Reservations made by member states to Council of Europe conventions

3 June 1993

Doc. 6856

1403-1/6/93-1-E

REPORT

on reservations made by member states

to Council of Europe conventions

(Rapporteur: Mr GUNDERSEN,

Norway, Progress Party)

Summary

The harmonisation of the law of member states presupposes action by the Council of Europe in the sphere of conventions and agreements. In order to secure the widest possible participation by Contracting Parties, most conventions provide facilities enabling states not to be bound by certain provisions. The use of reservations can nevertheless raise practical difficulties. First of all, it would seem to impair the integrity of the final text of a convention drawn up in the course of negotiations and unanimously accepted by the Contracting Parties. The effect of reservations is that the Contracting Parties are no longer bound by the same international undertakings. A greater degree of "subdivision" or "fragmentation" is thus possible in the legal arrangements made by a convention. Reservations disrupt the equality which should prevail between states and seriously complicate their relations. The treaty ties established by a convention lose in cohesiveness. Furthermore, it is often hard to determine the obligations of each Contracting Party.

Consequently, if the number of reservations attached to conventions increases, doubt may be cast upon the advisability and effectiveness of recourse to this expedient for the Council of Europe. Reservations may indeed frustrate the ultimate purpose of any convention drawn up within its framework, that is the unification or harmonisation of action by member states in rigorously defined legal fields.

It is therefore desirable to take steps to maintain as far as possible the integrity of the conventions drafted within the Council of Europe. At the same time, there must be greater efforts to secure the full participation of member states in conventions.

I. Draft recommendation

1. The conclusion of conventions and agreements or other legal instruments by which the member states are bound constitutes one of the chief methods available to the Council of Europe for attaining the goals set by its Statute.

2. According to the Vienna Convention and the rules of international law, on acceding to an international convention states are entitled to make certain reservations.

3. Many conventions furthermore specify in their actual texts certain reservations of which the Contracting States may avail themselves, particularly at the time of signing and ratifying the convention.

4. The use of a reservation enables a state to circumvent the obstacle which it may encounter in a given convention provision. Thus the possibility of making reservations simplifies the accession of states to certain Council of Europe conventions.

5. With a view to ensuring maximum participation by Contracting States, most conventions therefore provide facilities whereby states need not be bound by certain provisions.

6. Nonetheless, the use of reservations also has major drawbacks. Firstly, the unity and coherence of the convention may be impaired. The legal machinery which it institutes may be weakened and fall short of the goal of harmonising and unifying the relevant law. As the states are no longer bound by the same international undertakings, reservations interfere with the equality which should prevail between contracting parties and seriously complicate their relations. In addition, it is often difficult to determine the obligations of each state.

7. In conclusion, the Assembly considers it advisable and even necessary that the number of reservations made in respect of Council of Europe conventions be considerably reduced. It accordingly recommends that the Committee of Ministers,

A. With regard to Council of Europe conventions which have already been concluded:

i. invite member states to make a careful review of their reservations, withdraw them as far as possible and make a reasoned report to the Secretary General if certain reservations are maintained;

ii. instruct the Council of Europe steering committees to examine, in the light of the national reports suggested above, the reservations made in respect of each convention within their sphere of competence;

B. As regards Council of Europe conventions to be concluded in the future:

i. include in each convention a clause specifying whether reservations are admitted and, if this is the case, the conditions under which states may make reservations;

ii. limit the validity of reservations to a maximum period of ten years. At the end of that period the Secretary General of the Council of Europe shall invite the state which made the reservation to review it, withdraw it as far as possible or make a reasoned report to the Secretary General if the reservation is maintained. If the reservation is not expressly renewed by the Contracting State, it shall automatically lapse one year after the invitation of the Secretary General to react.

iii. vest the bodies set up by conventions with the authority to issue reasoned opinions on such reservations as the Contracting States may wish to make.

II. Explanatory memorandum

by Mr GUNDERSEN

I. Introduction

1. According to Article 1 (a) of the Statute, the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic progress. In order to achieve this aim, it must discuss questions of common concern and adopt agreements and take common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

These goals can therefore be pursued in different ways, but one of the foremost types of action is the conclusion of conventions and agreements. The Council of Europe Statute establishes the competence of the Committee of Ministers in this field. Since 1949 the Committee of Ministers has adopted over 150 treaty texts.

2. The procedure for drawing up conventions within the Council of Europe presupposes members states' approval of the final text. The text is the outcome of the compromise reached during negotiations and may constitute a veritable "package deal" whose object and purpose is to strike an overall balance. The text of conventions, however, also reflect the policy framed by the Council of Europe to achieve its aims. It is therefore difficult to accept that reservations can be made by contracting parties.

3. Reservations indubitably have a considerable influence on the operation of the international legal system. Unduly rigid treaty provisions reduce the level of participation by the states concerned.

4. Half a century ago the scope for reservations was restricted or non-existent. The break with earlier practice dates from the advisory opinion of the International Court of Justice on the reservations to the 1951 Genocide Convention. In its opinion, the Court stressed the need for reservations to be compatible with the object and purpose of the treaty. The admissibility of reservations may not be in contradiction with the essence of a treaty, that is to say, may not affect the actual substance thereof.1

The Court's opinion introduced a new practice in this area. Today there is no longer any question of stipulating that unanimous consent should apply to all multilateral conventions. This viewpoint was reflected in the Vienna Convention on the law of treaties, which now represents the legal position in the matter.

5. The Council of Europe has always had a very clear stance in this respect. In his comments concerning the draft provisions on the law of treaties drawn up by the United Nations International Law Commission, the Secretary General of the Council of Europe moreover pointed out that:

"When the text of the convention is silent on reservations (item C), it is accepted that they may be made with respect to any of the provisions of the convention or agreement on condition, however, that these reservations are not incompatible with the object and purpose of the treaty. In order to clarify the matter in each particular case, the reservation is brought to the attention of the other Contracting Parties"2.

6. This position has consistently been upheld by the Council of Europe. However, an analysis of the texts reveals a change in its practical application where the rules governing reservations are concerned. As a result, it is possible to distinguish two main groups of clauses which in fact correspond to two phases, that is exclusion of reservations of general character up to 1959 and, thereafter, acceptance of restrictively and specifically mentioned reservations. The influence exercised by the organisation is highly significant. The Council of Europe has endeavoured at all times to harmonise the two principles, that is to say, the principle of unanimous consent and the principle of universal participation by the states.

II. The concept of "reservation"

7. The Vienna Convention on the Law of Treaties defines a reservation as "a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state".3

Two important observations can be made in this connection. Firstly, the name applied to the declaration is of little account. The reservation can be presented equally well in the form of a derogation, option, interpretation or plain declaration. All that matters is its content. Secondly, to establish whether or not a reservation exists it must be ascertained whether the measure taken modifies the legal effects of a convention.

8. One of the essential characteristics of a reservation is that it is a unilateral declaration. It rests with the individual state to choose the legal arrangements which are to apply between itself and the other states. However, "unilateral" does not mean that reservations are subject to no conditions whatsoever. A reservation must first be accepted or acceptable. As a general rule, all conventions must contain provisions rigorously defining the limits within which Contracting States may make reservations.

9. Another typical ingredient of a reservation is the object of the declaration or the intent of the state making it. The Vienna Convention stipulates that the object is to exclude or modify "the legal effect of certain provisions of the treaty in their application to that state". In other words, a reservation constitutes a measure limiting the obligations of the state which formulates it. The use of the expression "certain provisions" in the text of the convention has elicited strong criticism; some writers have objected that it does not accurately reflect reality.

10. Besides reservations as such, states are able to make — and do make — interpretative declarations. These are intended not to exclude or restrict the applicability of a provision but merely to clarify its meaning. This distinction seems clear enough in abstracto, but actual practice shows many instances where the purport of interpretative declarations goes further. States are known to use this expedient to circumvent the rules which limit or exclude reservations. This practice is ostensibly consistent with the provisions of the Convention on the Law of Treaties, but the Rapporteur considers that the Council of Europe could go further in this respect by approving a clearer policy to ensure that specious" declarations of this kind are not allowed to become true reservations.

III. Categories of reservations

11. Any statement must be determined by substance and not by form. This is the basic rule established by Article 2 (1) (d) of the Vienna Convention. Thus, any "declaration" or "arrangement", whatever it is called, may be equated with a reservation if its content matches the concept of a reservation. As things stand, it is of little account whether these reservations take the form of a "declaration" or an "additional reservation".

12. An analysis of Council of Europe instruments establishes that various techniques apply in matters relating to the admissibility of reservations. Treaties can be accordingly placed in four categories according to the technique used:

— treaties excluding reservations;

— treaties explicitly permitting reservations;

— treaties making use of the other techniques for excluding or modifying the legal effect;

— treaties containing no provision on reservations.

a. Treaties excluding reservations

13. Treaties which expressly rule out the possibility of making reservations have become increasingly frequent.4 This state of affairs is due to the fact that the instruments are of a more technical nature; as they set out to lay uniform legal foundations, the acceptance of reservations could have upset relations between the Contracting Parties.

Yet it must also be realised that the total exclusion of reservations is hard for states to accept.

b. Treaties explicitly permitting reservations

14. On various occasions since 1959 the Council of Europe has used the technique of "negotiated reservations". This expressions means that the reservation itself is the subject of negotiations. By means of such a procedure it can be predicted what a reservation will entail and which state will actually make it. After agreement is reached on the terms of the treaty, there can be no objection by a contracting party except in accordance with requirements stated during the discussions.

15. The criteria governing the admissibility of reservations therefore either refer to the conditions under which, or specify the provisions in respect of which, reservations are permissible. Clauses stating which reservations are permitted still occur in the texts of certain instruments. There are also conventions which in addition allow Contracting States the possibility of excluding certain provisions from the final text.5

16. The interesting point here is that certain conventions allow Contracting States to make reservations in cases where specific laws or regulations are in force. Furthermore, it is possible to make a reservation on the basis of a law or regulation not yet in force. The usual wording is that the reservation can be made "to the extent that any law then in force in its territory is not in conformity with (a) provision".6

17. We should add to this category certain treaties whose provisions explicitly prohibit reservations of a general character.7 In 1982 the European Commission of Human Rights gave an opinion on the concept of "reservation of a general character". It held that "a reservation is of a general character if it does not refer to a specific provision of the convention or if it is worded in such a way that its scope cannot be defined".8

c. Treaties which make use of the other techniques for excluding or modifying legal effect

18. The "negotiated reservations" procedure is complemented by other techniques. Certain conventions use the "compulsory core" system laying down the minimum number of convention provisions which must be accepted. It confers on every state the right to choose the provisions by which it agrees to be bound.

19. The introduction of "derogation or escape clauses" forms another system adopted at the Council of Europe. The conventions relying on this technique are not always precisely worded. However, certain treaties provide examples of the escape clauses applied after the "negotiated reservation" procedure has been used. Final texts which are adopted pursuant to compromises reached during the general negotiations are clear in substance and less problematic than a complex web of reservations. Thus certain conventions vest the Contracting States with the right to limit the scope of application of the reservations. This arrangement is known as the options system.9 The options system sometimes applies limits in terms of number and nature.10

d. Treaties containing no provision on reservations

20. This group includes treaties which say nothing about the question of reservations.11 However, the lack of provisions in this respect does not preclude the right to make reservations, and certain states have ventured to do this.12

21. Recourse to more than one technique under the provisions of the same convention is not unknown. An example is the Protocol to the European Convention on Extradition (European Treaty Series No. 86) which, while strictly prohibiting reservations, concedes in Article 6 that: Any state may ... declare that it does not accept one or the other of Chapters I or II. Certain treaties further rely on techniques which involve a combination of options and reservations enabling states to choose the rules applicable to them.13 The list of reservations is sometimes found in an annex giving the exact wording of the acceptable reservations.

22. The terms of certain conventions allow gradual adaptation of member states' procedures to the convention provisions. For instance, European Treaty Series No. 18 uses guarded wording (" ... in so far as may be possible ..."). European Treaty Series No. 20 provides that Contracting Parties shall "facilitate" delivery of appliances (Article 4), that each shall "endeavour to receive" appliances delivered (Article 5), that receiving countries will "as far as possible" reduce costs (Article 6), etc.

IV. Admissibility of reservations

23. The Vienna Convention formally vests the Contracting Parties to a treaty with the right to make reservations. Nevertheless, it lays down the fundamental principle that states are quite at liberty to prohibit, restrict or facilitate the entering of reservations as they see fit. It has thus established a customary rule to the effect that the possibility of making reservations exists by presumption of law. The problem is to ascertain the conditions under which a state can make reservations purporting to have legal effects and become a party to the treaty.

24. Under Article 19 of the Vienna Convention, a state which formulates a reservation may become a party to any multilateral treaty except in the cases provided for in paragraphs (a), (b) and (c). The reservations must not be prohibited by the treaty itself (Article 19 (a)) or exceed the limitations established in the matter by the treaty (Article 19 (b)). In addition, the admissibility of a reservation is contingent upon its compatibility with the object and purpose of the convention to which it applies (Article 19 (c)). The effect of the latter provision is significant, and is operative where the convention contains no provisions on reservations. However, in all cases where a convention has provisions referring to matters associated with reservations, these rules take precedence over the general provisions in the Vienna Convention, thereby reversing the presumption in favour of reservations. Thus the obligation to prove the inadmissibility of a reservation rests with the state which claims that its formulation is unlawful.

25. The Council of Europe applies no standard-setting technique in respect of reservations. It is stressed that it is the "model final clauses" approved by the Committee of Ministers in May 1963 which are incorporated into "all conventions drawn up within the Organisation". However, the system of reservations varies from one convention to the next, so that reference must be made to the convention in question in order to ascertain the legality of a reservation. Indeed, the diverse nature of reservations makes it hard to apply any general rule. Consequently, the body of conventions drawn up within the Council of Europe should be analysed case by case with attention to all provisions restricting their field of application, all specific grounds for refusal of the undertakings embodied in a convention and all means of explicitly prohibiting reservations.

26. Generally speaking, any convention containing provisions on reservations either stipulate the conditions under which reservations are to be made or excludes reservations altogether. For instance there are conventions into whose final text clauses have been incorporated to specify the object of such reservations as are authorised.

27. The approaches embodied in the treaties adopted at the Council of Europe are determined by the characteristics of the fields covered by these treaties. However, the exact opposite may apply, as for example in the Convention on Establishment of Companies (European Treaty Series No. 19), in which Article 7 provides that "any member state of the Council of Europe may ... make a reservation in respect of any provision of this Chapter", that is to say it does limit the reservations. Here, states making reservations have wide discretion.

28. The formulation of reservations inevitably raises the question of notification and acceptance by other parties. According to Article 20 (1) of the Vienna Convention, "a reservation expressly authorised by a treaty does not require any subsequent acceptance by the other Contracting States". It is nevertheless plain that this rule applies where the states involved in the drafting of a convention have not decided otherwise.

Reservations for which a convention does not provide are a different matter. Are they authorised or are they inadmissible? Article 20 of the Vienna Convention, it must be conceded by the converse argument that such reservations require acceptance. In order to simplify procedure and obviate problems which might arise, a provision was introduced into the Vienna Convention to the effect that a reservation is considered to have been accepted if no objection has been raised within twelve months of the date of its notification to the other parties.14

29. In most cases a party is allowed to make reservations "at the time of signature or when depositing its instrument of ratification, acceptance or accession". Certain conventions provide for the possibility of making reservations even after definite acceptance of the final text of the instrument.

30. The current position regarding reservations allows us to discern two situations: firstly, cases where the formulation of reservations is expressly permitted; secondly, cases where the treaty says nothing about a given reservation. In the former case, reservations need not be accepted to have legal effect, as in the case of "options", which may only be opposed if the treaty provides for them. It should be pointed out that this view has already been expressed in the comments by the Secretary General to the effect that: "In the practice of the Council of Europe, a reservation expressly or implied authorised by the text of a convention does have to be specially accepted by the other parties to it".

31. In the second situation, the reservations must be consented to by at least one party to a treaty. In this case, the admissibility of a reservation will obviously depend, failing any specific provision in the treaty, on the treaty's object and purpose.

32. However, the practical application of these principles is more complex. Divergence of opinion during the preparation of the treaty may lead to imprecision in the definitive version of the final clause on reservations and thus elicit serious doubts as to their interpretation. An especially striking example is Article 26 of the European Convention on Extradition (European Treaty Series No. 24), in respect of which the same reservation has been made by all the member states which have ratified the convention.15

V. The legal effects of reservations

33. Where the possibility of making reservations is provided for, Contracting Parties have the ability to modify the legal effects of treaty provisions. The diverse nature of reservations means that the type determines the impact. Thus, there are reservations which take effect without needing to be accepted and other reservations which must be accepted by the other parties if they are to be valid.

a. Validity of reservations

34. Those reservations for which express provision is made in conventions may take effect without the consent of the other Contracting Parties. A state's unilateral declaration suffices to give the reservation legal value. However, the question is whether the other states can raise an objection in this case. The rapporteur finds any such objection unjustified. Acceptance of the convention entails prior acceptance of any reservations.

35. On the other hand, reservations over and above those restrictively specified by a treaty require the subsequent acceptance of the Contracting Parties, so that the rules to be applied are the general principles laid down in the Vienna Convention on the Law of Treaties, according to which such reservations are legally effective if accepted by at least one Contracting Party. The arrangements in the aforesaid convention enable any Contacting Party to raise objections to a reservation made by a party.

36. Acceptance of reservations makes the state making them a full party to a treaty. However, in keeping with the concept of the reservation, its notification excludes or modifies the provisions of a treaty as between a reserving state and the other Contracting Parties. Consequently, the relations between the state making the reservation and the other states are modified within the context defined by a reservation. This is also the effect of the formulation of an objection.16 It should be pointed out that, in accordance with Article 21 (2) of the Vienna Convention, in no circumstances does the reservation affect relations between the other parties. Consequently, a reservation (objection) brings into operation two or even several legal systems which are based on the same treaty.

b. Reciprocity

37. Reservations are directly related to the mutual rights and obligations of the Contracting Parties. Thus the problem which arises is to establish whether reservations generate effects of reciprocity. The Vienna Convention on the Law of Treaties is explicit in this connection, laying down the principle of automatic reciprocity in Article 21 (1) (b). The Council of Europe's position is identical. In the model final clauses of 1963 and 1980 it is stipulated that "a Contracting Party which has made a reservation in respect of any provision of this Agreement may not claim the application of that provision by any other Party; it may, however, if its reservation is partial or conditional, claim the application of that provision in so far as it has itself accepted it". Any reservation entails within itself effects of reciprocity. It is therefore self-evident that reservations are to be construed by the states in the context of the treaty in its entirety, for the nature of the treaty may be such as to create mutual obligations for all member states.17 There are nevertheless areas covered by conventions where automatic reciprocity would have unnecessary or even undesirable implications.

38. Council of Europe practice shows that there are devices for limiting the automatic effects of reciprocity. Their use obviates the formulation of reservations which, by definition, are not conducive to reciprocity. This is the effect of the so-called "option" clauses, the "combined" technique or the "derogation clauses". These arrangements make it possible to obviate certain automatic effects of reciprocity by allowing the parties to apply the various devices under a treaty.

39. An analysis of the texts of conventions shows that there are three main types of treaty:

1. treaties in which reciprocity is a "logical consequence" of a restriction applied by the other party ("automatic reciprocity");18

2. treaties in which reciprocity can be claimed by the other party ("optional reciprocity");19

3. treaties making no reference to reciprocity.

40. There are a number of treaties containing no reciprocity clause. In his observations on the draft convention on the law of treaties, the Secretary General took the view that:

"According to the present practice of the Council of Europe, the application of a reservation does not thereby entail the automatic intervention of the rule of reciprocity, but only deprives the state which has formulated the reservation of the right to claim on the international level and in relation to the other parties the application of the provision to which the reservation refers, and the other parties of the right to raise against this state the treaty obligation covered by the said reservation."

VI. Reservations and the role of the depository and the supervisory bodies set up in pursuance of conventions

41. The problem of reservations also requires us to consider questions regarding the role of the supervisory bodies set up by conventions, and more specifically the Secretary General's authority as depository organ. These bodies and this organ can play an active part in the matter of reservations.

42. The Secretary General serves as depository for all conventions drawn up within the Council of Europe. By virtue of his/her prerogatives he/she can exercise supervision ex ante, that is to say at the time when reservations are made and before they have legal effect. The Secretary General's role nevertheless remains very limited in this respect. Usually the text of a convention merely employs a standard phrase to the effect that: "any Contracting State which has made a reservation may withdraw it ... by notification to the Secretary General of the Council of Europe". Strikingly, when we analyse the conventions we observe that they say nothing about the procedure applying to the lodging of reservations. Otherwise, the Secretary General's obligations are specified in the provisions dealing with notification. His/her authority is in any case severely restricted, even where the Secretary General considers certain reservations "incompatible". Currently, the system applied at the Council of Europe limits the Secretary General's power to assess the legal value of reservations. However, it would appear to the writer that the Secretary General can use his/her powers to alert the Contracting Parties wherever the reservations made by a state acceding to a treaty are incompatible with the object and purpose thereof.

43. With regard to the supervision arrangements provided for in conventions, it should be pointed out that the supervisory bodies set up under the conventions already adopted are able to perform their functions ex post, that is to say after reservations have been expressed and the treaty has come into force in respect of a given state. They nevertheless retain their power to examine reservations made by the Contracting Parties. This supervisory arrangement exists furthermore in the case of the European Convention on Human Rights, where the Commission and the Court have no hesitation in considering whether the reservations made conform to the convention provisions. The rapporteur feels that there is nothing to prevent other supervisory bodies set up by conventions adopted at the Council of Europe from availing themselves of comparable powers. Perhaps the supervision should not go as far as in the case of the European Convention on Human Rights, but it should at least make it possible for reservations to be reviewed during the meetings of the supervisory bodies.

VII. Conclusions

44. The treaties drawn up at the Council of Europe further the harmonisation of the law of member states. Consequently, these treaties should in most cases merely adopt a minimum standard with the fewest possible derogations. This process could be speeded up were it possible for all states to participate fully in all conventions. However, the persistent divergences rule out an absolute consensus among the parties involved in negotiations. The outcome is recourse to all kinds of reservations, a process which reflects the concern of member states to guarantee the substantive effect of treaties.

45. The current situation calls for new efforts to limit the formulation of reservations. Certain measures should be contemplated for the future. The following suggestions are made.

A. In the case of Council of Europe conventions which have already been concluded, it is recommended that the Committee of Ministers:

i. invite member states to make a careful review of their reservations, withdraw them as far as possible and make a reasoned report to the Secretary General where certain reservations are maintained;

ii. instruct the Council of Europe steering committees to examine, in the light of the national reports suggested above, the reservations made in respect of each convention in their sphere of competence;

B. In the case Council of Europe conventions to be concluded in the future:

i. include in each convention a clause specifying the conditions under which states may make reservations;

ii. limit the validity of reservations to a maximum period of ten years. At the end of that period the Secretary General of the Council of Europe shall invite the state which made the reservation to review it, withdraw it as far as possible or make a reasoned report to the Secretary General if the reservation is maintained. If the reservation is not expressly renewed the Contracting State, if shall automatically lapse one year after the invitation of the Secretary General to react.

iii. vest the bodies set up by conventions with authority to issue reasoned opinions on such reservations as the Contracting States may wish to make.

Appendix I: Chart of reservations made according to state

Table n° 1/5

States

European Treaty Series

12^a

13^a

14^a

Austria

Belgium

Bulgaria

Cyprus

Czechoslovakia

Denmark

Finland

France

FRG

Greece

Hungary

Iceland

Ireland

Italy

Liechtenstein

Luxembourg

Malta

Netherlands

Norway

Poland

Portugal

San Marino

Spain

Sweden

Switzerland

Turkey

United Kingdom

R²

R²R²

R²

Israel

R²

Holy See

Note: R - Reservation; D - Déclaration ; ² - Reservation and Declaration

Appendix I: Chart of reservations made according to state

Table n° 2/5

States	European Treaty Series
States	34	35	36	37	38	39	41	43	44	45	46	48	48^a	49	51	52	53	54	55	56	57	58	59	61	62
Austria Belgium Bulgaria Cyprus Czechoslovakia Denmark Finland France FRG Greece Hungary Iceland Ireland Italy Liechtenstein Luxembourg Malta Netherlands Norway Poland Portugal San Marino Spain Sweden Switzerland Turkey United Kingdom	R R R R² R R R² R R²	D D D D D D D D D D D D D D D R² D D D D	D D	D D R² D D R² D D D D D R² D R² D D	D D D	D D D D	D D	R R R² D R D D	D	D	R D D D D	D D D D D D D D D D D D D D R² D	D D D D D D R²	D R D	R² R² R D R² R² R²	D R² R² R² R² R	D	R R	D	R²	D D	R² R² D R² D R² D D D R² D D	R² D D R² D R² R² R	R	D D D D D D D D D D D D D D D D D D D D R² D
Yugoslavia															D

Note: R - Reservation: D - Declaration; ² - Reservation and Declaration

Appendix I: Chart of reservations made according to state

Table n° 3/5

States	European Treaty Series
States	63	65	66	67	68	69	70	71	72	73	74	76	77	78	78^a	79	80	81	82	83	84	85	86	87	88
Autriche Belgium Bulgaria Cyprus Czechoslovakia Denmark Finland France FRG Greece Hungary Iceland Ireland Italy Liechtenstein Luxembourg Malta Netherlands Norway Poland Portugal San Marino Spain Sweden Switzerland Turkey United Kingdom	D	D D D R D D R D	D	D R D D D D	D R² R² R² R² R²	D	R² R D R² R² R² R²	R	D D D D	R² R² R² D R² R² R² R²	D D D D D D D	D D D D	D D D D D D D D R²	D D D R	R	D	D D D D D D D D D D D D D R²	R	D	R R D R R R R R R	D D D D D	R R R R²	D D D D D	D D	D D D D
Yugoslavia																									D

Note: R - Reservation; D - Declaration ; ² - Reservation and Declaration

Appendix I: Chart of reservations made according to state

Table n° 4/5

States	European Treaty Series
States	90	92	93	94	95	96	97	98	99	100	101	104	105	106	107	108	112	113	114	116	117	118	120	121
Austria Belgium Bulgaria Cyprus Czechoslovakia Denmark Finland France FRG Greece Hungary Iceland Ireland Italy Liechtenstein Luxembourg Malta Netherlands Norway Poland Portugal San Marino Spain Sweden Switzerland Turkey United Kingdom	R R² R R R² R R R R R R R R R	R² D D R² R² D D D D D D R² D D D D	R² D R² R²	D D D D D D D	D D D D D	D D D D	D D D D D D D D D D D	R R R R R R R R R² R R	R² R² R² R² R R² D D R² R² R² R R²	D D D D D	R R² R² D D R² R² R² R² R	D R R R R R R² R R R	D D D R² D R² R D D D R² D R² R² R² R²	D D D D D D	R D R² D D R² D D R²	D D D D D D D D D D D	D D D D D R² D D D D D D D D D D D	D	D D D	D D D D D D D D	D R R² D D R D D D R	D D	D D	R R
Bahamas																	D

Note: R - Reservation; D - Declaration ; ² - Reservation and Declaration

Appendix I: Chart of reservations made according to state

Table n° 5/5

States

European Treaty Series

122

123

124

125

126

127

128

130

131

132

138

Austria

Belgium

Bulgaria

Cyprus

Czechoslovakia

Denmark

Finland

France

FRG

Greece

Hungary

Iceland

Ireland

Italy

Liechtenstein

Luxembourg

Malta

Netherlands

Norway

Poland

Portugal

San Marino

Spain

Sweden

Switzerland

Turkey

United Kindom

R²

Note: R - Reservation; D - Declaration ; ² - Reservation and Declaration

Reporting committee: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: none.

Reference to committee: Resolution 894 (1988).

Draft recommendation: adopted by the committee on 18 May 1993.

Members of the committee: Lord Kirkhill (Chairman), MM. Strimitzer, Jansson (Vice-Chairmen), Akarçali, Amaral, Arnalds, Bartodziej (Alternate: Cimoszewicz), Bindig, Borg, Candal, Cardelli, Chevalier, Columberg, Deasy, Espersen, Franck, Fry, Fuhrmann (Alternate: Gusenbauer), Galanos, Guenov, Gundersen, Guzzetti, Hagard, Mrs Haller, MM. Hunault, Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loufti, Markiewicz, Maroni, Mimaroglu, Nuñez, Oehry, d'Ornano, Puech, Rodotá, Rodriguez Gomez, Rokofyllos, von Schmude, Mrs Soutendijk-van Appeldoorn, MM. Stamatis, Stoffelen, Tabajdi, Vogel (Alternate: Junghanns), Ward.

N.B. The names of the members who took part in the vote are printed in italics.

Secretaries to the committee: Mr Plate and Ms Coin.

1 ¹ 1. Opinion on reservations to Genocide Convention, ICJ Reports of judgments, 1951, p. 22.

2 ¹ 1. Gr/Traités (68) 2.

3 ² 2. Article 2 (d) of the Convention on the Law of Treaties.

4 ¹ 1. Reservations are not accepted in the following treaties: European Treaty Series No. 53 (pirate radio stations, Article 7); European Treaty Series No. 61a (Protocol on consular functions in respect of refugees, Article 6); European Treaty Series No. 72 (stops on bearer securities in international circulation, Article 25); European Treaty Series No. 74 (state immunity, Article 39); European Treaty Series No. 74a (Additional Protocol to the European Convention on State Immunity, Article 39); Europoean Treaty Series No. 76 (calculation of time limits, Article 6); European Treaty Series No. 77 (establishment of a scheme of registration of wills, Article 15); European Treaty Series No. 86 (Additonal Protocol to the European Convention on Extradition, Articles 6.1 and 3); European Treaty Series No. 94 (service abroad of documents relating to administrative matters, Article 21); Euroopean Treaty Series No. 108 (protection of individuals with regard to automatic processing of personal data, Article 25); European Treaty Series No. 114 (Protocol No. 6 to the Convention for the Protection of Human Rights, Article 4); European Treaty Series No. 124 (recognition of the legal personality of international non-governmental organisations, Article 9); European Treaty Series No. 126 (prevention of torture and inhuman or degrading treatment or punishment, Article 21); European Treaty Series No. 130 (insider trading, Article 17); European Treaty Series No. 139 (European Code of Social Security — revised, Article 87); European Treaty Series No. 145 (Protocol of amendment to the European Convention for the Protection of Animals, Article 9).

5 ¹ 1. See the following conventions: European Treaty Series No. 43 (reduction of cases of multiple nationality, Article 7) and European Treaty Series No. 95 (Protocol to the former, Article 3); European Treaty Series No. 51 (supervision of conditionally sentenced offenders (Annex, para. 1 and Article 38)); European Treaty Series No. 70 (international validity of criminal judgments, Annex, para. I (f)); European Treaty Series No. 74A (Additional Protocol to the European Convention on State Immunity, Article 9); European Treaty Series No. 86 (Additional Protocol to the European Convention on Extradition, Article 6); European Treaty Series No. 97 (Protocol to the European Convention on Information on Foreign Law, Article 5).

6 ² 2. See the following conventions: European Treaty Series No. 5 (European Convention on Human Rights, Article 64); European Treaty Series No. 14 (social and medical assistance, Article 16b); European Treaty Series No. 19 (on establishment, Article 56); European Treaty Series No. 23 (peaceful settlement of disputes, Article 35); European Treaty Series No. 12A (Protocol to the European Interim Agreement on social security schemes relating to old age, invalidity and survivors, Article 9); European Treaty Series No. 13 (Interim Agreement on social security other than schemes for old age, invalidity, and survivors, Article 9 and Protocol); European Treaty Series No. 144 (participation of foreigners in public life at local level, Article 17).

7 ³ 3. See the following conventions: European Treaty Series No. 5 (European Convention on Human Rights, Article 64); European Treaty Series No. 19 (on establishment, Article 26); European Treaty Series No. 23 (peaceful settlement of disputes, Article 35); European Treaty Series No. 57 (establishment of companies, Article 7); European Treaty Series No. 58 (adoption of children, Article 25); European Treaty Series No. 85 (children born out of wedlock, Article 14); European Treaty Series No. 68 (European Agreement on "au pair" placement, Article 14).

8 ⁴ 4. Temeltasch Case, decisions and reports 1982.

9 ¹ 1. The right to take options is secured by the following conventions: European Treaty Series No. 23 (peaceful settlement of disputes, Articles 34 and 35); European Treaty Series No. 29 (compulsory insurance against civil liability in respect of motor vehicles, Articles 2 and 13); European Treaty Series No. 35 (European Social Charter, Article 20); European Treaty Series No. 43 (reduction of cases of multiple nationality, Articles 7 and 8); European Treaty Series No. 70 (international validity of criminal judgments, Annex 1 reservation (f)); European Treaty Series No. 79 (civil liability for damage caused by motor vehicles, Articles 17 and 18); European Treaty Series No. 99 (Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Article 8); European Treaty Series No. 141 (laundering of the proceeds from crime, Article 40); European Treaty Series No. 68 (European Agreement on "au pair" placement, Article 14).

10 ² 2. See European Treaty Series No. 35 (European Social Charter, Article 20), European Treaty Series No. 48 (European Code of Social Security, Article 2), European Treaty Series No. 122 (European Charter of Local Self-Government, Article 12) and European Treaty Series No. 93 (European Convention on the Legal Status of Migrant Workers, Article 36).

11 ¹ 1. This is the case with the following conventions: European Treaty Series Nos. 2, 10, 22, 28, 36 and 137 (privileges and immunities); European Treaty Series No. 15 (equivalence of diplomas leading to admission to universities); European Treaty Series No. 18 (Cultural Convention); European Treaty Series No. 20 (war cripples); European Treaty Series No. 26 (exchange of theraputic substances); European Treaty Series No. 32 (recognition of university qualifications); European Treaty Series No. 33 (temporary importation free of duty); European Treaty Series No. 35 (European Social Charter); European Treaty Series No. 39 (exchanges of blood-grouping reagents); European Treaty Series No. 40 (international book of vouchers); European Treaty Series No. 41 (liability of hotel-keepers); European Treaty Series No. 42 (application of the European Convention on International Commercial Arbitration); European Treaty Series No. 48 (social security); European Treaty Series Nos. 50 and 154 (Pharmacopoeia); European Treaty Series Nos. 62 and 97 (information on foreign law); European Treaty Series No. 63 (abolition of legalisation of documents); European Treaty Series No. 64 (restriction of the use of detergents); European Treaty Series Nos. 65 and 103 (protection of animals during international transport); European Treaty Series No. 66 (archaeological heritage); European Treaty Series No. 67 (European Commission and Court of Human Rights); European Treaty Series No. 69 (scholarships to students abroad); European Treaty Series Nos. 78 and 78A (social security); European Treaty Series No. 80 (transfer of corpses); European Treaty Series No. 82 (non-applicability of statutory limitation to war crimes); European Treaty Series Nos. 84 and 89 (exchange of tissue-typing reagents); European Treaty Series No. 87 (protection of animals kept for farming purposes); European Treaty Series No. 102 (animals for slaughter); European Treaty Series No. 118 (Protocol No. 8 to the European Convention on Human Rights); European Treaty Series No. 120 (spectator violence); European Treaty Series No. 122 (local self-government); European Treaty Series No. 128 (Additional Protocol to the European Social Charter); European Treaty Series No. 129 (Arrangement for the application of the Agreement of 17 October 1980); European Treaty Series Nos. 130 and 133 (Convention on Insider Trading); European Treaty Series No. 135 (anti-doping); European Treaty Series No. 138 (Equivalence of periods of university study); European Treaty Series No. 148 (Protocol No. 9 to the European Convention on Human Rights).

12 ² 2. See the case of Greece which declared that it reserved the right not to apply to its own nationals Article 3 of the European Convention on the Academic Recognition of University Qualifications (European Treaty Series No. 32).

13 ¹ 1. See European Treaty Series No. 31 (European Agreement on the abolition of visas for refugees, Articles 4 and 7); European Treaty Series No. 48 (European Code of Social Security, Article 2); European Treaty Series No. 74 (European Convention on State Immunity) and Protocol thereto (European Treaty Series No. 74a); European Treaty Series No. 86 (Additional Protocol to the European Convention on Extradition, Article 6); European Treaty Series No. 97 (Additional Protocol to the European Convention on Information on Foreign Law, Article 5). Some others such as the European Charter of Local Self-Government use the device of options whose number and nature are limited (European Treaty Series No. 122, Article 12).

14 ¹ 1. The reservation is also accepted if no state has raised an objection at the time of giving its consent to be bound by the treaty.

15 ¹ 1. Under the terms of this article, "any Contracting Party may, when signing this convention or when depositing its instrument of ratification or accession, make a reservation in respect of any provision or provisions of the convention". This text has been reproduced in full in Article 23 of the European Convention on Mutual Assistance in Criminal Matters (European Treaty Series No. 30).

16 ¹ 1. Under Article 21.3 of the Vienna Convention on the Law of Treaties, the fact that a state raises an objection to a reservation does not prevent the entry into force of the treaty as between the objecting state and the state making the reservation.

17 ² 2. As with reservations limiting the scope of the convention's application.

18 ¹ 1. Among the treaties which provide for automatic effects of reciprocity, the following conventions should be mentioned: European Treaty Series No. 19 (on establishment, Article 27); European Treaty Series No. 23 (peaceful settlement of disputes, Article 34.2); European Treaty Series No. 24 (on extradition, Article 26, para. 3); European Treaty Series No. 25 (movement of persons, Article 7 - option); European Treaty Series No. 30 (mutual assistance in criminal matters, Article 23 para. 3); European Treaty Series No. 31 (visas for refugees, Article 1); European Treaty Series No. 43 (multiple nationality, Article 8 para. 3); European Treaty Series No. 51 (supervision of sentenced offenders, Article 7); European Treaty Series No. 52 (road traffic offences, Article 25 para. 4 and 32 para. 3); European Treaty Series No. 57 (establishment of companies, Article 7 para. 4); European Treaty Series No. 61 (consular functions, Article 53 para. 3); European Treaty Series No. 70 (international validity of criminal judgments, Article 61 para. 3); European Treaty Series No. 73 (transfer of proceedings in criminal matters, Article 41 para. 3); European Treaty Series No. 90 (suppression of terrorism, Article 13 para. 3); European Treaty Series No. 91 (products liability, Article 13 para. 3); European Treaty Series No. 92 (legal aid, Article 9); European Treaty Series No. 97 (Additional Protocol to the Convention on Information on Foreign Law, Article 6); European Treaty Series No. 99 (Additional Protocol to the Convention on Mutual Assistance in Criminal Matters, Article 8 para. 4); European Treaty Series No. 101 (firearms, Article 15, para. 3); European Treaty Series No. 107 (transfer of responsibility for refugees, Article 14 para. 3); European Treaty Series No. 108 (data protection, Article 3 para. 4); European Treaty Series No. 119 (cultural property, Article 26); European Treaty Series No. 121 (architectural heritage, Article 25 para. 3); European Treaty Series No. 123 (protection of vertebrate animals, Article 34, para. 3); European Treaty Series No. 124 (protection of pet animals, Article 21 para. 3); European Treaty Series No. 127 (mutual administrative assistance in tax matters, Articles 22 para. 3 and 30 para. 5); European Treaty Series No. 132 (transfrontier television, Article 32 para. 2); European Treaty Series No. 137 (international aspects of bankruptcy, Article 40 para. 2); European Treaty Series No. 141 (laundering of the proceeds from crime, Article 40 para. 3).

19 ¹ 1. Provision is made for "optional reciprocity" in the following conventions: European Treaty Series No. 23 (peaceful settlement of disputes, Article 34 para. 2); European Treaty Series No. 24 (extradition, Articles 25 para. 5 and 16 para. 2); European Treaty Series No. 34 (television broadcasts, Article 4 para. 4); European Treaty Series No. 43 (multiple nationality, Article 7 para. 3); European Treaty Series No. 51 (see provision of sentenced offenders, Article 20 para. 2); European Treaty Series No. 52 (road traffic offences, Articles 19 para. 2 and 32 para. 3); European Treaty Series No. 71 (repatriation of minors, Article 17 para. 2); European Treaty Series No. 73 (transfer of proceedings in criminal matters, Article 18 para. 2); European Treaty Series No. 88 (deprivation of the right to drive a motor vehicle, Article 8 para. 2); European Treaty Series No. 94 (documents relating to administrative matters, Articles 1 para. 3, 10 para. 2 and 11); European Treaty Series No. 100 (mutual assistance in administrative matters, Articles 1 para. 3 and 17 para. 2); European Treaty Series No. 141 (laundering of the proceeds from crime, Article 25 para. 3).