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or acts occurring before the date of entry into force of the first
Optional Protocol have continued to have an effect on the rights of a victim
subsequent to that date. Reservations have been entered which effectively add
an additional ground of inadmissibility under article 5, paragraph 2, by
precluding examination of a communication when the same matter has already
been examined by another comparable procedure. In so far as the most basic
obligation has been to secure independent third party review of the human
rights of individuals, the Committee has, where the legal right and the
subject-matter are identical under the Covenant and under another
international instrument, viewed such a reservation as not violating the
object and purpose of the first Optional Protocol.
15.
The primary purpose of the Second Optional Protocol is to extend the
scope of the substantive obligations undertaken under the Covenant, as they
relate to the right to life, by prohibiting execution and abolishing the death
penalty. 5/ It has its own provision concerning reservations, which is
determinative of what is permitted. Article 2, paragraph 1, provides that
only one category of reservation is permitted, namely one that reserves the
right to apply the death penalty in time of war pursuant to a conviction for a
most serious crime of a military nature committed during wartime. Two
procedural obligations are incumbent upon States parties wishing to avail
themselves of such a reservation. Article 2, paragraph 1, obliges such a
State to inform the Secretary-General, at the time of ratification or
accession, of the relevant provisions of its national legislation during
warfare. This is clearly directed towards the objectives of specificity and
transparency and in the view of the Committee a purported reservation
unaccompanied by such information is without legal effect. Article 2,
paragraph 3, requires a State making such a reservation to notify the
Secretary-General of the beginning or ending of a state of war applicable to
its territory. In the view of the Committee, no State may seek to avail
itself of its reservation (that is, have execution in time of war regarded as
lawful) unless it has complied with the procedural requirement of article 2,
paragraph 3.
16.
The Committee finds it important to address which body has the legal
authority to make determinations as to whether specific reservations are
compatible with the object and purpose of the Covenant. As for international
treaties in general, the International Court of Justice has indicated in the
Reservations to the Genocide Convention Case (1951) that a State which
objected to a reservation on the grounds of incompatibility with the object
and purpose of a treaty could, through objecting, regard the treaty as not in
effect as between itself and the reserving State. Article 20, paragraph 4, of
the Vienna Convention on the Law of Treaties 1969 contains provisions most
relevant to the present case on acceptance of and objection to reservations.
This provides for the possibility of a State to object to a reservation made
by another State. Article 21 deals with the legal effects of objections by
5/ The competence of the Committee in respect of this extended obligation
is provided for under article 5 - which itself is subject to a form of
reservation in that the automatic granting of this competence may be reserved
through the mechanism of a statement made to the contrary at the moment of
ratification or accession.