Mr. Yukihiro Wada

Representative of Japan

Report of the International Law Commission (Reservations Treaties)

31 October 2003

Overall assessment of the work of the Commission to date

Japan highly appreciates the current work of the Commission on the topic of reservations to treaties. Japan commends the Special Rapporteur for having examined each and every aspect of the issue of reservations to the fullest extent possible, so as to facilitate the effective deliberation of the Commission. The guidelines at first glance may appear a little too detailed, but they do certainly provide a good basis for discussion among members of the Commission. Through discussion of the various subjects raised by the Special Rapporteur, the Commission has been able to clarify some important issues related to the present topic.

Importance of dialogue on reservations

The Special Rapporteur expressed the intention to introduce the concept of and guidelines for a "Reservations Dialogue" in his next report. As pointed out by the Special Rapporteur and reaffirmed by some members of the Commission, the intentions of a country which formulates a reservation and of one which makes an objection to that reservation should be interpreted according to the texts of the reservation and the objection, respectively. In order to clarify intentions when they are not apparent from the texts, however, a dialogue between the parties concerned would be helpful.

In this regard, Japan looks forward to an elaboration of the idea of a "Reservations Dialogue" in the next report, as well as to the discussion to take place among members of the Commission. It is important to note that the modality of such a "dialogue" should not be predetermined, as there are many ways in which states can explain and clarify to others their intentions with respect to a reservation or an objection.

Specific points raised in chapter III regarding governments' comments

Japan basically supports the view expressed by many members of the Commission and elaborated in the "Arbitration on the Continental Shelf between France and the United Kingdom," that the intention of a state which has made an objection to a reservation should be the primary basis for determining the nature and the effect of such an objection.

It is true that the Vienna Convention on the Law of Treaties does not contain a specific definition for an objection to a reservation. Consequently, there is some validity in pointing out that the Vienna Convention does not provide a sufficient foundation for determining the requirements or criteria for deciding whether a statement made by a country should be regarded as an objection or not. Nevertheless, the Vienna Convention, in Articles 20(4) and 21(3), serves to a certain degree as a set of guidelines, albeit an imperfect one, to assist countries in determining the legal effects of a reservation and thus the application of treaty obligations between the parties concerned.

In order to fully ascertain the nature of a statement made by a country in response to another country's reservation, it is appropriate to pay primary attention to the intent of the former. That approach will make it possible to determine whether the state (1) intends not to apply the part of a treaty on the basis of which the reservation was made, (2) intends to block the application of the entire treaty vis-?-vis the state making the reservation, or (3) is simply making a comment which has no legal effect with regard to the reservation.

When attempting to determine the nature of a statement made by a country in response to another's reservation (particularly when considering whether the statement amounts to an objection), it is important to avoid making that determination based on the mere presence of the word "objection" or "object" in the statement. As statements vary from one to another in form, it is not appropriate or necessary to establish a standard of rules on format. This is particularly true in a situation in which a wide variety of wording and format is employed in making statements. The Vienna Convention on the Law of Treaties does not stipulate the scope and format of an objection. The drafting of an article in such a way as to preclude some statements from the category of objections on the grounds that they do not meet certain formal requirements would require further careful discussion.

Japan considers in principle that draft guideline 2.6.1 as currently formulated provides an appropriate description of an objection. At the same time, Japan also notes the criticism that has been offered with regard to the idea of restricting the scope of an objection by simply extracting the related articles of the Vienna Convention. In order to respond to such criticism, the draft article newly proposed by the Special Rapporteur in paragraph 363 of the ILC Report may serve as a basis for future consideration. It is important to note, however, that the provisions of the new draft article may pose some risk of precluding the possibility of not applying the entire articles of a treaty between the parties, which is permitted in Article 21(3) of the Vienna Convention.

Importance of considering actual state practices and difficulties in interpreting reservations

Finally, when discussing the issue of reservations to treaties, it is important to bear in mind the actual practice of states in formulating reservations as well as the ways in which countries examine those reservations and object to them. There is little doubt that it has become more and more difficult and challenging for each state to follow all the reservations made by other states and to digest them thoroughly and in a timely manner, in view of the fact that the number of treaties has increased dramatically in recent years through various treaty-making processes such as diplomatic conferences and regional cooperation.

Against such a backdrop, it is quite useful for countries with common interests to share information and thoughts on reservations made by other states. For example, the monitoring work conducted by the Council of Europe on reservations made both by Council members and by non-members is an effective and useful approach. As an observer to the Council, Japan has contributed to and benefited from such an approach.

Thank you, Mr. Chairman.