Правовой режим оговорок по Венской конвенции о праве международных договоров 1969 г.

Abstract

When studying the institution of reservations to the international treaties in modern international law, one can claim that a mechanism of its international legal regulation has taken shape, including both treaty and custom norms that regulate the procedure of introduction and adoption of reservations to various treaties by the states and international organizations. The 1969 Vienna Conventions on international agreements law has become the first universal international agreement regulating the institution of reservations to international treaties. They fix a flexible system of reservations as a counterbalance to the unanimity rule, used formerly within the framework of the League of Nations. Articles 2(d), 19—23 are specially devoted to reservations. In the aggregate, the provisions of these articles form an international legal regime of reservations that can be called "the Vienna regime". The analysis of the norms of the Vienna Convention, regarding reservations, gives the following conclusions: 1) the issue of reservations has been and still is one of the most contradictory and complex in modern international law. Being the result of negotiating of positions regarding controversial issues, the Vienna Convention contributed to further codification and progressive development of legal regulation of reservations. It should be noted that many of its provisions have acquired the nature of custom norms and operate in this quality for the states, that are not parties to this convention; 2) the Convention provisions support the growing assertion of the right of the states to formulate reservations; 3) the Vienna Convention fixed a flexible regime of reservations that may apply to various forms of treaties. The regime flexibility is conditioned by the introduction of the criterion of the reservation's compatibility with the object and the aim of the treaty, the freedom of making of reservations, the freedom to raise an objection and define the consequences of this objection and, finally, it is conditioned by the dispositivity of norms of the Vienna Conventions which allows the parties to define themselves the reservations' admissibility, the procedure of their adoption and their consequences. Significant drawbacks of the Vienna Convention are seen mainly in the obscure, indistinct and ambiguous nature of many of its provisions, which causes discrepancies in their interpretation and use. An example of this is the absence of an objective procedure of establishment of the reservation admissibility in Article 19, namely, the definition of the criterion of compatibility with the object and the aim of the treaty, indefinite regulation of the consequences of the introduction of an illegal reservation. A range of issues, such as legal regimes of reservations regarding bilateral treaties and treaties on human rights, was not mentioned in the Vienna Convention at all. The existing complexities and drawbacks concerning regulation of reservations by the Vienna Convention and the absence of correlation between the states' practices determine the direction of further study and development of the institution of reservation in modern international law. The world community obviously needs more detailed regulation of reservations to the international treaties, which would meet the current situation. In this connection the activities of the Commission on International Law and other bodies of international organizations, that are involved in codification and progressive development of international law, become the object of attention.