Denunciation Followed by Re-Accession with Reservations to a Treaty: A Critical Appraisal of Contemporary State Practice

NILR 2014

RE-ACCEDING TO TREATIES WITH RESERVATIONSB. ARP

RE-ACCEDING TO TREATIES WITH RESERVATIONS 141

DENUNCIATION FOLLOWED BY RE-ACCESSION WITH RESERVATIONS TO A TREATY: A CRITICAL APPRAISAL OF CONTEMPORARY STATE PRACTICE

by Bjrn 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 ICCPR4.1 The death penalty under scrutiny in the Caribbean countries4.2 The denunciation of and re-accession to the ICCPRs 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 Drugs6.1 The factual circumstances of treaty compliance by Bolivia6.2 Bolivias proposal to amend the 1961 Single Convention6.3 Bolivias denunciation of and re-accession to the Convention6.4 Reactions to Bolivias re-accession with a reservation

7. Conclusions

* Bjrn Arp is Adjunct Faculty at the American University Washington College of Law, and a Partner at Aparicio, Arp & Associates LLC in Washington, DC ([email protected]).

Netherlands International Law Review, LXI: 141-165, 2014 2014 T.M.C. Asser Instituut and Contributorsdoi: 10.1017/S0165070X14001156

B. ARP

142 NILR 2014

Abstract

A states 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 Convention on the Law of Treaties. This article addresses ve 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...