I. INTRODUCTION
The international legal obligations created by a human rights treaty may be highly inconvenient for a State. This has been illustrated by the United Kingdom (UK) Government's evident displeasure in recent years with the legal precedent set by the European Court of Human Rights in Chahal v United Kingdom Footnote 1 and the general unpopularity of the UK's Human Rights Act.Footnote 2 So what options, if any, does a State have in international law if it is simply unwilling to accept a legal obligation(s) created by a human rights treaty that it has already ratified? This article examines that question.
As well as the European Convention on Human RightsFootnote 3 (ECHR), the focus of this article will be on the main UN human rights treaties,Footnote 4 and the American Convention on Human Rights (ACHR).Footnote 5 First, and as a preliminary matter, the relevance of derogation provisions for human rights treaties generally is briefly examined (section II, below). If a State validly derogates from a human rights treaty, then it is acting within the terms of the treaty and it cannot be said that it is avoiding the legal obligations created by it. However, this assumes that the State has validly derogated. Next the matter of withdrawal from or denunciation of human rights treaties generally will be considered (section III, below). Denouncing a human rights treaty is clearly the ultimate way for a State to terminate the legal obligations it has entered into. However, as this section discusses, it is debatable whether it is possible to denounce the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Even for a human rights treaty that may be denounced, there may be a prohibitively high political price for doing so. After a general discussion of how bodies such as the European and Inter-American Court of Human Rights have defended the integrity of their respective treaty regimes (section IV), the ability of a State to submit a late reservation to a human rights treaty will be examined in section V. It may come as a surprise to many international lawyers, but, in certain limited circumstances at least, it would seem that it is in fact possible for a State to enter a late reservation to a treaty. This matter is discussed below and the question posed as to whether it is possible to enter a late reservation to a human rights treaty. The last section (VI) will address what this author will refer to as ‘strategic denunciation’ and re-ratification, that is the legality of denouncing a human rights treaty with the sole purpose of re-ratifying it with a ‘new’ reservation(s)—this idea was suggested by Tony Blair (then Prime Minister) in 2003 with respect to the ECHR and in connection with the Chahal case. The relevant precedents that exist here are discussed and various arguments for and against the legality of such a course are presented.
II. DEROGATION FROM THE HUMAN RIGHTS TREATY
Of the human rights treaties examined in this article, only the ICCPR, the ECHR and the ACHR allow ‘derogation’. Each prohibits derogation from certain rightsFootnote 6 and requires that any derogation made be strictly proportionate to the circumstances of the public emergency.Footnote 7 However, the condition-precedent for derogation is, for the ECHR and ICCPR, that there exists a ‘public emergency [threatening/which threatens] the life of the nation’,Footnote 8 and for the ACHR there must be a time of ‘war, public danger, or other emergency that threatens the independence or security of a State Party’.Footnote 9 What these qualifying circumstances specifically entail has been discussed in detail elsewhere,Footnote 10 but the essential point is that a State may not use the derogation provision of a human rights treaty as a convenient tool to avoid a legal obligation existing under that treaty.Footnote 11 Similarly, a State may not simply react to an adverse ruling or decision against it by a human rights tribunal by derogating from the relevant human rights instrument. Of relevance here is the UK's reaction to Brogan v United Kingdom Footnote 12 whereby the Strasbourg Court found a violation of Article 5(3) in the context of the pre-trial detention regime applicable when Northern Ireland was blighted by terrorism. Rather than amend domestic law so as to limit the power of extended detention without appropriate judicial control, ie make it compliant with Article 5(3), the Government derogated from that Article by resort to Article 15. According to some leading Convention commentators this was an act of ‘bad faith’,Footnote 13 but in Brannigan and McBride v United Kingdom Footnote 14 the European Court accepted that the derogation was ‘clearly linked to the persistence of the emergency situation’, and that there was ‘no indication that the derogation was other than a genuine response [to it]’.Footnote 15 In the Court's judgment, for the facts underpinning Brannigan and McBride there was a ‘public emergency threatening the life of the nation’Footnote 16 and the measures taken in connection with it by the UK Government were strictly proportionate to that situation.Footnote 17 According to the Court's analysis in Brannigan and McBride, therefore, the UK Government had not evaded the legal obligation established by Article 5(3) of the Convention as the Court in Brogan had expounded it. It is vital to stress, however, that the UK's actions had only been permitted given the existence of a ‘public emergency’ within the meaning of Article 15.
III. DENOUNCING OR WITHDRAWING FROM THE TREATY
A. Denunciation: LawFootnote 18
Articles 54 and 56 of the Vienna Convention on the Law of Treaties (VCLT)Footnote 19 set out the basis for denouncingFootnote 20 a treaty when it is silent on the matter, as is the case for the ICCPR, the ICESCR, the CEDAW and the newly established Convention on Disappearances (ICAED). Essentially, denunciation is only possible if it is established that the parties intended to allow for this, or the ability to do so is implied from the nature of the treaty. Citing the VCLT rules, the HRC has stated, in General Comment No 26Footnote 21—produced shortly after the Democratic People's Republic of Korea (DPRK) purported to denounce the ICCPR in August 1997—that it is ‘firmly of the view that international law does not permit a State which has ratified or acceded or succeeded to [the ICCPR] to denounce it or withdraw from it’. The HRC argued, first, that it was evident that the drafters of the Covenant deliberately intended to exclude the possibility of denunciation;Footnote 22 secondly, ‘it [was] clear that the Covenant is not the type of treaty which, by its nature, implies a right of denunciation’,Footnote 23 this because it forms part of the ‘International Bill of Human Rights’ and so did ‘not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to that effect’.Footnote 24 The HRC's General Comments (like its Views under the First OP to the ICCPR) are not legally binding;Footnote 25 their authority is based on the fact that the HRC is the expert Committee charged with overseeing the implementation of the ICCPR.
In contrast to the HRC's view, with respect to the ICCPR the UN Secretary-General has relied on Article 54 VCLT, according to which a State can only withdraw from a treaty with the consent of all the other Member States to it.Footnote 26 That provision was drawn to the attention of all the other States parties to the ICCPR in a notification sent to them by the Secretary-General when the DPRK purported to denounce the ICCPR.Footnote 27 At least one State, Denmark,Footnote 28 sent a notification to the Secretary General agreeing with his understanding of Article 54 VCLT and stating that it did not consent to the DPRK's withdrawal.
Clearly, if the HRC's view is legally correct, no State may withdraw from that treaty, nor, it would seem, the ICESCR, since this forms part of the ‘International Bill of Human Rights’ too and also has no provision for its denunciation. But even if the better view is that the ICCPR (and ICESCR) may only be denounced with the consent of all the other State Parties to it, this would be a very formidable task: as of 1 August 2008, the ICCPR has been ratified by 160 States; the ICESCR by 157 States. Finally, it is noteworthy that in 2000 North Korea submitted its long overdue second periodic report under Article 40 of the ICCPR to the HRCFootnote 29 and participated in the examination of that Report in 2001.Footnote 30 The DPRK Government, therefore, seems to have accepted that it remained a party to the ICCPR and, possibly, the report's submission revealed that even a State such as North Korea was not immune from the ‘political’ reaction that followed its purported denunciation.
Unlike the ICCPR and ICESCR, many human rights treaties include a specific provision providing for their denunciation. Article 58(1) (formerly 65(1)) of the ECHR permits a High Contracting Party to denounce that Convention, on condition that that State ratified it more than five years previously and has provided six months' notice. Article 58(2) adds an important rider:
‘[A] denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective’.Footnote 31
Article 78 of the ACHR is drafted in very similar terms, although there is a one-year notification period extending the effective date of denunciation accordingly. Unlike the ICCPR and the ICESCR, most of the main UN human rights treaties, and a number of their Optional Protocols, do have specific provisions for denunciation. They are very similar to the ECHR and ACHR, bar the rule that the treaty cannot be denounced during the first five years.Footnote 32
The fact that the effective date of denunciation may be some time after the notice of the same is an important feature of human rights treaties. The ability to denounce with immediate effect is a disincentive for the State to denounce the instrument, as is the fact that the relevant Committee or Court retains ‘jurisdiction’ over human rights violations for some time after such a decision is made.
B. Denunciation: Practice
So much for the legal provisions: what has been the practice in this field? In fact, none of the substantive UN human rights treaties addressed by this article have been denounced.
As just noted, the DPRK purported to denounce the ICCPR in the late 1990s. This was in protest at what the DPRK Government claimed was a politically motivated, condemnatory resolution adopted against it by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which made various references, amongst other things, to the DPRK's failure to respect certain rights protected by the ICCPR.Footnote 33 As noted above, it would seem, nonetheless, that the DPRK remains party to that treaty.
The Netherlands actively considered, but did not attempt, withdrawal from the ICCPR in the late 1980sFootnote 34 following two controversial views expressed by the HRC under the First Optional Protocol to the ICCPR and concerning Article 26 of the ICCPR (discrimination and equality before the law) in the context of social security.Footnote 35 Interestingly, when SwitzerlandFootnote 36 and LichtensteinFootnote 37 acceded to the ICCPR, in 1992 and 1998 respectively, both entered reservations seeking exemptions from the full application of Article 26.Footnote 38 Evidently late acceding States have advantages compared to States which ratified the same treaty earlier.Footnote 39
The Dutch Government could have denounced the First OP to the ICCPR, for Article 12 of that non-substantive instrument allows for this as has been demonstrated by Jamaica in 1997,Footnote 40 Trinidad and Tobago (1998) and Guyana (1999).Footnote 41 Controversially, the latter two States immediately re-acceded to the OP with a purported new reservation, the basic purpose of which was to prevent the HRC from addressing individual complaints from those subject to the death sentence.Footnote 42 As is discussed further below,Footnote 43 in a case under the First OP to the ICCPR, Trinidad and Tobago's ‘new’ reservation was declared invalid and severable by the HRC and, in 2000, the State in question denounced the First OP for a second time.
Commentators have suggested that the motivation for denunciation of the OP by the Caribbean States just referred to was the respective governments' desire to retain the death penalty and to minimize interference from international human rights bodies in this regard.Footnote 44 The Caribbean States in question specifically explained their denunciations in terms of enabling their criminal justice systems to satisfy domestic legal standards (principally those derived from the Privy Council judgment in Pratt and Morgan v Attorney-General of Jamaica)Footnote 45 that effectively required that death penalty litigation at both the domestic and international level be concluded within a period of five years.Footnote 46 The background was the same for Trinidad and Tobago's denunciation of the ACHR on 26 May 1998.Footnote 47 The official justification givenFootnote 48 was the Inter-American Commission on Human Rights' refusal to give assurances that capital cases would be completed within a timeframe appropriate to meet the requirements of Pratt and Morgan.Footnote 49 Trinidad and Tobago is the only State ever to have denounced the ACHR, although in 1999 and against the background of the Pratt and Morgan case, Jamaica, Haiti, St Kitts and Nevis, Barbados, and Surinam threatened to do so.Footnote 50
As to the ECHR, only one State, Greece, has ever denounced this instrument. When under a military regime Greece withdrew from the Council of Europe and so denounced the Convention on 12 December 1969,Footnote 51 the denunciation took effect on 13 June 1970 after the requisite six-month period.Footnote 52 The denunciation did not prevent the Committee of Ministers addressing the European Commission of Human Rights' Reports in two inter-State cases brought against GreeceFootnote 53 finding widespread, gross violations of the Convention. Greece rejoined the Council in 1974, when it re-ratified the Convention.Footnote 54
In very different circumstances to those just described, there appeared to be a serious prospect that the Switzerland would denounce the ECHR in the late 1980s. This followed Belilos v Switzerland Footnote 55 when an interpretative declaration made by the Swiss Government was held by the Strasbourg Court to be an impermissible and severable reservation. The Swiss Council of States rejected a call to denounce the Convention by one single vote.Footnote 56
C. Denunciation: Politics
A main factor encouraging compliance with international human rights law is a State's fear of adverse or negative publicity. Against such a background it will fall to the government of a State concerned to make a political calculation as to whether more harm is done to the State's interests by remaining a party to the treaty than by attempting tactics such as denunciation.Footnote 57 So, although it may be perfectly legal to denounce the ECHR, there would exist major ‘political’ obstacles to doing so given the importance attached today to the ECHR in European public law.Footnote 58 Denunciation of the Convention could prove especially difficult for any of the 27 Member States of the European Union (EU) and any State hoping to join that organization.Footnote 59
Not dissimilar comments could be made about the ACHR, in spite of Trinidad and Tobago's denunciation of it a decade or so ago. It is significant to note that Peru did not denounce the ACHR in the late 1990s and early 2000s following its announcement in 1998 that it would withdraw from the jurisdiction of the Inter-American Court of Human Rights.Footnote 60 The full details of this affair are beyond the scope of this article.Footnote 61 It is pertinent to note, however, that the Inter-American Court duly ruled that the only way that a State may withdraw from the jurisdiction of the Court is to denounce the ACHR Convention outright.Footnote 62 One commentator noted that ‘[t]he Court knows that withdrawing from the entire American Convention is especially costly’, it being ‘increasingly advantageous in international relations for a state to be seen as cognizant and protective of human rights’.Footnote 63 After a change of government, Peru ‘normalised’ her relations with the Court in 2001.Footnote 64 Although commentators lamented the silence of the political organs of the Organization of American States following Trinidad and Tobago's denunciation of the ACHR in 1998,Footnote 65 in 2006 it was argued that ‘the Court has … managed to win nearly universal acceptance—even confidence—among Latin American governments’,Footnote 66 the San José institution having become ‘essentially a court of human rights for Latin America, joined by all Spanish and Portuguese-speaking nations of the Western Hemisphere (except Cuba)’.
Political factors weighing against denunciation do not only operate at the regional level. For a democracy, at least, as well as considerations of internal political nature—opposition in Parliament or from domestic human rights organisations etc—denunciation of a human rights treaty may have an impact on the credibility and reputation of the State at the international level. Australia's membership of the International Convention on the Rights of the Child (ICROC) illustrates the point, for in 1998 the Australian Parliament's Joint Standing Committee examined whether it should be denounced (in accordance with Article 52), or even denounced so that Australia could accede to the treaty again and enter a new reservation.Footnote 67 That Committee noted that 191 State Parties had ratified the Convention: powerful ‘evidence of the international acceptance of this treaty’.Footnote 68 To denounce the treaty and re-accede with a new reservation would do ‘significant harm to Australia's international reputation’.Footnote 69 The Committee's Report further highlighted the fact that a State which places an emphasis on human rights considerations as a feature of its foreign policy will be very reluctant to denounce an instrument such as the ICROC.Footnote 70 Exactly this point was made by the (UK's) Department for Constitutional Affairs (DCA) in 2006 in the context of a theoretical examination of whether the UK might denounce the ECHR. It was stated that:
‘From a broader political perspective, [by denouncing the Convention] the UK would be fatally undermined in any efforts to encourage better human rights implementation by other members of the Council of Europe and our position in lobbying for human rights implementation by States elsewhere in the world would also be affected’.Footnote 71
IV. PROTECTING THE INTEGRITY OF HUMAN RIGHTS TREATY REGIMES: THE WORK OF THE HRC AND THE REGIONAL HUMAN RIGHTS COURTS
Of course, at the time of ratification a State might seek to exempt itself from certain international legal obligations created by a human rights treaty by entering a valid reservation (assuming this is possible).Footnote 72 There is a vast literature on this subject. However, this article focuses on what a State may or may not legitimately do to avoid an international legal obligation created by human rights treaties after it has ratified the treaty. So, having addressed the possibility of derogating from human rights treaties and denouncing the same, the discussion will now move towards the possible use of devices such as adding a late reservation or denouncing the treaty with the aim of re-acceding to it and adding a new reservation. To introduce this it is appropriate in the following section to discuss how bodies such as the HRC, and the Inter-American and European Court of Human Rights have sought to defend the integrity of their respective treaties against what might be viewed as post-ratification attempts by States to qualify the extent of the legal obligations they have accepted.
A. The Human Rights Committee and the ICCPR
Despite its non-judicial status, the HRC considers that it, not the States Parties to the ICCPR, has the final say on the validity of reservations under that instrument. As is well known, this position was set out in the HRC's General Comment No 24,Footnote 73 which was controversial for the reason just stated, but also because it took the view (contrary to the scheme of the VCLT) that invalid reservations might be severed.Footnote 74 Other treaty monitoring bodies have been less robust in their approach to reservations.Footnote 75
The HRC's view that a reservation ‘cannot be made to the covenant through the vehicle of the [OP]’Footnote 76 was upheld in Rawle Kennedy v Trinidad and Tobago,Footnote 77 the background to which concerned the respondent State's denunciation of the First OP to the ICCPR. Through the application of the severance doctrine in Rawle Kennedy, Trinidad and Tobago was left to choose between accepting the First OP in full in respect of all ICCPR obligations accepted by that State, or denouncing the First OP once again. It chose the latter course. At this cost,Footnote 78 therefore, the HRC arguably upheld the integrity of the system of human rights supervision provided by the ICCPR and its First OP more generally. Strictly speaking a substantive reservation to the First OP could not affect the substantive reservations (or lack or them) already made by a State to the ICCPR. However, the HRC chose not to see it this way. It sent a clear message that, in effect, a late reservation to the ICCPR may not be made via the vehicle of a reservation to its First OP. The latter has yet to be ratified by 51 States which have ratified the ICCPR.
B. Reservations to the ECHR
As Judge Cançado-Trindade of the Inter-American Court has stated, the European and Inter-American Courts have ‘set limits to State voluntarism’, and so ‘safeguarded the integrity of the respective human rights Conventions and the primacy of considerations of ordre public over the will of individual States’.Footnote 79
Reservations to the ECHR are permitted,Footnote 80 and 38 of the 47 Member States have entered reservations to either the main Convention or its First Protocol.Footnote 81 However, recent State practiceFootnote 82 signals a trend of withdrawal of reservationsFootnote 83 and the number entered by new Member States joining the Convention over the last decade and a half has been ‘remarkably limited’.Footnote 84 This is all in keeping with the idea that reservations may only be withdrawn, not extended further.
In Belilos Footnote 85 the Strasbourg Court established the so-called ‘severance doctrine’, which, it is said, is now ‘accepted by all the States parties’.Footnote 86 Reservations that are precise and clear and so fall squarely within the requirements of Article 57Footnote 87 have been upheld, but the formal requirements of Articles 57(1) (not of a ‘general character’)Footnote 88 and 57(2) (‘brief statement of law’)Footnote 89 have been strictly applied. According to (former Judge) Franz Matscher, the Court has tended to ‘restrict the scope of reservations and interpretative declarations, and even eliminate them as far as possible’.Footnote 90 For another commentator Belilos was seen as demonstrating ‘a view of the Convention which [was] not sovereignty or contract-oriented, but objectivist, autonomous and integrationist’.Footnote 91 Quite simply, as Professor Frowein once suggested, ‘the possibility of [any] unilateral derogation through reservation does not seem to fit easily into the [Convention] picture’.Footnote 92
Against this background one notes that the European and Inter-American Courts have taken a firm stance against attempts by States to try to, in effect, qualify the extent of the substantive obligations accepted under the ECHR or ACHR via the subsequent acceptance of optional clauses, such as the acceptance of the compulsory jurisdiction of the Court. In the Loizidou case the Strasbourg Court addressed Turkey's purported quasi-reservation to its acceptance of both the (then optional) right of individual petition (under former Article 25 of the Convention) and the compulsory jurisdiction of the Court (under former Article 46).Footnote 93 The Court rejected these conditioned acceptances as it had ‘regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms’,Footnote 94 and the fact that ‘the object and purpose of the Convention as an instrument for the protection of individual human beings require[d] that its provisions be interpreted and applied so as to make its safeguards practical and effective’.Footnote 95 The Court also dismissed arguments presented by Turkey to the effect that its whole acceptance of individual petition and Court jurisdiction had to be considered null and void.Footnote 96 It was clear that under the Convention, ‘Contracting Parties [should not] be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances’ for this ‘would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)’. Furthermore, it was noted that ‘qualified acceptances’ of the right of individual petition and the Court's jurisdiction would lead to ‘inequality between Contracting States’ and that this ‘would … run counter to the aim, as expressed in the Preamble to the Convention, to achieve greater unity in the maintenance and further realisation of human rights’.Footnote 97
In Loizidou (as well as other case law)Footnote 98 the European Court reflected its perception of the special nature of the Convention by its reference to that instrument as ‘a constitutional instrument of European public order (ordre public)’.Footnote 99 Such terminology would seem to portray the Court's understanding of the Convention as no ordinary, traditional sovereignty-based treaty, but as an instrument with the potential to be a quasi-constitutional document in the field of human rights at the level of European public law.Footnote 100
The understanding of the Convention as a type of integration treaty inspired the Swiss Federal Court in a 1992 judgment,Footnote 101 which was primarily concerned with the legality of a new interpretative declaration to the Convention proposed by the Swiss Government after Belilos. The Federal Court took the view that that new interpretative declaration was in fact a new reservation, which was not permitted under the Convention. Interestingly it also concluded that it was not possible to use the power of denunciation under Article 58 (then, in fact Article 65) of the Convention so as to introduce a new, ie late, reservation under Article 57 (then Article 64). The Swiss court, which was brief on the points in issue, held, in effect, that denunciation of the Convention with the view to re-acceding with a new reservation would probably be an abuse of rightsFootnote 102 and be contrary to Article 57, which only permitted a reinforcing of Convention commitments over time, not the widening of reservations. The Federal Court stated that its conclusion on the point just noted was encouraged by the special character of the Convention, it being understood that the Convention was a mechanism for a certain level of integration within Europe.Footnote 103
Similar considerations were central to the relatively short Legal Opinion produced in January 2003 (and against the background of the Chahal case) for the British non-governmental organization, Liberty. Footnote 104 This was produced in reaction to the then British Prime Minister's suggestion in 2003 that the UK might denounce the Convention and then re-accede to it with a new reservation (presumably to Article 3).Footnote 105 The Convention, the Legal Opinion stated, was ‘designed to impose higher standards than other treaties’;Footnote 106 the denunciation strategy referred to would be ‘incompatible with the objects and purposes of the ECHR’; it was ‘strongly arguable’ that the denunciation and re-accession would be ‘invalid and unlawful’ as far as ‘reservation[s] which could not otherwise validly be made’ are concerned.Footnote 107
C. The Inter-American CourtFootnote 108
Reservations may be made to the ACHR.Footnote 109 In the Inter-American Court of Human Rights' third Advisory Opinion,Footnote 110 the Court was clear as to the special nature of the legal obligations created by human rights treaties. There are strong grounds for believing that, for an invalid reservation, this Court would follow the severance doctrine adopted in Belilos,Footnote 111 although as yet there is no equivalent ruling as no comparable case has reached it.
The Inter-American Court has demonstrated its hostility to the idea that States may use the acceptance of the optional jurisdiction of the Court as an opportunity to, in effect, reduce the scope of an obligation entered into under the ACHR. In Hilaire, Constantine and Benjamin v Trinidad and Tobago (Preliminary Objection) Footnote 112 the Inter-American Court rejected as contrary to the object and purpose of the ACHR Trinidad and Tobago's attempt to impose a far-reaching substantive conditionFootnote 113 on its acceptance of the compulsory jurisdiction of the Court.Footnote 114 The condition would, in effect, have required national law to prevail over the ACHR. The Court interpreted the Inter-American Convention ‘in accordance with its object and purpose’,Footnote 115 and decided that it ‘must act in a manner that preserves the integrity of the mechanism provided for in Article 62(1) of the Convention’,Footnote 116 ie the optional jurisdiction of the Court. With respect to the latter, it was ‘unacceptable to subordinate the said mechanism to restrictions that would render the system for the protection of human rights established in the Convention and, as a result, the Court's jurisdictional role, inoperative’.Footnote 117 The Court reiterated that the principle of effectiveness applied ‘not only to the substantive provisions of human right treaties (in other words, the clauses on the protected rights), but also to the ACHR's procedural provisions, such as the one concerning recognition of the Tribunal's contentious jurisdiction’. That clause was ‘essential to the efficacy of the mechanism of international protection’, so it had to be ‘interpreted and applied in such a way that the guarantee that it establishes is truly practical and effective, given the special nature of human rights treaties […] and their collective enforcement’.Footnote 118 Trinidad and Tobago's purported quasi-reservation was repugnant to the latter since it would cause ‘fragmentation of the international legal order for the protection of human rights, and which would render illusory the object and purpose of the Convention’.Footnote 119 Finally, the Court reiterated its view that:
‘The American Convention and the other human rights treaties are inspired by a set of higher common values (centered around the protection of the human person), are endowed with specific supervisory mechanisms, are applied as a collective guarantee, embody essentially objective obligations, and have a special character that sets them apart from other treaties. The latter govern mutual interests between and among the States Parties and are applied by them, with all the juridical consequences that follow therefrom for the international and domestic legal systems’.Footnote 120
More generally in its jurisprudence the Inter-American Court has signalled that a good faith interpretation of the obligations created by human rights treaties should not automatically prioritize the subjective interests of the State, but should have great regard to the fact that the ‘object and purpose’ of the treaty is to benefit individuals of any nationality within the jurisdiction of the States Parties.Footnote 121
As noted above, in Ivcher Bronstein Footnote 122 the Inter-American Court was clear that a State which had accepted the Court's compulsory jurisdiction could only withdraw from the same by explicitly denouncing the entire ACHR. It emphasised that ‘a State party to the Convention can only release itself of its obligations under the Convention by following the provisions that the treaty itself stipulates’.Footnote 123 The ACHR provided for no limitations for acceptance of the Court's jurisdiction and such a fundamental feature of the Convention could not be ‘at the mercy of limitations not already stipulated but invoked by States Parties for internal reasons’.Footnote 124
D. Summary
Through the case law that has been discussed above, bodies such as the European and Inter-American Courts in particular, but also the HRC, have refused to allow the subjective interests of sovereign States to simply take precedence over the effectiveness of the legal order created by the respective human rights treaties. The common, higher interest in the maintenance and protection of the rights and freedoms under the ECHR and the ACHR has been especially prioritized in the European and Inter-American case law, the regional courts having resolutely opposed attempts by Member States to qualify substantively the basis upon which they later come to accept the jurisdiction of the Court (or for the ECHR, the right of individual petition and the jurisdiction of the Court). Although strictly speaking one could not call such attempted qualifications ‘reservations’, in practice they might be viewed as quasi-reservations. Seen in this way, in the jurisprudence noted above the Courts, as well as the HRC, have firmly opposed the idea that a State may have a second chance to enter a (quasi-)reservation.
It is against this background that we may examine the suggestion that a State might attempt to avoid a legal obligation under these treaties by entering a late reservation or seeking to denounce the treaty and re-accede with a new reservation.
V. LATE RESERVATIONS
It would seem that a State that is unwilling to accept a particular legal obligation created by a human rights treaty apparently faces the stark choice of either remaining a Member State or completely denouncing the treaty (assuming this is legally possible). However, perhaps there is an alternative. Can the State remain a party to the treaty in question and simply enter a reservation to the treaty in question, or what may hereafter be termed a ‘late’ reservation?
A late reservation proposed for ICERD in 1976 was regarded as impermissible by the UN Secretary-General acting through the Secretariat of the UN Depository of Multilateral Treaties (the UN Depository).Footnote 125 Indeed the VCLT stipulates that reservations may only be made at the time of signing or of depositing the instrument of ratification, acceptance or approval.Footnote 126 However, since 1978, and with respect to UN treaties at least, the UN Depository's practice has been to modify the VCLT's absolute position.Footnote 127 The International Law Commission (ILC) is apparently in the process of endorsing the position adopted by the UN Depository, but, as Aust puts it, ‘there continues to be a lively debate about the treatment of so-called late reservations’.Footnote 128
In the following sections the UN Depository's rules and the ILC's position on late reservations are set out and there follows a discussion of relevant State practice for human rights treaties and whether in fact the rules entitle a State to create a totally new exemption to a treaty or not. The question is then posed as to whether a late reservation to a human rights treaty would be contrary to the VCLT's ‘object and purpose’ test.Footnote 129
A. The UN Depository's and the ILC's Position on Late Reservations
The Summary of Practice of the Secretary General as Depository of Multilateral Treaties prepared by the Treaty Section of the Office of Legal Affairs Footnote 130 states that:
‘Under established customary international treaty law, as codified by the [VCLT], reservations may only be made (when allowed) at the time of signing or of depositing an instrument of ratification or the like, or alternatively, with the unanimous consent of all parties concerned (see article 19 of the Vienna Convention)’.Footnote 131
It is pointed out that ‘[t]he Secretary-General normally follows the above-mentioned principles’, but that ‘in a few cases, when he has received reservations after the deposit of the corresponding instrument, he has circulated the text of the reservation to all parties concerned and has proposed that in the absence of objections by any of those States within 90 daysFootnote 132 from the date of circulation, the reservations be deemed accepted as part of the State's notification, the absence of objections being then considered by the Secretary-General as amounting to a tacit acceptance by all parties concerned of the reservation in question’.Footnote 133 The same practice may be applied when States seek to ‘substitute new reservations for initial reservations made at the time of deposit, since this has amounted to a withdrawal of the initial reservations—which raised no difficulty—and the making of (new) reservations’.Footnote 134 More generally, the practice is ‘all the more desirable in the many cases where the reservation was specifically authorized or where other States had made a reservation identical to that which the State concerned wished to make after the prescribed time’.Footnote 135
According to the UN Depository, therefore, late reservations are possible in the exceptional circumstances of their being validated by the total absence of objections from other States within a period of one year after notification. Any objection makes the purported late reservation void,Footnote 136 leaving the State to consider its position regarding withdrawal from the treaty as a whole, if this is possible. The position is the same as that currently set out in the Draft Guidelines adopted by the International Law CommissionFootnote 137 with respect to its ongoing work on reservations to treaties. It goes without saying that none of what has just been said entails that the State concerned has carte blanche to attempt to enter any late reservation it wishes. The general rules governing the substance of reservations (ie most notably the VCLT's ‘object and purpose’ test)Footnote 138 will continue to apply, as will any specific rules on reservations that may be applicable for the treaty in question.
There does not appear to be any cut-off point after which a late reservation may not be entered, and it is clear that the UN Depository regards the above principles as applicable to UN human rights treaties. In November 2006 the Government of Poland was advised by the UN Secretary-General that a late reservation could be entered to the UN Convention Against Torture (UNCAT) on the terms just outlined.Footnote 139 Soon after this, on 28 December 2006, the Secretary-General sent a communicationFootnote 140 to all ICCPR Member States concerning Bahrain's accession to the ICCPR on 20 September 2006, and, in particular, its attempt on 4 December 2006 to enter late reservations to Articles 3, 18 and 23 of that instrument.Footnote 141 The communication pointed out the UN Depository Practice position on this matter and, as of 1 August 2008, objections had been received from the Netherlands,Footnote 142 Latvia,Footnote 143 Portugal,Footnote 144 the Czech Republic,Footnote 145 Estonia,Footnote 146 Canada,Footnote 147 Australia,Footnote 148 Ireland,Footnote 149 Poland, Sweden and Hungary.
Interestingly a number of these objections clearly endorsed the VCLT regime rules (without explicitly rejecting the UN Depository's rules).Footnote 150 The reservation was observed to be ‘late’ (Australia, Czech Republic, the Netherlands, Poland, Sweden and Hungary) and/or made ‘after accession’ (Australia, the Netherlands, Poland, Sweden and Hungary) such that it was ‘inconsistent’ with the VCLT regime (Australia, Czech Republic, the Netherlands and Poland). Most objections proceeded to object to the purported reservations as being incompatible with the ICCPR on substantive grounds. This point was made in the Canadian objection, but it also stated that the reservations ‘should have been lodged at the time of accession by Bahrain to the Covenant’. The Portuguese objection stated that ‘the reservations were made after the accession of the Kingdom of Bahrain to the Covenant’, adding that ‘the practice of late reservations should be discouraged’. The Latvian objection noted that, in accordance with Article 19 of the VCLT, reservations could only be made upon signature, ratification, acceptance, approval or accession, so ‘the said reservation is not in force since its submission’. The Swedish objection stated that ‘[s]ince [the] reservations were formulated late they are to be considered inconsistent with the general principle of pacta sunt servanda as well as customary international law as codified in the [VCLT]’. All of the objections stated that they should not preclude the entry into force of the Convention between the States concerned and Bahrain, except the Latvian objection, which was silent on the point. A communication issued by the Secretary-General, acting in his capacity as depositary, listed the objections made to Bahrain's purported reservation and announced, ‘[i]n view of the above and in keeping with the depositary practice followed in such cases, the Secretary-General is not in a position to accept the reservation made by Bahrain for deposit’.Footnote 151 Bahrain therefore remains a Member State to the ICCPR, without the benefit of the reservations purportedly entered on 4 December 2006.
B. Late Reservations and New Exemptions?
It would seem to be the case then that a State party to a UN human rights treaty could in principle attempt to enter a late reservation to that treaty. Further, if that late reservation survived the ‘no objections’ regime just noted—which may be a big ‘if’—it would take effect, so creating a new exemption(s) for the State concerned.
Of course, the UN Depository Practice and the ILC's Draft Guidelines do not represent binding international law. So is the position with respect to late reservations as it has just been identified correct at international law?
That the rules on late reservations are controversial is evident from the objections to Bahrain's late reservation to the ICCPR as well as the discussion of the ILC's proposals on late reservations before the Sixth Committee at the UN. Both revealed some opposition in principle to late reservations.Footnote 152 At the Sixth (Legal) Committee on the UN General Assembly the point was repeatedly made that late reservations to any treaty were exceptional, generally undesirable and should be avoided whenever possible.Footnote 153 Similar comments could be made about ‘widening’ reservations.Footnote 154 In a different context, on behalf of the Treaty Depository at the Council of Europe the opinion has been expressed that late reservations are only possible in exceptional circumstances, for example if there has been an administrative oversight.Footnote 155 Indeed, State practice would suggest that late reservations may only be entered in such circumstances. Thus a recent ILC Report noted that late reservations were a ‘not uncommon’ phenomenon that had ‘not been totally ruled out by practice’.Footnote 156 A series of examples were cited concerning treaties generally (ie not human rights treaties as a category),Footnote 157 but it was noted that the examples:
‘show that the cases [of late reservations] involved have almost always been fairly borderline ones: either the delay in communicating the reservation was minimal or the notification occurred after ratification, but before the entry into force of the treaty for the reserving State, or else the planned reservation was duly published in the official publications, but “forgotten” at the time of the deposit of the instrument of notification, something which can, at a pinch, be regarded as “rectification of a material error”’.Footnote 158
State practice for substantive UN human rights treaties in particular is consistent with this analysis. Bahrain's ‘defeated’ reservations to the ICCPR were approximately two-and-a-half months late. So far as the author is aware, there have been no examples of late reservations to human rights treaties if what is meant by this is an attempt to create a totally new exemption in relation to a treaty article against which there is no existing reservation for the State concerned. Having said this, the reservations made by Malaysia (1998)Footnote 159 and also the Maldives (1999)Footnote 160 to CEDAW are controversial examples of modifying reservations.Footnote 161 In each instance when acceding to CEDAW the State concerned purported to enter very broadly framed reservations which essentially amounted to an attempt to only accept the legal obligations created by CEDAW in so far as they did not conflict with Islamic Shariah law. Those reservations met with various objections. The two States then entered modifying reservations which referred to Shariah law and went on to cite particular articles of CEDAW, as well as making reference to certain aspects of domestic law which were said to be relevant for the purported reservation. Within the applicable timeframe, FranceFootnote 162 objected to what it referred to as the Malaysian ‘withdrawal and modifications’, simply stating that this was contrary to the ‘object and purpose’ of the treaty. As a result the modification was ‘not accepted’ by the UN Depositary.Footnote 163 Finland and Germany communicated their opposition to the modification of the reservation entered by the Maldives. Finland welcomed the fact that the Maldives had ‘specified’ its original reservation, but indicated that in its view the modified reservation remained ‘objectionable’.Footnote 164 Germany took the view that there had been an attempt to create a ‘new’ reservation, ‘extending and reinforcing the original reservations’.Footnote 165 It insisted that, ‘[a]fter a State has bound itself to a treaty under international law it can no longer submit new reservations or extend or add to old reservations’.Footnote 166 In fact, this ‘objection’ and the Finnish ‘objection’ were submitted out of timeFootnote 167 and therefore treated by the UN Depository as mere communications having no legal effect. The Maldives' modification was therefore accepted by the Depositary.Footnote 168
In summary, even if the Maldives' reservation were to be regarded as a late reservation, creating a new exemption, as the German Government regarded it, it represents a very slender basis on which to establish a rule in favour of allowing late reservations for human rights treaties outside what the ILC has referred to as ‘borderline’ circumstances.
D. Late Reservations and Human Rights Treaties
Even if late reservations are legal for treaties generally on the basis referred to above, are human rights treaties different such that there can be no late reservations to this particular category of treaty?
Both the UN Depository Practice (paragraphs 204 and 205)Footnote 169 and the ILC commentary suggest that the unanimous acceptance of a late reservation by the other States Parties validates such a reservation. In the ILC Rapporteur's words, such unanimous acceptance could be viewed as ‘a collateral agreement extending ratione temporis the option of formulating reservations—if not reservations to the treaty concerned in general, then at least the reservation or reservations in question’.Footnote 170 To this the ILC Rapporteur adds, ‘the parties are the ultimate guardians of a treaty and may be prepared to countenance unusual procedures to deal with particular problems’.Footnote 171 Finally, it was said by the ILC Rapporteur that ‘pragmatic considerations’ also justify allowing late reservations, for ‘[a] party remains always at liberty to accede anew to the same treaty, this time by proposing certain reservations’.Footnote 172
The last point assumes that the treaty concerned may be denounced—as we have seen, it is arguable that it is not possible to withdraw from the ICCPR and the ICESCR. Further, there is also an assumption here that the action of denunciation and immediate re-accession with reservations is itself a legally valid act. It may not be.Footnote 173
With respect to the first point noted by the ILC (‘collateral agreement’) it may be said that the reasoning is more suited to traditional, contract-based treaties, creating reciprocal relationships between States and where each State has a subjective interest in the substance of the treaty commitments involved and so an incentive to ensure that inappropriate reservations or modifications are not being made.Footnote 174 As is well known, the HRC has suggested that the general VCLT regime on objections to ordinary (let alone late) reservations is, ‘inappropriate to address the problem of reservations to human rights treaties’.Footnote 175 It takes the view that ‘the special characteristics of the Covenant as a human rights treaty’, raise doubts as to ‘what effect objections have between States inter se’.Footnote 176 Reassuring though it is that only one State needs to object in order for a late reservation to be void, to what extent can it confidently be said that, for human rights treaties in particular, the silence of the other States Parties in reaction to a late reservation signals their unanimous and active agreement to the same?Footnote 177
If the argument underpinning allowing late reservations is therefore that States are ‘the ultimate guardians of a treaty’ and so will protect its interests, then this argument may be flawed for human rights treaties. In this respect one reverts to the controversial question, who are the guardians of human rights treaties in the context of reservations? For the ECHR and the ACHR it would seem established (firmly in the case of the ECHR) that the respective Courts have the last word on the validity of reservations. Presumably either Court could sever any late reservation and so consider that the State concerned remained a party to the Convention without the benefit of that reservation.Footnote 178 Indeed, the argument that a late reservation would be contrary to the ECHR and ACHR would be especially compelling given the emphasis that the respective Courts have placed on the idea of an international ordre public in their regions. The impossibility of adding a late reservation to the ECHR seems to have been acknowledged by the Swiss Federal Court,Footnote 179 and would, to quote from Loizidou v Turkey, ‘diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)’.Footnote 180 It would in fact represent an attempt on the part of the State to release itself from obligations in a way not provided for by either Convention text.Footnote 181 With respect to both the ACHR and ECHR a late reservation could ultimately lead to significant fragmentation, if not the very disintegration of the international ordre public created by the respective treaties as States would be able to significantly reconfigure the obligations applicable to them.Footnote 182 The acceptability of late or new reservations would also conflict with the notion of ‘effective protection’ and seriously weaken the role of the Courts in the discharge of their functionsFootnote 183 on the basis that such reservations would cut away at each Court's authority: ultimately States might react to advances in the Court's jurisprudence by late reservations. The key concept of ‘collective enforcement’ could be severely undermined.
Different considerations may apply to the UN human rights treaties being discussed in the article. The HRC's self-proclaimed capacity to determine the legality of reservationsFootnote 184 has been strongly contested by the American, British and French Governments and is not accepted by the ILC.Footnote 185 However, it may still be argued that human rights treaties constitute ‘a special category of international treaty’, since they express ‘an important aspect of the common interest of humankind’, such that they should be interpreted in the way ‘most favourable to individuals in the framework of the VCLT’.Footnote 186 Such an approach would speak against the validity of late reservations and they hardly sit comfortably with the general object and purpose of human rights treaties. With respect to the ICCPR, the HRC has commented that:
‘The object and purpose of the [ICCPR] is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken’.Footnote 187
As such, would a late reservation not undermine the ICCPR's object and purpose, even if it were apparently acceptable to other States Parties in accordance with the UN Depository's scheme? The binding nature of the legal obligations concerned would be undermined, as would the system of ‘supportive guarantees’Footnote 188 afforded by the treaty. The HRC has also stated that ‘an essential consideration’ in assessing the validity of a reservation is ‘the effect of each reservation on the integrity of the Covenant’Footnote 189 and that ‘reservations [should] not lead to a perpetual non-attainment of international human rights standards’,Footnote 190 that they ‘should be withdrawn at the earliest possible moment’Footnote 191 and that a State should ‘explain the time period it requires to render its own laws and practices compatible with the Covenant, or why it is unable to render its own laws and practices compatible with the Covenant’.Footnote 192 This reasoning is entirely inconsistent with the understanding that a State may enter a new, ie late, reservation to the ICCPR whether acceptable to other States Parties or not. Similar arguments could be made for other UN human rights treaties.
E. Summary
Even if State practice may point to the acceptability of late reservations in the ‘borderline’ situations referred to by the ILC rapporteur, it remains doubtful that they can secure totally new exemptions for treaties generally, and human rights treaties specifically. The pacta sunt servanda principle is, of course, particularly relevant for human rights treaties.Footnote 193 For the reasons that have just been given, it is suggested that strong arguments can be mounted to the effect that late reservations are highly inappropriate, if not illegal, for human rights treaties on the basis that they are contrary to their ‘object and purpose’.
Even it is possible to enter a late reservation to a treaty, including a human rights treaty, on the terms set out by the UN Depository, it is to be expected, of course, that a State will be reluctant to do so. Such an action potentially detracts from the credibility of the State on the international stage and, assuming they apply, the rules on late reservations set out in the UN Depository Practice and in the ILC Draft Guidelines are strict. Judging by States' reaction to Bahrain's purported late reservation to the ICCPR, it may be assumed that the chances of there being at least one objection to a late reservation to a human rights treaty must be high. If defeated in this way, or if the reservation was otherwise found to be illegal and ineffective, then the State would have to decide whether to remain a party to the treaty on the original terms or to denounce the treaty as a whole, if this is possible. Might it then re-accede to the Convention and enter a reservation designed to exempt itself from the legal obligation it is concerned about? The final section examines this question.
VI. ‘STRATEGIC DENUNCIATION’ (DENUNCIATION AND RE-RATIFICATION WITH NEW RESERVATIONS)
‘Strategic denunciation and re-ratification’, or, for short, ‘strategic denunciation’, are the terms that I will employ to describe denouncing a treaty with the sole purpose of re-ratifying it with a ‘new’ reservation(s). This idea was floated by some ECHR States in the late 1980s, as well as by the former British Prime Minister more recently.Footnote 194 In the 1990s, a specialist Committee in the Australian Parliament considered the possible strategic denunciation of the ICROC;Footnote 195 it rejected the idea as politically unacceptable.Footnote 196 The only example of a strategic denunciation that the author is aware of concerns the First OPFootnote 197 to the ICCPR, which Trinidad and TobagoFootnote 198 and GuyanaFootnote 199 strategically denounced in 1998 and 1999 respectively.Footnote 200
Obviously there can be no strategic denunciation if the treaty in issue cannot be denounced, which is of great relevance, as we have seen, for the ICCPR and ICESCR. However, it is likely that a State that validly denounces a human rights treaty will be able freely to accede to it again.Footnote 201 So, if the treaty concerned can be denounced, is strategic denunciation a legally valid device for treaties generally and human rights treaties in particular? So far as the author is aware, this matter has not been addressed in detail anywhere. Moreover, where this issue has been commented upon, differing views have been expressed as to the issue of legality.
A. Differing Views on the Legality of Strategic Denunciation
The view has been presented that strategic denunciation is highly dubious if not illegal. Anthony Aust has argued that the right to make a reservation in the way attempted by Trinidad and Tobago plus Guyana through their strategic denunciation of the First OP to the ICCPR is ‘legally questionable’. He argues:
‘For a party to withdraw and then “re-accede” solely for the purpose of making a reservation which it did not make originally, and which if made as a late reservation in unlikely to have been accepted, is open to most serious objection. The stratagem can be viewed as a single transaction, the only purpose of which is to enter a late reservation, the effectiveness of which can therefore be defeated by a single objection’.Footnote 202
Writing in his personal capacity the Deputy Head of the Council of Europe's Legal Advice Department, Jörg Polakiewicz, has suggested that Council of Europe treaties may not be strategically denounced.Footnote 203
The view has also been presented that strategic denunciation is unwelcome, but not actually illegal. Hence the Council of Europe's Ad Hoc Committee of Legal Advisers on Public International Law (CAHDI) has noted that there are ‘no formal rules’ against strategic denunciation, albeit it is a ‘highly undesirable’ practice.Footnote 204 The ILC Special Rapporteur on Reservations to Treaties has cited the view of Polakiewicz as referred to immediately above and commented that, ‘[o]n the universal level … such a conclusion [is] undoubtedly too rigid’.Footnote 205 Indeed, he seems to assume that strategic denunciation is legal, at least in some contexts.Footnote 206 The same may be said for the Chief of the Treaty Section at the United Nations' Office of Legal Affairs. Writing in his personal capacity, he has argued that strategic denunciation is a legally valid, if not necessarily very welcome, course. By use of the device a State adheres ‘strictly to the letter of treaty law in applying’ Article 19 VCLT.Footnote 207 On this basis it might be said if a treaty includes an unqualified right for its denunciation then States are entitled to rely on this. A disincentive for a State to resort to strategic denunciation is the political cost to its credibility.Footnote 208 Such States also risk that the subsequent reservation will be objected to by other States Parties who may block the entry into force between themselves and the strategically denouncing State.
B. ‘Strategic Denunciation’ of the OP to the ICCPR: The Rawle Kennedy Decision and State Objections
What lessons may be learned from the Trinidadian strategic denunciation of the First OP to the ICCPR? The HRC seems to have tacitly accepted the legality of strategic denunciation, at least for the purposes of the First OP to the ICCPR, since in Rawle Kennedy v Trinidad and Tobago Footnote 209 the new Trinidadian reservation was declared incompatible with the First OP's object and purpose not on grounds of its general illegality but for reasons going to its substance, namely its discriminatory nature. By a majority the HRC concluded that the reservation was illegal and severable,Footnote 210 which led to Trinidad and Tobago's denunciation of the OP for the second time.
In Rawle Kennedy the HRC did not mention the impressive display of objections submitted in reaction to the new Trinidadian reservation. ElevenFootnote 211 European States raised objections or communicated their opposition to the ‘new’ reservation of one or other of these two Caribbean States. Perhaps unsurprisingly, no State insisted that its objection should prevent the entry into force of the OP as between it and the respective State. The States concerned not only took issue with the substance of the purported reservation(s) on very similar grounds to those that were ultimately adopted by the HRC itself, but also raised points of principle about strategic denunciation itself. Reference was made to the ‘bad precedent’ set for human rights instruments and how this ‘undermined’ international human rights protection and the ratification process generally.Footnote 212 In this regard the objections made the point that the practice in issue was highly unwelcome and undesirable, but not necessarily more than that. A further basis for most of the objections was that strategic denunciation was questionable since it circumvented—rather than contravened—the rules of treaty law,Footnote 213 above all the legal regulation of late reservations.
However, France (objecting to both the Trinidadian and Guyana reservation) and Sweden (only, in fact, in relation to the latter reservation) regarded the circumvention of the legal regime of late reservations as an abuse of process. Their criticism was directed at the abusive resort to denunciation in the first place.Footnote 214 Thus for France (commenting on the Trinidadian reservation):
[T]he denunciation of the Protocol may in no case be used by a State Party for the sole purpose of formulating reservations to that instrument after having signed, ratified or acceded to it. Such a practice would undermine international commitments by constituting a form of misuse of procedure, would be manifestly contrary to the principle of good faith prevailing in international law and would contravene the rule of pacta sunt servanda. The means used (denunciation and accession on the same day to the same instrument, but with a reservation) cannot but prompt a negative reaction, irrespective of the doubts which may arise as to the compatibility of this reservation with the goal and purpose of the treaty.Footnote 215
Very similar points were made by the Swedish authorities. This abuse of process argument has much in common with the Swiss Federal Court's 1992 judgment discussed above,Footnote 216 though that judgment was specifically tailored to the special qualities of the ECHR.
C. Strategic Denunciation: Abuse of Process or a Legally Valid Device?
Against the background of these various views, building on the French objection as just noted, and in agreement with Aust, it is submitted that strategic denunciation must be viewed as a single step amounting to an abuse of process.
With strategic denunciation the true motive is not genuine termination of a State's membership of the treaty, but the ulterior motive of seeking new exemptions from obligations currently accepted and binding on the State, and achieving this in a way that the treaty does not expressly allow for. Arguably strategic denunciation is in effect partial denunciation, which is prohibited by the VCLT.Footnote 217 As this is not expressly provided for by the treaty, it might be argued that the situation under Article 56 VCLT, covering ‘[d]enunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal’ Footnote 218 applies. This stipulates that there should be no denunciation unless:
‘(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty’.
In such circumstances, ‘[a] party shall give not less than twelve months’ notice of its intention to denounce or withdraw from [the] treaty'.Footnote 219
With respect to Article 56(a), unless the contrary is established, it would seem obvious that the intention of the parties in drafting most treaties with a denunciation provision was not to give States licence to, in effect, temporarily and partially denounce that treaty, especially when the motive for doing so is to shirk inconvenient obligations arising from the treaty. Article 56(b) would correctly and appropriately put the onus on the State to make the case that strategic denunciation is implied ‘by the nature of the treaty’.
If it is the case that strategic denunciation is illegal, it would seem axiomatic that the new reservation made in connection with it is also illegal. It is a general principle of law that one should not be able to profit from an illegal act and it is only via the exercise of the illegal act of strategic denunciation that the State in question is then able to re-accede to the treaty in question and so attempt to create a new reservation. If the new reservation were illegal the State would be left in its original position, ie without the benefit of the reservation. Such an outcome would accord with the State's obligation to provide restitution for the wrongful act (the strategic denunciation) in that it would be under a duty to ‘re-establish the situation which existed before the wrongful act was committed’, ie be bound by the treaty without the benefit of the new reservation.Footnote 220 If so, how should a treaty monitoring body or a regional human rights court address the subsequent jurisdictional questions that are likely to ensue? Could the position be taken that the denunciation, illegal as it was, never took effect, such that the State concerned remained a party to the treaty on its original terms? Would the better view be that the denunciation did take effect, but that the illegality only arose when the State immediately attempted to re-accede to the treaty with a new reservation, such that the re-accession should be regarded as invalid and the State concerned would not be a party to the treaty? This may be the logical approach and, no doubt, the State concerned would argue that it was clear that its re-accession was only on terms that the reservation in issue was valid, failing which it could not be regarded as a party to the treaty. Of course, such an approach has the effect of denying the legal force of the treaty for the State concerned and so the people likely to benefit from it. Another approach may be that the Committee or Court concerned regard the denunciation and re-accession as taking effect, but that the new reservation as illegal and severable, it being arguable that the State concerned had demonstrated that its greater intention was to remain bound by the treaty and that it was foreseeable that the reservation in issue would be severed.Footnote 221 This would be the approach advocated by the current author. After all, a government confronted with the last situation outlined would have the choice of whether to denounce the treaty outright or remain a party to it without the benefit of the reservation.
Of course, the analysis just presented returns us to the controversial question of whether in fact a treaty monitoring body set up by a UN treaty would have the capacity to determine that the new reservation was illegal and severable. The European and Inter-American Courts clearly do have this capacity and there is much in their jurisprudence that would indicate their hostility to strategic denunciation of the ECHR and ACHR respectively.
D. Strategic Denunciation of Human Rights Treaties
Even if, contrary to the analysis just provided, it is accepted that strategic denunciation of a treaty is a generally legal practice at international law, is strategic denunciation of a human rights treaty legal? Here it may first be pointed out that, given the special subject-matter of human rights treaties, it does not appear to matter that no other State is actually injured by strategic denunciation, assuming such a device is illegal. This is so, at least, according to Article 48(1)(b) of the ILC's Articles on the Responsibility of States for Internationally Wrongful Acts.Footnote 222 This provides for the invocation of the responsibility by a State other than an injured State if ‘the obligation breached is owed to the international community as a whole’, ie for what appear to be erga omnes obligations as identified by the ICJ in the Barcelona Traction case.Footnote 223
In answering the more specific question as to whether strategic denunciation of a human rights treaty is legal, the nature of the legal obligations created by human rights treaties is, of course, important. As has been noted:
‘[G]ood faith compliance is of even greater importance in the area of international human rights law, where what is at stake is not the impersonal interests of states but the protection of the fundamental rights of the individual’.Footnote 224
Many if not all of the points that were raised in connection with the legality of late reservationsFootnote 225 to substantive human rights treaties have some relevance here to bolster the argument as to why resorting to denunciation in a strategic way is an abuse of process. But arguably the points apply with extra force to substantive human rights treaties since many such treaties have features which emphasise the understanding that obligations may not be opportunely broken off and resumed simply at a State's convenience. Thus, as we have seen,Footnote 226 a number of human treaties specifically provide for derogation in situations such as ‘war’ or a ‘public emergency threatening the life of the nation’. This underlines the intention that substantive commitments endure through even the most testing of times, so highlighting the finality of denunciation and that substantive treaty commitments should not just be stopped and started opportunistically. Similarly, as the HRC has observed with respect to the (non-denouncable) ICCPR, ‘[t]he rights enshrined in the Covenant belong to the people living in the territory of the State party’Footnote 227 and they are devolved with territory and continue to belong to them, ‘notwithstanding change in government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant’. Further, as we have noted,Footnote 228 it is often the case that human rights treaties ensure that the effective date of denunciation is some time after the delivery of the notice of denunciation. Such a provision is again inconsistent with the drafters' understanding that an individual State's commitment to a human rights treaty can be switched on and off at will. The point is made even clearer by the ECHR and ACHR, both of which prohibit denunciation of the Convention for five years after ratification.Footnote 229
VII. CONCLUSIONS
The purpose of this article has been to examine the legality of the various steps that a State might take to avoid an international legal obligation created by a human rights treaty. We have seen that some clear answers may be given to some matters. For example, derogation from the ICCPR, the ECHR and the ACHR is possible, but only in the circumstances defined by those treaties (if so, this should not be regarded as avoidance). The ECHR, ACHR and certain of the UN treaties may be denounced, although there would be considerable political pressure on any Member State not to do so. Following the DPRK's purported denunciation of the ICCPR, it is not clear whether the correct view is that that instrument (and the ICESCR) may simply never be denounced at all, or that it may only be denounced if all the States Parties agree to this. Even if the latter, it would seem highly unlikely that it could be denounced in practice.
As to the other devices considered in this article—late reservations and ‘strategic denunciation’—the answers are less clear, but it has been argued above that both are illegal, at least for human rights treaties. If a late reservation to a human rights treaty is not illegal per se, it would seem highly likely that in practice there would be at least one objection to such a reservation by another State and this would be sufficient to void the reservation, at least according to the UN Depository Practice. In this connection it is notable that a number of States have indicated that they do not accept, or at least have doubts over, the validity of late reservation.
The arguments against the legality of late reservations and strategic denunciation are especially strong in the context of the ECHR and ACHR. When it comes to defending the integrity of their respective treaties, the European and Inter-American Courts have considerable advantages compared to the treaty monitoring bodies set up by the UN human rights treaties. States Parties to both the ECHR and the ACHR must accept a right of individual petition (to the European Court in the former case,Footnote 230 to the Inter-American Commission on Human Rights in the latter case).Footnote 231 Acceptance of the jurisdiction of the Court is compulsory for the ECHR and, though optional under the ACHR, has been accepted by 21 States in the Inter-American System. In delivering judgments in cases like Belilos, Loizidou, Ivcher Bronstein and Hilaire, Constantine and Benjamin, the regional courts had the advantage of being respected institutions delivering rulings in the context of regional human rights arrangements where, generally speaking, there has been a culture of compliance.
By contrast, as Louis Henkin is reported to have said on the occasion of the 25th anniversary of the ICCPR, the HRC is ‘hedged by limitations. It [is] not a court, only a committee; it [does] not enter judgement, but express[es] views’.Footnote 232 In this respect the weak position of the HRC, and other treaty monitoring bodies, was brought home during the HRC's consideration of the combined second and third reports of the USA under the ICCPR. The US Government rejected the HRC's viewsFootnote 233 on, for example, the extra-territorial reach of the ICCPR. It pointed out that in general only the parties to a treaty are empowered to give a binding interpretation of its provisions unless the treaty provided otherwise, which was not the case for the HRC and the ICCPR.Footnote 234 So, in the final analysis even a State Party such as the United States may simply be able to reject the interpretation of the ICCPR given by the HRC.
Finally, the question may be frankly raised as to whether the system of enforcement of international legal obligations under the UN treaties is so weak that some States do not concern themselves with the need to avoid international treaty obligations via the type of procedures referred to this article. This point is made as it would seem that in practice bodies like the HRC are unable to properly supervise the implementation of their respective treaties for States that do not cooperate in good faith with them. The failure of many States to even submit reports to the UN treaty bodies is notorious.Footnote 235 Against that background it may be wondered if, rather than resort to devices like late reservations, such States quite simply ignore inconvenient international legal obligations created by some human rights treaties.Footnote 236 Even if this were so, this would not affect the legal arguments that have been raised above and, it is submitted, these remain highly relevant to the many States that do cooperate in good faith with human rights treaty bodies.
