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Rawle Kennedy v Trinidad and Tobago[1] raised nakedly, in the context of an individual communication, the acceptability of a reservation[2] to the Optional Protocol to the International Covenant on Civil and Political Rights made by the State Party. The author of the communication, who was also the alleged victim, was represented by Saul Lehrfreund, MBE of the London Law firm Simons Muirhead and Burton. On 2 November 1999 the Human Rights Committee adopted its decision on admissibility. This paper will explore the reasoning of a majority of the Committee which declared the communication admissible despite the reservation and the individual dissenting opinion of four members of the Committee which would have held the communication to be inadmissible because of the reservation.
On 26 May 1998 the Government of Trinidad and Tobago denounced the first Optional Protocol to the International Covenant on Civil and Political Rights 1966 to take effect on 26 August 1998 in accordance with article 12(1) of the Optional Protocol which states that:
[a]ny State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations. Denunciation shall take effect three months after the date of receipt of the notification by the Secretary-General.
On the same day, it reacceded, including in its instrument of reaccession the following reservation:
Trinidad and Tobago re-accedes to the Optional Protocol to the International Covenant on Civil and Political Rights with a Reservation to article 1 thereof to the effect that the Human Rights Committee shall not be competent to receive and consider communications relating to any prisoner who is under sentence of death in respect of any matter relating to his prosecution, his detention, his trial, his conviction, his sentence or the carrying out of the death sentence on him and any matter connected therewith.
To explain why such measures were taken, the State Party referred to the decision of the Judicial Committee of the Privy Council in Pratt and Morgan v The Attorney-General for Jamaica [3] in which it was decided that strict guidelines must be observed by States in the hearing and determination of appeals from convicted murderers who have been condemned to death. The Privy Council stated that in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute "inhuman or degrading punishment or other treatment"[4] in violation of section 17 of the Jamaican Constitution. The effect of the decision for Trinidad and Tobago was that, notwithstanding the fact that the death penalty is the punishment for the crime of murder in Trinidad and Tobago, inordinate delays in carrying out the death penalty would contravene section 5, paragraph 2(b) of the Constitution of Trinidad and Tobago, which contains a provision similar to that in section 17 of the Jamaican Constitution. The State Party explained that as the decision of the Judicial Committee of the Privy Council represented the constitutional standard for Trinidad and Tobago, the Government was mandated to ensure that the appellate process was expedited by the elimination of delays within the system in order that capital sentences imposed pursuant to the laws of Trinidad and Tobago could be enforced. Thus, the State Party chose to denounce the Optional Protocol: [5]
[i]n the circumstances, and wishing to uphold its domestic law to subject no-one to inhuman and degrading punishment or treatment and thereby observe its obligations under article 7 of the International Covenant on Civil and Political Rights, the Government of Trinidad and Tobago felt compelled to denounce the Optional Protocol. Before doing so, however, it held consultations on 31 March 1998, with the Chairperson and the Bureau of the Human Rights Committee with a view to seeking assurances that the death penalty cases would be dealt with expeditiously and completed within 18 months of registration. For reasons which the Government of Trinidad and Tobago respects, no assurance could be given that these cases would be completed within the time-frame sought.
The ostensible reason for entering the reservation was to ensure compliance with the decision of the Judicial Committee in Pratt and Morgan. A State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing reasonable time for appeal and consideration for reprieve. Capital appeals must be expedited. The aim should be to hear capital appeals within twelve months of conviction. It should be possible to complete the entire domestic appeal process (including an appeal to the Privy Council) within approximately two years. It should be possible for the International Human Rights bodies, such as the United Nations Human Rights Committee, to dispose of complaints to it in death penalty cases at most within eighteen months. [6]
However, the real reason for the denunciation is exhibited in the Notice of Denunciation which states that: [7]
[t]he Government of Trinidad and Tobago has been led to this withdrawal because of the increasing abuse of the procedures under the Optional Protocol by persons sentenced to death after due process of law in the Trinidad and Tobago High Court, the Court of Appeal and the Judicial Committee of the Privy Council. This occasions increasing resentment by the population of Trinidad and Tobago and can have adverse effects on the national security interests of the country in respect of persons convicted of drug-related murders.
Thus, the motivation behind the reservation was not the altruistic principle of compliance with the standards laid down by the Judicial Committee in Pratt and Morgan and thus the observance of the human rights of those prisoners serving on death-row, but the quite different one of the need to obtain certain specific outcomes in relation to drug-related murders in the State Party. The reference to "the increasing abuse of the procedures under the Optional Protocol by persons sentenced to death" in the Notice of Denunciation is simply a gratuitous reference to the large number of claims being brought against the State Party by those awaiting execution for alleged abuses of rights contained in the Covenant. To describe the use of any international procedures available to a condemned man to avoid execution as an "abuse" is frankly obscene.
The Notice of Reaccession makes it clear that the reservation to the Optional Protocol in no way detracts from the State Party's "obligations" and "engagements" under the Covenant, including its undertaking to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant (in so far as not already reserved against) as set out in article 2 of the Covenant. Neither does it detract from its undertaking to report to the Human Rights Committee under the reporting procedure established by article 40.
On 3 February 1987, one Norris Yorke was wounded in the course of a robbery at his garage. He died of his wounds the following day. The author of the communication, Mr. Rawle Kennedy, was arrested on 4 February 1987, charged with murder along with one Wayne Matthews on 9 February 1987 and first brought before a magistrate on 10 February 1987. The author was tried between 14 and 16 November 1988 and was found guilty. The author appealed against his conviction and on 21 January 1992 the Court of Appeal allowed the appeal and ordered a re-trial which took place between 15 and 29 October 1993. The author was again found guilty and sentenced to death. A fresh appeal was lodged subsequently but the Court of Appeal refused leave to appeal on 26 January 1996, giving its reasons for doing so on 24 March 1998. The author's subsequent petition to the Judicial Committee of the Privy Council was dismissed on 26 November 1998.
Mr. Rawle Kennedy claimed to be a victim of a violation of a number of articles of the Covenant: namely, article 2, paragraph 3; article 6, paragraphs 1,2 and 4; article 7; article 9, paragraphs 2 and 3; article 10, paragraph 1; article 14, paragraphs 1, 3(c) and 5; and, article 26. The author alleged that all domestic remedies had been exhausted for the purposes of article 5, paragraph 2(b) of the Optional Protocol.[8] While a constitutional motion might be open to the author in theory, it is not available in practice due to the State Party's unwillingness or inability to provide legal aid for such motions and to the extreme difficulty of finding a Trinidadian lawyer who would represent an applicant pro bono on a constitutional motion.
The detailed complaints put forward by the author may be found in paragraphs 3.1- 3.17 of the Committee's decision on admissibility. Since this article does not purport to deal with the possible substantive breaches of the Covenant and, in any event in its admissibility decision, ex hypothesi, the Committee was not examining alleged breaches of the Covenant, these allegations will not be rehearsed here. For the present, it is sufficient to note that the distinction between capital and non-capital murder which has been enacted in many other common law jurisdictions, such as the Homicide Act 1957 in the UK, has never been applied in Trinidad and Tobago. The stringency of the mandatory death penalty for murder is exacerbated by the Murder/Felony Rule which exists in Trinidad and Tobago, under which a person who commits a felony involving personal violence does so at his own risk, and is guilty of murder if the violence results even inadvertently in the death of the victim. The application of the Murder/Felony Rule is an additional and harsh feature for secondary parties who may not have participated with the foresight that grievous bodily harm or death were possible incidents of that robbery - as was the case with the author of the communication.
The author submitted his communication on 7 December 1998, some four months after the reaccession with the reservation took effect. Accordingly, the case was intended clearly as a direct challenge to the State Party's reservation.
Counsel for the author argued that the reservation impaired significantly the competence of the Committee under the Optional Protocol to hear communications as it purported to exclude from consideration a broad range of cases, including many which would contain allegations of violations of non-derogable rights.[9] It was submitted that the reservation was therefore incompatible with the object and purpose of the Optional Protocol, that it was invalid and without effect and accordingly presented no bar to the Committee's consideration of the communication on the merits.
To support this general argument counsel advanced three main arguments. First, it was argued that the Preamble to the Optional Protocol as well as its articles 1 and 2 all state that the Optional Protocol gives competence to the Committee to receive and consider communications from individuals subject to the jurisdiction of a State Party who claim to be victims of a violation by the State Party of "any[10] of the rights"[11] set forth in the Covenant. Accordingly, it was argued that a State Party to the Protocol accepted a single obligation in relation to all of the rights enumerated in the Covenant and could not by reservation exclude consideration of a violation of any particular right. If the word "reservation" here is intended to refer to a reservation to the Covenant, this statement cannot be correct, since States Parties can and do make reservations to particular rights in the Covenant in so far as they are free to do so.[12] The statement must be read subject to a State Party's right to make permissible reservations to the Covenant. Accordingly, the "reservation" referred to here must mean reservation to the Optional Protocol. If this is so, the statement appears to mean simply that a State Party cannot make a reservation to a particular substantive right in the Covenant by making a reservation to the Optional Protocol since this would violate the object and purpose of the Optional Protocol. This is in line with the General Comment No 24[13] paragraph 13 which will be discussed later. Of course, it is clear that the phraseology of the State Party's reservation in this case does not refer to the reservation of a specific right but to a class of persons - prisoners under sentence of death. However, the effect of this carefully drafted reservation is to exclude consideration by the Committee under the OP of some of the rights protected by the Covenant in relation to such prisoners. Thus, the effect of the reservation is to deny the possibility of death-row prisoners testing alleged breaches of certain rights before the Committee.
In support of this first argument it was submitted that the rights enumerated in the Covenant include non-derogable human rights having jus cogens status and that the State Party could not limit the competence of the Committee to review cases which engage rights with such a status, and thus a State Party cannot, for example, limit communications from prisoners under sentence of death alleging torture. This submission is in line with General Comment No 24 paragraph 8. According to paragraph 8, provisions in the Covenant that represent customary international law - and a fortiori when they have the character of peremptory norms[14] - may not be the subject of reservations. Thus, the Committee says a State may not reserve the right to: (1) engage in slavery (article 8(1)); (2) to torture, to subject persons to cruel, inhuman or degrading treatment or punishment (article 7); (3) to arbitrarily deprive persons of their lives (article 6); (4) to arbitrarily arrest and detain persons (article 19); (5) to deny freedom of thought, conscience or religion (article 18); (6) to presume a person guilty unless he proves his innocence (article 14 (2)); (7) to execute pregnant women or children (article 6(5)); (8) to permit the advocacy of national, racial or religious hatred (article 20(2)); (9) to deny to persons of marriageable age the right to marry (article 23(2)); (10) to deny to minorities the right to enjoy their own culture, profess their own religion, or to use their own language (article 27); and (11) while reservations to particular clauses of article 14 may be acceptable, a general or blanket reservation to all aspects of the right to a fair trial would not be.
It is important to notice that there is no necessary correlation between non-derogable provisions and those provisions which have the character of peremptory norms. Thus not all non-derogable rights have the character of peremptory norms which would prohibit a reservation in relation thereto. In General Comment No. 24 paragraph 10, the Committee exemplifies two non-derogable rights (the prohibition of torture (article 7) and the arbitrary deprivation of life (article 6)) which cannot be reserved because of their peremptory status. To these two examples may perhaps be added the prohibition on slavery (article 8). Accordingly, there are some non- derogable rights which may be reserved. There is no automatic correlation between reservations to non-derogable provisions and reservations which offend against the object and purpose of the Covenant, but "a State [Party] has a heavy onus to justify such a reservation."[15] However, in the context of prisoners sentenced to death and accordingly where issues relating to articles 6 and 7 are concerned, the rights contained in these articles are both non-derogable and peremptory norms and therefore cannot be reserved in any event. Since we are concerned with reservations, the fact that articles 6 and 7 are non-derogable is immaterial. It is the fact that they are peremptory norms which prohibits reservation to them. Thus, the reference to non-derogability in the first submission under the first argument is of no significant importance here.
The Committee's list of provisions that are representative of customary international law in paragraph 8 of General Comment No. 24 is very expansive. The French observations on General Comment No 24, transmitted by letter dated 8 September 1995, also state that to claim that all the examples cited by the Committee as representing customary international law would be premature to say the least.[16] Some critics would question whether State practice in the intensely controversial area of minority rights would justify the conclusion that the content of article 27 is representative of customary international law. Similarly, one can wonder whether the provision in article 20(2) that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law" is constitutive of customary international law as the Committee holds, bearing in mind the sheer number of reservations that have been entered thereto, particularly by Western States. The evidence of the reservations seems to be quite to the contrary. It is also worth noting that the Committee apparently equates customary international law with peremptory norms of international law in the context of unacceptable reservations; and certainly not all the items listed by the Committee in paragraph 8 would fall within the parameters of a peremptory norm. Indeed Professor Nowak goes even further when he criticizes "the proposition of the Committee that any provision that represents customary international law may not be the subject of reservation".[17] He describes this as "highly doubtful"[18] and suggests that "this proposition is only valid with respect to peremptory norms".[19] On 28 March 1995 the USA submitted its observations on General Comment No 24 by letter.[20] The second section of the observations of the USA deals with the "acceptability of reservations governing legal principles". The first point taken here is in relation to the statement by the Committee that reservations offending peremptory norms of international law would not be compatible with the object and purpose of the Covenant and nor may reservations be made to Covenant provisions which represent customary international law. The USA accepts that a State cannot exempt itself from a peremptory norm of international law by making a reservation to the Covenant. However, it objects that "[i]t is not at all clear that a State cannot choose to exclude one means of enforcement of particular norms by reserving against inclusion of those norms in its Covenant obligations". But the point made by the Committee is intended precisely to clarify the position; furthermore, surely enforcement of peremptory norms, which reflect the most fundamental rights of man, is one of the most basic objectives and purpose of the Covenant? The second point made here is that the proposition that any reservation which contravenes a norm of customary international law is per se incompatible with the object and purpose of the Covenant or any other treaty, is far too sweeping, wholly unsupported by and in fact contrary to international law.The UK observations on General Comment No 24, transmitted by letter dated 21 July 1995, also doubt whether such a proposition represents existing customary international law.[21] Whatever the position may be in relation to general treaties and may have been in the past in relation to human rights treaties, the Committee is clearly seeking to establish that, henceforth, in relation to the Covenant, reservations to rules of customary international law will be invalid. This criticism of the General Comment has already been made by Professor Nowak, as explained above, where he has argued that rules of customary international law may be modified by treaty since they are by nature ius dispositivum.[22] This is clearly the case in regard to general treaties. But surely, as the Committee claims, it is now time to put human rights treaties on a different footing on the basis that human rights treaties are not mere exchanges of obligations between states which, quite rightly, allow them to reserve inter se application of rules of general international law, but are for the benefit of persons within their jurisdiction? Perhaps, more worryingly, paragraph 8 of the General Comment does not, if Nowak's and the USA's criticisms are valid, make any distinction in the catalogue enumerated therein between peremptory norms and customary international law. This is a point emphasised by the French in their observations where they state that "... it goes without saying that the customary rule concept can in no way be equated with a peremptory norm of international law".[23] Thus Nowak argues that only in relation to the prohibition of slavery, torture, arbitrary executions, genocide and similar forms of systematic discrimination is there emerging a consensus that these fundamental rights have acquired the status of jus cogens. Judge Higgins has also implied that certain rights — the right to life, to freedom from slavery or torture — are so fundamental that they have the character ofjus cogens.[24]
The second submission in support of the first argument advanced by the author was that the Committee would be faced with real difficulty if it dealt with communications only in relation to certain rights, as many complaints necessarily involve allegations of violations of several of the Covenant's rights. In the abstract this may well be so. However, the Committee will have to exclude consideration of particular rights if there has been a valid reservation thereto. Also the Committee has on several occasions had to exclude consideration "of the same matter" when it has already been examined under another procedure of international investigation or settlement while theoretically being free to examine other matters.[25] Thus, the Committee may well have to discriminate between consideration of different rights in some circumstances already. Furthermore, in cases such as TK v France[26] and MK v France[27] (and see also SG v France[28] and GB v France[29] ), the Committee has had to deal with the breach of some rights but not that of others on the grounds of a French reservation.[30] In any event, given the fact that the Committee has the capacity to handle the practical problems associated with differential treatment of different rights in the same communication (and there are many examples of this from the Committee's jurisprudence on inadmissibility ratione materiae[31] ), it is hard to discern a conceptual reason for preventing the Committee from examining breaches of some rights and not other rights where there is a valid justification for an exclusion of review in relation to the other rights, such as where a number of rights are alleged to have breached and some do not fall within the terms of the Covenant.
The third submission in support of the first argument was that the approach of the Government of Trinidad and Tobago to the reservation was without precedent and, in any event, there was little or no support for the practice of making reservations ratione personae or ratione materiae in relation to the Optional Protocol. This submission reflects the fact that the reservation in this case did not actually reserve generally particular rights but reserved from consideration under the Optional Protocol all communications relating to a particular class of persons, namely prisoners under sentence of death, and this not just in relation to the carrying out of the death penalty but also the antecedent and related steps of prosecution, detention, trial, conviction and sentence of such persons. Thus, the reservation was both imaginatively and widely phrased. The obvious purport of the reservation was to reserve all death penalty cases whatever rights were alleged to have been violated from consideration by the Committee under the individual communication procedure. Indeed, as suggested by this submission, it was a novel form of reservation to the Optional Protocol and thus there were no precedents for it. But, ex hypothesi, there could be no precedents. It is uncertain what is meant by the expression "ratione materiae" in this context because in the normal terminology of the Committee's jurisprudence this would be taken as referring to the reservation of certain rights. It is assumed that here it is intended to relate to the fact that all matters relating to death sentence prisoners are reserved from international review under the Optional Protocol procedure. The fact that the reservation is without precedent is not a sufficient reason for stating that the reservation is invalid. Reservations are notoriously inventive and imaginative in their form and structure and there is no a priori reason why such reservations should not be acceptable if they conform to the stipulations of General Comment No 24.
The second main argument advanced by counsel was that in determining whether the reservation is compatible with the object and purpose of the Optional Protocol, it was appropriate to recall that a state could not "withdraw" from the Optional Protocol for the purpose of shielding itself from international scrutiny in respect of its substantive obligations under the Covenant. Trinidad and Tobago's reservation would in effect serve that purpose and accordingly allow such an abuse to occur. It is necessary to observe that the use of the word "withdraw" in this context is inappropriate. Under article 12 of the Optional Protocol a State Party has an absolute right to withdraw from or denounce the Optional Protocol. The only limitations are that denunciation will only take effect three months after receipt of the notification by the Secretary-General of the UN and that it shall be without prejudice to the continued application of the Optional Protocol machinery to any communication submitted to the Committee before the effective date of denunciation.[32] Subject to this remark, this argument falls squarely within General Comment No 24 paragraph 13 and therefore is a convincing argument. Of course, General Comments are not strictly legally binding but, as they are the authoritative collegiate view of the Committee, they command great respect.[33]
The third and final main argument of the author was that the breadth of the reservation was suspect because it precluded consideration of any communications concerned not just with the imposition of the death penalty as such, but with every possible claim directly or even indirectly connected with the case just because the death penalty had been imposed. It is true that the reservation is so widely drafted that it does indeed have this effect.
In addition, it could be argued that the reservation is so widely phrased that it falls foul of General Comment No 24 paragraph 19 wherein it is stated that:
reservations may thus not be general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in relation thereto.
Neither does it state clearly which provision of the Covenant it is sought to reserve. Furthermore, the reservation is clearly wider than necessary because it inhibits claims by persons under sentence of death even where the time limit set by the Privy Council in Pratt and Morgan has already been exceeded.
In its submission of 8 April 1999 the State Party submitted that because of its reservation and the fact that the author was a prisoner under sentence of death, the Committee was not competent to consider the communication. It further argued that even in registering the communication and purporting to impose interim measures under rule 86 of the Committee's rules of procedure,[34] it had exceeded its jurisdiction and accordingly the State Party considered the action of the Committee in this regard as of no binding effect and therefore null and void.
Counsel for the author submitted his comments on 23 April 1999 arguing that the State Party's assertion that the Human Rights Committee had exceeded its jurisdiction in registering the communication was wrong as a matter of settled international law. It was argued that, in conformity, with the general principle that the body to whose jurisdiction a purported reservation is addressed decides on the validity and effect of that reservation, it must be for the Committee, and not the State Party, to determine the validity of the purported reservation. Counsel referred to General Comment No 24 paragraph 18 and to the Order of the International Court of Justice of 4 December 1998 in the Fisheries Jurisdiction (Spain v Canada) case.[35]
In its decision on admissibility, the Human Rights Committee made three preliminary observations before examining the validity of the reservation as such. First, the Committee asserted that, in line with General Comment No 24 paragraph 18, it was for the Committee as the treaty body of the International Covenant on Civil and Political Rights and its Optional Protocols, to interpret and determine the validity of reservations made to these treaties. Accordingly, the Committee rejected the submission of the State Party that it had exceeded its jurisdiction in even registering the communication and in proceeding to request interim measures under rule 86 of its rules of procedure. Secondly, the Committee pointed out that it was axiomatic that the Committee necessarily had the jurisdiction to register a communication so as to determine whether it is or is not admissible because of a reservation. Logically, this must indeed be so. Thirdly, the Committee remarked that the reservation if valid, would on the face of it, leave the Committee without jurisdiction to consider the present communication on the merits. Again, this was incontestable. Thus, the critical issue was the validity of the reservation.
The first observation needs further elaboration by way of reference to General Comment No 24. Paragraphs 16, 17 and 18 deal with the important issue as to which body has the legal authority to make determinations as to whether specific reservations are compatible with the object and purpose of the Covenant and the effect of unacceptable reservations. The Committee begins by examining the legal position in relation to international treaties in general. It explains that article 20(4) of the Vienna Convention on the Law of Treaties 1969 permits a State to object to a reservation made by another State. Article 21 of the Vienna Convention deals with the legal effects of reservations and of objections to reservations: in essence, a reservation precludes the operation, as between the reserving and other States, of the provision reserved; and an objection thereto leads to the reservation being in operation as between the reserving and objecting State only to the extent that it has not been objected to. The Committee then criticizes that the provisions of the Vienna Convention on the role of State objections in relation to reservations are inappropriate to address the issue of reservations to human rights treaties. This is because such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The phraseology of paragraph 17 is remarkably similar to the language used by Judge Higgins at the Seventeenth Chorley Lecture delivered at the London School of Economics on 1 June 1988.[36] The principle of inter- State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee's competence under article 41. This is because article 41 specifies that communication under article 41 "may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee" under article 41 (the reciprocity principle). Thus, the Committee surmises that because the operation of the classic rules on reservation is so patently inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. Accordingly, the "absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant". The Committee then catalogues the indicators of the inadequacy of the general international regime on reservations in this regard: (1) objections have been occasional, made by some States, and not others, and on grounds not always specified; and (2) when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. Sometimes it is uncertain whether a statement is a reservation or an interpretative declaration and thus may not elicit a formal objection. In sum, the pattern is so unclear, and so confusing, that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. Judge Higgins goes much further and suggests that "one might almost say that there is a collusion to allow penetrating and disturbing reservations to go unchallenged".[37] She cites several examples of reservations that went unobjected or were only objected to by a few countries: India's reservation on the right of self-determination only applying to peoples under foreign domination elicited objections only from France, Germany and The Netherlands and the Finnish and Danish reservations to article 14(1) are but two examples. More recently, the lack of a great number of objections to the five reservations, five understandings and three declarations made by the USA on ratification of the Covenant on 8 June 1992, is another example. Indeed, after consideration of the first report of the USA by the Committee, in its comment the Committee states that it [38]
regrets the extent of the State Party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant.
Thus, in summary, the Committee questions what effect objections have between States inter se because of the special characteristics of the Covenant as a human rights treaty. The Committee concludes however that "an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant". Thus, comparatively little importance is attached by the Committee to a failure to lodge objections by a State. Accordingly, it is the Committee which must determine whether a specific reservation is compatible with the object and purpose of the Covenant (without any temporal limitations apparently since there is no mention of it in the General Comment). The reasons for this are: (1) as explained above, it is an inappropriate task for States Parties in relation to human rights treaties; (2) it is a task that the Committee cannot avoid in the exercise of its functions: in order to know the scope of its duty to examine a State's compliance under article 40 or a communication under the Optional Protocol, the Committee has necessarily to decide on the compatibility of a reservation with the object and purpose of the Covenant and with general international law; and (3) because of the special character of a human rights treaty, the compatibility of a reservation with the object and purpose of the Covenant must be established objectively by reference to legal principles, and the Committee is particularly well placed to perform this task.
In its decision, the Committee remarks that the Optional Protocol itself does not govern the permissibility of reservations to its provisions. In accordance with article 19 of the Vienna Convention on the Law of Treaties and principles of customary international law, reservations can therefore be made as long as they are compatible with the object and purpose of the treaty in question. This is in accordance with the views articulated in General Comment No 24 paragraph 6. The statement is clearly the starting point of the analysis and has not been criticised. It was accepted specifically in the individual dissenting opinion of Committee members Ando, Bhagwati, Klein and Kretzmer.[39] Thus, the sole issue here was whether the reservation made by the State Party was considered to be compatible with the object and purpose of the Optional Protocol. The Committee stated that in its General Comment No 24 paragraph 13, it had expressed the view that a reservation aimed at excluding the competence of the Committee under the Optional Protocol with regard to certain provisions of the Covenant could not be considered to meet this test: [40]
[t]he function of the first Optional Protocol is to allow claims in respect of [the Covenant's] rights to be tested before the Committee. Accordingly a reservation to an obligation of a State to respect and to ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State's duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State's compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant (emphasis added).
The Committee then applied this formula to the present reservation. It noted that the reservation under review did not purport to exclude the competence of the Committee under the Optional Protocol with regard to any specific provision of the Covenant, but rather to the entire Covenant for one particular group of complainants, namely prisoners under sentence of death. This did not, however, make it compatible with the object and purpose of the Optional Protocol. In a key passage underlying its decision the Committee explained its reasoning thus: [41]
[o]n the contrary, the Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol.
The consequence was that the Committee was not precluded from considering the present communication under the Optional Protocol and there being no other grounds apart from the reservation for challenging admissibility put forward by the State Party, the Committee decided that the communication should be heard on the merits.
The reasoning adopted by the Committee may in one sense be described as a straightforward application of General Comment No 24 paragraph 13.[42] The Committee could have added to its exposition of the relevant principle the final sentence of paragraph 13 which reads:
[a] reservation to a substantive obligation made for the first time under the Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.
If one accepts the Committee's reasoning in General Comment No 24 paragraph 13 then the conclusion reached by the Committee in paragraph 6.7 of its decision on admissibility is a necessary consequence. However, by introducing the argument about "discrimination", the Committee makes it clear that this was the decisive factor in rejecting the reservation of the State Party. In one sense, resorting to such a simple ratio is a strength inasmuch as it is clear that the effect of the reservation would be that only all persons under sentence of death would be deprived of the right to have allegations of breaches of their Covenant rights tested before the Committee. That is indeed blatant discrimination against a particularly vulnerable group in society. On the other hand, it is clear from the constant jurisprudence of the Committee originating with the famous trilogy of cases — Broeks[43] , Damning[44] and Zwaan-de Vries[45] -that all differences of treatment are not discriminatory. A differentiation based on reasonable and objective criteria does not amount to a prohibited discrimination within the meaning of article 26 of the Covenant. The Committee should have gone on to consider this issue, as pointed out by the individual members of the Committee who attached a dissenting opinion. The conclusion could still have been that the discrimination imposed by the reservation was not reasonable and not objectively justifiable. The analysis should have been pressed to its logical conclusion or the Committee should have been satisfied with a straightforward application of General Comment No 24 paragraph 13. However, by adopting an additional criterion the Committee has laid itself open to a charge of flawed reasoning and an elementary lack of analysis. Committee Member Professor Louis Henkin concurred in the result without giving his own reasoning. His disagreement with some or all of the reasoning may perhaps be inferred.
The first point to note is that the dissenting members of the Committee agreed with the majority that the Committee had the competence to register the communication and to issue a request for interim measures under rule 86 of the rules of procedure so as to allow the Committee to consider whether the State Party's reservation to the Optional Protocol made the communication inadmissible. Thus, it was agreed by all the members that it was the Committee which had the power to decide. However, the dissentients could not agree with the majority of the Committee that the communication was admissible.
The dissentient members then outlined a number of salient points which provided the foundation for their opinion. Thus, it was asserted that: (1) no communication should be received by the Committee if it concerned a State Party to the Covenant which was not a party to the Optional Protocol;[46] (2) the Optional Protocol was a distinct international treaty, deliberately separated from the Covenant, in order to enable States to accept the provisions of the Covenant without being obliged to accept the Committee's competence to consider individual communications;[47] (3) the Optional Protocol expressly permits denunciation[48] in contradistinction to the Covenant which contains no provision permitting denunciation;[49]
(4) denunciation of the Optional Protocol could have no legal effect whatsoever on the State Party's obligations under the Covenant;[50] (5) the Optional Protocol itself does not govern the permissibility of reservations to its provisions: accordingly, in accordance with rules of customary international law that are reflected in article 19 of the Vienna Convention on the Law of Treaties, reservations to the Optional Protocol can be made provided they are compatible with the object and purpose of the Treaty;[51] and (6) the object and purpose of the Optional Protocol is to further the purposes of the Covenant and the implementation of its provisions by allowing international consideration of claims that an individual's rights under the Covenant have been violated by a State Party.[52]
The dissentient members of the Committee then entered on the next phase of their analysis by commenting that the purposes and implementation of the Covenant would indeed best be served if the Committee had the competence to consider every claim by an individual of a violation of his rights under the Covenant; however, the assumption by a State of the obligations under the Covenant does not grant competence to the Committee to consider individual claims; such competence is acquired only if the State Party to the Covenant also accedes to the Optional Protocol. All these statements are unexceptionable. The dissentients then comment that:[53]
[i]f a State Party is free either to accept or not accept an international monitoring system, it is difficult to see why it should not be free to accept this mechanism only with regard to some rights or situations[54] provided the treaty itself does not exclude this possibility. All or nothing is not a reasonable maxim in human rights law.
For the reasons stated earlier in this paper it is not thought that the Optional Protocol creates a single obligation in relation to the rights enumerated in the Covenant and therefore there are sound reasons for agreeing with this statement by the dissentient members.
The dissentient members then attack as "unconvincing" the argument of the Committee that a reservation singling out persons under sentence of death for lesser procedural protection than anyone else constitutes discrimination which runs counter to some of the basic principles in the Covenant and its Protocols. However, the dissenting members are prepared to accept that a State Party cannot submit a reservation that offends peremptory rules of international law; thus, for example, a reservation to the Optional Protocol that discriminated between persons on grounds of race, religion or sex would be invalid. This is in line with General Comment No 24 paragraphs 8 and 9. However, the dissentients argue that this certainly does not mean that every distinction between categories of potential victims of violations by the State Party is unacceptable. They assert that "all depends on the distinction itself and the objective reasons for that distinction" and advocate the approach advanced by the Committee in its jurisprudence under article 26 discussed above which absolves a State Party from liability if the differentiation is reasonable in character and objectively justifiable. Since the present case was concerned with a reservation to the Optional Protocol and not the Covenant, this required an examination of not whether there should be any difference in the substantive rights of persons under sentence of death and those of other persons, but whether there is any difference between communications submitted by people under sentence of death and communications submitted by all other persons. The dissentients complained that the Committee had chosen to ignore this matter, which formed the basis for the reservation submitted by the State Party.
The core of the reasoning of the dissenting opinion holding the reservation to be valid is revealed in paragraph 10 of the opinion. Here the dissenting members explain that "the difference between communications submitted by persons under sentence of death and others is that they have different results". Why is this so? The dissenting opinion states that: [55]
[b]ecause of the constitutional constraints of the State Party the mere submission of a communication by a person under sentence of death may prevent the State Party from carrying out the sentence imposed, even if it transpires that the State Party has complied with its obligations under the Covenant. In other words, the result of the communication is not dependent on the Committee's views — whether there has been a violation and if so what the recommended remedy is — but on mere submission of the communication. This is not the case with any other category of persons who might submit communications.
What are the constitutional constraints referred to? This is clearly a reference to the decision of the Judicial Committee of the Privy Council in Thomas and Hilaire v Baptiste, Peterson and The Attorney-General,[56] in which that Committee held that the due process clause in section 4(a) of the Constitution of Trinidad and Tobago incorporated the concept of procedural fairness not only in the trial but also in the appellate process. The Privy Council went on to state that section 4(a) affirmed the common law right not to have the result of any pending appellate or other legal process rendered nugatory by executive action before completion. Consequently, section 4(a) prevented the Government from carrying out the death sentences passed on individuals who have petitions pending determination before either the Inter-American Commission/Court of Human Rights or by analogy the Human Rights Committee. The Privy Council held that to do so would infringe the right to due process guaranteed by section 4(a). In the case of Thomas, this meant that his execution would be stayed until his petition to the Inter-American Commission on Human Rights had been determined and that any ruling of the Commission or Court had been considered by the relevant authorities in Trinidad and Tobago.[57]
It is true that there is a difference between communications by a person under sentence of death and other communications but that does not make a difference in the treatment of death row prisoners reasonable or objectively justifiable. The question should be: is the difference in treatment according to whether a person is or is not a prisoner under sentence of death reasonable and objective? To claim that it is reasonable and justifiable to give death- row prisoners less procedural protection than other prisoners is frankly outrageous. It is difficult to see how, just because the Optional Protocol machinery may apply in one sense differently to death-row prisoners, that this justifies different and less extensive protection than that given to other persons. The different way the individual communication procedure may operate in such a case is surely immaterial to whether the degree of protection should be greater or lesser depending on whether or not an individual has been sentenced to death or not.
The dissenting opinion then points out that if the constitutional constraints faced by the State Party had placed it in a situation in which it was violating substantive Covenant rights, denunciation of the Optional Protocol, and subsequent reaccession, would not have been a legitimate step, as its object would have been to allow the State Party to continue violating the Covenant with impunity. Clearly, this must be the case. However, the opinion comments "that is not the situation here". Unfortunately, it is precisely the situation here as the reservation is drawn so widely that all breaches of all Covenant rights in relation to prisoners under sentence of death are excluded from the Committee's decision process under the Optional Protocol. Thus, although breaches of such rights would violate the Covenant, the State Party has, in effect, bought itself out of Committee's jurisdiction to test such alleged breaches under the individual communication procedure.
Finally, in this section the dissenting opinion declares that while the Committee has taken a different view from that taken by the Judicial Committee of the Privy Council in Pratt and Morgan on the question of whether prolonged detention in itself on death row makes delay in implementation or execution of a death sentence cruel and inhuman treatment in violation of article 7,[58] a State Party which adheres to the Privy Council view does not violate its obligations under the Covenant. What is being stated here is that a State Party should not be penalised for adhering to the view of the Privy Council - that carrying out of the death sentence after prolonged detention on death row may amount to cruel inhuman and degrading treatment - even if such conduct would not be a violation of the Covenant because of the Committee's jurisprudence thereon.[59] Thus, the reservation may be seen as a method of State Party compliance with its constitutional requirements imposed by the Privy Council. It is not explained why adherence to its constitutional constraints necessarily requires the sort of reservation entered by the State Party or why removal of death row cases from the review of the Human Rights Committee is an appropriate method for dealing with such constraints. The reality is that the State Party wishes to retain capital punishment for its own domestic reasons to deter drug-related crime. It is convenient to dress this policy requirement up in the guise of attributing the problem of delay in executing persons to the Committee's procedures and hence eliminating recourse to such procedures would theoretically reduce the period of delay and bring the whole period within the guidelines laid down by the Judicial Committee in Pratt and Morgan. Thus, executions could continue despite possible breaches of both substantive and procedural rights under the Covenant.
Thus, the dissenting opinion concludes that the State Party's reservation is not incompatible with the object and purpose of the Optional Protocol. Since the reservation clearly covered the present communication,[60] the communication was inadmissible since the reservation was valid. Given that the conclusion in the dissenting opinion was that the reservation was valid, it did not strictly speaking have to deal with the effect of an invalid reservation. However, given the importance of the issue and the fact that the Committee itself had expressed its view, the dissentients felt they could not ignore it. In any event, any discussion of the issue in the dissenting opinion must be obiter of necessity. It should be recalled that the Committee had declared that since the reservation was invalid, the consequence was that the Committee was not precluded from the consideration of the communication.[61] The dissenting opinion criticises the Committee for failing to give reasons for this "consequence". Thus, the dissentients had to refer to the terms of General Comment No 24 for an explanation. General Comment No 24 in its paragraph 18 states that:
[t]he normal[62] consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.
The dissentients then point out that this approach of the Committee has met with serious criticism.[63] Many international lawyers consider the approach of the Committee to be inconsistent with the basic premises of any treaty regime - namely, that the treaty obligations of a State are a function of its consent to assume those obligations. Thus, if a reservation is incompatible with the object and purpose of a treaty, the argument is that the reserving state does not become a party to the treaty unless it withdraws that reservation. Further, it is argued that there is not good reason for departing from the general principles of treaty law when dealing with reservations to the Covenant.[64]
The dissenting opinion goes on to draw attention to the fact that even when dealing with reservations to the Covenant itself, the Committee did not take the view that in every case an unacceptable reservation may be severed, leaving the reserving state to become a party to the Covenant without benefit of the reservation, since the Committee only stated in General Comment No 24 paragraph 18 that this would normally be the case. The normal assumption is thus that the ratification or accession is not dependent on the acceptability of the reservation and that the unacceptability of the reservation will not vitiate the reserving State's agreement to be a party to the Covenant. However,
this assumption cannot apply when it is abundantly clear that the reserving State's agreement to becoming a party to the Covenant is dependent on the acceptability of the reservation. The same applies with reservations to the Optional Protocol.[65]
In the circumstances of the denunciation and reaccession to the Optional Protocol by the Government of Trinidad and Tobago, it was perfectly clear that it was not prepared to be a party to the Optional Protocol without its reservation and thus its reaccession was dependent on the acceptability of the reservation. Thus, in concluding this section of the opinion, the dissentients state that if they had accepted the Committee's view that the reservation was invalid they would necessarily have held that Trinidad and Tobago was not a party to the Optional Protocol. Accordingly, the communication would also have been inadmissible for this reason.[66]
Finally, Committee members Ando, Bhagwati, Klein and Kretzmer make a few concluding comments. First, they point out that the reservation is wider than required in order to cater for the constitutional constraints of the State Party inasmuch as it disallows communications by persons under sentence of death even if the time limit set by the Privy Council in Pratt and Morgan had already been exceeded - as would seem to be the position in this case. Thus, the whole basis of the reservation - to execute swiftly - was inapplicable in the present case.
Secondly, since the State Party's denunciation and reaccession there had been developments in the jurisprudence of the Privy Council that made the reservation unnecessary; thus, the State Party should reconsider the need for the reservation and withdraw it. The jurisprudence being referred to here is the decision of the Judicial Committee in the case of Thomas and Hilaire v Baptiste, Peterson and The Attorney-General.[67] As we have seen, the Government's essential justification for the reservation was to avoid delays in carrying out the death penalty, due in part to the time taken to consider communications under the Optional Protocol from prisoners condemned to death. The Privy Council has now confirmed in Thomas and Hilaire that any such delays (in excess of 18 months) would not prevent the death sentence from ultimately being carried out. A majority of the Privy Council - Lords Browne-Wilkinson, Steyn and Millett - advised that the appellants' constitutional right to due process would be infringed if they were to be executed while their petitions were pending determination before the Inter-American Commission on Human Rights. The majority went on to state that any excessive delays occurring before an international tribunal (such as the Human Rights Committee) would not on its own prevent a State from executing a condemned person. Delivering the judgment of the Judicial Committee, Lord Millett declared: [68]
[w]here, therefore, more than 18 months elapses between the date on which a condemned man lodges a petition to an international body and its final determination, their Lordships would regard it as appropriate to add the excess to the period of 18 months allowed for in Pratt v Attorney-General for Jamaica.
Thirdly, the dissentients stress the obvious - that the acceptability of the reservation in no way affects the duty of the State Party to meet all of its substantive obligations under the Covenant: the rights under the Covenant of persons under sentence of death have to be ensured and protected in all circumstances.[69] This is, of course, true. But there will be no method of testing compliance outside the reporting procedure.[70]
General Comment No 24 by the Committee is an extraordinarily bold statement on a rather controversial area of general international law which seeks to establish a new reservations regime for international human rights treaties and specifically the Covenant. It has attracted considerable criticism from some States Parties, some of which has been noted already. Almost certainly, the most dramatic pronouncement was in relation to the effect of an unacceptable reservation. The Committee posited two alternatives: either an unacceptable reservation would entail that the Covenant would not be in effect at all for the reserving State or such a reservation would generally be severable, in the sense that the reserving party would still be bound by the Covenant after severance of the reservation. In adopting the latter more radical approach over the former more conservative approach, the Committee chose to ignore the possibility that the reserving State might be bound by the treaty with the exception of the offensive provision: in effect, both the reservation and the offensive provision are excised. of course, this compromise solution would, in effect, allow the State to achieve precisely its objective of being bound by the treaty minus the offensive provision. It is suggested that the Committee was clearly entering controversial territory in adopting the more radical approach, even though it seems to be in accordance with the position reached by the European institutions at Strasbourg.[71]
This writer shares the view of the Committee that the classical provisions on reservations cannot operate satisfactorily within the context of human rights treaties for the reasons stated by it and because of the limitations built in to such treaties. This seems also to be the view of former Committee member Judge Higgins, as we have seen above. It must be recognized, however, that such a view is not shared by Professor Pellet of France who was appointed Special Rapporteur to the International Law Commission to prepare a report on reservations to treaties when the Commission began its task of reviewing the articles 19-23 reservations regime of the Vienna Convention in 1994, and who delivered more recently his second report in time for the forty-eighth session of the Commission. He addresses expressly the issue of reservations to human rights treaties and whether the reservations regime of the Vienna Convention is appropriate to all treaties. He concludes that the supervisory bodies of human rights treaties do have the competence to determine the compatibility of reservations. However, the reserving State must take full responsibility for taking the appropriate action if its reservation has been found to be incompatible with the "object" and "purpose" of the treaty by the supervisory authority. It can decide not to become a party to the treaty or withdraw the reservation or modify it. Thus, a "split-level" jurisdiction is applied.[72]
The "severance" doctrine promoted by the Committee has been characterized in this way by Redgwell: [73]
[r]ather than render the consent to be bound null and void, the severance approach nullifies the reservation but leaves the consent to be bound unaffected. This assumes that the consent to be bound prevails over the inconsistent expression of will embodied in the incompatible reservation. ...
If, however, a reservation is at the heart of a State's consent to be bound, then it has the option to denounce the treaty — not a particularly palatable option given the increasing importance of being seen to adhere to human rights treaties — or simply fail to comply with its treaty obligations knowing that the protective shelter of the reservation in the event of legal challenge has been removed as a consequence of severance. If the denunciation route is not pursued, a further response to severance would, of course, be the amendment or withdrawal of the incompatible reservation. Additionally, a reserving State might challenge the lawfulness of severance, on the ground that either the Comment is not legally binding and posits severance de lege ferenda or that, whatever the legal status of the severance, the Committee is not competent to assess the compatibility of reservations and/ or the legal consequences of such determination. Such a challenge is most likely to arise where a State has accepted the competence of the Committee under article 41 and/or the right of individual petition under the First Optional Protocol and finds itself unable to rely upon a reservation in the face of allegations of non-compliance with the Covenant.
Since the existence of a supervisory authority competent to exercise the first step in the "split-level" jurisdiction suggested by Pellet of ruling on compatibility "is the sine qua non of any system for severance of incompatible reservations",[74] Redgwell proposes that "[a]mendment of the Covenant to enshrine severance as the inevitable legal consequence of formulating an incompatible reservation, and the competence of the Committee to determine compatibility, would provide welcome certainty".[75] Since the amendment procedure laid down in article 51 of the Covenant is a usual convoluted model, Redgwell suggests the conclusion of a separate agreement.
The final section of the observations of the USA deals with the effect of invalidity of reservations and the Committee's espousal of the severance doctrine in relation thereto. The USA describes the Committee's conclusion as "completely at odds with established legal practice and principles and even the express and clear terms of adherence by many States" and suggests that helpful clarification would be welcome. It complains that the reservations contained in the US instrument of ratification must be considered as integral parts of its consent to be bound and are not severable. If it were to be determined that any one or more of them were ineffective, the ratification as a whole could thereby be nullified. The USA complains further that the "severance" doctrine adopted by the Committee means that the full treaty might come into force for the reserving State, which is not even a possibility contemplated by the Vienna Convention regime which prescribes only two possibilities. Articles 20 and 21 of the Vienna Convention set out the consequences of reservations and objections to them.
Either: (1) the remainder of the treaty comes into force between the parties in question, or: (2) the treaty does not come into force at all between these parties in accordance with article 20 paragraph 4(c), the choice of these results being left to the objecting State. In sum, the USA protests that reservations are an essential part of a State's consent to be bound and cannot simply be erased. This reflects the fundamental principle of the law of treaties: obligation is based on consent. A State which does not consent to a treaty is not bound by it. A State which expressly withholds its consent from a provision cannot be presumed, on the basis of some legal fiction, to be bound by it.
The final section of the UK's observations deals with the legal effect of an incompatible reservation. The point made in paragraph 13 relates to whether or not the Committee is correct to assume that articles 20 and 21 of the Vienna Convention apply also to incompatible reservations: the UK maintains that it is questionable whether they were intended to cover reservations which are inadmissible in limine. In support, the UK cites the advisory opinion in the Reservations to the Genocide Convention case where the International Court of Justice states that in the case where the reservation is not compatible with the "object" and "purpose" of a treaty "that State cannot be regarded as being a party to the Convention".[76] This is the approach which the UK states that it has followed regularly in its own treaty practice.
In paragraph 14, the UK deals with the doctrine of "severance" as espoused by the Committee, in the sense that the Covenant will be operative for the reserving State without the benefit of the reservation. The UK is prepared to concede that severability "of a kind" might offer a solution in appropriate cases but that its parameters are only just being explored in State practice. In any event, the UK is adamant that "severability would entail excising both the reservation and the parts of the treaty to which it applies". This reflects the compromise solution, the merits of which have been dealt with earlier, which the UK considers to be fully in accordance with the principle of the consent of a State to be bound only by rules it has recognized expressly. The UK fears also that the "severance" doctrine might discourage States from becoming a party to a human rights treaty or even induce them to denounce it.
In paragraph 15, the UK concludes that
a State which purports to ratify a human rights treaty subject to a reservation which is fundamentally incompatible with participation in the treaty regime cannot be regarded as having become a party at all - unless it withdraws the reservation.
The UK states that the test of compatibility is "objective", in which the views of competent third parties (presumably, in this case, the Committee) would carry weight but where ultimately it is a matter for the parties to a treaty themselves: while the presence or absence of objections should not be decisive in relation to an "objective" standard, it would be unusual to find a reservation validly declared as incompatible with the "object" and "purpose" of the Covenant, if none of the States Parties had objected to it on that ground.
Since General Comment No 24 has proved to be so controversial, the Committee could have used this case to clarify the issues and expand upon its reasoning. Unfortunately, the Committee has missed this opportunity. indeed, it could be argued that its reasoning is particularly devoid of developed argument. In holding the reservation of the State Party to be invalid, the Committee could have relied simply on General Comment No 24 paragraph 13 which was indeed cited by the Committee. However, the Committee chose also to articulate a ratio based on the discriminatory nature of the reservation. In such a situation, as the dissentient members of the Committee correctly observed, it was incumbent on the Committee to examine if the discrimination could be considered to be reasonable and objectively justifiable. It is thought that such a test could not be satisfied, contrary to the views of the dissentient members, for reasons which have already been advanced earlier in this paper. To discriminate against persons under sentence of death on the basis that the decision of the Privy Council in Thomas and Hilaire that the due process provisions of the Constitution required that the State Party did not carry out the execution until all international remedies had been completed, and that, accordingly, the results of such communications were not dependent on whether or not the State Party was in breach of Covenant provisions, cannot be considered reasonable or objectively justifiable. Thus, it is concluded that the reservation was correctly declared to be invalid.
The effects of invalidity are set out quite clearly by the Committee in General Comment No 24 paragraph 18 which has already been discussed extensively. To repeat the position, the Committee has stated unequivocally that:
[t]he normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.
As we have seen this position has aroused enormous controversy. Nevertheless, the "normal" or general consequence is, that the reservation will be severable and thus the State Party will be bound without benefit of the reservation. If this is the case, the communication would be admissible. Even accepting the severance doctrine delineated by the Committee, which many analysts consider to be at variance with the basic premise of any treaty regime - that the obligations of a State are a function of its consent to be bound by those obligations - on the Committee's own analysis it only applies in "normal" cases. So can this case be considered an exception? It is thought that it was crystal clear that the Government of Trinidad and Tobago was not prepared to be a party to the Optional Protocol without the benefit of the reservation. Its reaccession to the Optional Protocol was fundamentally dependent on the acceptability of the reservation. On this reasoning, it could only be concluded that Trinidad and Tobago had not become a party to the Optional Protocol and that, accordingly, the Committee should have declared the communication inadmissible.
The Human Rights Committee is charged with the onerous obligation of vindicating the rights of individuals under the Optional Protocol. It depends for its authority on how successful it is in achieving this objective. Equally, it must depend for its authority on how its actions are perceived by States Parties. Its reasoning in individual communication cases - particularly where highly contentious issues are in dispute as in the instant case - must be logical and fully reasoned if it is to command the respect of petitioners and States Parties alike. In this case, the Human Rights Committee has failed to stamp its mark with convincing authority. This is a worrying sign. It is thought that the Committee will have to adopt far more rigorous reasoning in such cases if it is to maintain and enhance its authority with all the interested parties in the future.
Trinidad and Tobago's reaccession to the Optional Protocol subject to the reservation elicited objections from numerous States Parties to the Optional Protocol. Trinidad and Tobago again denounced the Optional Protocol on 27 March 2000, with effect from 27 June 2000. Cases registered against Trinidad and Tobago prior to entry into force of the denunciation are still under examination by the Human Rights Committee.
[*] Professor of Law at the University of Reading and Member of the Law Society's International Human Rights Committee. The author is most grateful to Saul Lehrfreund, a former student of his at The University of Reading, for providing him with relevant documents and helpful comments. He wishes also to acknowledge the help of his colleague Dr Duncan French during the preparation of the paper.
[1] CCPR/C/C7/D845/1999 dated 31 December 1999.
[2] For literature on human rights treaties generally, see: Shelton, "State Practice on Reservations to Human Rights Treaties" (1983) Can Hum Rts Yb 205-234; Coccia, "Reservations to Multilateral Treaties on Human Rights" (1985) 15 Cal West ILJ 1-51; Imbert, "Reservations to Human Rights Conventions" (1981) 3 HR Rev.28-60; Lijnzaad, Reservations to UN Human Rights Treaties: Ratify and Ruin? (The Hague, Martinus Nijhoff Publishers, 1995). On specific human rights treaties, see: Cook, "Reservations to the Convention on the Elimination of All Forms of Discrimination against Women" (1990) 30 Virg JIL 643-716; Clarke, "The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women" (1991) 85 AJIL 281-321; Marks, "Reservations Unhinged: the Belilos Case before the European Court of Human Rights" (1990) 39 ICLQ 300-327; Cameron and Horn "Reservations to the European Convention on Human Rights: the Belilos Case" (1990) 33 GYIL 69-129; Bourguignon, "The Belilos case: New Light on Reservations to Multinational Treaties" (1989) 29 Virg.JIL 347-386; Imbert, "Reservations to the European Convention on Human Rights before the Strasbourg Commission: The Temeltasch Case" (1984) 33 ICLQ 558-595; Frowein "Reservations to the European Convention on Human Rights" in Protecting Human Rights: The European Dimension - Studies in Honour of Gerard J Wiarda (Koln, Carl Heymans Verlag KG, Matscher et al eds, 1988), pp 193-199 and Cassese, "A New Reservations Clause (Article 20 of the United Nations Convention on the Elimination of All Forms of Racial Discrimination)" in Recueil D'Etudes de Droit International en Hommage a Paul Guggenheim (Geneve, Faculte de Droit de l'Universite de Geneve, Institut Universitaire de Hautes Etudes Internationales, 1965), pp 266-304.
[3] [1993] UKPC 37; [1994] 2 AC 1.
[4] Ibid at 35, per Lord Griffiths.
[5] Instrument of Accession to the Optional Protocol to the International Covenant on Civil and Political Rights with a Reservation Excluding the Competence of the Human Rights Committee to Receive and Consider Communications Relating to the imposition of the Death Penalty.
[6] Pratt and Morgan v Attorney-General for Jamaica [1993] UKPC 37; [1994] 2 AC 1 at 34-35.
[7] Addressed to the Secretary-General of the UN and signed by Ralph Maraj, Minister of Foreign Affairs: dated 26 May 1998; effective 26 August 1998. See also the Notice to Denounce the American Convention on Human Rights. The text of both denunciations may be found at (1999) 20 HRLJ 280-281.
[8] For a comprehensive review of the Committee's jurisprudence under this provision, see: PR Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Aldershot, Ashgate Publishing Co, 1998) pp 239-284.
[9] Article 4(2) of the Covenant stipulates that no derogation from article 6 (right to life); article 7 (torture, cruel, inhuman or degrading treatment or punishment); article 8(1) (slavery, the slave trade and servitude); article 11 (imprisonment merely on ground of inability to fulfil a contractual obligation); article 15 (non-retroactivity of criminal offences); article 16 (right to recognition as a person before the law); and article 18 (freedom of thought, conscience and religion) is possible. As the allegations in this communication show, claims by death-row authors will inevitably involve allegations of breaches of articles 6 and 7. For an analysis of the jurisprudence and approach of the Committee to derogation, see: PR Ghandhi, "The Human Rights Committee and Derogation in Time of Public Emergencies" (1989) 32 GYIL 323-361.
[10] Emphasis added.
[11] CCPR/C/67/D/845/1999 at 7.
[12] See the U.N. High Commission/Centre for Human Rights Web Site at http://www.unhchr.ch for an up to date list of reservations.
[13] GAOR, 50th Session, Supplement No. 40 (A/50/40), Report of the Human Rights Committee, vol I, 124-130. On this General Comment see, in particular, Redgwell, "Reservations to Treaties and Human Rights Committee General Comment No 24 (52)" (1997) 46 ICLQ 390-412. See also the observations by Higgins on reservations in relation to the ICCPR in "The United Nations: Some Questions of Integrity" (1989) 52 MLR 1-21 at 11-17.
[14] "A peremptory norm of general international law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character": Vienna Convention on the Law of Treaties, 1969, article 53.
[15] General Comment No 24, pgh 10.
[16] GAOR, 51st Session, Supplement No.40(A/51/40), Report of the Human Rights Committee, vol I, 117-119.
[17] See "The Activities of the UN Human Rights Committee: Developments from 1 August 1992 to 31 July 1995" (1995) 16 HRLJ 377-403 at 381.
[18] Ibid.
[19] Ibid.
[20] GAOR 50th Session, Supplement No. 40 (A/50/40) Report of the Human Rights Committee, vol I, 131-135. See: Stewart, "US Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations" (1993) 14 HRLJ 77-83, and "Lawyers Committee for Human Rights, Statements on US Ratification of the Civil and Political Rights Covenant" (1993) 14 HRLJ 125-129. See also "Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights" (1992) 31 ILM 645-661.
[21] GAOR 50th Session, Supplement No 40 (A/50/40), Report of the Human Rights Committee, vol I, 135-139.
[22] Op cit n 17 at 381.
[23] GAOR, 51st Session, Supplement No40(A/51/40), Report of the Human Rights Committee, vol I, 111-119 at 111.
[24] "Derogations under Human Rights Treaties" (1916-1) 48 BYIL 281-320 at 282.
[25] See PR Ghandhi, op cit n 8, at 221-238.
[26] GAOR, 45th Session, Supplement No 40 (A/45/40), Report of the Human Rights Committee, vol II, 118.
[27] Ibid at 121.
[28] GAOR 41th Session, Supplement No 40 (A/41/40) Report of the Human Rights Committee, 354.
[29] Ibid at 359.
[30] These cases are all discussed in detail together with the dissenting opinion of Committee member Professor Rosalyn Higgins in PR Ghandhi, op cit n 8, at 292-298.
[31] For a complete discussion of these cases, see PR Ghandhi, op cit n 8, at 161-180.
[32] See article 12 of the Optional Protocol.
[33] See in particular, T Opsahl, "The General Comments of the Human Rights Committee", in Des Menschen Recht Zwischen Freiheit und Verantwortung, Festscrift fur Karl Josef Partsh zum 75 ( Berlin, Gerburtstag, Dunker & Humblot, Jekewitz et al eds, 1989), pp 273-286.
[34] Rule 86 reads: "The Committee may, prior to forwarding its views on the communication to the State Party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State Party concerned that such expression of its views on interim measures does not imply a determination on the merits of the communication." See PR Ghandhi, op cit n 8, at 57-65.
[35] [1998] ICJ Rep 432. Judgment of the Court dated 4 December 1998.
[36] Higgins "The United Nations: Some Questions of Integrity" (1989) 52 MLR 1-21 at 11.
[37] Ibid at 12.
[38] GAOR, 50th Session, Supplement No 40 (A/50/40), Report of the Human Rights Committee, vol I, 54.
[39] See para 5 of the dissenting opinion.
[40] Para 6.6 of the decision on admissibility.
[41] Para 6.7 of the decision on admissibility. Emphasis added.
[42] Op cit nn 40, 41.
[43] GAOR, 42nd Session, Supplement No 40 (A/42/40), Report of the Human Rights Committee, 139.
[44] Ibid at 151.
[45] Ibid at 160.
[46] See article 1 of the Optional Protocol.
[47] This is incontestable.
[48] See article 12 of the Optional Protocol.
[49] See PR Ghandhi, op cit n 8, at 380-381. See also General Comment No 26 on Denunciation (GAOR, 53rd Session, Supplement No 40 (A/53/40), Report of the Human Rights Committee, vol 1, 102.
[50] Again, there is no doubt about this.
[51] This is in accordance with General Comment No 24 para.6.
[52] See the Preamble to the Optional Protocol.
[53] See para 7 of the dissenting opinion.
[54] Emphasis added.
[55] See para 10 of the dissenting opinion.
[56] [1999] 3 WLR 249. This affirms the right of the individual to life, liberty, ... security of the person and enjoyment of property and the right not to be deprived thereof "except by due process of law".
[57] [1999] 3 WLR 249 at 259-262.
[58] "No-one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ..."
[59] See PR Ghandhi, op cit n 8, at 320-322.
[60] This was not contested by the author.
[61] See para 6.7 of the decision on admissibility.
[62] Emphasis added.
[63] See the comments of the USA: GAOR, 50th Session, Supplement No 40(A/50/40), Report of the Human Rights Committee, vol 1, 131-135; the comments of the U.K: ibid at 135-139; and France: GAOR, 51st Session, Supplement No 40 (A/51/40), Report of the Human Rights Committee, vol 1, 117-119.
[64] See para 15 of the dissenting opinion.
[65] See para 16 of the dissenting opinion.
[66] See para 11 of the dissenting opinion. 61 [1999] 3 WLR 249.
[68] [1999] 3 WLR 249 at 266.
[69] See para 18 of the dissenting opinion.
[70] See PR Ghandhi, op cit n 8, at 22-25; D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford, Clarendon Press, 1991 - paper-back version 1914 with updated introduction, reprinted 1996), pp 62-119 and I Boerefijn The Reporting Procedure under the Covenant on Civil and Political Rights: Practice and Procedures of the Human Rights Committee (Antwerp, Intersentia Law Publishers, 1999).
[71] See, for example, the judgments of the ECHR in Belilos v Switzerland (29 April 1988, Series A, No132), Weber v Switzerland (22 May 1990, Series A, No 177) and Loizidou v Turkey (23 March 1995, Series A, No 310). See also the second judgment on the merits of the Loizidou case (18 December 1996, European Human Rights Court Reports 1996-VI).
[72] See Report of the International Law Commission on the work of its 48th Session, 6 May - 26 July 1996, GAOR, Supplement No10 (A/51/10), Pellet's preliminary report (UN DocA/CN4/470) and Pellet's second report (UN DocA/CN4/477 and UN DocA/CN4/477/Add 1). Following further reports by Pellet, the International Law Commission's Preliminary Conclusions on Reservations to Normative Multilateral Treaties, including Human Rights Treaties, were forwarded to the chairperson of the Human Rights Committee for comments by Pellet on 24 November 1997. The chairperson responded with the first reactions of the Human Rights Committee to the Preliminary Conclusions on 9 April 1998 (GAOR, 53rd Session, Supplement No 40 (A/53/40), Report of the Human Rights Committee, vol I, 105). Thereafter, the chairperson responded with the more detailed reactions of the Human Rights Committee on 5 December 1998 (GAOR, 54th Session, Supplement No 40 (A/54/40), Report of the Human Rights Committee, vol I, 128-129) stating its support for the view put forward in pgh 5 of the Preliminary Conclusions that monitoring bodies established by human rights treaties " are competent to comment upon and express recommendations with regard, inter alia, to the admissibility of reservations by states, in order to carry out the functions assigned to them".
[73] Op cit n 13, at 407-408.
[74] Ibid at 408.
[75] Ibid at 409.
[76] [1951] ICJ Rep15 at 29.
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