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Diplomacy in Action

31. U.S. statement to the UN 6th Committee (ILC report) re unilateral acts of states (October 30, 2006


United States Statement

61st UNGA Sixth Committee – Agenda Item 78:

Report of the International Law Commission on the Work of its 58th Session

Reservations to Treaties; Unilateral Acts of States

Thank you, Mr. Chairman. My statement today will address the topics of reservations to treaties and unilateral acts of states.

Reservations to Treaties

Mr. Chairman, I would like to thank the chairman of the Commission, Mr. Guillaume Pambou-Tchivounda, for his introduction of the Commission’s report. I also would like to thank the Commission’s Special Rapporteur, Mr. Alain Pellet, for his work to date in this complex field.

We appreciate the Commission’s work on the validity of reservations and the concept of the object and purpose of the treaty. This is an important and difficult subject, which we will continue to study closely.

As a general matter, we would encourage the Commission to proceed cautiously in considering what types of reservations might be invalid because they would be incompatible with the “object and purpose” of a treaty. We would ask the Commission to recognize that many States have been able to join treaties as a result of the ability to make certain appropriate reservations on such matters as conformity with national laws or the nature of their legal systems.

We would also encourage the Commission to give careful consideration to statements on the prerogatives of treaty implementation bodies to make determinations about the validity of reservations to human rights treaties. We note that the work of the Commission should account for the fact that monitoring bodies should not be making determinations on reservations except in the very unusual circumstance where they have been provided that authority expressly in a treaty.

We look forward to reviewing the Eleventh Report of the Special Rapporteur. We expect to have further comments at that time.

Unilateral Acts

With respect to the topic of Unilateral Acts of States, I would like to thank the Commission’s Special Rapporteur on the topic, Mr. Victor Rodríguez-Cedeño, for his steady stewardship of deliberations on this complex subject.

The United States has long recognized the particular challenges raised by this topic. The Special Rapporteur’s nine reports are a clear manifestation of that fact. These challenges notwithstanding, the Commission has adopted a set of guiding principles that, in our view, present a fitting conclusion to the Commission’s deliberations on this topic.

We would like to say a few words about the principles adopted by the Commission. We welcome the Commission’s decision to focus its conclusions on “formal declarations formulated by a State with the intent to produce obligations under international law.” States should be able to make public statements without the fear that they inadvertently may be creating obligations that are binding under international law. States should only be bound by unilateral public declarations when they intend to be bound. The efficacy of the Commission’s principles lies in the extent to which they serve this objective.

We believe that principles that provide that “[a] unilateral declaration entails obligations for the formulating States only if it is stated in clear and specific terms” and that “[i]n the case of doubt as to the scope of obligations resulting from such declarations . . . [obligations] must be interpreted in a restrictive manner” are essential considerations in any determinations as to the legal effect of a unilateral declaration. The need for restrictive interpretations is consistent with the principle that States should be able to make public declarations without fear that they may be determined to have inadvertently created binding obligations under international law.

The Commission’s conclusions regarding the interplay between unilateral declarations and peremptory norms of international law should brook no controversy. The notion that unilateral declarations by a State could trump peremptory norms of international law is unacceptable.

One principle that concerns us, however, is the one concerning revocation of unilateral declarations. We understand the desire to limit arbitrary revocations of unilateral declarations in cases where a State has clearly manifested its intent to be bound and there has been detrimental reliance on that declaration by the addressee. It is not obvious, however, that there should be, for example, conditions on the revocability of such declarations in accordance with the application of the fundamental change in circumstances principle that is enshrined in Article 62 of the Vienna Convention on the Law of Treaties. In our view, a fundamental change in circumstances may be sufficient to justify the revocation of a declaration even if there is a clear manifestation of intent to be bound and notwithstanding other considerations set out in Article 62. Unilateral declarations after all are distinguishable from agreements negotiated between or among two or more States, and it thus does not necessarily follow that rules related to the revocation of such treaties should apply automatically to unilateral declarations.

In sum, we appreciate the Commission’s work on this subject and believe that the guidelines before us would serve as a fitting conclusion to the Commission’s ten-year deliberations on this topic and that the Sixth Committee should so recommend to the General Assembly.

Thank you, Mr. Chairman.

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