Reservations of Virtue? Lessons from Trinidad and Tobago's Reservation to the First Optional Protocol

I. Introduction	770
II. Why are Caribbean States Modifying Their Human Rights Treaty Obligations?	774
III. International Legal Consequences of Withdrawing from Human Rights Treaties	780
A. Terminating Obligations under a Human Rights Treaty	780
B. Status of Petitions Pending Before the IACHR and the UNHRC after States' Withdrawal	781
IV. Is Trinidad & Tobago's Reservation to the First Optional Protocol Valid under International Law?	783
A. An Evolving Standard for Reservations	784
1. Early Approaches: The Unanimity Rule and the Flexible Pan-American Approach	784
2. Reservations to the Genocide Convention Case and the Introduction of a Purposive Standard	786
3. Ambiguities in the ICJ's Approach	789
4. Towards a "Flexible" Standard for Reservations	791
B. Codification of a Permissive Reservations Regime under the Vienna Convention	793
C. Adjudicating the Compatibility Standard	796
D. Elaborating a Standard for Reservations under the ICCPR and the First Optional Protocol: General Comment 24	800
V. The Effect of Trinidad and Tobago's Reservation to the First Optional Protocol	804
A. Assessing the Validity of Trinidad and Tobago's Reservation	805
1. Kennedy v. Trinidad and Tobago	805
2. A Different Outcome under the "Flexible Regime"	806
B. Consequences of an Invalid Reservation	808
C. Is Denunciation and Simultaneous Reaccession with Reservations Appropriate Procedurally? A Brief Aside	811
VI. How Should We Treat Reservations to Human Rights Treaties	813
A. The Excesses of General Comment Number 24	814
B. A Return to the "Flexible" Approach?	815
C. Remedying the "Ambiguities and Lacunae" of the Vienna Convention Regime	816
1. Drafting Alternatives within the Vienna Convention System	817
2. Recognizing the Importance of Treaty-Monitoring Bodies	821
VII. Conclusion: Balancing the Goals of Treaty Integrity and Universal Participation	824

I. Introduction

On 23 October 1997, the government of Jamaica became the first country to withdraw from the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the cornerstone agreements in the international bill of rights. ¹ In so doing, the Jamaican government stripped its citizens of an important protection against human rights abuse. By denouncing the treaty, the Jamaican government cut off the individual right of appeal to the United Nations Human Rights Committee (UNHRC), the body which monitors states' adherence to their human rights obligations under the ICCPR. Human rights groups immediately protested Jamaica's decision, accusing the government of trying to hide its human rights abuses from international scrutiny. ² One commentator at the time suggested that Jamaica's actions "may roll back the international legal protection of human rights." ³

Not long after Jamaica's withdrawal became effective in January 1998, Trinidad and Tobago followed its Caribbean neighbor's example, but took a further step. On 26 May 1998, Trinidad denounced the First Optional Protocol and the American Convention on Human Rights--a regional human rights agreement, which also creates an individual right of petition for citizens of state parties. ⁴ Trinidad immediately reacceded to the First Optional Protocol, adding a reservation that eliminated the right of appeal for prisoners on death row. ⁵ In early January 1999, Guyana withdrew from the First Optional Protocol and reacceded with reservations almost identical to those adopted by Trinidad and Tobago. ⁶ Later that month, attorney generals from twelve Caribbean countries signed a joint statement in Port-of-Spain advising their respective governments to follow the example of Trinidad and Tobago and Guyana, by withdrawing from the First Optional Protocol, and simultaneously reacceding with reservations that would deny the right of appeal to prisoners under sentence of death. ⁷

Notwithstanding Trinidad and Tobago's reservation, the UNHRC considered the communication of Rawle Kennedy, a citizen of Trinidad and Tobago under sentence of death during its sixty-seventh session in October and November 1999. ⁸ In a divided opinion, the majority of the Committee determined that Kennedy's petition was admissible...