part 3 of the Guide to Practice are devoted to the assessment of permissibility of reservations 3.

1. Seabed of Dreams

The general idea is that three conditions must be met:. Of course, these effects are partly paralysed when another state makes an objection to a valid reservation, as rather extensively developed in Section 4. The important point is the variations of the consequences of an objection, depending on the will of the objecting state. Indirectly guideline 4. The author of a valid reservation is not required to comply with the provisions of the treaty without the benefit of its reservation.

But the question of the effects of objections is a different matter when they react to an invalid reservation. Section 4. The status of the author of an invalid reservation in relation to a treaty depends on the intention expressed by the reserving State or international organization on whether it intends to be bound by the treaty without the benefit of the reservation or whether it considers that it is not bound by the treaty.

Unless the author of the invalid reservation has expressed a contrary intention or such an intention is otherwise established, it is considered a contracting State or a contracting organization without the benefit of the reservation. Notwithstanding paragraphs 1 and 2, the author of the invalid reservation may express at any time its intention not to be bound by the treaty without the benefit of the reservation. If a treaty monitoring body expresses the view that a reservation is invalid and the reserving State or international organization intends not to be bound by the treaty without the benefit of the reservation, it should express its intention to that effect within a period of twelve months from the date at which the treaty monitoring body made its assessment.

Guideline 4. The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation. Both texts left the way open for less drastic and general solutions and, in effect, guideline 4.

Enabling Good Governance?

On the other hand, it has taken an important step towards the position of the human rights bodies in that it accepts the principle of a rebuttable presumption in favour of the severability of the reservation that is of the super-maximum effect of the reservation.

However, several remarks can be made:. When an invalid reservation has been formulated, the reserving State or the reserving international organization is considered a contracting State or a contracting organization or, as the case may be, a party to the treaty without the benefit of the reservation, unless a contrary intention of the said State or organization can be identified. The intention of the author of the reservation shall be identified by taking into considera tion all factors that may be relevant to that end, including:. Statements made by the author of the reservation when negotiating, signing or ratifying the treaty, or otherwise expressing its consent to be bound by the treaty.

The provision or provisions to which the reservation relates.

The object and purpose of the treaty. And, unfortunately, it is unlikely that they will try to find any better compromise solution when the Guide to Practice is discussed again in And concerning guideline 4. And the views expressed by the states in the Sixth Committee or outside should indeed be taken into consideration. However — and quite unfortunately — the chances are better than not that, instead of trying to define a common reasonable and consensual position on the most difficult issues, the delegates in the Sixth Committee will, as usual, give such cacophonic speeches that the message will be inaudible.

Therefore whether the General Assembly takes note of the Guide to Practice or not, it will live its own life; practice alone will be the judge of its adaptation to the needs of the international community of states and international organizations or whether it is desirable to adapt some of the rules it recommends following, to leave some aside or to adopt or progressively develop others. The non-binding nature of the Guide fits in this process of continuous adaptation.

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Sign In or Create an Account. Sign In. Advanced Search. Article Navigation. Close mobile search navigation Article Navigation. Volume Article Contents. Email: courriel alainpellet. Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract The purpose of this article is to revisit the long saga of the ILC Guide to Practice on Reservations to Treaties, as the Special Rapporteur has lived it for nearly 18 years and 16 reports. The commentaries are nevertheless of the utmost importance in understanding and interpreting the ILC drafts, but they are not part of them and the drafts in question are, in principle, meant to be transformed into conventions — which is not the case with the Guide.

Regrettable as it may be, most members of the ILC while all very respectable individuals are no longer highly qualified international lawyers. Special mention must be made in this respect to the Chinese member, Mr Huikang Huang, whose most regrettable anti-scientific attitude threatened the completion of the study and the final adoption of the Guide during the very last days of the 63rd session : see in particular Provisional summary records of the st meeting 9 Aug. This decision was approved by GA res. Mr Paul Reuter, 10th report on the question of treaties concluded between States and international organizations or between two or more international organizations, Doc.

More generally, reservations to human rights conventions, although they are by no means special legally speaking, are the object of harsh doctrinal and ideological debates. The elaboration of other ILC drafts has lasted even longer. And this is why I tend to disapprove of the usual practice of the Commission of waiting until the last minute to decide on the form of its drafts. Concerning the Guide to Practice, the early decision taken on this point had important consequences for the substance of the guidelines.

Andao et al. See Art. In the present article, absent a precision to the contrary, I will reason on the basis of the Vienna Convention. However, it must be noted that the guidelines included in the Guide to Practice follow the model of the Convention which is more comprehensive, in that it includes the rules applicable to treaties to which an international organization is a party. On this opposition see, e. In spite of an attempt to introduce alternative model clauses on the deferment of the effective date of the withdrawal of a reservation, on an earlier effective date of withdrawal of a reservation, and on the freedom to set the effective date of withdrawal of a reservation Report of the ILC on the Work of its 54th Session, Yrbk ILC , II 2 , at 19, para.

A of the first ch. B of this first ch. For a detailed presentation of the reasons for this urgency see ibid. See, e. Switzerland , Series A, No. See the extremely critical remarks on General Comment No. Fastenrath et al. Good evidence of their balanced character is that they were not only criticized by the human rights bodies and activists, but also by many states from various sensitivities: see 4th Report on Reservations to Treaties, Doc.

See in particular: 3rd Report on Reservations to Treaties, Doc. See 14th Report on Reservations to Treaties, Doc. See infra, in particular the solution retained in guideline 4. May I say that it was a fortunate infringement and that the ILC may find it beneficial for its future projects to consult more with other expert bodies? The Special Rapporteur submitted 17 reports between and inclusive no report was prepared in ; two were circulated in ; all of which can easily be found on the website of the Commission.

In only three instances did the Commission postpone the referral of draft guidelines to the Drafting Committee such was the case for draft guideline 3. Globally, I have enjoyed this usually very fruitful — sometimes exasperating — exercise. I have, however, regretted that the attendance at the meeting of the Drafting Committee was usually limited to a few members, usually professors from Europe or the WEOG Group, most other members being conspicuous by their absence. I take this opportunity to pay special tribute to Profs Gaja and McRae and to Sir Michael Wood, whose constructive criticisms and suggestions have been exceptionally helpful, particularly for the ultimate completion of the study.

While the Guide to Practice includes guidelines in the version , 89 new guidelines were adopted in and — and among them are most of the most important ones. In spite of the unfortunate last minute difficulty created by the Chinese member: see supra note 7. Provisional Summary Record of the th Meeting, 11 Aug.

A conjunction of reasons can explain this haste. Both the ILC and the Sixth Committee wished to finish with the topic, whose study had lasted much longer than initially envisaged. Moreover, I had made public my firm decision not to run for a sixth term as a member of the Commission and it was apparent that no member was keen to take over the role of Special Rapporteur on the topic. See Reservations to Treaties. Comments and Observations Received from Governments, 15 Feb. As had been the case in the Drafting Committees which, in the previous years was in charge of reservations to treaties see supra note 61 , only a handful of members, mainly from the WEOG, were active in the Working Group.

As is now usual, the 63rd session was split into two parts, respectively from 26 Apr. At the time when this article was written June , the Sixth Committee had not yet taken a decision in this respect: due to its length, the Guide to Practice could not be circulated in all the six official languages of the GA and its examination was reported to the 67th session of the GA Oct. Introduction to the Guide to Practice, supra note 1, at 35—36, para. Guideline 3. For other examples of purely recommendatory guidelines see: 2.

It is true that the Vienna Conventions themselves have given a bad example in this respect: see Arts 19 a and b ; 20 1 , 20 3 , 20 4 , 20 5 , 22 1 , 22 2 , 22 3. See 17th Report on Reservations to Treaties, Doc. See ILC Report , supra note 73, at 14—15, para. Guide to Practice, supra note 1, at This shyness is regrettable: nothing stops the ILC from directing recommendations directly to states and international organizations.

The Annex to this recommendation briefly exposes some principles which could inspire the creation of the assistance mechanism. Each Part is divided into Sections, then into guidelines, which are numbered accordingly. Thus guideline 3. In rare cases, guidelines are given four numbers those of the series 3. Given the highly technical content of this Part, it is not further discussed in this general article. With the sole exceptions of particular rules concerning reservations to treaties which must be applied in their entirety 4.

See also: 2nd Report, supra note 13, at 57—59, paras 99— For a more exhaustive presentation of the problematic and of the substantive solutions proposed in this respect see Ziemele and Liede, in this issue, at The origins and character of that Convention, the objects pursued by the General Assembly and the contracting parties, the relations which exist between the provisions of the Convention, inter se , and between those provisions and these objects, furnish elements of interpretation of the will of the General Assembly and the parties.

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The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.

Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. It is rather the acceptance of common obligations — keeping step with like-minded States — in order to attain a high objective for all humanity, that is of paramount importance.

See also Dissenting opinion of Judge Alvarez, ibid. Condorelli ed. Lijnzaad, Reservations to U. Human Rights Treaties: Ratify and Ruin? On the origins of the debate see 2nd Report, supra note 13, at 52—53, paras 56— UK Series A No. Gardner ed. See also 2nd Report, supra note 13, at 56—57, paras 90—98, and at 63—65, paras — See Guide to Practice, supra note 1, at para. The content of the obligations of those parties likewise remains unaffected when reciprocal application is not possible because of the content of the reservation.

Draft guideline 3. Disarmament or environment treaties also quite often create other kinds of monitoring bodies although they operate differently. See guideline 3. This guideline originates in paras 5 and 8 of the Preliminary Conclusions of the Commission adopted in At the time, these provisions were extremely controversial and gave rise to passionate debate: see, e. Following the lengthy discussions between the ILC and the human rights bodies, Section 3. With the only and limited exceptions provided for in Art.