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Admissibility of Reservations to General Conventions

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Admissibility of Reservations to General Conventions f ,iski>W * ' [Distributed to the Cow. C. 357. M. 130. 1927. V. Members of the League j , Geneva, July 13th, 1927. LEAGUE OF NATIONS ADMISSIBILITY OF RESERVATIONS TO GENERAL CONVENTIONS Note by the Secretary-General : In execution of a decision taken by the Council of the League of Nations on June 17th, 1927, the Secretary-General has the honour to circulate herewith to the Members of the League : (a) A report to the Council on the question of the admissibility of reservations to general conventions which was adopted on March 24th, 1927, by the Committee for the Progressive Codification of International Law. (b) A report on the above-mentioned report presented to the Council on June 17th, 1927, by the Rapporteur, M. Zaleski, representative of Poland, and adopted by the Council on that date. REPORT OF THE COMMITTEE FOR THE PROGRESSIVE CODIFICATION OF INTERNATIONAL LAW1. ^ ^ 1 9 2 ? T , By a letter dated December 19th, 1925, the British Government addressed to the Secretariat of the League of Nations a memorandum drawing attention to the following facts : On February 19th, 1925. the Convention adopted by the Second Opium Conference was signed by the representatives of a number of States which had been represented at the Conference. The final clauses of this Convention stipulated that it should remain open for signature until September 30th, 1925. A number of States appended their signatures during this period. Among them was Austria, who, although she had been invited, had not taken part in the Conference, but who, when appending her signature on the last day, i.e., on September 30th, made a reservation in respect of certain clauses. The British memorandum pointed out that the Austrian reservation was of some importance, since it involved non-acceptance of certain obligations which formed part of the system of control of the drug traffic devised by the Conference. This reservation, added the British memorandum, brought into prominence a difficulty inherent in the practice of leaving multilateral conventions open for signature for a considerable period after the conclusion of the conference which was responsible for drawing them up. The British Government, considering that these facts involved an important question of principle, suggested that the Committee of Experts for the Progressive Codification of International Law should be asked to investigate the admissibility of such reservations to general conventions. Accordingly, the Council of the League of Nations adopted a resolution on March 17th, 1926 (fifth meeting of the thirty-ninth Session of the Council) requesting the Committee to report on the question of the admissibility of reservations to general conventions. As a consequence of this resolution, the International Labour Office addressed to the Secretariat on March 31st, 1926, a memorandum2, in which, after drawing attention to the special character of the conventions adopted by the International Labour Conference, 1 The present report was drawn up for the Committee by a Sub-Committee composed of M. F r o m a g e o t (R a p ­ porteur), M. D ien a and Mr. M cN a ir (replacing Mr. Brierly) and was adopted by the Committee itself on March 24th, 1927. M. Guerrero and M. Mastny were also members of the Sub-Committee but were unable to attend its meetings. 2 This memorandum was communicated separately to the Council for its information in document C .212.1927. V, and is printed as an annex to the Council’s proceedings of June 1927. Publications of the League of Nations S. d. N. 525 (F.) 475 (A.) 7/27. Imp. d'Ambilly. V. LEGAL 1927 V. 16 it concluded that it seemed scarcely possible to settle tft^~stion which the Council had submitted to the Committee of Experts for the Progressive Codification of International Law without reference to their existence and without considering their peculiar nature. The study of the question put before the Committee is not very complicated if the effort is made to analyse with some care the factors of the case, consisting in effect of the various torms of “ assent ” on which international contractual engagements are based, viz., signature and accession or adhesion. A signature is the sign affixed by negotiators at the foot of the provisions on which they have agreed. It presupposes that each signatory is fully in agreement with the other signatories ; it establishes the assent of each of the negotiators to the final result of the negotiations, and the reciprocity of these assents. Accordingly, it is as a rule the plenipotentiary negotiators who affix their signatures- If, as sometimes happens, the negotiator himself is unable for material reasons to be present at the meeting at which signature takes place, the signature is affixed by a special pleni­ potentiary, but it is always in the name of one of the Powers which have negotiated that the signature is given. Although, in principle, treaties are confined, both as regards their conclusion and their effects, to the parties which have concluded them, they frequently contain clauses allowing third Powers to adhere. With regard to the conditions on which a Power which has not taken part in the negotiation of a treaty may thus associate itself with the Powers which have concluded it, the following observations may be made. Analysis of the different forms of acquiescence given by a Power to a treaty concluded by other Powers has led a certain number of writers on international law to make a distinction between " accession ” and “ adhesion ”, whereby “ accession ” signifies the full and entire acceptance of the terms of a treaty concluded by other Powers, such acceptance precluding the possibility of any conditions or reservations being made to any of the clauses, and " adhesion ” signifies an acceptance which may cover certain provisions only of the treaty. International practice, particularly in modern times, does not recognise this theoretical distinction, and as a rule no account is taken of it. In practice, not only are accession and adhesion commonly confused, but even “ signature ” does not now correspond to the meaning which is described above and which from the nature of things it might have been expected to retain, and it is for this reason that the question put to our Committee has arisen. In the first place, the practice arose between Powers negotiating a general treaty of allowing a certain period for the signature of the Act which they drew up on a particular date but which they did not all sign on that date (cf. the Red Cross Convention of 1864). This must be regarded as only a sort of tolerance and courtesy among States and nothing more ; a signature given in such conditions is in reality ante-dated. Subsequently, in treaties revising a previous treaty, the contracting parties admitted that the Powers signatory of the original treaty might sign the new treaty even if they had not taken part in the revision (cf. the Second Geneva Red Cross Convention of 1906) ; and ultimately the stage has been reached of leaving certain treaties open unconditionally for varying periods for signature by Powers that did not even participate in the elaboration of the treaty. Such was the case of the Opium Convention of February 19th, 1925. A signature appended in these circumstances constitutes nothing more than an “ accession ” ; the Power signing in this way simply associates itself with the Powers which concluded the Treaty. It therefore accepts the latter under the same conditions as the contracting parties ; what they accepted it accepts. It cannot make any addition or modi­ fication, for such addition or modification would not be covered by the reciprocal agreement which constitutes the treaty concluded by the contracting Powers. It no doubt frequently happens that, in the course of the negotiation of a treaty, agreement is reached between the contracting parties regarding a reservation which is put forward by one of them and accepted by the others. In such a case the former party may naturally, when appending its signature to the act concluded, mention and maintain its reservation. The other contracting parties, when they also append their signatures, signify thereby that they have accepted the reservation and consent thereto. But when the treaty declares, as we have seen above, that it permits signature by Powers which have not taken part in its negotiation, such signature can only relate to what has been agreed upon between the contracting Powers. In order that any reservation whatever may be validly made in regard to a clause of the treaty, it is essential that this reservation should be accepted by all the contracting parties, as would have been the case if it had been put forward in the course of the negotiations. If not, the reservation, like the signature to which it is attached, is null and void. As regards the “ Labour Conventions " dealt with in the admirable memorandum submitted by the International Labour Office, the texts drawn up by the International Labour Conference, whose members, properly speaking, represent interests and not States, involve no contractual engagement between States. They are, as stated in Articles 405 (Treaty of Peace with Germany), 350 (Treaty of Peace with Austria), 267 (Treaty of Peace with Bulgaria) and 333 (Treaty of Peace with Hungary), mere draft conventions put before States for their approval. — 3 — These Articles stipulate that the “ draft conventions ” in question will be submitted to the States for “ ratification In this case “ ratification " does not appear to be an appropriate term ; the draft conventions are in reality submitted to the States for their assent, and the States are called upon to give their assent themselves through the medium of notification. Nevertheless, those who framed the provisions in question apparently wished to signify, by using the term “ ratification ”, that the assent is to be given in the same conditions as the ratification of an act signed by plenipotentiaries, i.e., is to be given to the draft as elaborated and without modification.
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