Кодификация и прогрессивное развитие института оговорок к международным договорам

Abstract

Despite its short history, the institute of reservations has undergone radical changes in the approach to regulation. It is not surprising that over this time various bodies within the framework of various organizations have attempted to order and codify this institute. These attempts fall into two stages. The first stage of codification and progressive development of the institute of reservations ended in the adoption by the states of three universal conventions: of the 1969 Vienna Convention on the Law of Treaties, the 1978 Convention on the Legal Sucession of States Regarding Treaties and the 1986 Convention on the Law of International Treaties Between States and International Organizations. The provisions of these conventions, which were the result of complex agreements, attained between the positions of different countries, can be said to correspond to the state of international community for the moment of their adoption and were in line with the general trend aimed at making multinational treaties more flexible and open. The convention norms were not the final solution of the problem of regulating reservations to international treaties, in fact they outlined the future development of the institute of reservations. The absence of clarity in the legal regulation of reservations institute, which manifests itself in the ambiguity of many provisions of these conventions and the gaps in the regulation of many issues as well as the lack of coordination in the states' practice, drew the international community's attention to the problem of reservations in the early 90s. Since 1993 the International Law Commission has been dealing with reservations problem and this constitutes the second stage in codification and progressive development of the institute of reservations. The UN General Assembly in its resolution 48/31 from December 9, 1993 approved the decision of the Commission to include in its 46th session's (1994) agenda the topic "The Law and Practice Regarding Reservations to International Treaties". The Commission has already achieved certain results in its activity. A preliminary investigation plan has been developed and adopted which encompasses all issues arising in making reservations. In accordance with this plan a special rapporteur has prepared four reports on the issue of reservations which were discussed at the Commission's sittings. On the issue of the investigation results the Commission made a case for preserving the achievements of the existing provisions of the Vienna conventions. The members of the Commission refused to develop a draft protocol or a "compiled" convention but spoke for developing an article-by-article commentary to the existing provisions, which would take the form of Practice Guide for states and international organizations to be further approved by the UN General Assembly. Based on the special Rapporteur's reports, the forty-ninth session in 1997 saw the adoption of the Preliminary Conclusions on the Problem of Reservations to Normative Multilateral Treaties including the Human Rights Treaties. The fiftieth and the fifty-first sessions of the Commission adopted the part of the draft Practice Guide for states, devoted to the definition of reservations. The Commission follows the approved action plan and these directions can be supposed to determine further activities of the Commission in codification and progressive development of the institute of reservations.