,
21 tweets,
5 min read
Read on Twitter
Some quick notes on unilateral declarations. #Brexit international law lecture 315. To start with: what is a unilateral declaration (thread)
A declaration of interpretation is a unilateral statement to a treaty that tries to specify / clarify the meaning of teh treaty. They are commonly associated with multilateral agreements, but sometimes they are also made with regard to bilateral agreements.
When trying to classify such a unilateral statement the first question that arises is: is this really a declaration of interpretation, or is it a reservation in disguise - because Art. 2 of the VCLT defines the term “reservation” though its effects rather than its title 
When looking at a specific declaration you thus have to ask: does this exclude or modify the legal effect of certain provisions? Then it’s a reservation. Or is it just an interpretation? Then it’s a unilateral statement of interpretation (though there’s some discussion on this)
Because it’s clearly been too easy so far there are also unilateral declarations of interpretation that condition a parties consent to the treaty on that particular understanding of a clause. Others just give a preference for a certain interpretation.
So we have three groups of statements: reservations, conditional interpretative declarations and normal interpretative declarations.
Here’s what the ILC’s Guide to Practice on Reservations to Treaties has to say on this matte. First up: reservations
Next on the list: Interpretative declarations
How do you tell which is which?
And finally that pesky category: conditional declarations of interpretation
So - what’s the effect of these classifications now? Let’s start with reservations. Here there’s a particularity with regard to bilateral treaties.
So there are no reservations to bilateral treaties? The US would disagree. It was the only state to answer that it does formulate reservations to bilateral treaties as well. Others raised no objections on the principle when the US did.
However, in a bilateral treaty the effect of a reservation is different: it doesn’t just change the effect of the clause towards the reserving state, it changes the effect of the clause altogether. Hence the ILC regards it as an offer to amend the treaty.
IF the declaration is supposed to amend and change the treaty the question then is: has it been accepted. If yes, the treaty is modified. If not. It isn’t. (The text is from the ILC Commentary on their Guide to Practice to Treaty Reservations)
What now if it is interpretative and doesn’t amend?
If the other side agrees to the statement->that becomes an interpretation by both parties. If it is a “conditional” declaration,it is (see the argument on reservation) in fact an offer to amend the treaty.If it is a “mere” declaration it’s just one side’s preferred interpretation
(Note that if it is an offer to amend you also get into another horrible terrain: the party insisting on such an amendment is unwilling to ratify the unamended treaty...)
Rick has also found the UK’s view on reservations to bilateral treaties in Special Rapporteur’s Pellet’s report
In light of this: here are some of the decisive questions: Is the UK’s acceptance conditional on this declaration? Did the UK depart from its practice of not seeking to make reservations a condition of acceptance of bilateral treaties?
On the other hand: what did the EU do? Did the EU accept this statement? Is its silence (despite UK communication) some form of acquiesence? - Note Siraj’s view in this regard
And here’s a reference to @piris_jc interpretation of EU (in)action
