Habemus guidam: Alain Pellet’s magnum opus is (almost) out

Perhaps the most interesting aspects of the Guide are its form and creation. Deviating from prior practice, the Commission decided at a very early stage that it would not produce a draft convention or draft articles, but instead would formulate practical guidelines for states and international organizations. This allowed the Special Rapporteur to prepare a prospective Guide that seeks to inform future conduct of states – rather than merely providing an overview of established practices, the Guide includes guidelines of a pure recommendatory character (such as the suggestion that a reservation should, to the extent possible, indicate the reasons why it is being formulated (guideline 2.1.2) or the idea of a periodic review of the usefulness of particular reservations (2.5.3)). The choice of an informal medium avoids interference with the Vienna regime on the law of treaties. Moreover, by presenting a document that is explicitly not to be turned into a formal treaty, the guidelines are protected from a vicious codification process that would have probably torn the Guide apart.

The Guide comes accompanied by two other documents, both provisionally adopted by the Working Group on Reservations to Treaties. The first, entitled “Conclusions on the reservations dialogue”, seeks to address concerns from human rights organizations and treaty monitoring bodies, that the guidelines leave states too much leeway to issue reservations that may be incompatible with the “object and purpose” of human right conventions. The document calls upon states, international organizations and monitoring bodies to engage in a “reservations dialogue”. In typical UN-speak, the Commission specifies that the parties to the dialogue should “cooperate as closely as possible” to discuss concerns “in a pragmatic and transparent manner”. The Conclusions are the result of numerous consultations between the ILC and human rights bodies in Geneva, which have voiced fierce criticism during the drafting process.

The second document is a rather functionalist recommendation on mechanisms of assistance in relation to reservations, which suggests the creation of an “observatory” on reservations within the General Assembly’s Sixth (Legal) Committee and on regional and subregional levels. Taking its cue from the Council of Europe, the observatory would consist of “a limited number of experts” who, on the basis of their “technical competence” and “practical experience in public international law”, are tasked with defusing political controversy around (objections to) reservations.

Both documents make one wonder about the added value of the Guide to Practice; if the Commission still feels the need to delegate the resolution of reservation conflicts to a dialogue process or an observatory of experts, what is the use of the 179 guidelines that it just produced? Indeed, enough controversies remain unresolved. One of the most disputed issues concerns the status of an author of an invalid reservation. The prevalent view in common law countries seems to be that the author of an invalid reservation is precluded from becoming a party to the treaty – the reservation is considered an essential condition of the state’s consent to be bound; if it falls away, the state is presumed not to have agreed to the treaty. However, the ILC was persuaded to adopt a different approach, as laid out in guideline 4.5.3. Under this provision, the status of the author of an invalid reservation depends on the intention expressed by the reserving entity. As section 2 specifies, “unless the author of an invalid reservation has expressed a contrary intention […], it is considered a contracting state or contracting organization without the benefit of the reservation” [emphasis added]. This turns the presumption around: if a reservation turns out to be invalid, it is struck out and the state is considered to be bound by the treaty in toto, unless it explicitly declares otherwise. This seems to be a victory for human rights advocates, but will undoubtedly be subject to much further debate within diplomatic and academic circles.

As the white smoke over the Palais des Nations has cleared, the question remains what’s next for the Guide to Practice. To what extent will it contribute to the codification and progressive development of international law? How will courts, both domestic and international, receive the non-binding suggestions by the Commission? As Prof. Pellet eloquently put it, “the harm is done”. While the Guide may not explicitly declare or crystallize international law, judges, arbitrators and diplomats will find it difficult to ignore the guidance that it provides. An analogy with the Articles on State Responsibility is easily made: a non-binding instrument, compiled by the ILC over a large number of years, under the supervision of one of the most pre-eminent international lawyers of our time, that is widely considered an authoritative statement (at least in part) of the law on a tricky topic. As long as its sheer volume does not dishearten practitioners, the Guide to Practice and its Commentaries seem destined for a permanent place in the Pantheon of international legal practice.