Abstract
As indicated by its title, Art 23 contains procedural provisions. The provision basically addresses two issues: the requirement of a written form (para 1 for the formulation of a reservation, an express acceptance of a reservation or an objection to a reservation; para 4 for the withdrawal of a reservation or of an objection to a reservation) and the requirement of a formal confirmation (paras 2 and 3). Thus, the procedural requirements of Art 23 reach beyond the title which only mentions reservations.
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Notes
- 1.
A Pellet/W Schabas in Corten/Klein Art 23 MN 10.
- 2.
→ Art 76 MN 29–31, → Art 77 MN 8, 23, → Art 78 MN 6–7; as to the depositaries → MN 18 et seq.
- 3.
ILC, Report of the ILC on the Work of its Sixty-fifth Session, UN Doc A/65/10, 41–57 (2010).
- 4.
For all Draft Guidelines mentioned in this commentary → Annex to Art 23.
- 5.
A Pellet/W Schabas in Corten/Klein Art 23 MN 4.
- 6.
Art 17 paras 3–6 of the 1962 Draft, see [1962-II] YbILC 60 et seq.
- 7.
They are to be found in the newly numbered Arts 18 and 19, see [1962-II] YbILC 176.
- 8.
[1965-II] YbILC, 53.
- 9.
Final Draft, Commentary to Art 73, 270 para 1.
- 10.
Final Draft, Text of Art 18, 208.
- 11.
→ Art 22 MN 3 and 7.
- 12.
“Paragraph 1 merely provides that a reservation, an express acceptance of a reservation and an objection to a reservation must be in writing […].” Final Draft, Commentary to Art 18, 208 para 2(emphasis added).
- 13.
For details see ILC, Report of the ILC on the Work of its Fifty-fourth Session, [2002-II] YbILC 28–29; similar Draft Guidelines were adopted regarding acceptance (Draft Guideline 2.8.4) and objections (Draft Guideline 2.6.7).
- 14.
[1951-II] YbILC 16.
- 15.
[1953-II] YbILC 92.
- 16.
UN Doc A/CONF.39/C.1/L.158, UNCLOT III 138 para 191.
- 17.
See, eg, Art K, para 1 of the 1996 European Social Charter (revised) ETS 163.
- 18.
Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Doc ST/LEG/7/Rev.1, paras 73–100.
- 19.
→ Art 77 MN 12–13, 24.
- 20.
ILC Report 2002 (n 13) 36.
- 21.
ILC Report 2002 (n 13) 38 para 30; also → Art 20 MN 40 and 41.
- 22.
For the commentary, see ILC Report 2002 (n 13) 34–38.
- 23.
ILC Report 2002 (n 13) 36 para 16.
- 24.
ECtHR Belilos v Switzerland App No 10328/83, Ser A No 132 para 59 (1988).
- 25.
ILC, Report of the ILC on the Work of its Sixtieth Session, UN Doc A/63/10, 186 (2008).
- 26.
For the commentary to this guideline, see ILC Report 2008 (n 25) 184–189.
- 27.
Draft Guideline 2.6.10; for the commentary to this guideline, see ILC Report 2008 (n 25) 203–206.
- 28.
→ n 9 and accompanying text.
- 29.
“Unless otherwise provided in the treaty or agreed by the contracting States and international contracting organizations, a communication relating to a reservation to a treaty shall be transmitted:
(i) If there is no depositary, directly by the author of the reservation to the contracting States and contracting organizations and other States and international organizations entitled to become parties to the treaty; or
(ii) If there is a depositary, to the latter, which shall notify the States and international organizations for which it is intended as soon as possible.
A communication relating to a reservation shall be considered as having been made with regard to a State or an international organization only upon receipt by that State or organization.
Where a communication relating to a reservation to a treaty is made by electronic mail or by facsimile, it must be confirmed by diplomatic note or depositary notification. In such a case the communication is considered as having been made at the date of the electronic mail or the facsimile.” For the commentary to this guideline, see ILC Report 2008 (n 25) 174–184.
- 30.
“The depositary shall examine whether a reservation to a treaty formulated by a State or an international organization is in due and proper form and, if need be, bring the matter to the attention of the State or international organization concerned.
In the event of any difference appearing between a State or an international organization and the depositary as to the performance of the latter’s functions, the depositary shall bring the question to the attention of:
(a) The signatory States and organizations and the contracting States and contracting organizations; or
(b) Where appropriate, the competent organ of the international organization concerned.” For the commentary to this guideline, see ILC Report 2002 (n 13) 42–45; on the role of the depositary → Art 19 MN 122 et seq.
- 31.
“Where, in the opinion of the depositary, a reservation is manifestly impermissible, the depositary shall draw the attention of the author of the reservation to what, in the depositary’s view, constitutes the grounds for the impermissibility of the reservation.
If the author of the reservation maintains the reservation, the depositary shall communicate the text of the reservation to the signatory States and international organizations and to the contracting States and international organizations and, where appropriate, the competent organ of the international organization concerned, indicating the nature of legal problems raised by the reservation.” This guideline was reconsidered and modified. For the new commentary, see ILC, Report of the ILC on the Work of its Fifty-eight Session, UN Doc A/61/10, 359–361 (2006).
- 32.
ILC Report 2006 (n 31) 360 et seq.
- 33.
ILC Report 2002 (n 13) 30 para 5.
- 34.
Summary of Practice (n 18) para 121: “Recognized international practice is for such instruments to be issued and signed, as is the case for full powers, either by the head of State or Government or by the minister for Foreign Affairs.”
- 35.
“1. Subject to the customary practices in international organizations which are depositaries of treaties, a person is considered as representing a State or an international organization for the purpose of formulating a reservation if:
(a) That person produces appropriate full powers for the purposes of adopting or authenticating the text of the treaty with regard to which the reservation is formulated or expressing the consent of the State or organization to be bound by the treaty; or
(b) It appears from practice or other circumstances that it was the intention of the States and international organizations concerned to consider that person as competent for such purposes without having to produce full powers.
2. By virtue of their functions and without having to produce full powers, the following are considered as representing a State for the purpose of formulating a reservation at the international level:
(a) Heads of State, heads of Government and Ministers for Foreign Affairs;
(b) Representatives accredited by States to an international conference for the purpose of formulating a reservation to a treaty adopted at that conference;
(c) Representatives accredited by States to an international organization or one of its organs, for the purpose of formulating a reservation to a treaty adopted by that organization or body;
(d) Heads of permanent missions to an international organization, for the purpose of formulating a reservation to a treaty between the accrediting States and that organization.” For the commentary to this guideline, see ILC Report 2002 (n 13) 30–32.
- 36.
“The determination of the competent authority and the procedure to be followed at the internal level for formulating a reservation is a matter for the internal law of each State or relevant rules of each international organization.
A State or an international organization may not invoke the fact that a reservation has been formulated in violation of a provision of the internal law of that State or the rules of that organization regarding competence and the procedure for formulating reservations as invalidating the reservation.” For the commentary to this guideline, see ILC Report 2002 (n 13) 32–34.
- 37.
Final Draft, Commentary to Art 18, 208 para 3.
- 38.
“The Commission, however, considered it essential that the State concerned should formally reiterate the statement when signing, ratifying, accepting, approving or acceding to a treaty in order that it should make its intention to formulate the reservation clear and definitive. Accordingly, a statement during the negotiations expressing a reservation is not, as such, recognized in article 16 as a method of formulating a reservation and equally receives no mention in the present article.” Final Draft, Commentary to Art 18, 208 para 3.
- 39.
The provision reads: “A reservation formulated at the time of a signature which is subject to ratification or acceptance shall continue to have effect only if the instrument of ratification or acceptance either repeats the reservation or incorporates it by reference, or the reserving State at the time of ratification clearly expresses in some other manner its intention to maintain the reservation [1962-II] YbILC 60.
- 40.
ILC, Report of the ILC on the Work of its Fifty-third Session, UN Doc A/56/10, 181 (2001).
- 41.
→ MN 7.
- 42.
Draft Guideline 2.1.2: Form of formal confirmation: “Formal confirmation of a reservation must be made in writing.” For the commentary to this guideline, ILC Report 2002 (n 13) 29–30.
- 43.
For the commentary to this guideline, see ILC Report 2001 (n 40) 180–183.
- 44.
For the commentary to this guideline, see ILC Report 2001 (n 40) 183.
- 45.
Examples are Art 8 para 1 of the 1963 Convention on Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality ETS 43; Art 17 of the 1961 Convention on the Reduction of Statelessness 989 UNTS 175; Art 30 of the 1988 Convention on Mutual Administrative Assistance on Tax Matters ETS 127; Art 29 of the 1997 European Convention on Nationality ETS 166; and Art 24 para 1 of the 1989 Convention on the Law Applicable to Succession to the Estates of Deceased Persons, text available at www.hcch.net (last visited 28 December 2010).
- 46.
For the commentary to this guideline, see ILC Report 2001 (n 40) 183–184.
- 47.
→ Art 22 MN 7 et seq and 19.
Selected Bibliography
See the bibliography attached to the commentary on Art 19.
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Dörr, O., Schmalenbach, K. (2012). Article 23. Procedure regarding reservations. In: Dörr, O., Schmalenbach, K. (eds) Vienna Convention on the Law of Treaties. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-19291-3_25
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