2014 Denunciation With Reaccession and Reservation

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Denunciation Followed by Re-Accession with

Reservations to a Treaty: A Critical Appraisal of
Contemporary State Practice
Björn Arp
Netherlands International Law Review / Volume 61 / Issue 02 / August 2014, pp 141 - 165
DOI: 10.1017/S0165070X14001156, Published online: 22 August 2014
Link to this article: http://journals.cambridge.org/abstract_S0165070X14001156
How to cite this article:

Björn Arp (2014). Denunciation Followed by Re-Accession with Reservations to a Treaty:
A Critical Appraisal of Contemporary State Practice. Netherlands International Law
Review, 61, pp 141-165 doi:10.1017/S0165070X14001156
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re-acceding to treaties with reservations
NILR 2014 re-acceding to treaties with reservations
B. Arp 141
Denunciation Followed by Re-Accession with

Reservations to a Treaty: A Critical Appraisal of
Contemporary State Practice
by Björn Arp*
1. Introduction
2. Uncharted waters: the work of the International Law Commission and other
authoritative bodies on the codification of international law
3. The discussions about the 1988 Swiss Interpretative Declaration on Article

6(1) of the European Convention on Human Rights
4. Trinidad and Tobago, Guyana, and the Optional Protocol to the ICCPR
4.1 The death penalty under scrutiny in the Caribbean countries
4.2 The denunciation of and re-accession to the ICCPR’s Optional Protocol by
Trinidad and Tobago and by Guyana
4.3 Reactions to the re-accession with a reservation by other States Parties to the
Optional Protocol
4.4 The position of the Human Rights Committee
5. Sweden and the Convention on the Reduction of Multiple Nationality and on

Military Oblighuhations in Cases of Multiple Nationality
6. Bolivia and the 1961 Single Convention on Narcotic Drugs

6.1 The factual circumstances of treaty compliance by Bolivia
6.2 Bolivia’s proposal to amend the 1961 Single Convention
6.3 Bolivia’s denunciation of and re-accession to the Convention
6.4 Reactions to Bolivia’s re-accession with a reservation
7. Conclusions
*
Björn Arp is Adjunct Faculty at the American University Washington College of Law, and a
Partner at Aparicio, Arp & Associates LLC in Washington, DC (arp@american.edu).
Netherlands International Law Review, LXI: 141-165, 2014

© 2014 T.M.C. Asser Instituut and Contributors
doi: 10.1017/S0165070X14001156
142 B. Arp NILR 2014
Abstract
A state’s denunciation of a treaty with the sole objective of re-acceding to it with

a reservation may be interpreted as circumventing the prohibition of the late
formulation of reservations enshrined in Article 19 of the 1969 Vienna Conven-
tion on the Law of Treaties. This article addresses five cases where the
denunciation of and re-accession to a treaty was at least considered by certain
states and whose analysis promises to clarify the legal characteristics of this
practice. One instance involved such a practice being discussed by the Swiss
Federal Tribunal in the context of the amendment of the Swiss interpretative
declaration to Article 6(1) of the European Convention on Human Rights.
Another instance involved Trinidad and Tobago and Guyana with regard to the
Optional Protocol to the International Covenant on Civil and Political Rights. A
further situation arose when in 2002 Sweden denounced and re-acceded to the
Council of Europe Convention on the Reduction of Multiple Nationality and on
Military Obligations in Cases of Multiple Nationality with the aim of excluding
the obligations contained in Chapter I of this treaty. The last case analyzed in
this article is Bolivia’s denunciation of and re-accession to the 1961 Single Con-
vention on Narcotic Drugs. The aim of this article is to offer a critical appraisal
of this practice under international law. The article argues that the European
states’ position differs from the generality of states. In addition, states may
include specific provisions on the possibility of denouncing and re-acceding with
a reservation when they draft their treaties. States may review more systemati-
cally the treaty action and object to practices that are not compatible with the
reserving states’ good faith treaty obligations. And the ILC may include this
topic into its work programme, for example, when updating the Guide to Practice
on Reservations to Treaties.
1. INTRODUCTION
The right to sign and ratify treaties stands among the most basic attributes of the
sovereign equality of states.1 Every state has also the freedom to denounce a treaty
pursuant to the provisions of that treaty.2 All States Parties must consent to treaty
denunciation or termination, unless the treaty provides for a special regulation.3
In practice, most treaties provide for liberal denunciation clauses, which allow
states to denounce with the sole requirement of communicating the decision to all
other States Parties within a given time limit before the denunciation can take
1. Art. 6 Vienna Convention on the Law of Treaties (VCLT), 1155 UNTS 331, 8 ILM 679, accord-
ing to which ‘[e]very State possesses capacity to conclude treaties’.
2. Art. 54(a) VCLT, according to which ‘[t]he termination of a treaty or the withdrawal of a party
may take place: (a) in conformity with the provisions of the treaty…’
3. Art. 54(b) VCLT, according to which termination or withdrawal may take place ‘at any time
by consent of all the parties after consultation with the other contracting States’.
NILR 2014 re-acceding to treaties with reservations 143
effect. As a consequence, states can denounce an international treaty and subse-

quently again become a party by (re-)acceding to it. Some precedents of such a
practice were the cases of China with the 1944 International Civil Aviation
Convention,4 Brazil with the 1947 International Labour Organization’s (ILO)
Labour Inspection Convention,5 and Iceland with the 1946 International Conven-
tion for the Regulation of Whaling.6 Each of these cases raised specific legal
questions, such as the recognition of governments (the case of China), the change
of a state’s legal position on a certain issue (the case of Brazil), and the competence
of an international organization’s institution to decide on the admissibility of a
reservation (the case of Iceland).
However, a particular problem arises when a state denounces a treaty with the
sole objective of re-acceding to it with a reservation. Such conduct may be inter-
preted as being incompatible with the reservation regime enshrined in Article 19
of the 1969 Vienna Convention on the Law of Treaties (the ‘Vienna Convention’
or ‘VCLT’). According to this provision, ‘[a] State may, when signing, ratifying,
accepting, approving or acceding to a treaty, formulate a reservation’.7 Since this
4. The Nationalist Government of China denounced the 1944 Convention on International Civil
Aviation on 8 December 1949, and then re-acceded on 2 December 1953 (the Convention was adopted
on 7 December 1944, 15 UNTS 295). The background to this denunciation and re-accession was that
the National Government fled Peking and settled on the island of Formosa. Since the depository (the
United States) continued to recognize the Nationalist Government of China as the legitimate repre-
sentative of China, that government was allowed to deposit the accession to the treaty, which it had
denounced as a consequence of the political and economic crisis during the accession to power of
the communist government in mainland China.
5. On 5 April 1971, Brazil denounced the International Labour Organization’s (ILO) Convention
concerning Labour Inspection in Industry and Commerce (referred to as the ‘Labour Inspection
Convention’), adopted on 11 July 1947, ILO No. 81, 54 UNTS 3. Brazil denounced the Convention
due to difficulties in applying the rules concerning the status of inspection staff (Art. 6) and the
reimbursement of their travel and incidental expenses (Art. 11(2)). Later on, the state changed its
position and re-acceded to this Convention on 11 October 1989. See ‘General Survey on Labour
Inspection by the Committee of Experts on Application of Conventions and Recommendations’,
Report III, Part 4B, International Labour Conference, 71st Session, 1985, ILOLEX General Survey
Doc. 251985G02, cited in Y. Tyagi, ‘The Denunciation of Human Rights Treaties’, BYIL (2008)
p. 86 at p. 179.
6. Iceland denounced the International Convention for the Regulation of Whaling (ICW), adopted
in Washington, DC on 2 December 1946, 161 UNTS 143, in 1992, and tried to set up a distinct
international organization to regulate whale hunting, the North Atlantic Marine Mammal Commis-
sion. However, after noting the continued need to be a member of the International Whaling Com-
mission, Iceland applied again for membership through the signature of the ICW in 2001, but
formulated a reservation to Art. 10(e) of the Schedule attached to the Convention, which essentially
put a moratorium on whale hunting. The other member states of the IWC, as well as the organization
itself, did not consider this situation from the point of view of denunciation and re-accession with a
reservation due to the time that had elapsed since the denunciation of the treaty. Rather, the issue that
was discussed – and which generated several objections from States Parties – was whether the inter-
national organization has the power to decide about the admissibility of reservations, or whether this
power is vested in the member states. See about this debate, A. Gillespie, ‘Iceland’s Reservation at
the International Whaling Commission’, 14 EJIL 5 (2003) p. 977 at pp. 993-996.
7. Art. 19 VCLT.
is a closed list of precise procedural moments during the adoption of an interna-

tional treaty, this provision has been interpreted as only allowing a state to
formulate a reservation, absent agreement to the contrary,8 when it signs, ratifies,
accepts, approves, or accedes to a treaty.9 In addition, pursuant to Article 20 of
the VCLT, the acceptance of a reservation takes place for each individual bilateral
relationship within the multilateral treaty through the explicit or implicit manifes-
tation of acceptance or objection to the reservation. According to Article 20(5) of
the VCLT, the silence of another State Party to the treaty during 12 months after
the notification of the reservation implies the acceptance of the reservation. In
contrast to other provisions of the VCLT that prohibit certain state conduct with
regard to treaties,10 the Convention does not explicitly prevent states from ratify-
ing a treaty from which they had previously withdrawn through denunciation.
The literature provides for different views regarding the admissibility of a
denunciation and subsequent re-accession with a reservation to a treaty. Referring
to human rights treaties, some authors have suggested that the denunciation fol-
lowed by re-accession with a reservation is less damaging than leaving the state
out of the entire convention arrangement.11 Other commentators on international
treaty law reject such practice,12 or argue that these situations should be treated as
late reservations to treaties.13 Some authors offer more nuanced approaches, and
maintain that in the absence of other states’ objections to the denunciation and
re-accession with a reservation, those states are deemed to have acquiesced.14 Yet
others consider that formulating late reservations, or denouncing a treaty and
8. For an example of a treaty that explicitly provides for the formulation of reservations at a dif-
ferent moment as established in the VCLT, see Art. 10(1) of the 1999 International Convention on
Arrest of Ships, UN Doc. A/CONF.188.6; and International Transport Treaties I-639. See also O.
Dörr and K. Schmalenbach, eds., Vienna Convention on the Law of Treaties (Berlin, Springer 2012)
p. 257.
9. During the elaboration of the Vienna Conventions on the Law of Treaties the issue of late
reservations, or the denunciation and re-accession to a treaty with a reservation, did not come up for
debate. See also D. Müller, ‘Reservations and Time: Is There Only One Right Moment to Formulate
and to React to Reservations?’, EJIL 24 (2013) p. 1113 at p. 1120.
10. See, for example, the provision prohibiting states to frustrate the object and purpose of a treaty
after signature and before its entry into force (Art. 18 VCLT); the provision prohibiting the alleging
of the domestic law to justify the non-application of a treaty (Art. 27); or the provision prohibiting
the retroactive application of treaties (Art. 28 VCLT).
11. G. McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to
the First Optional Protocol’, 23 Human Rights Quarterly (2001) p. 769 at p. 812, where the author
argues that under certain conditions human rights treaties should allow for denunciation and subse-
quent re-accession with a reservation.
12. See L.R. Helfer, ‘Not Fully Committed? Reservations, Risk, and Treaty Design’, 31 Yale JIL
(2006) p. 367 at p. 373. This author refers to the late reservations as a solution to the practice of some
states of denouncing and re-acceding to a treaty.
13. See A. Pellet, ‘1969 Vienna Convention. Article 22. Withdrawal of Reservations and of
Objections to Reservations’, in O. Corten and P. Klein, eds., The Vienna Conventions on the Law of
Treaties. A Commentary, Vol. I (Oxford, Oxford University Press 2011) p. 568 at p. 582.
14. See A. Aust, Modern Treaty Law and Practice, 3rd edn. (Cambridge, Cambridge University
Press 2013) p. 142.
subsequently ratifying that same treaty with a reservation, has a negative impact
on the state’s reputation.15
Even more noteworthy than the lack of clarification in the literature is that from
time to time states try to include a reservation into a treaty to which these states
were already a party by denouncing and re-acceding to it. Most of these known
instances where states have denounced and re-acceded with a reservation took
place in the late 1990s and the first years of the current century. This might be a
sign that in the future more such situations may arise. The corpus of international
treaty law adopted after World War II is aging, and seldom do those treaties pro-
vide for flexible procedures to adapt to new circumstances. The International Law
of Treaties does not provide for a great amount of flexibility for states that want
to adapt their treaty obligations to changing circumstances and the progressive
development of general international law. In these conditions, it seems understand-
able that some states try to adapt their treaty obligations by denouncing and
re-acceding with a reservation. However, general principles of international law,
such as good faith and pacta sunt servanda, might be in jeopardy when instead of
formulating a late reservation or proposing to modify the treaty, a state denounces
a treaty and subsequently re-accedes with a reservation.
Keeping in mind this recent practice, this article comments on the relevant
initiatives taken by the principal international institutions that aim at codifying
contemporary international law, although they have not yet offered a comprehen-
sive regulation of the conditions and legal effects of the denunciation followed by
re-accession with a reservation (section 2).
In addition, the article analyses the available state practice regarding denun-
ciation followed by re-accession with a reservation. This article will focus only
on those cases that to our knowledge are relevant enough to evaluate, pursuant to
international law, the practice of denunciations followed by re-accession with a
reservation.16 The study covers five relevant cases of denunciation followed by
re-accession with a reservation. The first is the case when the Swiss Federal Tri-
bunal discussed the amendment of the Swiss interpretative declaration to Article
6(1) of the European Convention on Human Rights (section 3). The second and
third cases are the instances involving Trinidad and Tobago and Guyana with
regard to the Optional Protocol to the International Covenant on Civil and Politi-
15. See V. Fon, ‘International Treaties’, in F. Parisi, ed., Production of Legal Rules (Glos (UK),
Edward Elgar Publishing 2011) p. 272 at p. 288; and Helfer, supra n. 12, p. 374.
16. For this reason, we leave aside the situations where the denunciation and re-accession with
a reservation has merely been debated on a political level. Within governments and stakeholders may
erupt political debates about the denunciation of and re-accession to a treaty with a reservation, as
happened with the British government regarding the European Convention on Human Rights, in order
to formulate a reservation to exclude the applicability of the treaty to asylum seekers, see ‘Revealed:
Blair Attack on Human Rights Law’, The Guardian, 13 May 2006, available online at <www.the
guardian.com/politics/2006/may/14/humanrights.ukcrime>; and the Australian government regarding
the United Nations Convention on the Rights of the Child in order to formulate a reservation on the
concept of the ‘autonomous child’; see on these examples Helfer, supra n. 12, p. 374.
cal Rights (section 4). The fourth is when Sweden denounced and re-acceded to
the Council of Europe Convention on the Reduction of Multiple Nationality and
on Military Obligations in Cases of Multiple Nationality in 2002 with the aim of
excluding the obligations contained in Chapter I of this treaty (section 5). The fifth
case is Bolivia’s denunciation followed by re-accession with a reservation to the
1961 Single Convention on Narcotic Drugs, which regulates the interdiction of
the international availability of coca and cocaine in the markets of its 184 States
Parties (section 6). The last section of this article compiles the conclusions from
these case studies on the denunciation followed by re-accession with a reservation
to international treaties (section 7).
2. UncharteD Waters: The Work of the

International Law Commission and other
Authoritative Bodies on the Codification of
International Law
The International Law Commission (ILC) has not explicitly analyzed the denun-
ciation of a treaty followed by its re-accession with a reservation. However, the
ILC has studied late reservations to treaties since 1993 in the context of its re-
examination of the Vienna Convention’s reservations regime.17 After a lengthy
process with a number of reports presented by the Special Rapporteur appointed
to study this issue, the ILC adopted the ‘Guide to Practice on Reservations to
Treaties’ in 2011.18 During this process, the Special Rapporteur did not analyze
the topic of denunciation and re-accession with a reservation. But in his eighth
report, he acknowledged that in Europe the denunciation followed by re-accession
with a reservation might constitute an abuse of rights.19 However, he discarded
the European approach as ‘undoubtedly too rigid’ on the universal level, and sug-
gested to align the practice in cases of denunciations followed by re-accession
with a reservation with those of late reservations.20
According to the Guide, a state formulates a late reservation when it submits a
reservation after the moment it has expressed its consent to be bound by the trea-
17. See ‘Report of the International Law Commission on the work of its forty-fifth session’, GA
Res. 48/31, 9 December 1993, para. 7.
18. Adopted by the International Law Commission at its sixty-third session, in 2011, and submit-
ted to the General Assembly as a part of the Commission’s report covering the work of that session
(A/66/10, para. 75) (subsequently referred to as the ‘Guide’).
19. ‘Eighth report on reservations to treaties, by Mr. Alain Pellet, Special Rapporteur’, UN Doc.
A/CN.4/535, 27 May 2003, para. 40. It is noteworthy that the Special Rapporteur only considered
the example of Trinidad and Tobago regarding the Optional Protocol to the ICCPR, but did not men-
tion the cases of neither Guyana regarding the same treaty, nor Sweden regarding the Council of
Europe Convention on the Reduction of Multiple Nationality and on Military Obligations in Cases
of Multiple Nationality in 2002 (ibid., para. 40, fn. 64).
20. Ibid., para. 41.
ty.21 Following the practice of the UN Secretary-General rather than the requirements
of the VCLT,22 the Guide allows for late reservations, if the other contracting
parties to the treaty do not object to the late formulation of the reservation.23 The
Guide further provides for a specific time limit for the acceptance of the late res-
ervation. This time limit is 12 months following the date on which the notification
of the late reservation was received.24 The Guide recognizes that in two situations
this time limit is not applicable: when the treaty itself provides for a different time
limit, and when well-established practice followed by the depository differs.25 The
Guide also limits the effects of the objection to late formulations of reservations,
in that the objection can only affect the provision that the late reservation has
affected.26 Thus under this rule states could not suspend the application of the
treaty altogether.
In addition, the Guide explicitly prohibits states from subsequently excluding
or modifying the legal effects of a treaty by interpretation of a reservation made
earlier or by formulating unilateral statements.27 The situations where a state
amends a reservation with the aim of widening the reservation’s scope receive the
same treatment as a late formulation of a reservation, with the particularity that
in case of an objection to that reservation, the initial reservation remains effective.28
The Council of Europe’s Ad Hoc Committee of Legal Advisers on Public
International Law29 considered the denunciation and re-accession to treaties in
2000, and noted that ‘there have been instances where States have denounced a
treaty to which they had not made reservations with a view to re-acceding to the
treaty with reservations’.30 The Committee acknowledged that the Vienna Conven-
21. Guide, supra n. 18, para. 2.3.1.

22. Treaty Section of the Office of Legal Affairs, Treaty Handbook, rev. edn. (New York, United
Nations 2012) para. 3.5.3: ‘Formulating reservations after ratification, acceptance, approval or
accession: Where the Secretary-General, as depositary, receives a reservation after the deposit of the
instrument of ratification, acceptance, approval or accession that meets all the necessary requirements,
the Secretary-General circulates the text of the reservation to all the States concerned. The Secretary-
General accepts the reservation in deposit only if no State informs him that it does not wish him to
consider the reservation to have been accepted for deposit. This is a situation where the Secretary-
General’s practice deviates from the strict requirements of the Vienna Convention 1969.’
24. Guide, supra n. 18, para. 2.3.2. This time limit coincides with the 12-months term for submit-
ting objections to reservations in accordance with Art. 20(5) of the VCLT.
25. Ibid.
29. The Ad Hoc Committee of Legal Advisers on Public International Law is an intergovernmen-
tal committee created by the Council of Europe’s Committee of Ministers. It brings together the legal
advisers of the ministries of foreign affairs of the Council of Europe member and observer states and
organizations to discuss current issues of public international law.
30. Council of Europe, ‘Practical Issues Regarding Reservations to International Treaties’, 708th
Mtg., 3 May 2000, at para. 8, available online at <www.coe.int/t/dlapil/cahdi/Source/Adopted_texts/
CM_2000_708_4_EN.pdf>.
tion does not address this phenomenon, but that the validity of this action is
‘controversial’.31 The Committee went on to state that:
‘The view has been expressed that this procedure is circumventing the rule that reser-
vations may only be made when expressing consent to be bound. The view has also
been expressed that, although highly undesirable, there are no formal rules against such
a procedure.’32
One of the lawyers at the Department of the Legal Adviser and Treaty Office of
the Council of Europe, Jörg Polakiewicz, had already expressed a similar approach
in a 1999 publication about the treaty-making practice in the Council of Europe.
He characterized the denunciation of a multilateral treaty as a ‘measure of last
resort’ that might generate negative publicity for that state, and the denunciation
followed by immediate re-accession with a reservation as an ‘abuse of rights’.33
But he did not offer a clear explanation about the effects of such conduct under
international law.
3. The Discussions about the 1988 Swiss

Interpretative Declaration on Article 6(1) of the
European Convention oN Human Rights
In 1992, the Swiss Federal Tribunal contributed to the discussion about the effects
of a denunciation followed by re-accession with a reservation.34 The Tribunal
expressed its considerations about this issue while analyzing the interpretative
declaration submitted by Switzerland on Article 6(1) of the European Convention
on Human Rights.35 After the European Court of Human Rights’ Belilos judgment,
which declared the Swiss declaration invalid,36 Switzerland amended the interpre-
tative declaration in 1988. However, the state still did not expand the application
of Article 6(1) of the European Convention to all civil and criminal procedures.
In addition, Switzerland submitted a list of all those federal and cantonal provi-
31. Ibid.
32. Ibid.
33. See J. Polakiewicz, Treaty-Making in the Council of Europe (Strasbourg, Council of Europe
Publishing 1999) p. 96.
34. Judgment of the Second Civil Section of 17 December 1992, in the case of Elizabeth B. v.
Thurgau Canton Council of State, BGE 118 Ia 473 (hereafter abbreviated as BGE 118 Ia 473).
35. European Convention on Human Rights and Fundamental Freedoms, 4 November 1950,
entered into force on 3 September 1953, CETS No. 5; and 213 UNTS 221. Switzerland signed the
Convention on 21 December 1972, and ratified it on 28 November 1974 with an interpretative dec-
laration on Art. 6(1); the Convention, including the declaration, entered into force for Switzerland
on 28 November 1974; see Circular of 4 March 1974, Bundesblatt (BBl.) FF 1974 I 1035 (Ger-
man)/1020 (French)/1008 (Italian).
36. Judgment of the European Court of Human Rights of 29 July 1988, Belilos v. Switzerland,
Application No. 10328/83, in particular para. 55.
sions that were affected by the interpretative declaration. A case submitted to the
Federal Tribunal invoking the invalidity of the second interpretative declaration
led the Tribunal to undertake insightful considerations about the practice of
denouncing and re-acceding with a reservation.
The Tribunal argued that the second interpretative declaration submitted by
Switzerland in 1988 was in fact a new reservation after the European Court had
the original 1974 declaration declared invalid in the Belilos judgment. Since
Article 64 of the European Convention allows states to formulate reservations
only when ratifying, adhering, or acceding, the Tribunal concluded that a late
formulation of a reservation is not possible under the European Convention
regime.37 As a consequence, the Tribunal considered whether it would be possible
for Switzerland to denounce the European Convention, and re-access the treaty
with the new reservation. At first sight, this would appear to comply with the
Convention.38 But then the Tribunal asked how it could make sense to allow for
denunciation and re-accession with a reservation, when the late formulation of
reservations was prohibited.39 This is why the Tribunal felt compelled to study
more in depth the admissibility of such a practice.
The Tribunal observed that the requirement of a period of time for the denun-
ciation to take effect (for example, the European Convention on Human Rights
provides for six months)40 means that during that period the state is effectively not
complying with the treaty, since it wants to submit the reservation at issue.41 The
Tribunal argued that it would be unlikely that Switzerland had purposefully
intended to violate its international obligations during the denunciation period.42
The Tribunal also evaluated whether a denunciation followed by re-accession
with a reservation would be compatible at all with the European Convention. The
Tribunal stressed the fact that the European Convention explicitly limits the pos-
sibility of formulating reservations to those domestic laws and regulations that
pre-exist at the time of the treaty’s ratification. The Convention aims at promoting
a normative development on the domestic level that progressively and gradually
adapts the domestic legal order until the object and purpose of the European Con-
vention is plainly fulfilled. The Convention’s restrictive reservation regime
prevents states from reducing or restricting their human rights commitments. For
the same reason, the Convention does not allow reservations with regard to future
laws and regulations,43 and thus also not reservations when re-acceding to the
treaty.
Finally, the Tribunal observed that the denunciation made with the aim of
ratifying with a reservation constitutes an abuse of rights.44 The objective of a
37. BGE 118 Ia 473, supra n. 34, p. 486.

38. BGE 118 Ia 473, supra n. 34, p. 486.
39. BGE 118 Ia 473, supra n. 34, pp. 486-487.
40. Art. 65(2) European Convention on Human Rights.
41. BGE 118 Ia 473, supra n. 34, p. 487.
42. Ibid.
43. Ibid.
44. Ibid., pp. 487-488.
denunciation is to leave the treaty arrangement. If a state leaves a treaty with other
purposes, such as re-entering with a reservation, that state is abusing its rights to
denounce.45
These considerations of the Federal Tribunal did indeed give rise to a re-
assessment of the interpretative declaration by the Swiss government. In 2000, it
withdrew its interpretative declarations to Article 6 of the European Convention.46
4. Trinidad and Tobago, Guyana, and the Optional

Protocol to the ICCPR
4.1 The death penalty under scrutiny in the Caribbean countries
Although the principal human rights treaties do not establish an outright prohibi-
tion of the death penalty, these treaties have been interpreted as imposing strict
limitations on states when imposing such punishments. The resulting tension
between the general allowance of the imposition of the death penalty and the
restrictive interpretation in individual cases led several Caribbean states to
denounce and eventually re-accede to human rights treaties.
This development originated in 1993 with the judgment in the case of Pratt and
Morgan v. Attorney General for Jamaica before the Privy Council, the highest
organ of judicial review in Jamaica, and whose jurisprudence sets the Constitutional
standards for the former British colonies.47 In this case, the Privy Council indicated
that a capital appeal should be heard within 12 months after conviction. Accord-
ing to that tribunal, ‘if capital punishment is to be retained it must be carried out
with all possible expedition’,48 and that when ‘execution is to take place more than
five years after sentence there will be strong grounds for believing that the delay
is such as to constitute “inhuman or degrading punishment or other treatment”’.49
Before the case was heard before the Privy Council, the appellants had submitted
their case also to the Inter-American Commission on Human Rights and the United
Nations Human Rights Committee. The Inter-American Commission had already
requested Jamaica’s government on 9 July 1987 to commute the death penalty for
‘humanitarian reasons’,50 after finding that Pratt and Morgan had suffered a denial
of justice during the period 1980-84, in violation of Article 5(2) of the American
45. Ibid., p. 488.
46. Federal Decree of 8 March 2000, BBl. 1999 3658 et seq., AS 2002 1142.
47. Case of Earl Pratt and Ivan Morgan v. The Attorney General for Jamaica and The Superin-
tendent of Prisons, Saint Catherine’s Jamaica, Privy Council Appeal No. 10, of 1993, Judgment of
2 November 1993, published in 33 ILM 364.
48. Ibid., p. 10.
49. Ibid., p. 11.
50. Ibid., p. 5.
Convention on Human Rights.51 The Commission observed that the Jamaican

Court of Appeal had issued its decision on 5 December 1980, but did not give the
reasons for that decision until four years later, on 24 September 1984. According
to the Commission, this was tantamount to cruel, inhuman and degrading treatment
because during this four-year delay the petitioners could not appeal to the Privy
Council and had to suffer on death row awaiting execution.52 Similarly, the Human
Rights Committee adopted its views on the merits of the communication holding
that Jamaica was responsible for a violation of the International Covenant on Civil
and Political Rights (ICCPR).53 In particular, the Committee found a violation of
Article 7, because the victims were not notified of a stay of execution granted to
them on 23 February 1987 until 45 minutes before their scheduled execution on
24 February 1987; and of Article 14(3)(c), in conjunction with paragraph 5, because
the authors were not tried without undue delay.54
In the light of the apparent contradiction between the position of the international
bodies and the Privy Council, the government of Jamaica approached the Human
Rights Committee to ask whether it would agree to hear capital punishment cases
in an expedited manner, which the Committee rejected. As a consequence, Jamaica
decided to denounce the Optional Protocol to the ICCPR on 23 October 1997.55
Jamaica did not make any attempts at ultimately re-acceding to the treaty. Although
51. Adopted at San José de Costa Rica on 22 November 1969, and entered into force on 18 July
1978, published in OEA, Serie sobre Tratados No. 36; and 123 UNTS 1144.
52. Earl Pratt and Ivan Morgan v. Jamaica, supra n. 47, p. 5.
53. GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at p. 52, UN Doc. A/6316 (1966), 999
UNTS 171; entered into force on 23 March 1976.
54. See the Human Rights Committee’s views in Earl Pratt and Ivan Morgan v. Jamaica, Com-
munication No. 210/1986, UN Doc. CCPR/C/35/D/210/1986 (1989), para. 14. See also the case Smith
v. Jamaica, Communication No. 282/1988, UN Doc. CCPR/C/47/D/282/1988 (1993), para. 12, where
the Committee even requested the release of the complainant, due to the numerous violations he had
suffered. In particular, the Committee found a violation of Art. 6 of the ICCPR (the right to life)
because ‘the imposition of a sentence of death upon conclusion of a trial in which the provisions of
the Covenant have not been respected, and which could no longer be remedied by appeal, constitutes
a violation of article 6 of the Covenant. As the Committee noted in its General Comment 6(16), the
provision that a sentence of death may be imposed only in accordance with the law and not contrary
to the provisions of the Covenant implies that “the procedural guarantees therein prescribed must be
observed, including the right to a fair hearing by an independent tribunal, the presumption of inno-
cence, the minimum guarantees for the defence, and the right to review of conviction and sentence
by a higher tribunal” [See CCPR/C/21/Rev.1, p. 7, para. 7.] In the instant case, since the final sentence
of death was passed without having met the requirements for a fair trial set out in article 14, it must
be concluded that the right protected by article 6 of the Covenant has been violated.’ The Human
Rights Committee appeared to prefer an indefinite sitting on death row over the application of the
death penalty; however, this generated a number of inconsistencies that were debated within the
Committee. See, in particular, the case of Errol Johnson v. Jamaica, Communication No. 588/1994,
UN Doc. CCPR/C/56/D/588/1994 (1996), Individual opinions by Committee members Christine
Chanet and Francisco José Aguilar Urbina.
55. See the UNTS database at <https://treaties.un.org>. Jamaica had signed the Optional Protocol
to the ICCPR on 19 December 1966.
Jamaica has ratified the American Convention on Human Rights,56 it has not
accepted the competence of the Inter-American Court of Human Rights to adju-
dicate individual claims submitted to it by the Inter-American Commission of
Human Rights, in accordance with Article 62 of the American Convention.
The Inter-American human rights system was confronted with capital punish-
ment cases notably with the case of Hilaire, Constantine and Benjamin v. Trinidad
and Tobago in the late 1990s,57 and after this case a row of other cases against
several Caribbean states were submitted.58 In these cases the victims alleged that
the mandatory death penalty in all cases without consideration of the particular
circumstances, eventually even without regard to whether the perpetrator had
actively wanted to kill or not, was contrary to the strict capital punishment require-
ments of the American Convention on Human Rights, in particular the right to
life, humane treatment, and due process.59 Once it became clear that most death
penalty cases would be appealed before the Inter-American Court, Trinidad and
Tobago decided to denounce the American Convention in 1998.60
On 21 December 1978, Trinidad and Tobago had become a party to the ICCPR,
and on 14 November 1980, its Optional Protocol.61 However, in the wake of the
criticism of its practice in the field of the death penalty62 and the judgment of the
56. Jamaica signed the American Convention on 16 September 1977, and ratified it on 19 Sep-
tember 1977. Jamaica has only accepted the inter-state complaints procedure as provided for in
Art. 45 of the American Convention. However, no such claim has been brought against Jamaica so
far.
57. The Inter-American Commission of Human Rights (Inter-Am. Comm. H.R.) adopted Report
No. 66/99 on the merits in the Hilaire case, on 21 April 1999, and transmitted it to the state on
26 April 1999. On 19 November 1999, the Commission adopted Report No. 128/99 in connection
with the twenty-three cases that comprised the Constantine et al. case. This Report was transmitted
to the state on 22 November 1999. On 13 June 2000, the Commission adopted Report No. 53/00 on
the seven cases that comprise the Benjamin et al. case, and transmitted it to the state on 5 July of the
same year. The Court’s judgment on the consolidated cases was adopted on 21 June 2002; see Hilaire,
Constantine and Benjamin et al. v. Trinidad and Tobago, Judgment of 21 June 2002, Inter-Am. Ct.
H.R., Ser. C No. 94, especially paras. 21-25.
58. These other cases that followed were: Boyce et al. v. Barbados. Preliminary Objection,
Merits, Reparations and Costs, Judgment of 20 November 2007, Inter-Am. Ct. H.R., Ser. C No. 169.
This case was submitted to the Inter-American Commission in 2004 and related to the excessive
delay in the procedure that led to the imposition of the death penalty (ibid., para. 1). DaCosta Cadogan
v. Barbados. Preliminary Objections, Merits, Reparations, and Costs, Judgment of 24 September
2009, Inter-Am. Ct. H.R., Ser. C No. 204. This case had been submitted to the Inter-American Com-
mission in December 2006 for allegedly similar reasons as the previous case.
59. Inter-Am. Comm. H.R., ‘The Death Penalty in the Inter-American System of Human Rights:
From restriction to abolition’, OEA Doc. OEA/Ser.L/V/II Doc. 68 (2011), para. 25.
60. Trinidad and Tobago denounced the American Convention on Human Rights on 26 May
1998; reproduced in OAS/IACHR, Basic Documents Pertaining to Human Rights in the Inter-Amer-
ican System (San José, IACHR 2003) pp. 73-75.
61. See the UNTS database at <https://treaties.un.org>.
62. Notably, see the case of Robinson LaVende v. Trinidad and Tobago, Communication
No. 554/1993, UN Doc. CCPR/C/61/D/554/1993 (1997), paras. 5.6-5.8. This case reiterated the
jurisprudence that had started with the case of Earl Pratt and Ivan Morgan v. Jamaica, supra n. 54.
Privy Council,63 the government of Trinidad and Tobago denounced the Optional
Protocol to the ICCPR on 26 May 1998,64 with effect from 26 August 1998.
Similar to Jamaica, Trinidad and Tobago had approached the Inter-American
Commission of Human Rights and the Human Rights Committee proposing that
death penalty cases before these bodies be decided within a certain time limit after
registration, so that the state could comply with the time limits for the review of
death penalty cases set by the Privy Council.65 Both international bodies rejected
this proposal.
Guyana had signed the ICCPR on 22 August 1968, and had acceded to the
Optional Protocol on 10 May 1993.66 At the end of the 1990s, also Guyana entered
the spotlight because of its practice in the field of the death penalty. The lack of
procedural guarantees during the criminal procedure that led to the death penalty
conviction in the case of Raymond Persaud and Rampersaud v. Guyana before
the Human Rights Committee,67 made the government decide to denounce the
Optional Protocol to the ICCPR in early 1999.68
The cases before the Inter-American human rights system, as well as before
the Human Rights Committee, and ultimately also before the European Commis-
sion and Court of Human Rights, underlined that the right of states to impose the
death penalty can only be upheld when three conditions are met: that certain pro-
cedural requirements are complied with, in accordance with due process; that the
death penalty only be imposed for the most serious common crimes not related to
political offences; and that the particular circumstances of the defendant must be
taken into account, which might bar the imposition of that penalty in individual
cases.69 In addition, Article 4 of the American Convention on Human Rights
imposes the obligation to gradually restrict the application of the death penalty,
and in particular, that the death penalty not be applied to new offences. In the case
of states that are not a party to the American Convention on Human Rights, the
Inter-American Commission has explained that under Article I of the 1948
American Declaration of the Rights and Duties of Men70 states still have the obli-
gation to refrain from imposing the death penalty if it would result in an ‘arbitrary
63. See supra n. 47.

64. GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at p. 59, UN Doc. A/6316 (1966), 999
UNTS 302, entered into force on 23 March 1976.
65. See M. Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 2nd rev.
edn. (Kehl, N.P. Engel 2005) p. 146.
66. See the UNTS database at <https://treaties.un.org>.
67. Human Rights Committee, Communication No. 812/1998, Raymond Persaud and Rampersaud
v. Guyana, UN Doc. CCPR/C/86/D/812/1998 (2006).
68. The denunciation was communicated to the UN Secretary-General on 5 January 1999, and
became effective on 5 April 1999, according to Art. 18(2) of the Optional Protocol.
69. See Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention on
Human Rights), Advisory Opinion OC-3/83, 8 September 1983, Inter-Am. Ct. H.R., Ser. A No. 3
(1983), para. 55.
70. OAS Res. XXX, adopted during the IXth International American Conference, held at Bogotá
on 30 April 1948.
deprivation of life or would otherwise be rendered cruel, infamous or unusual

punishment’.71 The Inter-American system has also specified that the prohibition
of the death penalty for juveniles has the rang of a ius cogens norm.72 However,
the human rights monitoring bodies have recognized that the mere fact that a
person is on death row does not constitute inhuman or degrading treatment.73
4.2 The denunciation of and re-accession to the ICCPR’s Optional

Protocol by Trinidad and Tobago and by Guyana
On the same day of the denunciation, Trinidad and Tobago re-acceded to the
Optional Protocol to the ICCPR with a reservation. The text of the reservation
was as follows:
‘… Trinidad and Tobago re-accedes to the Optional Protocol to the International Cov-
enant on Civil and Political Rights with a Reservation to article 1 thereof to the effect
that the Human Rights Committee shall not be competent to receive and consider com-
munications relating to any prisoner who is under sentence of death in respect of any
matter relating to his prosecution, his detention, his trial, his conviction, his sentence
or the carrying out of the death sentence on him and any matter connected therewith.’74
71. Inter-Am. Comm. H.R., Report No. 62/02, Case 12.285, Michael Domingues, United States
of America, 22 October 2002, para. 52; previously the Commission had already expressed similar
views, see Report No. 57/96, Case 11.139, William Andrews, United States of America, 6 December
1996, para. 175.
72. In the case of Roach and Pinkerton against the United States, the Commission had to decide
on compatibility with the American Declaration of Rights and Duties of Men in the case of the two
petitioners, who were sentenced to death in the states of, respectively, South Carolina and Texas, for
crimes committed when they were seventeen years of age. Both petitioners were subsequently executed
by those states. The Commission considered whether the United States had acted contrary to a rec-
ognized norm of jus cogens or customary international law when it sentenced the two prisoners to
death and subsequently allowed their executions. While the Commission determined the existence
of a jus cogens norm prohibiting the execution of children, it found that uncertainty existed as to the
applicable age of majority under international law. The Commission explained the following: ‘in the
member States of the OAS, there is recognized a norm of jus cogens which prohibits the State execu-
tion of children. This norm is accepted by all the States of the inter-American system including the
United States … the Commission finds that this case arises, not because of doubt concerning the
existence of an international norm as to the prohibition of the execution of children, but because the
US disputes the allegation that there exists consensus as regards the age of majority’; see Inter-Am.
Comm. H.R., Res. 3/87, Case 9647, James Terry Roach and Jay Pinkerton v. United States of
America, 22 September 1987, paras. 56-57.
73. See Human Rights Committee, Communication No. 812/1998, Raymond Persaud and Ram-
persaud v. Guyana, UN Doc. CCPR/C/86/D/812/1998 (2006), paras. 7 and 8, as well as the dissent-
ing opinion by Committee members Hipólito Solari-Irigoyen and Edwin Johnson. The dissenting
Committee members questioned the well-established jurisprudence that does not consider the pro-
longed death row in itself a violation of Art. 7 of the ICCPR.
74. See: Accession of Trinidad and Tobago to the Optional Protocol of the ICCPR, UN Doc.
C.N.230.1998.TREATIES-1 (Depositary Notification) (7 August 1998), para. 2
Although Trinidad and Tobago re-acceded, the criticism about the country’s treat-
ment of its prisoners continued and ultimately led to a second denunciation of the
Optional Protocol on 27 March 2000, with effect from 27 June 2000.75 Trinidad
and Tobago did not make any new attempts at re-acceding to the Protocol.
Also the government of Guyana re-acceded to the Optional Protocol on the
same day as its denunciation, formulating a reservation regarding prisoners on
death row with a strikingly similar language as Trinidad and Tobago.76 In contrast
to Trinidad and Tobago, Guyana did not subsequently again denounce the Optional
Protocol for a second time, and thus is still today a party to this treaty.
In both cases, the UN Secretary-General circulated the denunciations and re-
accessions with a reservation, without adding any specific commentary to it, since
according to the VCLT it is the other States Parties’ discretion to react to reserva-
tions by formulating objections.
4.3 Reactions to the re-accession with a reservation by other States

Parties to the Optional Protocol
Some States Parties to the Optional Protocol formulated objections and commu-
nications to express their disapproval of Trinidad and Tobago’s and Guyana’s
conduct in regard to the re-accession with a reservation.77 All these objecting states
were European.
Germany stated that the denunciation and subsequent re-accession with a
reservation to an international human rights instrument was a ‘bad precedent’.78
Most states offered more explicit assertions, stating that Trinidad and Tobago and
Guyana had ‘misused’ the denunciation procedure, and that they had circumvented
‘the rule of the law of treaties that prohibits the formulation of reservations after
accession’.79 Some states stressed the fact that the Optional Protocol was a human
75. Trinidad and Tobago: Denunciation of the Optional Protocol to the ICCPR, UN Doc.
C.N.217.2000.TREATIES-3 (Depository Notification) (6 April 2000).
76. According to this reservation, ‘Guyana re-accedes to the Optional Protocol to the International
Covenant on Civil and Political Rights with a Reservation to Article 6 thereof with the result that the
Human Rights Committee shall not be competent to receive and consider communications from
any person who is under sentence of death for the offences of murder and treason in respect of
any matter relating to his prosecution, detention, trial, conviction, sentence or the execution of the
death sentence and any matter connected herewith’; see: Guyana: Accession to the Optional Protocol
of the ICCPR, UN Doc. C.N.99.1999.TREATIES-4 (Depositary Notification) (16 February 1999),
para. 2.
77. These states were: Denmark, Finland, Germany, Ireland, Italy, the Netherlands, Norway,
Spain, and Sweden.
78. Communication by Germany to Trinidad and Tobago’s reservation, UN Doc. C.N.857.1999.
TREATIES-9 (Depositary Notification) (13 August 1999); and Objection by Germany to Guyana’s
reservation, UN Doc. C.N.795.1999.TREATIES-7 (Depositary Notification) (26 August 1999).
79. Communication by the Netherlands to Trinidad and Tobago’s reservation, UN Doc.
C.N.907.1999.TREATIES-14 (Depositary Notification) (6 August 1999); Objection by Denmark to
Trinidad and Tobago’s reservation, UN Doc. C.N.861.1999.TREATIES-13 (Depositary Notification)
(6 August 1999); Objection by Norway to Trinidad and Tobago’s reservation, UN Doc. C.N.794.1999.
rights treaty, and thus the denunciation and subsequent re-accession with a reser
vation was interpreted as undermining the international protection of human rights.80
France has been particularly explicit in its legal evaluation of Trinidad and Toba-
go’s and Guyana’s re-accession with a reservation by stating that this practice
constitutes a misuse of the denunciation procedure as provided for in the treaty,
that it is manifestly contrary to the principle of good faith prevailing in international
law, and that it contravenes the principle pacta sunt servanda.81
4.4 The position of the Human Rights Committee
Since neither Trinidad and Tobago nor Guyana had accepted the competence of
the Human Rights Committee to hear inter-state complaints,82 none of the object-
ing states could bring their concerns to the attention of the Human Rights
Committee for a final resolution of their adverse positions.
The Human Rights Committee has also not explicitly decided about the admis-
sibility or validity of the denunciations followed by re-accession with reservations
through its jurisprudence on individual communications submitted under the
Optional Protocol. Instead, the Committee focused on the material contents of the
reservations, concluding that they were contrary to the object and purpose of the
treaty, and thus were not given legal effects.83 This exercise as the arbitrator of
TREATIES-6 (Depositary Notification) (6 August 1999); Communication by Sweden to Trinidad

and Tobago’s reservation, UN Doc. C.N.858.1999.TREATIES-10 (Depositary Notification) (17
August 1999); Objection by the Netherlands to Guyana’s reservation, UN Doc. C.N.1007.1999.
TREATIES-15 (Depositary Notification) (22 October 1999); Communication by Finland to Guyana’s
reservation, UN Doc. C.N.191.2000.TREATIES-2 (Depositary Notification) (17 March 2000); Com-
munication by Sweden to Guyana’s reservation, UN Doc. C.N.273.2000.TREATIES-4 (Depositary
Notification) (27 April 2000); Communication by Poland to Guyana’s reservation, UN Doc.
C.N.576.2000.TREATIES-6 (Depositary Notification) (8 August 2000).
80. Communication by Ireland to Trinidad and Tobago’s reservation, UN Doc. C.N.860.1999.
TREATIES-12 (Depositary Notification) (23 August 1999); Communication by Spain to Trinidad
and Tobago’s reservation, UN Doc. C.N.793.1999.TREATIES-5 (Depositary Notification) (5 August
1999); Communication by Italy to Trinidad and Tobago’s reservation, UN Doc. C.N.859.1999.
TREATIES-11 (Depositary Notification) (17 September 1999); Objection by Spain to Guyana’s
reservation, UN Doc. C.N.1111.1999.TREATIES-16 (Depositary Notification) (1 December 1999).
81. Communication by France to Trinidad and Tobago’s reservation, UN Doc. C.N.829.1999.
TREATIES-8 (Depositary Notification) (9 September 1999); and Objection by France to Guyana’s
reservation, UN Doc. C.N.58.2000.TREATIES-1 (Depositary Notification) (28 January 2000).
82. Inter-state complaints can be filed pursuant to Art. 41 of the ICCPR, but for this procedure
to be usable the affected states have to submit a declaration of acceptance of this procedure.
83. With regard to Trinidad and Tobago’s reservation, the Human Rights Committee stated this
incompatibility explicitly in the jurisprudence; see Human Rights Committee, Communication
No. 845/1999, Rawle Kennedy v. Trinidad and Tobago, UN Doc. CCPR/C/74/D/845/1998 (2002),
para. 6. However, it should also be noted that not all members of the Committee shared the decision
to declare the communication admissible because the reservation was not valid due to its incompat-
ibility with the object and purpose of the Covenant. Committee members Nisuke Ando, Eckart Klein
and David Kretzmer attached an individual opinion stating that ‘the Committee was not competent
to consider the communication and it should therefore be declared inadmissible’; ibid., ‘Individual
the admissibility or validity of reservations by the treaty monitoring body in and

of itself is contentious.84
Since it is not yet a fully settled question whether the treaty bodies have the
power to decide about the admissibility or validity of reservations, in its views the
Committee did not go into any length about the closely related question of denounc-
ing the Optional Protocol with the sole intent of re-acceding with a reservation.85
Another means for the Human Rights Committee to express its position on a
certain legal question is through general comments. In General Comment No. 24,
adopted in 1994 – before Trinidad and Tobago and Guyana denounced and re-
acceded –,86 the Committee did not specify what effects a denunciation followed
by re-accession with a reservation may have. However, the Committee made it
clear that in addition to the right of the parties to object to reservations, the Com-
mittee itself has the power to evaluate the compatibility of reservations with the
ICCPR.87
opinion by Committee members Mr. Nisuke Ando, Mr. Eckart Klein and David Kretzmer’. Regard-
ing Guyana, since that state did not respond to requests for comments when a communication about
a murder case was submitted to the state for comment, the Human Rights Committee simply did not
consider the reservation; see Human Rights Committee, Communication No. 867/1999, Collin Smartt
v. Republic of Guyana, UN Doc. CCPR/C/81/D/867/1999 (2004).
84. Edward Swaine criticizes the power of treaty bodies to adjudicate on reservations (and late
reservations) in E.T. Swaine, ‘Treaty Reservations’, in D.B. Hollis, The Oxford Guide to Treaties
(Oxford, Oxford University Press 2012) p. 277 at pp. 298-300. In contrast, apparently the judges of
the International Court of Justice (ICJ) who formulated a joint separate opinion acknowledged that
the international practice has changed in favour of granting international human rights bodies the
power to decide on the compatibility of specific reservations with the relevant human rights treaties;
see Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of the ICJ of 3 February 2006,
Joint Separate Opinion of Judge Higgins, Judge Kooijmans, Judge Elaraby, Judge Owada, and Judge
Simma, p. 69, para. 15.
85. During the eleventh meeting of the treaty bodies’ chairpersons, Amnesty International raised
its ‘concerns’ about the denunciation and subsequent re-accession with serious reservations to human
rights treaties (referring obviously to Trinidad and Tobago’s, as well as Guyana’s, practice). But this
raising of concerns apparently did not lead to any specific measures being adopted. See ‘Report of
the Persons Chairing the Human Rights Treaty Bodies on Their Eleventh Meeting’, UN Doc. A/54/805
(2000), para. 32.
86. Human Rights Committee, ‘General Comment No. 24 (52), General comment on issues
relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols
thereto, or in relation to declarations under article 41 of the Covenant’, UN Doc. CCPR/C/21/Rev.1/
Add.6 (1994).
87. Ibid., para. 18.
5. Sweden and the Convention on the Reduction

of Multiple Nationality and on Military
Obligations in Cases of Multiple Nationality
Sweden denounced the Council of Europe Convention on the Reduction of

Multiple Nationality and on Military Obligations in Cases of Multiple Nationality
in 2002.88 On the following day after denunciation, Sweden re-acceded to the
Convention with a reservation that limited the scope of application to Chapter II
of the Convention.89 The reservation in itself was in conformity with the treaty,
because Article 7 allows restricting the treaties’ application to Chapter II, referring
to the military obligations, and leaving the regulation of multiple nationality to
the domestic regulation of each State Party. In this case, the other States Parties
to this treaty did not object. Due to the lack of any official statements, such as
objections or declarations, there is little insight into how the other States Parties
interpreted Sweden’s conduct.
Subsequently, in 2007, only five years after Sweden’s re-accession to the treaty,
the States Parties adopted an agreement of interpretation to allow for the denun-
ciation of Chapter I of this treaty, while remaining a party to Chapter II.90 This
measure effectively transformed Sweden’s conduct of excluding the application
of the treaty’s Chapter I into a right of all states. This might be a sign that not only
was Sweden not satisfied with the treaty, but also that other states that had ratified
the treaty without excluding Chapter I were in a state of unease with the original
regime that did not allow them to subsequently exclude Chapter I on multiple
nationality.
6. Bolivia and the 1961 Single Convention on

Narcotic Drugs
6.1 The factual circumstances of treaty compliance by Bolivia
Coca leaf chewing in Bolivia is a popular remnant from the times of the first silver
and gold mines in the country during the sixteenth and seventeenth centuries. The
Spanish colonizers gave the mining workers coca to chew to reduce their stress
and pain caused by mining work. From this rather abusive use of coca in the early
88. Adopted on 6 May 1963, CETS No. 43; Sweden had ratified the Convention on 9 March 1969;
and denounced it on 29 June 2002; see the list of ratifications at <http://conventions.coe.int/Treaty/
Commun/ChercheSig.asp?NT=043&CM=8&DF=19/03/2013&CL=ENG>.
89. Sweden re-accessed with effect on 30 June 2002; see the list of ratifications at ibid.
90. Belgium, Italy, France, and Luxembourg denounced the Convention, in accordance with the
Agreement on the Interpretation of Article 12, paragraph.2 of the Convention, accepted by the Parties
to the Convention and signed by the Secretary-General on 2 April 2007, available online at <http://
conventions.coe.int/Treaty/en/Treaties/Html/043.htm#ACC1>.
days, coca chewing spread among the large indigenous populations of the moun-
tainous Andean regions of the country.
Historically, Bolivian coca production took place in the area of Yungas, in the
centre of the country. When coca leaves became popular abroad as a raw material
for cocaine production in the 1970s and 1980s, production expanded all over
Bolivia. As a response, Bolivia’s government ratified the 1961 Single Convention
on Narcotic Drugs in 1976.91 However, coca production continued to grow far
beyond the traditional coca growing regions.
Since President Evo Morales rose to power in the 2005 general elections, the
Bolivian government has taken several steps to protect and expand coca produc-
tion on a national scale. Indeed, President Morales presides over the Chapare coca
growers’ association, the main body advocating for coca growers’ interests. In
2008, Evo Morales expelled the United States’ Drug Enforcement Agency. Dur-
ing a meeting on 17 November 2013 between the representative of the European
Union to Bolivia and the Bolivian Foreign Minister, in the context of the European
Union’s ‘High-Level Dialogue’ with its trading partners, the representative of the
European Union expressed his concerns about the increase in the production and
transport of cocaine in Bolivia.92 Today, Bolivia is among the largest coca leaf
producers in the world.93
6.2 Bolivia’s proposal to amend the 1961 Single Convention
Article 49(2)(e) of the 1961 Single Convention requires that ‘coca leaf chew-
ing … be abolished within twenty-five years from the coming into force of this
Convention’ for a party. Article 49(1)(c) allows a party to reserve the right to
temporarily permit coca leaf chewing. Bolivia entered such a reservation when it
joined the Convention in 1976. The reservation lapsed in 1991.
In 2009, Bolivia proposed an amendment to the Convention, to excise Article
49(1)(c) and (2)(e).94 Bolivia explained that these two paragraphs are not compat-
ible with a Bolivian Constitutional provision that protects coca as a natural and
medicinal resource that is part of the country’s cultural heritage, and establishes
91. Single Convention on Narcotic Drugs, 1961, as amended by the Protocol amending the
Single Convention on Narcotic Drugs, 1961, New York, 8 August 1975, 26 UST 1439, 976 UNTS
105, (hereafter, ‘Single Convention’).
92. See Comunicado Conjunto. Diálogo de Alto Nivel Unión Europea – Bolivia (Joint Com-
muniqué. High-Level Dialogue European Union – Bolivia), 19 November 2013, available online at
<www.erbol.com.bo/noticia/seguridad/19112013/la_ue_se_declara_satisfecha_por_el_informe_de_
la_coca>.
93. See CIA World Factbook (Washington, DC, CIA 2013), available online at <https://www.
cia.gov/library/publications/the-world-factbook/fields/2086.html>.
94. See ‘Bolivia: Proposal of Amendments by Bolivia to Article 49, Paragraphs 1 (c) and 2 (e)’,
UN Doc. C.N.194.2009.TREATIES-2 (Depository Notification) (hereinafter, Bolivia: Proposal of
Amendments).
that coca in its natural state is not a narcotic drug.95 Bolivia also raised indigenous
rights as a basis for the amendment.96
In seeking this amendment, Bolivia received political support from Venezuela,
Cuba, Ecuador, Nicaragua, Antigua and Barbuda, Dominica, Honduras, and Saint
Vincent and the Grenadines.97 In addition to these states, Uruguay,98 Costa Rica,99
and Egypt100 expressed some support for the amendment. However, eighteen states
opposed the amendment,101 thus preventing its further consideration.
6.3 Bolivia’s denunciation of and re-accession to the Convention
Since Bolivia was not satisfied with the failed attempt to amend the 1961 Single
Convention, on 29 June 2011, the Bolivian government notified the UN Secretary-
General of its decision to denounce the Convention, with effect from 1 January
2012. Before this date, Bolivia deposited its document of re-accession, accompa-
nied by a reservation to allow for traditional coca use on its territory. The text of
the reservation is as follows:
‘The Plurinational State of Bolivia reserves the right to allow in its territory: traditional
coca leaf chewing; the consumption and use of the coca leaf in its natural state for
cultural and medicinal purposes; its use in infusions; and also the cultivation, trade and
possession of the coca leaf to the extent necessary for these licit purposes.
At the same time, the Republic of Bolivia (sic) will continue to take all necessary legal
measures to control the illicit cultivation of coca in order to prevent its abuse and the
illicit production of the narcotic drugs which may be extracted from the leaf.
95. Art. 384 of the 2008 Constitution of the Plurinational State of Bolivia.

96. See Bolivia: Proposal of Amendments, supra n. 94.
97. See ‘Declaration of the Sixth Extraordinary Summit of the Bolivarian Alliance for the Peoples
of Our America – Peoples’ Trade Agreement, in Annex to the letter dated 28 January 2011 from the
Permanent Representative of the Bolivarian Republic of Venezuela to the United Nations addressed
to the Secretary General’, UN Doc. A/65/714-E/2011/70, 3 February 2011, p. 8; see also ‘Note
verbale dated January 31, 2011, from the Permanent Mission of Ecuador to the United Nations
addressed to the Secretary-General’, UN Doc. C.N.48.2011.TREATIES-18 (Depository Notification).
98. See ‘Note verbale dated January 31, 2011, from the Permanent Mission of Uruguay to the
United Nations addressed to the Economic and Social Council, in Single Convention on Narcotic
Drugs, 1961, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961’,
UN Doc. C.N.49.2011.TREATIES-19 (Depository Notification) (1 February 2011).
99. See ‘Note verbale dated January 27, 2011, from the Permanent Mission of Costa Rica to the
United Nations addressed to the Executive Office of the Secretary-General’, UN Doc. C.N.63.2011.
TREATIES-23 (Depositary Notification) (4 February 2011).
100. See ‘Note verbale dated August 28, 2009, from the Permanent Mission of Egypt to the United
Nations addressed to the Office of Legal Affairs’, UN Doc. C.N.829.2009.TREATIES-4 (Depository
Notification) (9 October 2009); ‘Note verbale dated January 28, 2010, from the Permanent Mission
of Egypt to the United Nations addressed to the Office of Legal Affairs, 1961’, UN Doc. C.N.103.2010.
TREATIES-1 (Depository Notification) (3 February 2010).
101. These states were: Bulgaria, Canada, Colombia, Denmark, Estonia, France, Italy, Japan,
Latvia, the former Yugoslav Republic of Macedonia, Malaysia, Mexico, the Russian Federation,
Singapore, the Slovak Republic, Sweden, the United Kingdom, and the United States of America.
The effective accession of Bolivia to the aforementioned convention is subject to the

authorization of this reservation.’102
The general rule in the Convention is that only certain explicitly permitted reser-
vations are allowed,103 although a reservation that is not explicitly permitted may
be accepted if not more than one third of the other States Parties object.104
The depository circulated the re-accession, together with the reservation, to all
States Parties. States had until 10 January 2013 to object to this reservation. In the
intervening period, fifteen states objected; nine of them European Union Member
States.105 However, this number fell short of the one third (61) of the States Parties
required to prevent the reservation from taking effect. As a consequence, the
Secretary-General deemed Bolivia’s re-accession valid under the particular regime
set out in the 1961 Single Convention, explaining that:
‘In accordance with paragraph 3 of article 50 of the above Convention, unless the
reservation has been objected to by one third of the States that have ratified or acceded
to the above Convention before the end of that period, the reservation shall be deemed
to be permitted, it being understood however that States which have objected to the
reservation need not assume towards the reserving State any legal obligation under this
Convention which is affected by the reservation. Since the reservation was objected by
less than one third of the States that have ratified or acceded to the above Convention,
it shall be deemed permitted.’106
6.4 Reactions to Bolivia’s re-accession with a reservation
The United States and Europe spearheaded an unsuccessful effort to prevent the
reservation from becoming effective and formulated objections. Most objections
were concerned with the possibility that it could increase the availability of coca
and cocaine on international markets, contradicting the object and purpose of the
Convention. The United States, for example, stated:
102. See ‘Instrument of accession of the Plurinational State of Bolivia to the 1961 Single Conven-
tion on Narcotic Drugs of 28 December 2011, in Annex 2 of Single Convention on Narcotic Drugs,
1961, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961’, UN
Doc. C.N.829.2011.TREATIES-28 (Depository Notification) (28 December 2011).
103. Art. 50(1) Single Convention. According to Art. 50(1), these are ‘Article 12, paragraphs 2
and 3; Article 13, paragraph 2; Article 14, paragraphs 1 and 2; Article 31, paragraph 1 b) and Article
48’.
104. Art. 50(5) Single Convention.
105. These states were: Canada, Finland, France, Germany, Ireland, Israel, Italy, Japan, Mexico,
the Netherlands, Portugal, the Russian Federation, Sweden, the United Kingdom, and the United
States; see UNSG, ‘Depository Notifications’, UN Doc. C.N.94.2013.TREATIES-VI.18, 22 January
2013, p. 1.
106. UNSG, ‘Depository Notifications’, UN Doc. C.N.94.2013.TREATIES-VI.18, 22 January
2013, p. 1.
‘[t]he United States considers the Convention to be one of the cornerstones of interna-
tional efforts to prevent the illicit production, manufacture, traffic in and abuse of
drugs, while ensuring that licit drugs are available for medical and scientific purposes.
The United States is concerned that Bolivia’s reservation is likely to lead to a greater
supply of available coca, and as a result, more cocaine will be available for the global
cocaine market, further fueling narcotics trafficking and related criminal activities in
Bolivia and the countries along the cocaine trafficking route.’107
Some states also claimed that the procedure followed by Bolivia was invalid on
the basis that it was contrary to the principle of good faith in treaty relations108 and
contrary to the VCLT and well-established customary international law that pro-
hibit the formulation of reservations after ratification,109 and that it would undermine
the basis of international treaty law and the international legal framework for the
fight against drugs.110 One state argued that the procedure followed by Bolivia was
contrary to the procedure established in the Convention itself.111
In addition to the objecting states, Romania filed a communication with the UN
Secretary-General to express that although it did not formally object to Bolivia’s
reservation, it considered ‘that the practice of withdrawing and re-acceding to a
Convention with the sole purpose of presenting a reservation is inconsistent with
the customary rule of international law according to which late reservations may
not be allowed’.112 Romania also argued that ‘such actions may raise questions
with respect to the stability of legal relations, as well as to the principle of pacta
sunt servanda’.113
Bolivia’s actions may also be considered in the broader context of what is
perceived as a ‘crisis’ in the international system for narcotics control. Although
historically the United States has led this system of outright opposition to the
cultivation and commercialization of coca and other natural raw materials for drug
production, in recent years it has moderated its repressive approach to narcotic
107. Objection by the United States of America to Bolivia’s reservation, UN Doc. C.N.361.2012.

TREATIES-VI.18 (Depositary Notification) (10 July 2012). See also ‘Bolivia Rejoins Narcotics
Convention with Reservation Protecting Coca Leaf over U.S. and Others’ Objections’, 107 AJIL
(2013) 460-462.
108. Objection by Italy to Bolivia’s reservation, UN Doc. C.N.750.2012.TREATIES-VI.18
(Depository Notification) (28 December 2012).
109. Objection by Finland to Bolivia’s reservation, UN Doc. C.N.95.2013.TREATIES-VI.18
(Depository Notification) (8 January 2013); Objection by the Netherlands to Bolivia’s reservation,
UN Doc. C.N.102.2013.TREATIES-VI.18 (Depository Notification) (8 January 2013); and Objection
by Ireland to Bolivia’s reservation, UN Doc. C.N.101.2013.TREATIES-VI.18 (Depository Notifica-
tion) (9 January 2013).
110. Objection by Sweden to Bolivia’s reservation, UN Doc. C.N.732.2012.TREATIES-VI.18
(Depository Notification) (21 December 2012).
111. Objection by the Portuguese Republic to Bolivia’s reservation, UN Doc. C.N.93.2013.
TREATIES-VI.18 (Depository Notification) (8 January 2013).
112. Communication by Romania to Bolivia’s reservation, UN Doc. C.N.91.2013.TREATIES-VI
(22 January 2013), p. 2.
113. Ibid.
drugs. The United States is shifting from the ‘war against drugs’ to an approach
based on the policy challenge of ‘public health’, with some federated states con-
sidering legalizing certain drugs.114 The system is experiencing profound changes,
but it is not yet clear where the changes will lead.
7. Conclusions
This article about the current state of affairs regarding the issue of denunciations
followed by re-accession with a reservation to a treaty shows that state practice
has not yet arrived at a definitive and generally applicable answer as to its validity
and legal effects. The study shows, however, that in some recent instances states
have denounced and re-acceded with a reservation to unilaterally modify their
treaty obligations. While in the first instances, where states took into consideration
the denunciation and re-accession with a reservation the internal critique was
strong enough to make them refrain from this practice (notably, the case of Swit-
zerland), in subsequent instances states went ahead and denounced treaties only
to ratify them again with a reservation that restricted the scope of application of
that treaty. If this trend persists, more situations might occur where states denounce
a treaty and re-accede to it with a reservation.
By making use of the tools of treaty law currently available in the VCLT and
the ILC’s Guide to Practice, a denunciation followed by re-accession with a res-
ervation might be dealt with as a late reservation or as a mere ratification with a
reservation (without regard to the fact that the state had denounced the treaty with
the sole object of submitting a reservation). Depending on which approach is
chosen, the effects of other states’ objections vary considerably. If the ratification
with a reservation were to be considered a late reservation, the objecting state
would not have the choice between keeping in force the rest of the treaty (without
the provision that has been the object of the reservation) and suspending the treaty
altogether in the reciprocal relationship between the reserving and objecting state.
This choice would only persist if the denunciation followed by re-accession were
considered a new ratification.
The UN Secretary-General does not treat the denunciation followed by re-
accession with a reservation as a late reservation, since he applies the rules for the
formulation of reservations, which leaves each contracting party to decide whether
the reservation and the treaty itself will enter into force or not. However, not all
states have an active policy of monitoring the practice of formulating reservations
by third parties, and so states do not encounter much opposition when denouncing
and re-acceding with a reservation to a treaty. At least those states that object to
this practice make it often very clear that they perceive the denunciation followed
114. See ‘The 2012 National Drug Control Strategy, Office of the President of the United States’,
at p. 3, available online at <www.whitehouse.gov/sites/default/files/ondcp/2012_ndcs.pdf>.
by re-accession with a reservation as a circumvention of treaty obligations, or even

as a breach of the good faith obligation stemming from general international law.
The Swiss example demonstrates that some states reject the denunciation and
re-accession with a reservation for being against the good faith obligation. Indeed,
the Swiss Tribunal considered the denunciation and re-accession with a reservation
as equivalent to a late reservation, which was not allowed under the treaty regime
at issue. This same position becomes apparent when looking at the objections to
the re-accessions by Trinidad and Tobago, Guyana, and Bolivia. However, most
states that formulated an objection to these three states’ re-accession with a res-
ervation were European states. This regional concentration of objecting states may
suggest that the prohibition – if it exists at all – of a denunciation and re-accession
with a reservation is a regional norm of customary law. For most other states, such
a practice seems to be an acceptable procedure to formulate a late reservation to
a treaty. At least these states’ silence when faced with such a situation – as nota-
bly in the Bolivian example – implies their acquiescence.
The European states seem not to oppose the denunciation and re-accession with
a reservation when this forms part of a broader process of the reform and change
of international law. The Swedish example shows that no state objects to the
denunciation and re-accession with a reservation if the interested states were
already critical about the existing treaty rules that were affected by the reservation.
The acceptability of a denunciation followed by a re-accession with a reservation
in times of normative change is further illustrated by comparing the general acqui-
escence in the Swedish case with the vehement opposition by the European states
and the United States to the Bolivian re-accession with a reservation. In the Boliv-
ian example, the government of Bolivia had tried to bring about an amendment
of the 1961 Single Convention that would exclude coca leaves from the Conven-
tion’s scope of application. Although states worldwide have started to change
some of their policies towards drugs, it was not the appropriate moment for Bolivia
to suggest a total liberalization of the use of coca. This is why Bolivia’s proposal
of amendment did not succeed. The lack of consensus on a proposed change to
international rules also explains why Trinidad and Tobago’s re-accession to the
Optional Protocol encountered so much opposition that the state finally denounced
the Optional Protocol for a second time, without re-acceding. It was not the time
to propose that international human rights law should accept a rule that would
require the expeditious execution of death sentences.
However, these observations about the denunciation and re-accession with a
reservation do not mean that states should passively stand by when others use this
procedure to circumvent their treaty obligations. States may take measures to
prevent others from denouncing and re-acceding to treaties.
One possible step could be to provide for more careful treaty drafting. Late
reservations could be regulated together with the denunciation and re-accession
with reservations, since both have the same effect of excluding some rules from
a treaty to which the state had not formulated a reservation at first instance, when
acceding to the treaty for the first time. When drafting a treaty, states may allow
for some rules to be affected by a late reservation and/or denunciation followed
by re-accession with a reservation, but explicitly disallow others. While some

treaties may allow for late reservations and/or denunciation followed by re-
accession with a reservation, those treaties that establish a progressively
increasing minimum international standard (such as the European Convention on
Human Rights) may prohibit States Parties from subsequently opting out of certain
provisions.
States should also be advised to scrutinize more carefully and systematically
the other States Parties’ treaty practice. Whenever they observe conduct that might
constitute an abuse of rights, such as a denunciation followed by re-accession with
a reservation, the other states should be prepared to explicitly object to this prac-
tice. By making good use of this traditional instrument of treaty formation (the
objection), the objecting states protect themselves against any adverse acts that
might stem from a more widespread practice of denunciations followed by re-
accession with a reservation. States should keep in mind that a more widespread
practice of this type of denunciation could seriously undermine the legal security
that originally was a determining reason to have international treaties as sources
of international law.
Absent any specific treaty rules, the depositories of multilateral treaties are in
a difficult position, since in principle they have the obligation to remain neutral
with regard to the substantive aspects of reservations submitted by the state parties.
However, depositories might elaborate memorandums on the ‘context’ in which
a state has submitted the reservation, reminding the other parties that the reserving
state had just previously denounced the treaty, that the state had not formulated a
reservation when it first became a party to the treaty, and eventually also that the
treaty does not allow for late reservations. The depository might annex to its
depository notification a copy of the ILC’s Guide to Practice on Reservations to
Treaties. By submitting this information, the depository encourages the other par-
ties to critically assess the new accession with a reservation, while preserving a
neutral position vis-à-vis the treaty action of its parties.
Finally, this study also allows the suggestion that the ILC might take a stance
in this matter, and propose rules or guidelines on the denunciation and re-accession
with a reservation that take into account the evolving state practice. Such proposed
rules might be included in the Guide to Practice on Reservations to Treaties. The
ILC has several options, such as establishing some sort of sanction for a denun-
ciation followed immediately by re-accession with a reservation, based on the
argument that it violates the good faith principle. It seems that the European states
would support such an approach. Another option could be to attribute to this
practice the effects of a late reservation, as suggested by the ILC’s Special Rap-
porteur during the elaboration of the Guide to Practice on Reservations to Treaties.
Yet another option could be to leave it as it stands right now, and to apply the
general regime of the formulation of reservations and objections in accordance
with Articles 19 and 20 of the VCLT. Any of these three options could be justified,
depending on where the international law of treaties is heading.

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Denunciation Followed by Re-Accession with

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Denunciation Followed by Re-Accession with

3. The discussions about the 1988 Swiss Interpretative Declaration on Article

5. Sweden and the Convention on the Reduction of Multiple Nationality and on

6. Bolivia and the 1961 Single Convention on Narcotic Drugs

Netherlands International Law Review, LXI: 141-165, 2014

A state’s denunciation of a treaty with the sole objective of re-acceding to it with

effect. As a consequence, states can denounce an international treaty and subse-

is a closed list of precise procedural moments during the adoption of an interna-

2. UncharteD Waters: The Work of the

21. Guide, supra n. 18, para. 2.3.1.

3. The Discussions about the 1988 Swiss

37. BGE 118 Ia 473, supra n. 34, p. 486.

4. Trinidad and Tobago, Guyana, and the Optional

4.1 The death penalty under scrutiny in the Caribbean countries

Convention on Human Rights.51 The Commission observed that the Jamaican

63. See supra n. 47.

deprivation of life or would otherwise be rendered cruel, infamous or unusual

4.2 The denunciation of and re-accession to the ICCPR’s Optional

4.3 Reactions to the re-accession with a reservation by other States

4.4 The position of the Human Rights Committee

TREATIES-6 (Depositary Notification) (6 August 1999); Communication by Sweden to Trinidad

the admissibility or validity of reservations by the treaty monitoring body in and

5. Sweden and the Convention on the Reduction

Sweden denounced the Council of Europe Convention on the Reduction of

6. Bolivia and the 1961 Single Convention on

6.1 The factual circumstances of treaty compliance by Bolivia

6.2 Bolivia’s proposal to amend the 1961 Single Convention

6.3 Bolivia’s denunciation of and re-accession to the Convention

95. Art. 384 of the 2008 Constitution of the Plurinational State of Bolivia.

The effective accession of Bolivia to the aforementioned convention is subject to the

6.4 Reactions to Bolivia’s re-accession with a reservation

107. Objection by the United States of America to Bolivia’s reservation, UN Doc. C.N.361.2012.

by re-accession with a reservation as a circumvention of treaty obligations, or even

by re-accession with a reservation, but explicitly disallow others. While some

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