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AVOIDING LEGAL OBLIGATIONS CREATED BY HUMAN RIGHTS TREATIES*

Published online by Cambridge University Press:  18 November 2008

Ed Bates
Ed Bates
Affiliation:
School of Law, University of Southampton
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Abstract

This article examines the legality of the options that may be open to a State that is unwilling to accept a legal obligation created by a human rights treaty it has already ratified. It briefly addresses the subject of ‘derogation’ from human rights treaties before looking in detail at denunciation of the same. It proceeds to examine the legality of strategies such as entering a late reservation to a human rights treaty and of denouncing the treaty with the sole purpose of entering a new reservation to it.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 57 , Issue 4 , October 2008 , pp. 751 - 788
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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Footnotes

*

My thanks to Professor David Harris, Professor Rob Cryer and Andrew Serdy for some very useful comments on an earlier draft. Thank you also to Ms Elise Cornu of the Council of Europe Treaty Office and to Professor Francesco Seatzu. Any errors are, of course, the sole responsibility of the author.

References

1 (1997) 23 EHRR 413 (‘Chahal’). This case established that, even if an individual is a security threat, he may not be expelled from a Convention State when there are substantial grounds for believing that there is a real risk that he or she may ultimately receive treatment contrary to Article 3 in the destination State (Chahal, para 79). When he was Home Secretary, John Reid MP described Chahal as an ‘outrageously disproportionate judgment’ (HC Debates 24 May 2007, Vol 460 Col 1433). On the UK Government's opposition to Chahal more generally see Anthony Lester and Kate Beattie, ‘Risking Torture’, (2005) 6 EHRLR 565. A unanimous judgment from the Grand Chamber of the European Court of Human Rights recently upheld Chahal in Saadi v Italy Appl 37201/06 [2008] ECHR 179 (28 February 2008).

2 See analysis in Joint Committee on Human Rights, The Human Rights Act: the DCA and Home Office Reviews, (Thirty-second Report of session 2005–2006: HL 278/HC 1716) paras 128–131. At the start of 2007 the official position of the Department for Constitutional Affairs (‘DCA’) is that withdrawal from the ECHR or repealing the Human Rights Act (‘HRA’) is ruled out (ibid 37–38) and that ‘immediate legislative change is not necessary’, see Department for Constitutional Affairs, ‘The Human Rights Act: the DCA and Home Office Reviews Government Response to the Joint Committee on Human Rights Thirty-second Report of Session 2005–06’, Cm 7011 (January 2007) para 27.

3 ETS No 5.

4 That is, the International Covenant on Civil and Political Rights, 999 UNTS 171 (ICCPR); the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13 (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (UNCAT); the Convention on the Rights of the Child, 1577 UNTS 3 (ICROC); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, UN Doc A/RES/45/158 (ICMW); the Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106, in force 3 May 2008 (ICRPD); and the International Convention for the Protection of All Persons from Enforced Disappearance, UN Doc A/RES/61/177, not yet in force (ICAED).

5 American Convention on Human Rights, OAS Treaty Series No 36, 1144 UNTS 123.

6 See Article 4(2) ICCPR, Article 15(2) ECHR and Article 27(2) ACHR.

7 See Article 4(1) ICCPR and Article 15(1). Article 27(1) ACHR is very similar.

8 See, respectively, Article 4(1) ICCPR (emphasis added) and Article 15(1) ECHR (emphasis added). The latter also allows for derogation during ‘war’, but only when ‘threatening the life of the nation’. The European Commission of Human Rights concluded that was no ‘public emergency’ for the purposes of Article 15(1), ECHR in Denmark, Norway, Sweden, Netherlands v Greece, (Commission Report) 12 Yearbook of the European Convention on Human Rights (1969).

9 Article 27(1) ACHR (emphasis added).

10 See Edward Bates, ‘A “public emergency threatening the life of the nation”? The United Kingdom's derogation from the European Convention on Human Rights of 18 December 2001 and the “A” case’ (2005) 76 BYIL 245; Subrata Chowdhury, Rule of Law in State of Emergency: The Paris Minimum Standards of Human Rights Norms in a State of Emergency (Pinter, London, 1989); Jaime Oraá, Human Rights in States of Emergency in International Law (Clarendon Press, Oxford, 1992); Joan Fitzpatrick, Human Rights in Crisis (University of Pennsylvania Press, Philadelphia, 1994); Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception (Martinus Nijhoff, The Hague, 1998); Dominic McGoldrick, The Interface between Public Emergency Powers and International Law 2(2) International Journal of Constitutional Law (2004) 380 and Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd edn, Engel, Kehl, 2005) (‘Nowak ICCPR Commentary’) 83–110.

11 When the UK derogated from Article 5(1)(f) of the ECHR in 2001, it was argued on behalf of Liberty that it was, ‘strongly arguable that the Secretary of State [was] not seeking to derogate from Article 5(1) because of a public emergency threatening the life of the nation, but because Article 3 [as interpreted in Chahal] prevent[ed] him removing from the United Kingdom asylum-seekers who may face persecution abroad’. It was ‘very doubtful that it is a valid use of Article 15(1) to impose detriments on persons because they seek to take advantage of rights conferred by Article 3, especially when Article 15(2) prohibits any derogation from Article 3 itself because of its fundamental nature’, Opinion of David Pannick QC prepared for Liberty (the National Council for Civil Liberties) on the derogation from Article 5(1) of the European Convention on Human Rights to allow for detention without trial (on file with author). The House of Lords held in A v Secretary of State for the Home Department [2004] UKHL 56 that at the material time there had been a ‘public emergency threatening the life of the nation’ for the purposes of Article 15(1) (Lord Hoffman dissenting).

12 (1989) 11 EHRR 1341.

13 Pieter van Dijk, Fried van Hoof, Arjen van Rijn and Leo Zwaak (eds), Theory and Practice of the European Convention on Human Rights (Intersentia, Antwerp, 2006) 1073.

14 (1994) 17 EHRR 539.

15 ibid para 51.

16 ibid para 47.

17 ibid paras 48–74.

18 See Anthony Aust, Modern Treaty Law and Practice (2nd edn, CUP, Cambridge, 2007), (‘Aust’) chap 16 and Laurence Helfer, ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579. On denunciation of human rights treaties generally, see P Weis, ‘The Denunciation of Human Rights Treaties’ (1975) 8 Human Rights Journal 3 and the comments made by Judge Cançado Trindade in his Separate Opinion in Caesar v Trinidad and Tobago, Inter-Am Ct HR, Ser C No 123, para 47–52.

19 The Vienna Convention on the Law of Treaties, 1155 UNTS 331.

20 Aust (n 18) 277 explains that rather than ‘denounce’ or ‘denunciation’ it is better to employ the term ‘withdrawal’ from a treaty. The writer has kept with the former wording as this is consistent with the words employed in the text of the human rights treaties being considered in this article.

21 Human Rights Committee General Comment No 26 (Continuity of Obligations) (Contained in document A/53/40, annex VII) para 5. See Elizabeth Evatt, ‘Democratic People's Republic of Korea and the ICCPR: Denunciation as an Exercise of the Right of Self-Defence?’ (1999) 5 Australian Journal of Human Rights 215, 215–222 and Nowak ICCPR Commentary, xxxvi–xxxix.

22 ibid para 2 (see this para for further reasoning).

23 ibid para 3.

24 ibid. The Committee of Ministers of the Council of Europe subsequently called on all States ‘to refrain from any steps in contradiction with the [HRC's] General Comment … confirming that the [ICCPR] is not subject to denunciation or withdrawal’. See Committee of Ministers, ‘Declaration on the occasion of the 50th anniversary of the Universal Declaration of Human Rights’, Decl-10.12.98E/10 December 1998.

25 See Nowak ICCPR Commentary 668–669, noting that the HRC may be considered a ‘quasi-judicial organ’, 669.

26 See Nowak ICCPR Commentary xxxvi.

27 See Evatt (n 21) 222.

28 See H Klingenberg, ‘Elements of Nordic Practice 1998: Denmark’ 68 Nordic Journal of International Law (1999) 163, noting that ‘[o]ther states communicated similar responses’, 164.

29 See CCPR/C/PRK/2000/2.

30 For Summary Records, see CCPR/C/SR.1944; CCPR/C/SR.1945; CCPR/C/SR.1946; CCPR/C/SR.1953. For Concluding Observations see CCPR A/56/40 (2001). North Korea's Third Periodic Report was due on 1 January 2004 and remains outstanding.

31 Via Article 58(3) a High Contracting Party will cease to be a party under the same conditions as set out in Article 58(1)–(2) if it ceases to be a member of the Council of Europe. Article 58(4) provides for denunciation in respect of any territory to which the States has declared to extend the Convention under the terms of Article 56.

32 See Article 21 ICERD; Article 31 UNCAT; Article 52 ICROC and Article 48 ICRPD (all of which require a one year notice period). ICMW prohibits denunciation in the first five years of membership (Article 89(1)) and provides that denunciation shall be effective ‘on the first day of the month following the expiration of a period of twelve months after the date of the receipt of the notification by the Secretary-General of the United Nations’ (Article 89(2)). The following Optional Protocols to UN human rights treaties also include denunciation clauses: The First Optional Protocol to the ICCPR, 999 UNTS 302 (Article 12); the Optional Protocol to the Convention on the Elimination of Discrimination against Women, 2131 UNTS 83 (Article 19); the Optional Protocol to the Convention on the Rights of the Child (re Armed Conflict), Doc A/RES/54/263 (Article 11); Optional Protocol to the Convention on the Rights of the Child (re Sale, Prostitution and Pornography) Doc A/RES/54/263 (Article 15) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities UN Doc A/RES/61/106 (Article 16).

33 See Evatt (n 21) 215–222.

34 Nowak ICCPR Commentary xxxvi.

35 Broeks v the Netherlands, No 172/1984; Zwaan-de Vries v the Netherlands, No 182/1984. See generally Christsian Tomuschat, ‘The Human Rights Committee's Jurisprudence on Article 26—a Pyrrhic Victory?’, in Nisuke Ando (ed), Towards implementing universal human rights: Festschrift for the twenty-fifth anniversary of the Human Rights Committee (Nijhoff, Leiden, 2004) (hereafter ‘HRC Festschrift’).

36 For the full text see Multilateral Treaties Deposited with the Secretary-General (status as at 8 October 2007) available at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/bible.asp (hereafter ‘Multilateral Treaties’) Chapter IV(4). Germany ratified the ICCPR in 1973. When it ratified the First OP to the ICCPR in 1993, it entered a reservation which attempted to prevent examination of Article 26 by the HRC under that instrument, ibid Chapter IV(5). See n 76 below.

37 ibid.

38 See Tomuschat in HRC Festschrift 229 (who notes that the French courts have refused to implement the HRC's views on Article 26, 239–240).

39 Writing in 1988, Frowein noted that it was ‘obvious’ from the list of reservations that ‘the later a State has ratified the [ECHR], the longer are the reservations’, Jochem Frowein, ‘Reservations to the European Convention on Human Rights’, in Franz Matscher and Herbert Petzold (eds), Protecting Human Rights: the European Dimension: Studies in Honour of Gérard J.Wiarda (Heymanns, Koln, 1988) 194.

40 See Natalia Schiffrin, ‘Jamaica withdraws the right of individual petition under the International Covenant of Civil and Political Rights’, (1998) 92 AJIL 563. See also ‘Concluding Observations in respect of Jamaica’, A/53/40 vol I (1998) 15, paras 78 and 79.

41 Each State remains bound by the ICCPR itself, so compliance with that instrument is subject to the HRC's supervision under Article 40 (the so-called State Reporting system). See, however, n 235 below.

42 See Glenn McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago's Reservation to the First Optional Protocol’, (2001) 23 Human Rights Quarterly 769.

43 See nn 209–210 below.

44 See McGrory (n 42) 774–780.

45 (1994) 2 AC 1.

46 The HRC was unable to give a guarantee that it would complete consideration of OP ‘death row’ cases from these States within a certain minimum period, see Nowak ICCPR Commentary xxxiv–xxxv. As to Trinidad and Tobago's justifications see Rawle Kennedy v Trinidad and Tobago No 845/1999 UN Doc CCPR/C/67/D/845/1999 (admissibility), paras 6.2–6.3.

47 See ‘Notice to Denounce the American Convention on Human Rights’, in Inter-American Court of Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, (July 2003) 73. See also Douglass Cassel, ‘Peru withdraws from the Court: Will the Inter-American Human Rights System meet the Challenge?’ [1999] 20 Human Rights Law Journal 167, 168 and Jo Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights, (CUP, Cambridge, 2003) 114.

48 ibid.

49 In subsequent case law, the Inter-American Court confirmed its jurisdiction to hear cases relating to facts that occurred after the date of notification of denunciation, but prior to the effective date of denunciation, see Hilaire, Constantine and Benjamin et al Case (Merits), Inter-Am Ct HR, Ser C No 94, para 13.

50 See Paul Davison, ‘Islands Warn “Bully” Britain’, The Independent (6 March 1999) 13.

51 See 12 Yearbook of the European Convention on Human Rights (1969) 78.

52 ibid 82.

53 See n 8 above.

54 See 17 Yearbook of the European Convention on Human Rights (1974).

55 (1988) 10 EHRR 466.

56 Iain Cameron and Frank Horn, ‘Reservations to the ECHR: The Belilos Case’, (1990) 33 German Yearbook of International Law 69, 117.

57 On politics of denunciation generally see Helfer (n 18) 1621.

58 See especially Louis Edmond Pettiti, Emmanuel Decaux and Pierre-Heni Imbert, La Convention européenne des droits de l'homme, (Economica, Paris, 1999) 956. In 2006 the UK's Department for Constitutional Affairs referred to the ‘clear international ramifications’ that may occur were the UK to denounce the Convention: ‘rights of representation at the Council of Europe could be suspended, and the Committee of Ministers could request its withdrawal after calling for the opinion of the Parliamentary Assembly’ (n 2) 37. For procedures relating to expulsion from the Council of Europe see Article 8 of the Statute of the Council of Europe, ETS No 1. If a State was ejected from the Council of Europe, it could no longer remain a party to the Convention, see Article 59(1) ECHR.

59 EU Member States must respect fundamental rights when implementing EU measures, so the Convention would continue to have a relevance to any State which had denounced the Convention but remained a party to the EU. It is true that no provision of the European treaties specifically requires that an EU State must ratify the Convention. However, in practice all EU States have done so and it may be a political obligation to do so, see generally Manfred Nowak, ‘Human Rights “Conditionality” in Relation to Entry to, and Full Participation in, the EU’, in Philip Alston (ed), The EU and Human Rights (OUP, Oxford, 1999). A Member State's voting rights under the Treaty of the European Union can be suspended if there is a serious and persistent breach of Article 6(1) and 6(2), by which States promise to uphold the ECHR. The Department for Constitutional Affairs recently took the view that ‘[g]iven the high political status of the [ECHR], it is theoretically possible that some partners might wish to activate this machinery on the grounds that the UK's denunciation of the [ECHR] was such a serious breach’, see (n 2) 38.

60 Under the ACHR, a State Party automatically accepts the right of individual petition to the Inter-American Commission on Human Rights (Article 44), but may, at a subsequent date, accept the optional jurisdiction of the Court (see Article 62 ). Peru accepted this jurisdiction on 21 January 1981. The ACHR is silent on withdrawal of jurisdiction.

61 See Cassel (n 47) above.

62 Ivcher Bronstein v Peru, Inter-Am Ct HR, Ser C No 54 (1999) paras 40, 46 and 50 and Constitutional Court v Peru, Inter-Am Ct HR Ser C No 55 (1999) paras 39, 45 and 49; see Pasqualucci (n 47) 115 and especially Karen Sokol, ‘Ivcher Bronstein’ (2001) 95 AJIL 178.

63 Sokol ibid 185.

64 See Antonio Cançado-Trindade, ‘The Developing Case Law of the Inter-American Court of Human Rights’, (2003) 3(1) Human Rights Law Review 1, 19.

65 See Cassel (n 47) 168 and Pasqualucci (n 47) 344.

66 Douglass Cassel, ‘Books on International Law’, (2006) 100(2) AJIL 503, 505.

67 See Parliament of Australia, Joint Standing Committee on Treaties, ‘United Nations Convention on the Rights of the Child (Executive Summary)’, 17th Report (Aug 1998) (<http://www.aph.gov.au/house/committee/jsct/reports/report17/rept17ex.pdf>, accessed 1 September 2007).

68 The ICROC has almost achieved universal ratification; only Somalia and the United States of America have not ratified it.

69 See Parliament of Australia report (n 67) 66.

70 ibid, 63 and 66.

71 See (n 2) 37.

72 For an overview of the provisions made within the UN human rights treaties on reservations see, ‘The Practice of Human Rights Treaty Bodies with Respect to Reservations to International Human Rights Treaties’, Report prepared for the Meeting of Chairpersons of the Human Rights Treaty Bodies, HRI/MC/2005/5, para 5.

73 See General Comment No 24, UN Doc CCPR/C/21/Rev.1/Add.6 (1994). The General Comment was the subject of significant criticism by the governments of France, the United Kingdom and the United States of America; see Report of the Human Rights Committee, Vol I, 50 UN GAOR (Supp No 40), UN Doc A/50/40, Annex VI, (1995 – UK and USA)) and 51 UN GAOR (Supp No 40), UN Doc A/51/40, Annex VI (1996 – France). For comment and analysis see Christine Chinkin et al, Human Rights Norms and a State's Right to Opt Out (British Institute of International Law, London, 1997); EcKart Klein, ‘A Comment of the Issue of Reservations to the Provisions of the Covenant Representing (Peremptory) Rules of General International Law’, in Ineta Ziemele (ed), Reservations to Human Rights Treaties and the Vienna Convention Regime (Martinus Nijhoff, The Hague, 2004) (hereafter ‘Ziemele’); Nowak ICCPR Commentary xxx–xxxiv; Catherine Redgwell, ‘Reservations to Treaties and Human Rights Committee General Comment 24’, 46 International and Comparative Law Quarterly (1997) 390; and Martin Scheinen, ‘Reservations by States under the International Covenant on Civil and Political Rights and its optional Protocols, and the Practice of the Human Rights Committee’, in Ziemele.

74 ibid para 18. See also the HRC's admissibility decision in Rawle Kennedy v Trinidad and Tobago, Communication No 845, UN Doc CCPR/C/67/D/845/1999 (31 December 1999) para 6.3. On the practice of the HRC here see Nowak ICCPR Commentary xxviii–xxxvi; Sheinen ibid and ‘The Practice of Human Rights Treaty Bodies with Respect to Reservations to International Human Rights Treaties’, HRI/MC/2005/5, paras 22–29 and paras 30–38.

75 For an overview of the approach of the various treaty monitoring bodies to reservations see ibid paras 8–21. See also the Recommendations produced by the Working Group on Reservations set up by the Chairperson of Human Rights Treaties Bodies, ‘Report of the Meeting of the Working Group on Reservations’, HRI/MC/2007/5 para 16.

76 See General Comment No 24 (n 73) para 13. On this basis it is arguable that Germany's reservation to the First OP (see n 36 above) is invalid.

77 See n 46 above. For detailed analysis of the HRC's approach to reservations in the context of individual communications see ‘The Practice of Human Rights Treaty Bodies’ (n 75) paras 22–29.

78 Whether by acting as it did the HRC did more harm than good to the ICCPR and the First OP is a matter for debate, see Scheinen (n 73) 50–51 and Klein (n 73) 65.

79 Caesar v Trinidad and Tobago (n 18), Opinion of Judge Cançado-Trindade, para 15.

80 See Article 57 ECHR.

81 The figures in the above paragraph only apply to statements submitted by States and described by them as ‘reservations’, ie they do not include interpretative declarations submitted by States.

82 For a relatively up-to-date analysis of the reservations attached to the Convention, see Polakiewicz in Ziemele 97–104. See also Parliamentary Assembly, ‘Ratification of Protocols and Withdrawal of Reservations and Derogations made in respect of the European Convention on Human Rights’, Doc 10136, 13 April 2004.

83 Nine States have withdrawn all the reservations that they initially had; of the 28 States with reservations still in place, seven have reduced the number or the scope of their reservations in recent times.

84 van Dijk and van Hoof (n 13) 1115.

85 See n 55 above.

86 Polakiewicz in Ziemele at 118. See for example Eisenstecken v Austria (2002) 34 EHRR 35, paras 29–30. The International Law Commission views the Strasbourg jurisprudence as a form of regional customary law and does not accept its applicability for UN human rights treaties, see International Law Commission, Report of the International Law Commission on the Work of Its Forty-Ninth Session, UN GAOR, 52nd Sess, Supp No 10 UN Doc A/52/10 (1997) 49, para 84.

87 See for example, Chorherr v Austria (1994) 17 EHRR 358; Helle v Finland (1998) 26 EHRR 159; and Jéçius v Lithuania (2002) 35 EHRR 16. See generally Polakiewicz in Ziemele 108–115.

88 See Slivenko v Latvia (Application No 48321/99) decision of 23 January 2002, para 60; Ilaşcu v Moldova and the Russian Federation, (Application No 48787/99) decision of 4 July 2001; cf Belilos v Switzerland (n 55) para 56.

89 See Polakiewicz in Ziemele 113–115. See Belilos v Switzerland (n 55) para 59 and Weber v Switzerland (1990) 12 EHRR 508; Gradinger v Austria 23 October 1995 (A 328-C); and Eisenstecken v Austria (2002) 34 EHRR 35.

90 Fischer v Austria (1995) 20 EHRR 349, Concurring Opinion of Judge Matscher.

91 Luzius Wildhaber, ‘Parliamentary Participation in Treaty-Making, Report on Swiss Law’ (1991) 67 Chicago-Kent Law Review 437, 457 (the former President of the European Court was commenting in his individual capacity). See also Susan Marks, ‘Reservations Unhinged: The Belilos Case before the European Court of Human Rights’ (1990) 39 International and Comparative Law Quarterly 300, 326–327 (the Convention as ‘an integration mechanism’) and Luzius Wildhaber, ‘The European Convention on Human Rights and International Law’ (2007) 56 International and Comparative Law Quarterly 217, 227–229 (comments in his individual capacity).

92 See Frowein (n 39) 288–289. See also van Dijk and van Hoof (n 13) 1113–1115.

93 In effect, Turkey sought, inter alia, to prevent both the right of individual petition and the jurisdiction of the Court applying to the facts of events occurring outside the metropolitan territory of Turkey (ie in particular avoiding Northern Cyprus), see Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, paras 15 and 27. The Court has generally blocked State attempts to restrict the application of the Convention obligations entered into via purported territorial restrictions formulated at the time of ratification: see Ilaşcu v Moldova and the Russian Federation (2005) 40 EHRR 46, 20–21; Assanidze v Georgia (2004) 39 EHRR 32, para 142 and Cyprus v Turkey (2002) 35 EHRR 30, para 78.

94 ibid para 70.

95 ibid para 72.

96 ibid para 90.

97 ibid para 77. See para 93 for the Court's reasoning on the severing of the quasi-reservation.

98 Bankovic v United Kingdom (2007) 44 EHRR SE5, para 78 and Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2006) 42 EHRR 1, para 156.

99 Loizidou v Turkey (n 93) para 75 (and para 74).

100 See Rudolf Bernhardt, ‘Human Rights and Judicial Review’, in David Beatty (ed), Human Rights and Judicial Review: A Comparative Perspective (M Nijhoff, Dordrecht, 1994) 302, 304.

101 Elisabeth B v Council of State of Thurgau Canton (ATF118 Ia (17 December 1992) – reported 118 Entscheidungen des Schweizerischen Bundesgerichts 473 (1992), German language), see Jean Francois Flauss, ‘Le contentieux de la validité des réserves à la CEDH devant le Tribunal fédéral suisse: Requiem pour la déclaration interprétative relative à l'article 6(1)’, (1993) Revue Universelle des Droits de l'Homme 297. On late reservations and strategic denunciation of the Convention more generally, see also Jorg Polakiewicz, Treaty-Making in the Council of Europe, (Council of Europe Publishing, Strasbourg, 1999) (hereafter ‘Treaty-Making CoE’) 96 and Polakiewicz in Ziemele 119.

102 ibid 487–488.

103 The Court stated: ‘Mit diesem Gedanken der Integration wäre es nicht vereinbar, die Konvention bloss deshalb zu kündigen, um sie sofort wieder mit einem Vorbehalt zu ratifizieren’, ibid 487.

104 David Pannick QC and Shaheed Fatima, Legal Opinion: Denunciation of the European Convention on Human Rights, (29 January 2003), copy on file with author.

105 See The Guardian, ‘Blair warning on rights treaty’, 27 January 2003 and The Times, ‘Asylum fears force human rights rethink’, 27 January 2003. There were contemporaneous newspaper reports that the government had taken legal advice on withdrawing from the Convention Relating to the Status of Refugees (1951) 189 UNTS 137, see The Guardian, ‘You can't quit treaties, Blair warned’ (Alan Travis) 6 Feb 2003.

Denunciation and re-accession to the European Convention with a new reservation had been proposed by the official Opposition in 2001, see Oliver Letwin MP, HC Debates, Vol 375, Col 50, 19 Nov 2001 (the author's request for a copy of the legal advice commissioned by the Conservative Party was politely refused). Denouncing and re-acceding with a new reservation was a strategy that had apparently been considered (but never employed) by other Member States to the ECHR in the 1980s see Ronald MacDonald, ‘The Margin of Appreciation in the jurisprudence of the European Court of Human Rights’, in A Giuffrè, International Law at the Time of its Codification; Essays in Honour of Roberto Ago (Giuffre, Milan, 1987) 208 and Frowein (n 39) 199.

106 Pannick and Fatima (n 104) para 17 (citing Ireland v United Kingdom (1978) 2 EHRR 25, para 239).

107 Essentially a new (‘anti-Chahal’) reservation would be a late reservation and such a reservation to Article 3 would be indirectly derogating from the Convention under Article 15 in a manner normally prescribed by that provision (Article 3 being a non-derogable right). Hence it was ‘strongly arguable’, ‘that it is an abuse of rights, or action which is not in good faith’ were the British Government either ‘to denounce the Convention for the sole purpose of re-joining with a reservation in the terms it would have adopted under Article 15 if permitted to do so, or in the terms which it would have adopted under Article 57 if parties to the Convention could make fresh reservations’. To allow either step would make the restrictions on derogations in Article 15 and the restrictions in Article 57 on making reservations after signing ineffective, for ‘a State could always achieve its objective by denunciation, and immediate re-ratification with an appropriately worded reservation’, para 16(3). By Article 58 a State ratifying the Convention may not denounce it again for a further five years.In fact, as Article 3 is a non-derogable right, it would be arguable that any reservation to it would be illegal, no matter what the circumstances of its creation.

108 See especially Antonio Cançado-Trindade (n 64).

109 Article 75 ACHR reads: ‘This Convention shall be subject to reservations only in conformity with the provisions of the [VCLT] … ’.

110 Advisory Opinion OC-2/82 (The Effect of Reservations on the Entry into Force of the American Convention on Human Rights), Inter-Am Ct HR, Ser A No 2 (1982), see especially para 29: ‘modern human rights treaties in general … are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction’, (emphasis added). See also the comments made in Ivcher-Bronstein v Peru (n 62) paras 46–48.

111 See generally the Opinion of Judge Cançado-Trindade in Caesar v Trinidad and Tobago (n 18).

112 Inter-Am Ct HR, Ser C No 80 (2001).

113 For the text of the restriction see ibid para 43.

114 For the Court's reasoning see ibid paras 82–98.

115 ibid para 82.

116 ibid.

117 ibid.

118 ibid para 83, the Court was quoting from its earlier judgment in Ivcher-Bronstein v Peru (n 62) para 37; cf the Strasbourg Court's statement in Loizidou (n 93) para 71.

119 See n 112 above, para 93.

120 ibid para 94; see also Ivcher-Bronstein v Peru (n 62) para 42.

121 Although see Serrano-Cruz Sisters v El Salvador (Preliminary Objections, 2004), Inter-Am Ct HR, Ser C No 118. (The Court accepted that it was possible for a State to qualify acceptance of the Court's jurisdiction on the basis that such jurisdiction existed only for events occurring after the date of acceptance).

122 For the background, see n 60 above.

123 See n 62 above, para 40. See also Hilaire, Constantine and Benjamin v Trinidad and Tobago (Preliminary Objection) (n 112) para 89.

124 ibid para 36.

125 See Memorandum to the Director of the Division of Human Rights, 5 April 1976, in United Nations Juridical Yearbook 1976, 221.

126 See Articles 2(1)(d) and 19 VCLT. On reservations to treaties generally see Aust (Chap 8) who notes (158) that the VCLT never envisaged late reservations.

127 The change apparently occurred as a pragmatic reaction to France's proposal that it be permitted to attempt to enter a late reservation to the Convention Providing A Uniform Law for Cheques of 19 March 1931 (League of Nations, Treaty Series, Vol CXLIII 355) in order that it might avoid the process of denouncing that treaty and re-acceding to it with a new reservation, for full details see United Nations Juridical Yearbook 1978, 199 (Letter from UN Depository to Permanent Mission of Member States to the UN). On this episode see also International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 482–485, paras 10–14.

128 Aust (n 18) 158.

129 Article 19(c) VCLT.

130 ST/LEG/7/Rev. 1, United Nations, New York 1999 (available at http://untreaty.un.org/olainternet/Assistance/Summary.htm) (hereafter ‘UN Depository Practice’). See also The Treaty Handbook prepared by the Treaty Section of the United Nations Office of Legal Affairs available at http://untreaty.un.org/English/TreatyHandbook/hbframeset.htm (both accessed 1 October 2007) at paras. 3.5.3 and 3.5.8.

131 ibid para 204, emphasis added, footnotes omitted.

132 Now extended to 12 months, see Palitha Kohona, ‘Some Notable Developments in the Practice of the UN Secretary-General as Depository of Multilateral Treaties: Reservations and Declarations’ (2005) 99 AJIL 433 (hereafter ‘Kohona’) 435–437 (citing advice from UN Legal Counsel in 2000: UN Doc. LA 41 TR/221). This article was written in Palitha Kohona's personal capacity, though at the time he was Chief of the Treaty Section, at the United Nations' Office of Legal Affairs.

133 UN Depository Practice, para 205.

134 ibid para 206.

135 ibid.

136 By contrast, under the VCLT for a reservation made upon signature or ratification a single objection will have little impact on the reserving State, for the reservation will take effect in relation to all States Parties, except those which have objected to it in the 12-month period for objections.

137 International Law Commission, Titles and texts of the draft guidelines adopted by the Drafting Committee, Fifty-Third Session, A/CN.4/L.603, see Guidelines 2.3.1 (Late formulation of a reservation), 2.3.2 (Acceptance of formulation of a reservation) and 2.3.3 (Objection to late formulation of a reservation). For commentary on these provisions see International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 476–495.

138 Article 19(c), VCLT. See Aust (n 18) Chap 8.

139 See Written replies by the Government of Poland to the list of issues (CAT/C/POL/Q/4/Rev.1) to be taken up in connection with the consideration of the 4th periodic report of Poland, CAT/C/67/Add.5 para 210. Poland had signed UNCAT in 1986, but two reservations then referred to were not confirmed upon ratification in 1989, and so Poland was informed that, in accordance with Article 19 VCLT, they did not take effect. The country concerned did not attempt to enter a late reservation.

140 See C.N.1140.2006.TREATIES-24, 28 December 2006.

141 Multilateral Treaties Chapter IV(4).

142 ibid.

143 ibid.

144 ibid.

145 ibid.

146 ibid.

147 ibid.

148 ibid.

149 ibid.

150 cf the Objection made by Sweden (2 April 2002) to the purported reservation made by Serbia to the Convention on the Prevention and Punishment of the Crime of Genocide in which the former stated, inter alia, that the reservation was made ‘too late’ according to Article 19 of the VCLT, and so was ‘null and void’, Multilateral Treaties Chapter IV(1). See similarly the objection submitted by Bosnia and Herzegovina.

151 C.N.882.2007.TREATIES-25, 19 September 2007.

152 See GAOR (Sixth Committee, Summary record of the 19th meeting, 31 October 2003), A/C.6/58/SR.19 at para 97 (Austria) and GAOR (Sixth Committee Summary record of the 24th meeting, 3 November 2000) A/C.6/55/SR.24 para 8 (the Netherlands, describing current UN Depository practice as ‘unfortunate, for it deviated from the rules of the law of treaties’ and arguing that ‘it should be made clear that completely new reservations could not be made after consent to be bound had been expressed’).

153 See International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session (Topical summary of the discussion held in the Sixth Committee of the General Assembly during its fifty-sixth session prepared by the Secretariat), A/CN.4/521, 54–59. See more specifically GAOR (Sixth Committee Summary record of the 24th meeting, 1 November 2000) A/C.6/55/SR.21, para 61 (comments from German representative); paras 80–81 (Spain) and para 107 (Sweden); GAOR (Sixth Committee Summary record of the 24th meeting, 3 November 2000) A/C.6/55/SR.24 para 17 (Brazil) and para 48 (Greece); GAOR (Sixth Committee Summary record of the 19th meeting, 5 November 2001) A/C.6/56/SR.19, para 42 (Italy); GAOR (Sixth Committee Summary record of the 22nd meeting, 7 November 2001) A/C.6/56/SR.22, paras 52–54 (Japan, ‘not axiomatic’ that failure to raise an objection within 12 months should be regarded as acceptance, para 53 and questioning whether there was ‘enough examples [in State practice] to justify the formulation of general rules’, para 54); paras 69–70 (Greece, late reservations only for ‘very exceptional cases’, whilst ‘[t]he practice of late reservations was hardly compatible with human rights treaties’ at para 70) and paras 84–85 (Kenya, call for ‘caution’, para 85); and GAOR (Sixth Committee Summary record of the 20th meeting, 26 November 2001) A/C.6/56/SR.20, 3 (Poland, late reservations to be ‘exceptional and remain subject to strict conditions’, para 3).

154 The ILC commentary observed that ‘a minority of the members of the Commission’ appeared to contest the idea that a reservation could be widened at all: they ‘took the view that these rules run counter to the Convention on the Law of Treaties and it risked unduly weakening the treaty rights of States’, International Law Commission, Report of the International Law Commission on the Work of Its Fifty-sixth Session, UN GAOR, 59th Sess, Supp No 10, UN Doc A/59/10 (2004) 269. Reference was made to, ‘the established practice of the Council of Europe’ which ‘seems to be to prohibit any “widening” modification’, ibid. Having said this ‘[t]he majority of the members of the Commission … considered that a regional practice (which is, moreover, absolutely not settled) should not be transposed to the universal level and that, as far as the widening of existing reservations is concerned, it would not be logical to apply rules that differ from those applicable to the late formulation of reservations’, ibid 270.

155 See Treaty-Making CoE 94 and generally 94–96 (at the time of writing the author was Deputy Head of the Legal Advice Department and Treaty Office of the Council of Europe). See also J Polakiewicz, ‘Collective Responsibility and Reservations in a Common European Human Rights Area’, in Ziemele 115.

156 International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 476 (footnote omitted).

157 ibid 479–485, paras (3)–(16).

158 ibid 486, para 15 (footnotes omitted).

159 For the full text see Multilateral Treaties at Chapter IV(8).

160 ibid.

161 For elaboration see Kohona 436–437. See also comments on Lesotho's modifying reservation to CEDAW, ibid. See also Luxembourg's further reservation to the ICCPR in 2003 (Multilateral Treaties at Chapter IV(4), and see also Depository Notification CN 1338.2003 TREATIES-11), and Azerbaijan's reservation to the Second Optional Protocol to the ICCPR (on abolition of the death penalty) (Multilateral Treaties at Chapter IV(12) both of which apparently narrowed the exemptions created by an earlier reservation.

162 Multilateral Treaties at Chapter IV(8). The Netherlands, referring to a ‘modification’, also objected, but its objection was received one day outside the 90-day timeframe then applicable, ibid.

163 ibid.

164 ibid.

165 ibid.

166 ibid. At the time of writing Germany had not objected to the late reservation made to the ICCPR by Bahrain.

167 At the time the period for objection was 90 days, but under the UN Depository rules this has now been extended to 12 months from notification; see n 132 above.

168 Multilateral Treaties at Chapter IV(8).

169 See nn 130–135 above.

170 International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) at 482 (para 8). See also Kohona 435 (citing 1984 UN Juridical Year Book 183).

171 ibid para 9, citing D.W. Greig, ‘Reservations: Equity as a Balancing Factor?’, 16 Australian Yearbook of International Law (1995) 26, 28–29.

172 ibid, footnotes omitted.

173 See nn 194–229 below.

174 Note, however, that the International Law Commission suggests that the VCLT regime reservations applies to all treaties, including human rights treaties, see International Law Commission, Second Report on Reservations to Treaties, UN Doc A/CN4/477 & Add 1, para 163 (1996).

175 See HRC General Comment No 24 (n 73) para 17.

176 ibid.

177 cf the comments made in the Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma in Democratic Republic of the Congo v Rwanda (3 February 2006, unreported) paras 9–11. See also the Dissenting Opinion of Judge Koroma, para 14.

178 cf Loizidou v Turkey (n 93) para 97.

179 See n 101 above.

180 Loizidou v Turkey (n 93) para 75.

181 cf the Inter-American Court's statement in Hilaire, Constantine and Benjamin v Trinidad and Tobago (Preliminary Objection, 2001), noted in n 123 above.

182 With respect to the ECHR, this would hardly be reconcilable with the ideals of ‘the achievement of greater unity’ between the Member States of the Council of Europe and the Convention and the notion of ‘common understanding and observance of the human rights’ (expressed in the Convention's Preamble).

183 cf Ivcher-Bronstein v Peru (n 62) para 35 and Loizidou v Turkey (n 93) para 75.

184 See General Comment No 24 (n 73) para 18.

185 See n 86 above.

186 Alexandre Kiss, ‘International Human Rights Treaties: a Special Category of International Treaty?’, Report to the Venice Commission of the Council of Europe (doc CDL-UD(2005)017rep), available at <http://www.venice.coe.int/docs/2005/CDL-UD(2005)017rep-e.asp>(accessed 1 October 2007). On the special consideration to be given to reservations for human rights treaties see the Concurring Opinion of Judge Cançado-Trindade in Caesar v Trinidad and Tobago (n 18) paras 21–46.

187 General Comment No 24 (n 73) para 7.

188 ibid para 11 (also indicating that reservations that ‘purport to evade’ an ‘essential element in the design of the Covenant’ are contrary to the ICCPR's object and purpose.

189 ibid para 19.

190 ibid para 19.

191 ibid para 20.

192 ibid para 20.

193 cf the Concurring Opinion of Judge Jackman in Caesar v Trinidad and Tobago (n 18).

194 See n 105 above.

195 See Parliament of Australia, Joint Standing Committee on Treaties (n 67) 66 and 71.

196 See n 69 above.

197 This instrument may be denounced, see Article 12.

198 Trinidad and Tobago denounced the First OP on 26 May 1998 and re-acceded to it on the very same day, even though the denunciation did not take effect until 26 August 1998. The re-accession was with a purported reservation designed to prevent the HRC from addressing potential violations of any provisions of the ICCPR arising from ‘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’. The reservation accepted ‘the principle that States cannot use the Optional Protocol as a vehicle to enter reservations to the [ICCPR] itself’, see Multilateral Treaties at Chapter IV(5). The UN Depository noted that there were ‘no precedents’ for Trinidad and Tobago's denunciation and re-accession on the same day, see Repertory of Practice of United Nations Organs, Vol VI Supplement No 9 (available at http://untreaty.un.org/cod/repertory/art98/english/rep_supp9_vol6-art98_e_advance.pdf), para 5. This was regarded as generally ‘questionable’ because it raised the issue as to ‘whether it is possible to accede to an agreement while a State is still party to it’, since the three months' notice required by OP Article 12 had not expired when the re-accession was effected. The Repertory explained that the instrument of re-accession was nevertheless accepted, as it was desirable to sustain the objective of ‘continuous coverage’ of human rights instruments and so avoid the possibility of the ‘inapplicability of all the provisions of the agreement to the Republic of Trinidad and Tobago during a period of three months’, para 5.

199 Guyana denounced the First OP on 5 January 1999, re-acceding on 5 April 1999. Its new reservation was almost identical to Trinidad and Tobago's see Multilateral Treaties at Chapter IV(5).

200 Some comparison may be made with Iceland's withdrawal from the International Convention on the Regulation of Whaling in 1992 and its attempt to rejoin the International Whaling Commission in 2002 with a formal ‘reservation’ to the commercial whaling moratorium, see Alexander Gillespie, ‘Iceland's Reservation at the International Whaling Commission’ (2003) 14 EJIL 977.

201 Relevant provisions of the VCLT are Article 15(a)–(c). Most UN human rights treaties include a provision specifically allowing accession.

202 Aust (n 18) 160 (original emphasis).

203 See Treaty-Making CoE 96 and Ziemele 119 (referring to the ECHR).

204 CAHDI, ‘Practical Issues Regarding Reservations to International Treaties (Appendix IV)’, 19th meeting, CM (2000) 50, App. 4 (2000), available at https://wcm.coe.int/ViewDoc.jsp?id=348409&Lang=en.

205 International Law Commission (Fifty-fifth session, 2003), ‘Eighth Report on Reservations to Treaties (Mr Alain Pellet, Special Rapporteur)’, A/CN.4/535, para 41.

206 See International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Sixth Session, UN GAOR, 59th Sess, Supp No 10, UN Doc A/56/10 (2004) 271. See also International Law Commission, Summary Record of the 2651st meeting, A/CN.4/SR.2651, Yearbook of the International Law Commission 2000 Vol I, 320 (para 71).

207 See Kohona 438. See also Legal Opinion prepared by the British Institute of International and Comparative Law (Mads Andenas and David Spivack), The UN Drug Conventions Regime and Policy Reform (2003) 6 (available at <http://www.senliscouncil.net/documents/BIICL_opinion>(accessed 6 October 2007).

208 See n 69 above.

209 No 845/1999 UN Doc CCPR/C/67/D/845/1999 (admissibility). See Nowak ICCPR Commentary at xxxiv–xxxv and Sandi Ghandi, ‘The Human Rights Committee and Reservations to the Optional Protocol’, (2001) 8 Canterbury Law Review 13.

210 ibid para 6.7. The decision was by a majority. By a later decision, Kennedy v Trinidad and Tobago, Communication No 845/1998, UN Doc CCPR/C/74/D/845/1998 (2002), the HRC considered that there had been a violation of the ICCPR.

211 The actions of Trinidad and Tobago met with the disapproval of the following States, which delivered objections/communications on the dates specified in brackets: Denmark (6 August 1999), France (9 September 1999), Germany (13 August 1999), Ireland (23 August 1999), Italy (17 September 1999), the Netherlands (6 August 1999), Norway (6 August 1999), Sweden (17 August 1999) and Spain (25 August 1999). The Danish and Norwegian notices were registered as ‘objections’ by the UN Depository, the others as communications. See Multilateral Treaties at Chapter IV(5).

Perplexingly, from the above list only the following States expressed disapproval of Guyana's actions: France (28 January 2000), Germany (26 August 1999), the Netherlands (22 October 1999), Spain (1 December 1999) and Sweden (27 April 2000). Finland (17 March 2000) and Poland (8 August 2000) objected to Guyana's reservation, but not Trinidad and Tobago's. The French, German, Dutch and Spanish notices were registered as objections; the others as communications, ibid.

212 See for example the text of the German, Spanish, Irish and Italian objections ibid.

213 Norway was ‘concerned’ by the procedure adopted; it represented ‘a circumvention of established rules of the law of treaties that prohibit the submission of reservations after ratification’. Denmark and Finland expressed very similar views. According to the Netherlands' objection, what had occurred was ‘contrary to the rules of the law of treaties that prohibit the formulation of reservations after ratification’ (emphasis added). Guyana had ‘circumvent[ed] such well-established rules’. Poland regarded the procedure as ‘not consistent with the law of treaties and clearly undermining the Protocol’.

214 cf the more focused abuse of process arguments submitted on behalf of the applicant in Rawle Kennedy, para 3.16 (‘a State may not withdraw from the Protocol for the purpose of shielding itself from international scrutiny in respect of its substantive obligations under the Covenant’). See also the individual, dissenting, opinion of Committee members Ando, Bhagwati, Klein and Kretzmer, para 11, plus see Interights (Opinion authored by Professor James Crawford, Professor Bruno Simma and Alberto Szekely), Re: Trinidad and Tobago: Legal Effect of Denunciation of the Optional Protocol (5 December 1998) paras 25–26. Thank you to Erica Ffrench of Interights for supplying me with a copy of this Interights document.

215 See n 211 above.

216 See n 101 above.

217 As Article 44(1) VCLT stipulates, ‘[a] right of a party, provided for in a treaty or arising under article 56, to denounce, … the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise agree’; cf the points made by the Inter-American Court in Ivcher-Bronstein v Peru (n 62) paras 50–51.

218 The chapeau to Article 56.

219 Article 56(2) VCLT.

220 cf Article 35 of International Law Commission's, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (in Report of the International Law Commission on the Work of Its Fifty-Third Session, GAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 43). See James Crawford, ‘The International Law Commission's Articles on State Responsibility: Introduction, Text, and Commentaries’ (CUP, Cambridge, 2002). The Draft Articles do not create legal obligations for States.

221 cf Loizidou v Turkey (n 93) paras 95–97.

222 See n 220 above.

223 Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment [1970] ICJ Reports, para 33.

224 Concurring Opinion of Judge Jackman in Caesar v Trinidad and Tobago (n 18).

225 See nn 125–193 above.

226 See nn 6–7 above.

227 General Comment No 26 (n 21) para 4.

228 See nn 31–32 above.

229 ibid.

230 Article 34 ECHR.

231 Article 44 ECHR.

232 UN Press Release, Human Rights Committee Commemorates Twenty-Fifth Anniversary of Entry into Force of the ICCPR, HR/CT/599, 26 March 2001. For a full examination of the status of the HRC's views under the First OP to the ICCPR see Martin Scheinin, ‘The Human Rights Committee's Pronouncements on the Right to an Effective Remedy—an Illustration of the Legal Nature of the Committee's Work under the Optional Protocol’, in HRC Festschrift 103–107.

233 See HRC Concluding Observations (United States of America), CCPR/C/USA/CO/3/Rev.1, para 10. See also United States of America, Third Periodic Report, CCPR/C/USA/3, 28 November 2005, para 130 and para 3, plus Annex 1 (‘Territorial Application of the International Covenant on Civil and Political Rights).

234 Summary Records of the HRC, CCPR/C/SR.2380, 27 July 2006, para 8, per Mr Harris. See also Summary Records of the HRC, CCCPR/C/SR.2381, 8 November 2006, para 7, per Mr Harris.

235 The Annual Report of the Human Rights Committee for 2006 reveals that 46 States have Reports that remain over five years overdue, which includes States such as France (five years overdue) and Spain (seven years overdue), see Report of the Human Rights Committee, A/61/40 (Vol I) 16–17. With respect to some of the States referred to in this article, the DPRK reported to the HRC in 2000, but its Third Periodic Report has been due since January 2004. Jamaica's (Third Periodic) Report has been overdue since November 2001, whilst Trinidad and Tobago's (Fifth periodic) Report has been awaited since October 2003, as has Guyana's (Third Periodic) Report. Since 2001 the HRC has amended its rules of procedure enabling it to examine from material available to it, the measures adopted by that State party with a view to giving effect to the provisions of the Covenant, even in the absence of a report; see ibid, paras 52–58.

236 Guyana remains a party to the First OP to the ICCPR, however, it has not cooperated with the HRC with respect to cases heard under that procedure in recent years, see for example Persaud v Guyana, CCPR/C/86/D/812/1998, 21 March 2006.