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Conference at Geneva. The reply note, delivered to the Soviet Embassy at Washington, stated, in part:
The Soviet Union has proposed that the U.S. and the U.S.S.R. as Cochairmen take a joint initiative to reconvene the Geneva Peace Conference. The United States is consulting with the parties to determine their views and will be prepared to consult with the Soviet Government on how best to prepare the agenda and procedures for a reconvened Conference and to deal with the question of participation in the Conference.
With respect to the Soviet position on Palestinian participation at the Geneva Conference, the U.S. has always held the view that legitimate Palestinian interests must be taken into account in an overall settlement. The United States cannot agree, however, that the Cochairmen of the Conference can alter the definition of the participants in the Conference initially agreed to by the original participants.
The Soviet Union will recall that the identical letters presented by the Permanent Representatives of the U.S. and the U.S.S.R. to the Secretary-General of the United Nations on December 18, 1973, stated: “The parties have also agreed that the question of other participants from the Middle East area will be discussed during the first stage of the Conference.” As no decision was reached at the Conference in December 1973 concerning possible additional participation, this remains a subject for discussion among the original participants. It also remains the view of the United States that the appropriate U.N. resolutions to serve as the basis for negotiations leading toward a peace settlement, and the ones which the parties have accepted for this purpose, are Security Council Resolutions 242 and 338. It would therefore not be appropriate to introduce other resolutions not accepted by all parties for this purpose.
Dept. of State Bulletin, Vol. LXXIV, No. 1906, Jan. 5, 1976, pp. 12–13.
THE LAW OF TREATIES AND OTHER
Conclusion and Entry into Force
On June 13, 1975, George H. Aldrich, Deputy Legal Adviser of the Department of State, wrote a letter to Robert F. Ellsworth, Assistant Secretary of Defense for International Security Affairs, enclosing a memorandum of law on the legal status and effectiveness of a proposed reservation excluding warships from the ambit of the 1962 Brussels Convention on the Liability of Operators of Nuclear Ships. The memorandum was written in the context of a proposed reservation by the Federal Republic of Germany with respect to its anticipated ratification of the Brussels Convention. That Convention defines "nuclear ship" as meaning any ship equipped with a nuclear power plant and thus covers nuclear warships.
The memorandum presented two issues:
1. May a reservation of such nature be made?
2. What is the legal situation if the reservation is not permissible or if other states object? In particular, could a reserving state be construed to be bound without reference to its reservation?
With respect to the first question, the memorandum concluded that such a reservation could be made, that under traditional law there was complete freedom to make reservations, and that under the Vienna Convention on the Law of Treaties there is a persuasive argument that the reservation is not incompatible with the object and purpose of the treaty and is therefore permissible.
As to the legal situation posed, the memorandum concluded that a reserving state cannot be construed to be bound to a treaty without reference to its reservation. The memorandum argued that, under traditional law, if the reservation is not explicitly or tacitly accepted by all the other parties to the treaty, the reserving state is not considered a party to the treaty, and that under Article 20 of the Vienna Convention on the Law of Treaties there
is no instance in which a reserving state may become bound against its will contrary to a stipulation of its reservation.
The following are excerpts from the memorandum of law:
May a Reservation on Warships be Made In general, under traditional law, a state has an absolute right to attach to its signature or to its ratification or adherence any reservation which it deems necessary in order to enable it to become a party to a multilateral treaty. 14 Whiteman, Digest of International Law 140 (1970); Testimony of the Legal Adviser (Hackworth) on the Charter of the United Nations, Hearings Before the Senate Foreign Relations Committee, 79th Congress, 1st Session, July 10, 1945, p. 342.
The Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, p. 15, decided that a state could not be regarded as a party to the Genocide Convention if it made a reservation incompatible with the object and purpose of that Convention. It focused particularly on the intention of the drafters of that Convention to achieve wide participation and thought, therefore, the particular case mandated a liberal rule by which, if other states accepted the reservation as not incompatible with the object and purpose, treaty relations would exist between those states and the reserving state. Id, at 24, 29-30. The Court never questioned the ability of a state to make any reservation it deemed necessary.
The Vienna Convention on the Law of Treaties, in Article 19, expanded the Genocide Convention Advisory Opinion rule, by providing that a reservation, unless explicitly or implicitly prohibited by a treaty, is permitted unless it is incompatible with the object and purpose of the treaty.
A reservation on warships is not prohibited by the terms of the Brussels Convention, nor does the Convention provide that only specified reservations may be made. Article XXI, which authorizes reservations on dispute settlement, does not by its terms exclude other reservations and is clearly not intended to preclude other reservations.
The exclusion of warships from the application of the Brussels Convention does not appear to be incompatible with the objectives and purposes of the Convention. It is true that a great majority of delegations to the 1962 conference decided that the Convention should also apply to warships on the ground that the protection of possible victims of nuclear risks emanating from ships requires that warships be included. However, since 1962 it has appeared that states operating nuclear warships under their flag have not been prepared to ratify the Convention, which means that today it is practically not possible to achieve at least partial protection against the risks of nuclear incidents except by limiting the area of application to ships that are not warships.
Legal Situation if the Reservation is Ineffective Under the practice of the League of Nations and the United Nations until 1951, the rule was that a reservation to a multilateral treaty, in order to be valid, had to be accepted by all the contracting parties. If it was not accepted, the reservation, "like the signature to which it is attached, is null and void.” This practice was adopted by the Council of the League of Nations as à guide for the Secretary-General in 1927. See 14 Whiteman, Digest of International Law 147 (1970). The Secretary-General of the United Nations followed the same practice until 1952. U.N. Doc. A/1372. The dissenting opinion in the Genocide Convention Advisory Opinion considered that this was not only the practice, but the existing rule of international law. I.C.J. Reports 1951, pp. 32, 41. The majority in that case acknowledges the practice, but not the rule, id. at 24-25, although Verzijl seems correct in his view that the conclusion of the minority in respect of the legal situation as it existed in 1951 was well-founded. 6 J. Verzijl
, International Law in Historical Perspective 228 (1973). In any event, the holding of the majority in the Genocide Advisory Opinion appears based on a conclusion by the Court that the application of this rule to the particular case of the Genocide Convention would have frustrated the intention of the drafters of that Convention.
This traditional rule does not limit the freedom to make reservations, but is heavily weighted against their effectiveness since any party to the multilateral treaty, by its objection to the reservation, could ensure that the reserving state did not be come a party to the treaty.
A more recent trend may be evolving. General Assembly resolutions in 1952 and 1959 requested the Secretary-General to communicate reservations in his function as depositary, but not to pass on their legal effect. U.N.G.A. Res. 598(VI); U.N.G.A. Res. 1452B(XIV).
In proposing what subsequently became Articles 19-21 of the Vienna Convention on the Law of Treaties, the International Law Commission recognized the ambiguity in the law and decided to propose a flexible system. U.N. Doc. A/6309/Rev. 1, pp. 35-39. This rule seems inspired by a combination of the majority opinion in the Genocide Convention case and the so-called Pan American rule, adopted by the Board of Governors of the Pan American Union in 1932. Under this rule, if a state made a reservation to a multilateral treaty, the treaty would come into force between those states which accepted that reservation, with the obligations modified by the reservation, but not with respect to states that did not accept the reservation. 14 Whiteman, Digest of International Law 141-42 (1970). Articles 20 and 21 of the Vienna Convention on the Law of Treaties do not permit one objecting state to prevent a reserving state from becoming a party (if the reservation objected to is not incompatible with the object and purpose of the treaty).
Under the Vienna Convention, the legal situation would be: (a) the reserving state is in treaty relations with other states which
have accepted the reservation on the basis of the terms of the treaty as modified by the reservation; (b) the reserving state is not in treaty relations with another state which has objected to the reservation and objected to treaty relations; (c) the reserving state is in treaty relations with a state that has objected to the reservation, with regard to all provisions of the treaty except those which relate to the reservation. In none of these instances would a reserving state become bound against its will contrary to a stipulation covered by its reservation.
Under both the framework of law prior to the Vienna Convention and under the provisions of that Convention, the statement of position by other contracting states party to a multilateral convention is crucial. Under previous law, there was no explicit time limit set for this. However, in 1962, the Legal Adviser's Office took the position that a period of two years after becoming aware of a reservation and six months after receiving notice of deposit subject to that reservation, was longer than permissible for a state to object; it was argued that an objection not by then received was not received within a reasonable time and therefore was without legal effect. 14 Whiteman, Digest of International Law 185 (1970). The Vienna Convention on the Law of Treaties would, in paragraph 5 of Article 20, resolve any ambiguity by providing that if no objection had been raised within twelve months of notification of the reservation to the state in question, the reservation is considered to have been accepted.
In conclusion, the Vienna Convention on the Law of Treaties provides a regime more favorable to the effectiveness of reservations than the traditional regime. Under either regime, however, a reservation on warships to the Brussels Convention would be permissible, would probably result in becoming a party to the Convention, and would in no case result in being bound on terms that are not subject to the reservation.
It may be noted that even Judge Lauterpacht, in grappling with a reservation he considered to strike directly at the heart of a legal obligation, summarily dismissed the possibility that the invalidity of a reservation could nullify the effect of the particular reservation without nullifying the undertaking as a whole. Case of Certain Norwegian Loans, Judgment of July 6, 1957: I.C.J. Reports 1957, p. 9, at 55 (separate opinion).
Dept. of State File No. P75 0109–0210. The Brussels Convention on the Liability of Operators of Nuclear Ships was adopted at the Diplomatic Conference on Maritime La
11th Sess., Brussels, May 25, 1962, and may be found in Selected Materials on Atomic Energy Indemnity Legislation, Joint Committee Print, Subcommittee on Legislation of the Joint Committee on Atomic Energy, 89th Cong., 1st Sess., June 1965, pp. 302–311.
The Vienna Convention on the Law of Treaties, done May 23, 1969, is at U.N. Doc. A/CONF. 39/27, May 23, 1969, and Corr. 1. It can also be found in S. Ex. L, 92d Cong., 1st Sess., Nov. 22, 1971. Arts. 19-21 of that Convention are as follows: