dissertation代寫案例-Study on reservation......part2
2. Definition and characteristics of reservation Treaty is an important source of international law, according to "the Statute of the International Court," Article 38 (1) of the regulations, The Justice of the International Court on a dispute will firstly be dealt based on "general or particular treaty", which shows the international treaty plays an important role in solving the disputes. However the reservations to treaties problem can be concluded as a problem in the process. To provide a theoretical analysis of this problem, we must start from the concept from the reservations. Then, the historical evolution of this system and the existing theories related to "Vienna Convention" in the specific provisions are also required to be considered. The research conducted by United Nations International Law Commission is mainly focused on theoretical aspects of the analysis, so as to provide practical guidance to the retain aspects of the treaty in different countries. 2.1 Definition of reservation In international law, reservations system is a unique system. Some scholars described it as the "shield" and the metaphor is apt and vivid to present the whole image of reservations. It can be seen that the reservations system played a very unique role, and thus were favored by the world. Study on its definition, the view of scholars from various countries on this issue is not entirely consistent. The currently accepted definition of authority is that reservation is "the one-sided statement which is made by one state when this state is in signing, ratifying, accepting, approving or acceding to a treaty,in order to exclude or modify certain provisions of the treaty that is applicable in the country with legal effect, no matter whatever phrases or names are." 2.2 The characteristics of reservation The above definition also reveals the five point features of reservation: (1) Generally, reservation is applied based on the treaty law when it is accepted to be bound by a treaty. The reason of setting the time limits to the reservations is to maintain the certainty and the stability of treaty relations, so as to facilitate contacts between the countries. (2) Retain is a kind of one-sided or unilateral declaration statement According to the number of subjects, the statement can be divided into unilateral declaration (one-sided statement), the two-side statement (the joint statement, joint statement) and multi-statement. In accordance with its terms to make the subject, retained can only be a one-sided statement, it is purely the internal affairs of States Parties, and it is made by the parties through the unilateral acts. Even though a number of countries or international organizations or joint formulation of a reservation or made the same reservation, it did not affect the unilateral nature of the reservations. In the cases that the same reservation is made in a statement by several countries, the acceptance or rejection of these reservations by the other countries should be reserved for each country separately. A number of countries or international organizations present the same reservations, these reservations should not be classified as one reserved, and these reservations should still be treated as unilateral acts of individual countries or international organizations. (3) The "language" or "name" of the reservation is flexible When a State Party makes reservations, the "language" or "names", such as "reserves", "Statement," "understanding," "Explanatory Statement", or "Explanatory Note", etc., does not affect the legal effect of the reservations. (4) The essence of the reservation is the exclusion or modification of the legal effect of the treaty in their application for the reservation The final criterion of a reservation is that whether to exclude or modify the legal effect of certain provisions in the treaty when they are applied in the country. (5) Reservation can be applicable in bilateral treaty, but it is mainly applied to multilateral treaties Generally speaking, the bilateral treaty will rarely cause the situation of reservation, and if there is, there will be no difficulties in legal issues. If the other country does not accept the reservation, the reservation will be considered as proposal of renegotiations for the disputes. However, in the practice, the U.S. had raised many reservations for the bilateral treaties. Therefore, the possibility of reservations to bilateral treaties cannot completely be ruled out. It should be paid attention to that such bilateral treaty “reservations” actual is the request or proposal of relevant treaty amendment or re-negotiations in accordance with the content of International Law Commission Practice Guidance. If the other side accepts the reservation, then the amendments will be formed and it is not the reservation in general scope. For multilateral treaties, some treaties will forbid any reservations from the parties to the Treaty, while some treaties will allow parties making reservations, in addition, some other treaties do not do make any rules or regulations on reservations. In fact, the “Vienna Convention on the Law of Treaties” provisions on reservations are mainly for the purposes of multilateral treaties. Although the parties exclude an obligation or change an obligation, which may cause the imbalance of the rights and obligations between reserving States and non-reserving State and undermine the integrity of the treaty, through reservations to multilateral treaties, it gives States the discretion to some extent, facilitates the absorption of more States to participate in multilateral treaties, and realize the aims and purpose of the treaty. In short, reservation system is a “double-edged sword”. It is also a shield for the parties to a treaty and a very special and unique legal system of the law of treaties. 3. History of reservation system As a unique system of international law, the reservation system is still under development process since the first reservation appeared in history. The evolution of the reservation system Julie A. Mertus, The United Nations and Human Rights, 2005, Routledge, Oxon Paola Gaeta, The UN Genocide Convention: A commentary, 2009, Oxford University Press, Oxford Malcolm D. Evans, International law, 3rd edition, 2010, Oxford University Press, Oxford Aust, A. (2010), Handbook of international law, Cambridge Univ Pr. Aust, A. (2007), Modern treaty law and practice, Cambridge Univ Pr. Birnie, P.; Boyle, A. & Redgwell, C. (2002), International law and the environment, Vol. 2, Oxford University Press New York. Conforti, B. (2005), The Italian Yearbook of International Law, Volume 14 (2004), Vol. 14, Brill Academic Pub. Blay, S.; Piotrowicz, R. & Tsamenyi, M. (1997), Public international law: an Australian perspective, Vol. 2, Oxford University Press. Conforti, B. (2005), The law and practice of the United Nations, Vol. 42, Brill Academic Publishers. Davidson, S. (2004), The law of treaties, Ashgate Dartmouth. Dugard, J.; Bethlehem, D. & Du Plessis, M. (2006), International law: a South African perspective, Juta & Co Ltd.