STATEMENT BY MR. DAREN TANG, DELEGATE TO THE 65th SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 79, ON CHAPTER IV OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 62ND SESSION, SIXTH COMMITTEE, 25 OCTOBER 2010 ​

STATEMENT BY MR. DAREN TANG, DELEGATE TO THE 65th SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY ON AGENDA ITEM 79, ON CHAPTER IV OF THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS 62ND SESSION, SIXTH COMMITTEE, 25 OCTOBER 2010

Madame Chair,

1. My delegation sincerely congratulates the Commission for completing, on first reading, the entire set of draft guidelines on Reservations to Treaties, and the commentaries thereto. We wish to express our deep appreciation to the Special Rapporteur, Professor Alain Pellet, for his efforts in connection with the Commission's magisterial contribution to this challenging area of international law.

2. We note the Commission's intention to adopt the final version of the Guide to Practice during its sixty-third session next year. We also note the Commission's request for comments by States on the draft guidelines adopted this year, particularly the draft guidelines in sections 4.2 and 4.5 of the Guide to Practice. We will study the draft guidelines and commentaries in detail, and endeavour to provide our written comments to the Commission by the stipulated deadline.

3. In the meantime, we wish to make two initial observations.

4. First, my delegation has significant concerns regarding draft guideline 4.5.2, which relates to the status of the author of an invalid reservation in relation to the treaty. This draft guideline is the Commission's proposed solution to what must be one of the most controversial issues in this area. My delegation would even venture to say that in many ways, this draft guideline represents the culmination of the Commission's sixteen-year enterprise. The draft guideline and its commentary must therefore be carefully studied.

5. As we understand it, draft guideline 4.5.2 provides for what is called a "positive presumption" as to the severability of an invalid reservation. In other words, the author of an invalid reservation is presumed to be bound by the treaty without the benefit of the reservation unless the author's contrary intention can be identified. We acknowledge the Commission's efforts to achieve a finely-balanced compromise between what Professor Bowett characterised as "the permissibility school", which holds that the validity of a reservation is objectively determined, and "the opposability school", which premises the validity of a reservation on the reactions of other parties to the treaty. We have also taken some time to study the Commission's reasons for using the positive presumption in this draft guideline, as set out in the commentary thereto. But we do not think that the Commission's solution is the right one.

6. My delegation fully agrees with the Commission that "the key to [this] problem is...the will of the author of the reservation.". In this regard, my delegation notes the Commission's reading of the Strasbourg cases, which, in our view, properly contextualises those decisions. As the Commission says, the author's consent to be bound by the treaty is necessarily conditioned by the reservation. This legal fact captures the reality of State practice in relation to a Government's participation in an international treaty. Various competing considerations are to be weighed and calibrated, but the inclusion of a reservation and its terms are an inextricable part of any Government's decision to participate and, unless there is any indication otherwise, is part and parcel of its expressed consent to be bound. My delegation is therefore of the view that the better position must be that the consequence of an invalid reservation is that its author is not bound by the treaty. That being so, we think that the right approach is to use the negative presumption in draft guideline 4.5.2.

7. Second, my delegation would like to make a suggestion on the form of the finalised Guide to Practice. We note from the commentaries to many of the draft guidelines that much of the Guide to Practice is in fact progressive development. My delegation would echo those who have suggested that it would be useful to indicate clearly, against the text itself, the elements of the Guide that represent codification and those that represent progressive development. This would be immensely helpful to future users of the Guide.

8. To conclude, my delegation looks forward to the conclusion of the Commission's work on this topic at its 63rd session.

Thank you, Madame Chair.

. . . . .