Hostname: page-component-cd9895bd7-q99xh Total loading time: 0 Render date: 2024-12-25T16:07:12.512Z Has data issue: false hasContentIssue false
  • English
  • Français

Declarations, Statements and ‘Disguised Reservations’ with Respect to the Convention on the Law of the Sea

Published online by Cambridge University Press:  17 January 2008

L. D. M. Nelson
Get access Rights & Permissions [Opens in a new window]

Extract

The question of reservations was one of the ‘controversial issues’ facing the Third United Nations Conference on the Law of the Sea in drawing up the final clauses of the Convention. On the one hand it was argued that the integrity of the Convention must be safeguarded and that the ‘package deal’ must be protected from possible disintegration by the making of reservations. On the other hand the view was held that ‘allowance for the possibility of reservations is aimed at accommodating the views of the delegations who have maintained that they cannot become parties to the Convention unless the Convention permits them to exercise a right to enter reservations, in accordance with customary international law and as envisaged under the Vienna Convention on the Law of Treaties.’ In short the need to preserve the integrity of the Convention was pitted against the need to secure universal participation in the Convention.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 4 , October 2001 , pp. 767 - 786
Copyright
Copyright © British Institute of International and Comparative Law 2001

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. FC/6, 7 Aug 1979, Platzöder, R., Third United Nations Conference on the Law of the Sea: Documents, vol. XII (1987), 356Google Scholar. As Sir Robert Jennings has succinctly put it: ‘A package deal subject to reservations is no longer a package or a deal.’ Jennings, R. Y., ‘Law-Making and the Package Deal’, Mélanges offerts à Paul Reuter (Paris: Pedone, 1981), 347–55 at 352.Google Scholar

3. Draft alternative texts of the preamble and final clauses prepared by the Secretary-General, UN Doc.A/CONF.62/L.13 (1976), Third United Nations Conference on the Law of the Sea, Official Records (referred to hereinafter as Off. Rec), vol. VI, 126.

4. No reservations are expressly permitted by other articles of the Convention, and exceptions are only permitted under article 298. Multilateral treaties which contain this formula are, among others, the 1993 International Cocoa Agreement, the 1994 International Coffee Agreement, Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), Protocol on Environmental Protection to the Antarctic Treaty (1991), Convention on Biological Diversity (1992), Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994), the Marrakesh Agreement Establishing the World Trade Organisation (1994) and the Agreement for the Implementation of the Provisions of the United Nations Conventions on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995).

5. Emphasis added. Draft Convention on the Law of the Sea (Informal Text) UN Doc.A/CONF.62/WP.10/Rev.3 (1980).

6. UN Doc.A/CONF.62/L.60, Off. Rec. (1980), vol. XIV, 132.

7. See United Nations Convention on the Law of the Sea 1982: A Commentary (Dordrecht, Martinus Nijhoff, 1989), vol. V, 222Google Scholar, referred to hereinafter as Virginia Commentary.

8. At its 176th Meeting, 26 April 1982, Off. Rec. (1982), vol. XVI, 133–4.

9. Article 2, para. 1(d), of the 1969 Vienna Convention on the Law of Treaties reads as follows: ‘“reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.’ See also article 2, para. 1(d), of the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations and articles 2, para. 1(j), of the 1978 Vienna Convention on Succession of States in Respect of Treaties. A composite text of the definitions contained in the Vienna Conventions of 1969, 1978 and 1986 is contained in the draft guideline 1.1 provisionally adopted by the International Law Commission. ‘“Reservation” means a unilateral statement, however phrased or named, made by a State or an international organisation when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty or by a State when making a notification of succession to a treaty, whereby the State or organisation purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that international organisation.’ Report of the International Law Commission on the work of its fifty-first session, Official Records of the General Assembly, Fifty-fourth session, Supplement No. 10 (A/54/10) 1999, 205, para. 470 (referred to hereinafter as 1999 ILC Report (A/54.10)).

10. In its commentary on article 2, para. 2(d), the International Law Commission noted that the need for that definition ‘arises from the fact that States, when signing, ratifying, acceding to, accepting or approving a treaty, not infrequently make declarations as to their understanding of some matter or as to their interpretation of a particular provision. Such a declaration may be a mere clarification of the State's position or it may amount to a reservation, according as it does or does not vary or exclude the application of the terms of the treaty as adopted’, (1966) YBILC vol. II, 189–90.

11. UN Doc.C.2/Informal Meeting/29 May 1978, R. Platzöder, Third United Nations Conference on the Law of the Sea: Documents, vol. V (1984), 38. The Philippines had also submitted the following proposal with respect to the territorial sea: ‘Any State which, prior to the approval of the Convention, shall have already established a territorial sea with a breadth more than the maximum provided in this article shall not be subject to the limit provided therein’, Ibid. 145 and Virginia Commentary (1989) vol. V, 227.

12. Fitzmaurice, G., ‘The Law and Procedures of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points (1957) 33 BYIL 203–93 at 273Google Scholar. In his report, as Special Rapporteur on the law of treaties, he noted ‘but it (a reservation) does not include mere statements as to how the State concerned proposes to implement the treaty, or declarations of understanding or interpretation, unless these imply a variation on the substantive terms or effect of the treaty’’, UN Doc.A/CN.4/101, (1956) YBILC, vol. II, 110. In his first report on the law of treaties Waldock also stated that ‘an explanatory statement or statement of intention or of understanding as to the meaning of the treaty, which does not amount to a variation in the legal effect of the treaty, does not constitute a reservation’, UN Doc.A/CN.4/144, (1962) YBILC, vol. II, 31–2. The International Law Commission has characterised these declarations as general statements of policy. ‘A unilateral statement formulated by a State or by an international organisation whereby that State or that organisation expresses its view on a treaty or on the subject matter covered by the treaty, without purporting to produce a legal effect on the treaty, constitutes a general statement of policy which is outside the scope of the present Guide to practice’, Draft guideline 1.4.4 (1.2.5), 1999 ILC Report (A/54/10), 208–9. These declarations are dealt with here since they serve to illustrate a type of declaration or statement which clearly complies with the requirements of article 310 of the Convention on the Law of the Sea.

13. Multinational Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 759. This declaration, it should be noted, was not repeated upon Bolivia's ratification of the Convention.

14. Ibid. 766.

15. Ibid. 761.

16. (1957) 33 BYIL 273. Alain Pellet, the Special Rapporteur on reservations to treaties, in his Third Report, adopted the following distinction: ‘interpretative declarations are distinguished from reservations principally by the objective which the State or international organisation sets when making them: by formulating a reservation, the authors seek to exclude or modify the legal effect of some of the provisions of a treaty (or the treaty in its entirety) as they apply to them; by making an interpretative declaration, they seek to clarify the meaning and the scope they attribute to the treaty or to certain of its provisions’, Third Report on Reservations to Treaties, UN Doc.A/CN.4/491/Add.4 (1988), 38–9. In this regard the International Law Commission has provisionally adopted the following draft guideline. ‘“Interpretative declaration” means a unilateral statement, however phrased or named, made by a State or by an international organisation whereby that State or that organisation purports to specify or clarify the meaning or scope attributed by the declarant to a treaty or to certain of its provisions’, Draft guideline 1.2, 1999 ILC Report (A/54/10), 207. This definition focuses on what an interpretative declaration is rather than what it is not. It is an approach which excludes the negative element. It may be noted that article 310 of the Convention on the Law of the Sea retains the negative element and, in the view of this writer, is not without practical value. It may also be noted that article 310 covers only declarations made ‘when signing, ratifying or acceding to this Convention’. This temporal element is omitted in the draft guideline. Ibid. n. 323 at 238.

17. Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 765.

18. Ibid. 776. It may here be remarked that the United States, a non-party to the Convention on the Law of the Sea, has never recognised that the strait between Sweden and Finland (the Aland Islands) as falling within article 35 (c) of the Convention on the Law of the Sea. Roach, J. A. and Smith, R. W., United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff, 2nd edn. 1997), 298.Google Scholar The United States has not, however, as far as this writer is aware, lodged a formal protest on this matter.

19. Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 761.

20. Ibid. 776. Annex III, article 9, para. 2 reads in part as follows: ‘It (the Enterprise) may also enter into joint ventures for the conduct of such activities with any entities which are eligible to carry out activities in the Area pursuant to article 153, paragraph 2 (b). When considering such joint ventures, the Enterprise shall offer to States Parties which are developing States and their nationals the opportunity of effective participation.’

21. Imbert, P.-H., ‘La question des réserves dans la decision arbitrale du 30 juin 1977 relative à la délimitation du plateau continental entre la République Française et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord’ (1978) 24 Annuaire français de droit international, 29–58 at 35.CrossRefGoogle Scholar

22. The Convention ‘was largely the product of political compromises between conflicting interests where clarity had at times to be sacrificed for the sake of obtaining consensus—a process which necessarily resulted, on not a few occasions, in ambiguous provisions’. See this writer's article— ‘The Drafting Committee of the Third United Nations Conference on the Law of the Sea: the implications of multilingual texts’ (1986) 57 BYIL, 169–99 at 187. See also Aceves, William J., ‘Ambiguities in Plurilingual Treaties: A case study of article 22 of the 1982 Law of the Sea Convention’ (1996) 27 Ocean Development and International Law, 187–233 at 203–14.CrossRefGoogle Scholar

23. As Yasseen so justly remarked: ‘Le désir, combien justifié, de faire réussir une conférence, d'assurer la majorité requise, aboutit parfois à l'adoption des formules vagues ou ambigüs. II ne faut surtout pas écarter la possibilité qu'à dessein les parties évitent une certaine précision afin de se ménager à l'avenir une échappatoire commode, pour se dérober à une obligation Gênante’. Yasseen, M. K., ‘L'interprétation des traités d'après la Convention de Vienne sur le Droit des Traités’, Recueil des Cours (1976–III), vol. 151, 85Google Scholar.Lauterpacht has observed that: ‘the parties, being unable to reach agreement, are at times obliged to use vague or ambiguous expressions, leaving the task of resolving the differences to a subsequent agreement or to judicial or arbitral tribunal’, Lauterpacht, H., ‘De l'interprétation des traites’ (1950) Annuaire de l'Institut de Droit International, vol. 43, I, 426Google Scholar. See also Kappeler, D., Les Réserves dans les Traités Internationaux (Bâle: Verlag für Recht and Gesellschaft, 1958), 85.Google Scholar

24. Waldock stated that one of the purposes of interpretative declarations ‘was to clarify the meaning of doubtful clauses or of clauses which were controversial for particular States’. United Nations Conference on the Law of Treaties, First Session (1986), Meetings of the Committee of the Whole, Sixth Meeting, 34, para. 29. To the same effect see the following observations: ‘Souvent, ces instruments internationaux sont libellés en termes obscures, ambigus ou flous et c'est précisément pour cela que les États se sentent alors obligés de formuler des déclarations sur leur interpre’. Sapienza, Rosario, ‘Les Déclarations interprétatives unilatérales et l'interprétation des traités’ (1999) 103 RGDIP, 603–29 at 607.Google Scholar

25. Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 776. Article 39, paragraph 3(a) reads in part: ‘Aircraft in transit passage shall: (a) observe the Rules of the Air established by the International Civil Aviation Organisation as they apply to civil aircraft; State aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation’ (emphasis added).

26. It has been stated that this declaration only gives a precise content (un contenido preciso) to the word ‘normally’: López, Javier Quel, Las reservas a los tratados Internacionales—un examen de la práctica española (Bilbao: Servicio Editorial Universidad del pais Vasco, 1991), 311.Google Scholar

27. The United States has contended that ‘although a state aircraft would not be obliged to comply with such rules in cases of force majeure or distress these are not the only circumstances in which a state aircraft would not be obliged to comply with such rules’, Roach and Smith, op. cit. 303 above n. 18.

28. Off. Rec. (1982), vol. XVI, 132 and see letter dated 26 April 1982 from the representative of Spain to the President of the Conference, Ibid. A/CONF.62/L.136, 243–4.

29. Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 778. To the same effect see the declarations of Cape Verde, Ibid. 760.

30. Ibid. 768. See too the declaration of Germany, Ibid. 766.

31. Ibid. 759. To the same effect see declarations of Cape Verde, Ibid. 760; Malaysia, Ibid. 769; Pakistan, Ibid. 772; India, Ibid. 767; Uruguay, Ibid. 778; Bangladesh (31 July 2001). It might be noted that in 1995 Italy reiterated its declaration made upon signature and confirmed upon ratification ‘with respect to the declaration made by India upon ratification, as well as for the similar ones made previously by Brazil, Cape Verde and Uruguay’ as well as to all past and future declarations of that kind. Ibid. 781. See below, 786.

32. On this matter see, among others, Francisco Orrego Vicuña, ‘La Zone Économique Exclusive: Régime et Nature Juridique dans le Droit International’, Recueil des Cours (1986–IV), vol. 199, 41–4; Bernard Oxman, ‘An Analysis of the Exclusive Economic Zone as Formulated in the Informal Composite Negotiating Text’, in Thomas A. Clingan (ed.), Law of the Sea: State Practice in Zones of Special Jurisdiction (Law of the Sea Institute, University of Hawaii, 1982), 67–78; International Law Association, Report of the Committee on the Exclusive Economic Zone, Report of the Sixty-First Conference (Paris) (1984), 192–3; Tullio Treves, ‘Codification du Droit International et Pratique des États dans le Droit de la Mer’ Recueil des Cours (1990–IV), vol. 223, 213–17. Castañeda, Jorge, ‘Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea’, in Essays in International Law in honour of Judge Manfred Lachs (The Hague, Martinus Nijhoff, 1984) 605–621.Google Scholar

33. McRae, D. M., ‘The Legal Effect of Interpretative Declarations’ (1978) 49 BYIL 155–73 at 170Google Scholar. In this respect Waldock's observations may be recalled: ‘Statements of interpretation were not dealt with by the Commission in the present action for the simple reason that they are not reservations and appear to concern the interpretation rather than the conclusion of treaties.’ See his Fourth Report on the Law of Treaties, UN Doc.A/CN.4/177 (1965) YBILD, vol. II. 49.

34. Pellet's Third Report on Reservations to Treaties, UN Doc.A/CN.4/491/Add.4 (1998), 23, para. 313. Sapienza has made the following observations on the functions of interpretative declarations: ‘Elles sont des actes juridiques unilatéraux qui visent, grâce a l'interprétation qu'elles proposent, à sauvegarder une position juridique à empêcher la crystallisation d'une praticuq, ou bien au contraire, à l'aider’, Sapienza, op. cit. above n. 24, 618 and see also his Dichiarazioni interpretative unilateralie e trattati internazionali (Milan, Dott. A. Giuffrè Editore, 1996), 236. These functions seem to go somewhat beyond mere ‘offers’ of interpretation.

35. 1999 ILC Report (A/54/10), 253–4.

36. Fisheries Jurisdiction Case (Spain v Canada), ICJ Reports, 1998, 453, para. 46.

37. 1999 ILC Report (A/54/10), 255.

38. See Ustor, Official Records of United Nations Conference on the Law of Treaties, First Session (1968), 25th Meeting, 137, para. 53. The Hungarian delegate was then arguing in favour of assimilating interpretative declarations to reservations.

39. McRae op. cit. above n. 33, 172. For some criticisms of this criterion see Horn, F., Reservations and Interpretative Declarations to Multilateral Treaties (Amsterdam, North-Holland, 1988) 239 and I.Google ScholarSinclair, , The Vienna Convention on the Law of Treaties (Melland Schill Monographs in International Law, 2nd edn. 1984), 53Google Scholar. In the words of the ILC Commentary: ‘Unlike reservations, simple interpretative declarations place no conditions on the expression by a State or international organisation of its consent to be bound; they simply attempt to anticipate any dispute that may arise concerning the interpretation of the treaty. The declarant “sets a date”, in a sense; it gives notice that, should a dispute arise, its interpretation will be such, but it does not make that point a condition for its participation in the treaty. Conversely, conditional declarations are closer to reservations in that they seek to produce a legal effect on the provisions of the treaty, which the State or international organisation accepts only on condition that the provisions are interpreted in a specific way’, 1999 ILC Report (A/54/10), 245, para. 10.

40. Draft guideline 1.2.1, Ibid. 240. This also finds support in the jurisprudence. For example in the Decision of 30 June 1977 it was stated: ‘The Court thinks it sufficient to say that, although the third reservation doubtless has within it elements of interpretation, it also appears to constitute a specific condition imposed by the French Republic on its acceptance of the delimitation regime provided for in Article 6’, Case concerning the delimitation of the continental shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic, RIAA, vol. XVIII, 40, para. 55.

41. 1999 ILC Report (A/54/10) 246, para. 11.

42. Ibid. 247, para. 13. See also D. W. Greig, ‘Reservations: Equity as a Balancing Factor?’ (1995) 16 The Australian Year Book of International Law, 21–172 at 31.

43. The ‘understanding’ recorded upon signature by the Islamic Republic of Iran in connection with the Convention on the Law of the Sea has been labelled a conditional interpretative declaration. It reads in part as follows: ‘The main objective (of the Government of the Islamic Republic of Iran) for submitting these declarations is the avoidance of eventual future interpretation of the following articles in a manner incompatible with the original intention and previous positions or in disharmony with national laws and regulations…’. See Third Report on Reservations to Treaties, A/CN.4/491/Add.4 (1998), 24, para. 319.

44. Greig, op. cit. above n. 42, pp. 24–25. See draft guideline 1.3.3 which reads as follows: ‘When a treaty prohibits reservations to all or certain of its provisions, a unilateral statement formulated in respect thereof by a State or an international organisation shall be presumed not to constitute a reservation except when it purports to exclude or modify the legal effect of certain provisions of the treaty or of the treaty as a whole with respect to certain specific aspects in their application to its author’. The Commission, in its commentary, has observed that ‘his presumption of permissibility is consonant with the well-established general principle of law that bad faith is not presumed’, 1999 ILC Report (A/54/10), 266–7. Lac Lanoux case (France/Spain) (1957) RIAA, vol. XII, 305. See also Tacna-Arica Arbitration (1925) RIAA, vol. II, 929–30.

45. The special rapporteur himself admitted that it cannot be denied that some unilateral declarations are presented as ‘interpretative’ with a view to getting around the prohibition or limitation on reservations stipulated in the treaty to which they apply, Third Report on Reservations to Treaties, A/CN.4/491/Add.4 (1998), 8. Likewise, Denmark observed in its reply to the Commission's questionnaire on reservations that: ‘There even seems to be a tendency among States to cast their reservations in terms of interpretative statements either because the treaty does not allow for reservations proper or because it looks “nicer” with an interpretative declaration than a real reservation’, 1999 ILC Report, A/54/10, 224, n. 285. The Secretary-General has noted that ‘at least 14 out of 46 declarations made upon ratification or accession (7 out of 28 declarations made after the entry into force of the Convention) seem not to be in conformity with the provisions of article 310 or to be supported by any other provision of the Convention nor by any rule of general international law’, Report of the Secretary-General on Oceans and the Law of the Sea: Law of the Sea, UN Doc.A/53/456 (1998), 7, para. 18. See also Aust, Anthony, Modern Treaty Law and Practice (Cambridge: CUP, 2000), 104–5.Google Scholar

46. UN Doc.A/52/487 (1997), 9, para. 15.

47. ‘The United Kingdom considers that declarations and statements not in conformity with articles 309 and 310 include, inter alia, the following:

‘Those which relate to baselines not drawn in conformity with the Convention;

‘Those which purport to require any form of notification or permission before warships or other ships exercise the right of innocent passage or freedom of navigation or which otherwise purport to limit navigational rights in ways not permitted by the Convention;

‘Those which are incompatible with the provisions of the Convention relating to straits used for international navigation, including the right of transit passage;

‘Those which are incompatible with the provisions of the Convention relating to archipelagic states of waters, including archipelagic baselines and archipelagic sea lanes passage;

‘Those which are not in conformity with the provisions of the Convention relating to the exclusive economic zone or the continental shelf, including those which claim coastal state jurisdiction over all installations and structures in the exclusive economic zone or on the continental shelf, and those which purport to require consent for exercise or manoeuvres (including weapons exercises) in those areas;

‘Those which purport to subordinate the interpretation or application of the Convention to national laws and regulations, including constitutional provisions’, Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 777–8. These are certainly not ‘of a fairly minor nature’. Gamble suggested in 1980 after an examination of various types of reservations to multilateral treaties, that ‘reservations may not be too serious a problem; most are of a fairly minor nature’, J. K. Gamble, ‘Reservations to Multilateral Treaties: a macroscopic view of State practice’ (1980) 74 AJIL, 372–94 at 391.

48. This matter is also dealt with in Sapienza, op. cit. above n. 24, 614–17.

49. Multilateral Treaties deposited with the Secretary-General (ST/LEG/SER.E/17), 773.

50. Ibid. 779–80.

51. Ibid. 787.

52. Roach and Smith, op. cit. above n. 18, 222. As far as is known, the situation remains unchanged.

53. See International Status of South-West Africa, ICJ Reports 1950, 135–6. Cf. Nuclear Tests (Australia v France), Judgment of 20 Dec 1974, ICJ Reports 1974, 267 et seq.

54. O'Connell considers this solution to be the correct one. ‘It follows from the consensual theory of treaty-making that States are bound only by what they agree to’, O'Connell, D. P., International Law, vol. I (London, Stevens & Sons, 2nd edn. 1970), 237.Google Scholar

55. See Belilos Case, Public Hearing (Afternoon, 26 Oct 1987), Eur Ct H R Cour/Misc (87) 238, pp. 45–48. Cameron, Iain and Horn, Frank, ‘Reservations to the European Convention on Human Rights: The Belilos Case’, (1990) 33 German Yearbook of International Law, 69–129 at 115–116Google Scholar. Greig, op. cit. above n. 42, 52. See Zemanek, K., ‘General Course of International Law’, Recueil des Cours (1975–III), vol. 146, 97–218Google Scholar. On which see also Redgwell, C., ‘Universality or integrity? Some reflections on reservations to general multilateral treaties’ (1993) 64 BYIL, 245–82 at 274–8.Google Scholar

56. Greig, op. cit. above n. 42, 52.

57. Commenting on the Belilos Case, Edwards observed: ‘The Court probably made the right decision. Consider the magnitude of the political and legal problems that would have been created for the European human rights system if the Court had held that Switzerland was not a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Consider the meaninglessness of the exercise had the Court, after determining that the reservation was invalid, given it the same effect as if it were valid. Perhaps this case shows that the severability issue, even when considered by a court, is more an issue for political judgment (in the best sense of the term) than for legal analysis’, Edwards, Richard W. Jr ‘Reservations to Treaties’ (1989) 10 Michigan Journal of International Law, 362–405 at 378Google Scholar. These observations certainly bring out the international public policy element which lies behind the integrity principle. This writer is of the opinion that partly for the same reason this principle should be applied to impermissible reservations made under articles 309 and 310 of the Convention on the Law of the Sea. Bowett has also remarked on the relevance of public policy in dealing with this matter and consequently suggested that ‘whenever possible the impermissible reservation, though itself a nullity, should not nullify the entire acceptance of the treaty’, Bowett, D. W., ‘Reservations to non-restricted multilateral treaties’ (1976–1977) 48 BYIL, 67–92 at 76, n. 2.Google Scholar

58. Emphasis added. Ibid. 780. Multilateral Treaties deposited with the Secretary-General (ST.LEG/SER.E/17), 774.

59. Emphasis added. Ibid. 780. The European Union has also taken the same position. In the debates which took place in 2000 on the law of the sea in the General Assembly, France speaking on behalf of the European Union, stated that: ‘(A) number of States have made statements that affect the legal scope of the provisions of the Convention. Article 309 of the Convention states that no reservations or exceptions may be made to the Convention. The European Union thus stresses that such statements are without legal force. Similarly, the espousal or introduction in the national law of States parties or in international agreements of provisions that run counter to the Convention is unacceptable to us’, A/55/PV.42, 26 Oct. 2000, 9. The observations of certain members of the International Law Commission in the 1995 debates on Pellet's First Report on the law and practice relating to reservations are also relevant. Note for instance those of Tomuschat who stated: ‘There was, however, no reason not to be clear in the case of prohibited reservations. If a State that ratified the United Nations Convention on the Law of the Sea declared that the Convention had no effect on its rights under its Constitution or internal law, that declaration must be considered invalid, and a judge did not need to examine whether it was a reservation. By accepting a treaty that prohibited reservations, a State accepted the treaty in its entirety, regardless of what it stated elsewhere’, (1995) YBILC, vol. I. 155. Yamada also observed that ‘With regard to multilateral treaty prohibiting the formulation of a reservation, a disguised reservation must of course be considered as invalid’, Ibid. 191. See too Robinson, Ibid. 159.

60. A general question raised by Pellet in his First Report on the Law and Practice Relating to Reservations to Treaties UN Doc.A/CN.4/470 (1995), 57, para. 124.

61. The following statement by Ruda contains the core of the opposability test: ‘In the last analysis, under this system, the validity of a reservation depends solely on the acceptance of the reservation by another contracting State. It is of course to be presumed that a State has no interest in accepting a reservation which conflicts with the object and purpose of the treaty, but such considerations may of course be displaced, for example, in favour of political motivations; there is nothing to prevent a State accepting a reservation, even if such reservation is intrinsically contrary to the object and purpose of the treaty, if it sees fit to do so’, J. M. Ruda, ‘Reservations to Treaties’, Recueil des Cours (1975–III), vol. 146, 97–218 at 190. This makes opposability ‘the predominant criterion’ (Koh, J. K., ‘Reservations to Multilateral Treaties: how international legal doctrine reflects world vision’ (1982) 23 Harvard International Law Journal 98).Google Scholar It may be observed that Ruda is here focusing his attention on reservations incompatible with the object and purpose of the treaty (article 19, para. c). The question posed here is whether the opposability test has any relevance where reservations are expressly prohibited as in the case of the Convention on the Law of the Sea. See generally Bowett, op. cit. above n. 57, 28; Redgwell op. cit. above n. 55 263–269.

62. Official Records United Nations Conference on the Law of Treaties, First Session (1968), Meetings of the Committee of the Whole, Twenty-Fifth Meeting, 133.The question put to the Expert Consultant by the Canadian delegate was as follows: ‘if a reservation was prohibited under article 16, sub-paragraph (a) or (b), had it been the intention of the International Law Commission to prevent a contracting State from accepting the reservation under article 17, paragraph 4(a)?’, Ibid. Twenty-Fourth Meeting, 132.

63. As Bowett makes clear: ‘If the reservation is impermissible because it is expressly prohibited it would appear difficult to justify an acceptance of such a reservation by another Party. For the effect would be to defeat the clear purpose of the agreed reservations article. The inconsistency is plain and the conduct of the “accepting” State, being contrary to the agreed reservations article, is essentially a breach of the treaty’, Bowett, op. cit. above n. 57, 82–3.

64. Gaja, Georgio, ‘Unruly Treaty Reservations’, in Le droit international à l'heure de sa codification. Etudes en l'honneur de Robert Ago, I (Milan, Giuffrè, 1987) 307–30 at 320.Google Scholar

65. A/RES/52/26 of 26 Nov 1997; A/RES/53/32 of 24 Nov 1998; A/RES/54/31 of 24 Nov 1999; and A/RES/55/7 of 20 Oct 2000.

66. A/55/L.10 of 20 Oct 2000 operative para. 3.

67. Report of the Secretary-General on Oceans and the Law of the Sea: Law of the Sea, UN Doc.A/54/429 (1999), 7, para. 15.

68. States have been known to withdraw their reservations, for instance, in the case of declarations made to the International Covenant on Civil and Political Rights (1966) and to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). See Multilateral Treaties deposited with the Secretary-General (ST.LEG/SER.E/17).

69. Bowett, op. cit. above n. 57, 81.

70. As has been correctly remarked: ‘Disputes over the interpretation or application of article 310 would come within the scope of Part XV, especially if the depositary is unable to resolve them through the means at his disposal, which are stated in article 77, para. 2 of the Vienna Convention of 1969’, Virginia Commentary, vol. V, 227.

71. The lack of such institutions had been noted by the International Law Commission with respect to the adoption of the principle of ‘compatibility with the object and purpose of the treaty’. ‘The difficulty lies’, it observed, ‘in the process by which that principle is to be applied, and especially where there is no tribunal or other organ invested with standing competence to interpret the treaty’, Commentary on the 1962 Draft Articles on the Law of Treaties (1962) YBILC, vol. II, 178–9.

72. Unilateral action is sufficient to vest a court or tribunal having jurisdiction under article 287 and of course that court or tribunal may render a decision whether or not the other party participates in the process, Virginia Commentary, vol. V, 39.

73. See article 297, para. 1(a).

74. See article 297, paras. 2 and 3.

75. Article 298, para. 1(b). The following States have made declarations under this provision: Argentina, Cape Verde, Chile, France, Portugal, The Russian Federation, Tunisia and Ukraine. If the USA accedes to the Convention on the Law of the Sea it would most probably make a declaration under article 298. See United States: President's Transmittal of the United Nations Convention on the Law of the Sea and the Agreement relating to the Implementation of Part XI to the US Senate with Commentary, 7 Oct 1994 (1995) 34 ILM, 1442.

76. This has to do with article 60, paragraph 1 especially subparagraph (c) and raises the question of the extent of coastal States’ control of and jurisdiction over artificial islands and installations in the exclusive economic zone and on the continental shelf.

77. A question may arise whether such consequences will be excluded by the operation of article 33, para. 2, of the Statute of the International Tribunal for the Law of the Sea which states that ‘the decision shall have no binding force except between the parties in respect of that particular dispute’ (which is based on article 59 of the Statute of the International Court of Justice). Waldock seemed to be of the opinion that such will be the case. He stated that such a judicial decision—that is a decision concerning the validity of a reservation or declaration—‘would bind only the State concerned and that only with respect to the case decided’, (United Nations Conference on the Law of Treaties, First Session (1968), Meetings of the Committee ofthe Whole, Sixth Meeting, p. 126, para. 10). It is hard to imagine that a judicial decision with respect to declarations and statements under article 310 will not at least be of considerable value in the interpretation or application of the Convention on the Law of the Sea. Neither article 33 of the Statute of the Tribunal nor article 59 of the Statute of the Court was meant ‘to exclude persuasive precedents’. As Judge Jennings has remarked: ‘Every State a member of the Court is under a general obligation to respect the judgment of the Court’ (Case concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1984, Diss.Op., 158. This observation applies with equal force to the judgments of the Tribunal for the Law of the Sea.