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A Controversial Declaration on the U.N. Convention Against Torture
VI. The Effects of the German Democratic Republic Statement and of the Related Objections
Since the Committee has not yet exercised any of its implementation functions under Articles 20, 21 and 22 of the Convention, the German Democratic Republic has so far regularly paid its dues. Nevertheless, it is likely that the States Parties will sooner or later be confronted with the legal and financial problems raised by the German Democratic Republic's attitude.
None of the objecting states has indicated that it regards the German Democratic Republic as not having become a party to the Convention as a result of its inadmissible reservation. This is not surprising with respect to the states that have objected to the German Democratic Republic reservation by making reference to the compatibility rule of Article 19(c) of the Vienna Convention, for it is generally maintained that "incompatible" reservations do not nullify the act of ratification of the reserving state and are instead subject (just like admissible reservations) to the rules on acceptance or rejection of Article 20 of the Vienna Convention.52 Interestingly, even the three states that consider the German Democratic Republic statement as a reservation prohibited under Article 19(b) of the Vienna Convention have explicitly (Greece) or implicitly (Italy and Spain) accepted the establishment of treaty relations vis-à-vis the German Democratic Republic. This implies that they regard the German Democratic Republic's consent to be bound by the Convention as legally effective in spite of the prevalent theory that reservations prohibited by the treaty itself render ineffective the act of ratification to which they are attached.53
It might be assumed that the objecting states' attitude derives from the humanitarian character of the Convention and the consequent little purpose of opposing the establishment of treaty relations with the German Democratic Republic. In any event, given the entry into force of the Convention between all States Parties, the legal and practical effects of acquiescence to, or rejection of, the German Democratic Republic reservation should be ascertained in accordance with Article 21 of the Vienna Convention.
As to the Parties that have not objected or will not object to the German Democratic Republic reservation, after a certain period - not necessarily the twelve months of Article 20(5) of the Vienna Convention54 - they should be deemed to have acquiesced in the German Democratic Republic's modification of the financial provisions of the Convention, in accordance with Article 21(2) of the Vienna Convention. In practical terms, the acquiescing Parties will have to pay an additional contribution deriving from the apportionment among themselves of the amount withheld by the German Democratic Republic.55
As to the Parties that did, or will, object to the German Democratic Republic reservation, such a rejection will certainly prevent their acquiescence and preclude them from having to pay any additional amounts besides their regular contributions. In fact, according to Article 21(3) of the Vienna Convention, the reserved financial provisions of the Convention "do not apply as between the [German Democratic Republic and the objecting] states to the extent of the reservation." This may only be taken to mean that no agreement has truly been reached between the German Democratic Republic and the objecting Parties on how to assess the contributions for some of the Committee's expenses. Accordingly, both the German Democratic Republic and the objecting states might legitimately decline to pay more than the amount they consented to, and no claims for payment could be reciprocally raised. In other words, the German Democratic Republic reservation would fully attain its financial goal, whereas the objecting states would merely avoid any direct detriment to their financial duties under the Convention. In practical terms, as previously mentioned, the deficit would have to be covered by the Parties that, not having formulated any objections, have acquiesced to such a budgetary rearrangement.
However, this does not seem to be the outcome pursued by the objecting states. It is not difficult to infer from the language of several objections that the objecting states have attempted not only to render the German Democratic Republic reservation unopposable to them, but also, because of its inadmissibility, to render it "without legal effect"56 towards any other Party to the Convention. In other words, the objecting states appear to claim that "the assessment of the financial contributions of the States Parties ... must be drawn up in disregard of the declaration of the German Democratic Republic."57 Such an intended effect of the objections would actually be equivalent to the withdrawal of the reservation by the German Democratic Republic. Yet unless the German Democratic Republic acquiesces to such a claim, it does not seem that this outcome could be based on the Vienna Convention rules on reservations.
There seems to be little evidence in practice to support the position that under either the Vienna Convention or general international law an inadmissible reservation is to be regarded as a nullity and that the provision subject to the reservation is to be wholly applied to the reserving state regardless of the other Parties' acquiescence.58 On the contrary, it is generally held that the compatibility criterion is merely, as the International Court of Justice stated in its advisory opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, "a rule of conduct which must guide every state in the appraisal which it must make, individually and from its own standpoint, of the admissibility of any reservation."59
It would appear, as a result, that as long as the non-objecting states actually accept to pay an additional amount to compensate for the German Democratic Republic's reduced contributions, the German Democratic Republic might be able to succeed in its attempt, regardless of the supposed inadmissibility of its reservation.60 However, since acquiescence to this kind of reservation should not be presumed to have taken place until the German Democratic Republic actually begins to withhold its contributions, the silent Parties might still change their attitude and speak up. If this happens, that is if most of the other Parties refuse to pay in lieu of the German Democratic Republic, it is likely that the German Democratic Republic will be forced to reckon with its declaration, either by withdrawing it or facing a legally and politically uncomfortable dispute with the other Parties to the Convention.
Since, as a German Democratic Republic representative has declared before the U.N. Commission on Human Rights, "torture [is] inconsistent with the concept of law and morality under socialism",61 it seems rather odd that the German Democratic Republic would really place its financial needs before its legal and moral principles. Even though Article 18(5) of the Convention actually places a heavier than usual financial burden on States Parties,62 and even though the practice of withholding contributions is certainly not unknown to international bodies or institutions,63 it would be a bitter and frustrating disappointment if the effectiveness of a treaty protecting such a fundamental human right was hindered by financial problems.
52 See P.-H. Imbert, Les réserves aux traités multilatéraux (1979) 137-40; Ruda, `Reservations to Treaties', 146 Recueil des Cours de l'Académie de Droit International (1975) 182; Gaja, supra note 17, at 314-18. But see Bowett, supra note 16, at 77, 83.
53 See Capotorti, `Il diritto dei Trattati secondo la Convenzione di Vienna', in Convenzione di Vienna sul diritto dei trattati (1969) 27; Gaja, supra note 17, at 314.
54 See Gaja, supra note 17, at 424, 330 ("under general international law, acquiescence to a reservation cannot be safely related to silence over a precisely defined period such as the one indicated in Article 20(5)").
55 It may be noted that if one is to regard the German Democratic Republic reservation as implicitly prohibited by the Convention, in order to overcome such a prohibition an agreement amending the Convention would be needed and mere silence would probably not be enough to deem the modification accepted by the non-objecting Parties. See Gaja, supra note 17, at 319-20.
56 Objection by Norway, Traités multilatéraux, supra note 9, at 193.
57 Objection by the Netherlands, id.
58 The European Court of Human Rights recently held in the Belilos case that a Swiss reservation (formally styled as an interpretative declaration) was invalid because it did not satisfy all the requirements for reservations provided for in Article 64 of the European Human Rights Convention and applied the relevant part of the Convention as if Switzerland had never made its reservation. Arrêt du 29 avril 1988, supra note 22, para. 60. As noted by Edwards, supra note 49, at 376-79, this appears to be the first instance in international practice of a judicial body holding a reservation to be invalid and wholly applying the provision subject to the reservation regardless of the other Parties' lack of objections. However, it should be taken into account that the Court did not consider the Swiss reservation as inadmissible in terms of Article 19 of the Vienna Convention but rather as not formulated in compliance with all requirements of Article 64 of the European Human Rights Convention. Furthermore, in light of the fact that the Court did not provide any explicit reasoning or explanation for its conclusion, it is questionable whether one should perceive this judgement as a turning point in the law governing treaty reservations. But see Edwards, supra note 49, who considers it a "landmark decision."
60 This situation shows once more the ambiguity and inadequacy of the Vienna Convention rules on objections to reservations; see Ruda, supra note 51, at 199-200.
62 See supra notes 13-15. See Nowak, supra note 11, at 495.
63 See Zoller, `The "Cooperate Will" Of the United Nations and the Rights of the Minority', 81 American Journal of International Law (1987) 614.
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