EDOC7031

21 February 1994

Doc. 7031

COMMUNICATION FROM THE COMMITTEE OF MINISTERS

Reply to Recommendation 1223 (1993)

on reservations made by member states

to Council of Europe conventions

(adopted by the Committee of Ministers on 17 February 1994

at the 508th meeting of the Ministers' Deputies)

1. The Committee of Ministers informs the Parliamentary Assembly that it has transmitted Recommendation 1223 (1993) to the governments of member states.

2. The Committee of Ministers carefully considered Parliamentary Assembly Recommendation 1223 (1993). It shares in principle the Assembly's view that it is advisable and even necessary that the number of reservations made in respect of Council of Europe conventions be reduced. However, it observes that the Assembly had not dealt with some other questions relating to reservations, for instance the role of depositaries, interpretation of reservations, territorial clauses, clauses of suspension, negotiated reservations, etc. The Committee of Ministers notes that the law and practice relating to reservations constitute one of the most complex parts of public international law and are subject to constant development. Furthermore, the matter of reservations is currently under consideration by the United Nations International Law Commission.

3. With regard to paragraph A.i. of the recommendation, the Committee of Ministers recalls that in the field of family and criminal law, it has formulated similar invitations in the past which gave results only in a very limited number of cases. In respect of the European Convention on Extradition (ETS No. 24), Committee of Ministers Resolutions (78) 30 of 11 May 1978 and (78) 43 of 25 October 1978 recommended "to the governments of member states Contracting Parties to the European Convention on Extradition that they limit the scope of the reservations or withdraw them, bearing in mind the contribution of the Additional Protocols". Since 1978, only three contracting Parties have either restricted or withdrawn some of their reservations to the European Convention on Extradition.

More recently, following a recommendation of the Committee of Ministers with regard to the existing conventions in the field of family law (Recommendation No. R (91) 9 of 9 September 1991), three contracting Parties wholly or partly withdrew their reservations to the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children (ETS No. 105).

The Committee of Ministers recalls that according to rules of general public international law and relevant treaty provisions, states have the right to limit their respective international obligations by formulating reservations to certain treaty provisions. Therefore it does not believe that it is appropriate that Council of Europe member states make reasoned reports to the Secretary General if certain reservations are maintained, as recommended by the Parliamentary Assembly.

4. With regard to paragraph A.ii. of the recommendation, the Committee of Ministers would like to point out that a number of steering or conventional committees are already entrusted to monitor and promote implementation of conventions, i.e. reviewing regularly reservations made by contracting Parties. It admits that discussion of the matter in the steering or conventional committees might induce Contracting Parties to reconsider their position with regard to certain of their reservations and to restrict their scope of application or even withdraw them, especially those which are outdated or have never been applied in practice.

The Committee of Ministers has invited therefore all steering and conventional committees referred to above to examine in due course the question of reservations made in respect of each convention in their sphere of competence.

5. With regard to paragraph B.i. of the recommendation, the Committee of Ministers shares the Assembly's view about the advisability to include in each convention a clause specifying whether reservations are admitted and, if this is the case, the conditions under which states may make them. However, it notices that the number of conventions containing no provisions on reservations has already considerably diminished in recent practice. Since 1983 only six Council of Europe conventions and agreements fall into this category, as well as Protocols No. 8, 9 and 10 to the European Convention on Human Rights (ETS No. 118, 140 and 146). However, since these Protocols only contain provisions modifying the procedure of the Convention organs, the formulation of reservations appears to be inadmissible in this case.

Two other conventions, the European Charter of Local Self-Government (ETS No. 122) and the Additional Protocol to the European Social Charter (ETS No. 128), are also silent on the question of reservations, but contain clauses allowing contracting parties to select certain provisions of the substantive part by which they consider themselves bound.

6. With regard to paragraph B.ii. of the recommendation, the Committee of Ministers cannot support either the Assembly's suggestion on limiting the validity of reservations to a maximum period of ten years, or the one on their automatic invalidity in case of non-renewal. The past experience has shown that provisions of this type did not facilitate the application of conventions since they were not followed in practice. The Committee of Ministers recalls that under the present international law, the right of a state to maintain its reservations has remained unfettered and therefore finds it preferable to limit the number of reservations to the necessary minimum in order to ensure a wide-ranging participation of member states.

7. With regard to paragraph B.iii. of the recommendation, the Committee of Ministers believes that conventional committees cannot be endowed with supervisory powers as proposed by the Parliamentary Assembly. Due to their composition and status they are not competent to exercise quasi-judicial functions since they are usually composed of public officials who are subject to instructions by their respective governments. Their purely consultative opinions on reservations would probably not be endorsed by contracting parties. The existing practice shows that these committees do not usually go any further than inviting future contracting states to ratify without making any reservations.