The International Covenant on Civil and Political Rights (ICCPR) is an international treaty that seeks to ensure the protection and promotion of human rights of all persons in its member states. Article 28 of the ICCPR provides for the establishment of a body known as the Human Rights Committee (HRC). According to Article 1 of the Optional Protocol to the ICCPR, any person from a state which is party to the Protocol may approach the HRC and allege a violation of their rights under the ICCPR. Therefore, while it is the ICCPR which establishes the HRC, it is the Optional Protocol that provides it with a monitoring role. The problem lies in the fact that while 173 states are party to the ICCPR, only 116 states are party to the Optional Protocol. Among these 57 states that are party to the ICCPR but not the Optional Protocol are the United States of America, the United Kingdom, China, Iran, India, Pakistan, and Saudi Arabia, among others. These notable absentees significantly weaken the monitoring role that the Optional Protocol envisages for the HRC. This article argues that one of the reasons for such reduced participation is the decision of the HRC in Rawle Kennedy v. State of Trinidad and Tobago (hereinafter, ‘Rawle Kennedy’), and that the stance adopted by the Committee in that case requires re-evaluation.
Stance of the Court in Rawle Kennedy
The facts of Rawle Kennedy were as follows: two men, Rawle Kennedy being one of them, murdered another man, Norris Yorke, at a gas station in Trinidad and Tobago. He was convicted for murder and sentenced to death. This sentence was later commuted to a 75-year prison sentence (p.5). Kennedy then sent a communication to the HRC alleging violation of his rights under Articles 6, 7, 9, 10, and 14 of the ICCPR (pp.6 to 8). These article broadly relate to allegations of custodial mistreatment by the police and dilution of the due process requirement of law. However, the substantive aspects of these allegations and provisions are not important for our current discussion.
The primary legal question concerned the admissibility of this communication sent by Rawle Kennedy. As mentioned previously, a communication sent to the HRC is admissible only if the state which that person is from is a party to the Optional Protocol. Here, Trinidad and Tobago was a party to the Protocol, but they had acceded with an important reservation to Article 1: no person under a sentence of death could send a communication to the HRC. Kennedy being a person under a sentence of death, his communication stirred some legal controversy.
The Committee, after considering the arguments of both parties regarding the admissibility of the communication, concluded that it was admissible because the reservation was invalid for being contrary to the “objects and purposes” of the Optional Protocol (Rawle Kennedy, p.10). They employed the test for reservations codified in Article 19 of the Vienna Convention on the Law of Treaties (VCLT) which provides that a reservation to a treaty is valid so long as it is not contrary to the objects and purposes of that treaty. The Committee supported this decision by using two related arguments: first, that the reservation seeks to preclude the monitoring role of the HRC as envisaged by the Optional Protocol for a particular group of complainants (those under sentence of death); and second, that creation of such a classification is discriminatory in a manner that is contrary to the objects and purposes of the Protocol (p.10). These arguments are borrowed from General Comment 24, an interpretive document authored by the HRC which discusses issues related to reservations made to the ICCPR and the Optional Protocols to it. It can be inferred from the arguments advanced by the Committee and the General Comment would support the proposition that any reservation to Article 1 of the Protocol which seeks to evade the monitoring role of the HRC in certain cases would be considered invalid.
It is worth noting, however, that the decision was not unanimous. Of the 13 judges in the HRC, 4 judges penned a dissenting opinion in which they opined that the communication was inadmissible as the reservation was valid. The main argument of the dissentients was that the monitoring role envisaged for the HRC is itself an optional obligation, as evidenced by the fact that the Protocol which provides the HRC with this power is optional. Considering that states are free to choose whether they accept this monitoring role, they argued that it must follow that they are free to choose the specific rights and situations in which they accept this monitoring role. It was their argument that the “all or nothing” approach adopted by the majority to the reservations is a stance that would not find acceptance in international law. They also contended that the classification created by this reservation (those under sentence of death) is not discrimination that offends the basic principles of the ICCPR or the Protocol, and that reservations which create classifications on the grounds of race, religion, or sex (for example) would offend the same (Rawle Kennedy, p.11).
Towards a New Stance on Reservations
The stance adopted by the dissentients in Rawle Kennedy can be used as a guide in developing a new stance on reservations to the Optional Protocol. Broadly, this new stance can be stated as : a state may accede to the Protocol and submit to the jurisdiction of the HRC only in certain cases. Reservations may be made which prevents the HRC from hearing communications in other specified cases.
I will advance two arguments to support this stance: first, that the framers of the VCLT intended that permissibility of reservations be interpreted in such a way to permit the widest possible acceptance of a treaty; and second, that a reservation such as the one advanced by Trinidad and Tobago is valid.
The VCLT is a codification of principles regarding treaties, many of which constitute principles of customary international law. A commentary to the travaux préparatoires of the VCLT reveals that the discussion around permissibility of restrictions revolved around ensuring the widest possible acceptance of treaties (p.792). The counterargument provides that the scope and number of reservations should be restricted to maintain the integrity of the treaty. There was a clear intention on the part of the framers of the VCLT to sacrifice treaty integrity (to an extent) in favour of wider state participation. The International Court of Justice (ICJ) has also reflected this stance. In the Armed Activities on the Territory of the Congo case, the Court had to consider the permissibility of a reservation to Article IX of the Genocide Convention (para 68). This Article established the jurisdiction of the ICJ for disputes arising from the Convention, and Rwanda had made a reservation which stated that this article would not be applicable to them. The ICJ, in holding that such a wide reservation was permissible, favoured the stance taken by the framers of the VCLT.
Having established that international law generally advocates for a lenient interpretation regarding reservations, we may now move proceed to the second argument: that this particular reservation of Trinidad and Tobago is valid because it does not violate the objects and purposes of the Protocol. At the outset, it must be mentioned that the ICCPR and the Optional Protocol are two separate treaties, and that reservations to the Protocol need not be tested against the objects and purposes of the ICCPR. The Optional Protocol primarily seeks to provide the HRC with a monitoring role. There is no doubt that the integrity of the treaty would be compromised to a certain extent if reservations such as those made by Trinidad and Tobago are allowed. However, as I have already mentioned, the integrity of a treaty may be compromised to facilitate wider participation of states. Here, there is no doubt that allowing reservations of this kind would increase state participation in the Protocol. States which are apprehensive about accepting this monitoring role only in the context of certain rights may make reservations about the same. Moreover, the compromise that is made to the integrity of the treaty is less severe than the compromise that has been made on account of non-participation of several states in the Protocol itself.
The stance adopted by the Committee in Rawle Kennedy is not supported by the law on reservations generally. It is worth remembering, however, that this case related to one of the most important, and one of the only non-derogable, substantive rights in the ICCPR, that is, the right to life. It would be interesting to note whether the Committee would adopt such a hard-line stance when confronted with the same question in relation to a derogable right of comparatively less importance. These include the right to freedom of speech and expression. Nonetheless, over the years, the inability of individuals in states to approach the HRC to complain about violations of their rights under the ICCPR has severely impaired the effectiveness of the Covenant itself. While a change in the stance adopted in Rawle Kennedy would still impair individuals in certain cases, the potential for increased state participation in the Protocol serves as adequate incentive.
Bharath Pottekkat is a 4th year student at Jindal Global Law School
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