State the Convention need not be applied uniformly either between the Federation and its
component parts or among the latter.
4.
Paragraph (c) is more or less of the same character as Article 33
Article 38
Reservations
1.
At the time of signature, ratification or accession, any State may make reservations
to articles of the Convention other than to articles 1, 3, 4, 16 (1), 33 to 42, inclusive.
2.
Any State making a reservation in accordance with paragraph 1 of this article may
at any time withdraw the reservation by a communication to that effect addressed to the
Secretary-General of the United Nations.
1.
There was quite a considerable discussion in the Conference regarding this article. The
main opposition came regarding the provision (as contained in the Refugee Convention) to permit
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no reservations to Article 1. However, it was pointed out that the reason for not permitting
reservations to the basic provisions of the Convention (including Article 1) was not to permit the
essence to be undermined: if Contracting States were permitted to express reservations to the
essential articles they would, in effect, have freedom to veto the Convention. The Austrian
proposal to exclude Article 1 from the articles which were not subject to reservations was rejected
by a vote of 13 to 3, with 1 abstention. This article was adopted on first reading by 19 votes to
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none, with 1 abstention.
2.
Following the recent United Nations practice, Article 38 divides the articles of the
Convention into such parts to which reservations by States are permissible and such which have
to be accepted as they stand or no adherence to the Convention by the State may take place at
all. This is the result of the contention that several of the provisions of the Convention are so
fundamental that, if they are not accepted by a state, the Convention could not fulfil its
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purpose.
The number of substantive provisions to which no reservations are permissible is small.
They comprise only the definition of the term “stateless person”, the non-discrimination
clause, freedom of religion, and access to courts. The rest of the “blocked” provisions
concern procedure, the settlement of disputes, territorial application, etc.
Despite the wording of Article 38 reservations to the “blocked” provisions would seem to be
possible, viz., if all parties to the Convention should agree, because there is nothing in a
convention (even the question of what is indispensable therein) which could not be
amended with the consent of all parties involved. The question, however, will arise as to
who “all parties” are: those which - at the given time - have become a Contracting State in
accordance with Article 39; the Contracting States plus the potential parties, i.e., those
which have signed it at that time, or all states which drafted the text. It would seem that
states which participated in drafting the text but themselves neither adhered to it nor
showed any serious intention of doing so, by official signature, could not prescribe to
others what they ought or ought not to accept. As a matter of law, participation in drafting
does not mean anything; on the other hand, signature signifies the existence of an agreedupon text. Therefore, agreement on the text exists only among the states which have
provincial governments might apply the provisions for a shorter time than the period to which the Federal Government
agreed. The point of view of the Israel representative was that there could be no two systems of reservations: one for
unitary and another for Federal States; this view seems to have commanded general approval in the Conference. (For the
discussion, see SR.30, pp. 23 ff.)
242
See in particular the statement by the Israel representative.
243
For the discussion see SR.12, pp. 11-15 and SR.14, p. 12.
244
See above.