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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.17 Committee against Torture

Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 October 2023

Subject(s):
Heads of state and other senior officials — Torture — Treaties, interpretation

(p. 475) Article 17  Committee against Torture

  1. 1.  There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

  2. 2.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture.

  3. 3.  Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  4. 4.  The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

  5. 5.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3 of this article.

  6. 6.  If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

  7. 7.  States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

(p. 476)

1.  Introduction

1  The Committee against Torture (hereinafter CAT Committee or the Committee) is one of the presently ten treaty monitoring bodies of the United Nations (UN), similar to the Human Rights Committee (HRC), the Committee on Economic, Social, and Cultural Rights (CESCR), the Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Committee on the Rights of the Child (CRC), the Committee on Migrants Workers (CMW), and the more recently established bodies under the Convention for the Protection of All Persons from Enforced Disappearance (CED), the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention Against Torture (OPCAT).1 Since the Committee is modelled on the HRC established in accordance with Article 28 CCPR, the following considerations will be fairly brief and draw upon the interpretation developed in the CCPR Commentary.2

2  Strictly speaking, the Committee is not a body of the UN but a relatively autonomous quasi-judicial treaty based organ created by the States parties of the Convention. This is underlined by the fact that all ten expert members of the Committee must be nationals of, and are nominated and elected by, States parties. In addition, Article 17(7) requires States parties to bear the financial responsibility for the expenses of Committee members. In practice, this has led to serious financial problems which were solved by integrating the Committee more into the UN.

3  The Committee has more monitoring functions than some of the other treaty bodies. In addition to the mandatory State reporting procedure under Article 19 and the optional inter-State and individual complaints procedures under Articles 21 and 22, (p. 477) the Committee is also entrusted by virtue of Article 20 to carry out confidential ex officio inquiries in the case of well-founded indications that torture is being systematically practised in a State party. The inquiry procedure is mandatory but States parties may ‘opt out’ in accordance with Article 28. With the entry into force of the Optional Protocol to the CAT in 2006, the Committee also assumed a further, albeit limited, function of supervising the work of the newly created Sub-Committee on Prevention of Torture (SPT).3

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

4  IAPL Draft (15 January 1978)4

Article XIII

  1. 1.  The Contracting Parties undertake to submit to the Human Rights Committee established under the Covenant periodic reports on the legislative, judicial, administrative and other measures they have adopted to implement this Convention.

  2. 2.  The first report shall be submitted within one year of the entry into force of the Convention and thereafter a report shall be submitted every two years.

  3. 3.  The Chairman of the Human Rights Committee shall, after consulting the other members of the Committee, appoint a Special Committee on the Prevention of Torture, consisting of five members of the Human Rights Committee who are also nationals of the Contracting Parties to this Convention to consider reports submitted by contracting Parties in accordance with this Article.

  4. 4.  If, among the members of the Human Rights Committee, there are no nationals of the Contracting Parties to this Convention or if there are fewer than five such nationals, the SG of the UN shall, after consulting all Contracting Parties to this Convention, designate a national of the Contracting Party or nationals which are of the Contracting Parties which are not members of the Human Rights Committee to take part in the work of the Special Committee established in accordance with paragraph 3 of this Article, until such time as sufficient nationals of the Contracting Parties to this Convention are elected to the Human Rights Committee.

  5. 5.  The Special Committee on the Prevention of Torture shall meet not less than once a year for a period of not more than five days, either before the opening or after the closing of the sessions of the Human Rights Committee and shall issue an annual report of its findings.

5  Original Swedish Draft (18 January 1978)5

Article 16

States undertake to submit to the Secretary-General of the United Nations, when so requested by the Human Rights Committee established in accordance with article 28 of the CCPR (hereinafter referred to in the present Convention as the Human Rights Committee), reports or other information on measures taken to suppress and punish torture and other cruel, inhuman or degrading treatment or punishment. (p. 478) Such reports or information shall be considered by the Human Rights Committee in accordance with its procedures set out in the CCPR and in the Rules of Procedure of the Human Rights Committee.

6  Draft Optional Protocol by Costa Rica (6 March 1980)6

Article 4

  1. 1.  The Committee shall be composed of 10 members until such time as there are not less than 25 States Parties to the present Protocol. Thereafter the Committee shall be composed of 18 members.

  2. 2.  The members of the Committee shall be persons of high moral character and in the matters dealt with in the Convention and the present Protocol.

  3. 3.  The members of the Committee shall be elected and shall serve in their personal capacity.

Article 5

  1. 1.  The members of the Committee shall be elected for a term of four years. However, at the first election half of the members shall be elected for two years. Thereafter, elections shall be held every two years for half of the members of the Committee.

  2. 2.  Each State Party may nominate not more than four persons or, where there are not less than 25 States Parties, not more than two persons. These persons shall be nationals of the nominating State.

  3. 3.  A person shall be eligible for renomination.

7  Swedish Proposal for the Implementation Provisions (22 December 1981)7

Article 17

  1. 1.  There shall be established a Committee against Torture (hereinafter the Committee). It shall consist of nine members and shall carry out the functions hereinafter provided.

  2. 2.  The Committee shall be composed of nationals of the States to the present Convention and, so far as possible, of persons who are also members of the Human Rights Committee established in accordance with Article 28 of the Covenant. The members of the Committee shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of some persons having legal experience.

  3. 3.  The members of the Committee shall be elected and shall serve in their personal capacity.

8  Draft Implementation Provisions, submitted by the Chairman-Rapporteur of the Working Group as possible Alternative to the new Swedish Proposals (1 February 1982)8

Article 17

  1. 1.  For the performance of the functions described in articles 18 and 19 there shall be established a group consisting of five persons of recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience.

  2. (p. 479) 2.  The Chairman of the Commission on Human Rights shall appoint the members of the group from among representatives to the Commission on Human Rights who are nationals of States Parties to the Convention. If fewer than five States Parties to the Convention are members of the Commission on Human Rights, the Secretary-General of the United Nations shall, after consulting with all States Parties to the Convention, designate one or more nationals of the States Parties which are not members of the Commission to take part in the work of the group until the next session of the Commission on Human Rights.

  3. 3.  The members of the group established in accordance with the proceeding paragraphs shall serve in their personal capacity.

  4. 4.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance and functions of the group established in accordance with paragraphs 1 and 2.

  5. 5.  The groups established in accordance with paragraphs 1 and 2 shall forward an annual report on its performance of the functions described in articles 18 and 19 to the States Parties to the Convention. It shall forward a copy of this report to the Commission on Human Rights.

9  Four Draft Articles on Implementation, with the Explanatory Note, submitted by the Chairman-Rapporteur (24 December 1982)9

Article 17

  1. 1.  There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.

  2. 2.  The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and who are willing to serve on the Committee against Torture

  3. 3.  Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  4. 4.  The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.

  5. (p. 480) 5.  The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.

  6. 6.  For filling casual vacancies, the State party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee.

  7. 7.  The members of the Committee shall receive emoluments as well as compensation for their expenses while they are in performance of the Committee functions, on such terms and missions as the biennial meetings of States Parties may decide. The States Parties shall be responsible for these emoluments and expenses in the same proportions as their contributions to the general budget of the UN.

2.2  Analysis of Working Group Discussions

10  The Working Group of the Human Rights Commission did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. However, the written comments of several States, made in 1978, on the implementation provisions of the original Swedish draft Convention,10 shaped the subsequent discussions of the Working Group.11

11  The question of the nature and composition of the enforcement mechanism was discussed, for the first time, during the Working Group session in 1981.12 Several proposals were subject to the deliberations of the Working Group. The original Swedish draft suggested in its Articles 16 to 21 that the implementation monitoring of the Convention should be carried out by the HRC established by Article 28 CCPR.13 The proposal of the IAPL (in its articles XIII and XIV),14 also attributed the monitoring of the implementation of the CAT to the HRC, but, in addition, provided for the appointment of a Special Committee on the Prevention of Torture (Article 13). The latter would consist of five members of the HRC who were also nationals of the States parties to the CAT. Both proposals provided for the monitoring of the implementation of the Convention based primarily on mandatory State reporting as well as inter-State and individual complaints procedures.15

12  In 1980, Costa Rica submitted a draft Optional Protocol16 which provided for the establishment of an Independent International Committee as supervisory body authorized to arrange preventive visits to places of detention of all kinds under the jurisdiction of the States parties having ratified the OP.17

(p. 481) 13  Moreover, the Netherlands had submitted an amendment to the Swedish proposal modifying Article 16 and providing for the establishment of a new Committee that would be composed of members of the HRC, functioning as the supervisory body of the Convention.18 According to an additional Article, the procedures provided for in the CCPR and/or in the Protocol would apply between States parties to the Convention which were also parties to the CCPR and which had accepted the competence of the HRC under Article 41 and/or under the first OP to the CCPR, whereas otherwise the procedures provided for in the Convention would apply.

14  During this session, the Working Group also discussed a telegram by the Legal Counsel of the United Nations, explaining the legal difficulties that would be encountered if the monitoring mechanism of the Convention were the HRC.19 According to the Legal Counsel this proposal would constitute a modification of the terms of the CCPR. Moreover, the general concordance in purpose of Article 7 CCPR and the Convention would not be sufficient to give monitoring competence over the CAT to the HRC, since the latter must function in compliance with its constituent treaty.20

15  Several delegations who shared the opinion of the Legal Counsel concerning the potential difficulties involved stated that the parties to the Convention and the CCPR would not necessarily be the same.21

16  In general, some States (for example Argentina and Brazil) defended the option of self-enforcement, meaning that each State party would oversee its own implementation of the Convention.22 It was therefore suggested that international supervision should be optional. However, the opponents to this suggestion pointed out that self-enforcement would be unrealistic as evidenced by the fact that torture was still widely practised despite national and international legislation prohibiting the practice. In view of other delegations including the Soviet Union, the task of implementation could also be entrusted to the Human Rights Commission or to its Sub-Commission.23

17  Sweden submitted a second proposal which provided for the establishment of a new Committee acting as the only supervisory body of the Convention.24 According to this proposal ‘the members of the Committee shall be nationals of States Parties, serve in their personal capacity and shall as far as possible be chosen among members of the Human Rights Committee. Members shall be elected for a period of four years.’25

18  During the 1982 Working Group it was discussed whether the implementation procedures should have a mandatory or optional character. Some delegations expressed doubts regarding the advisability of establishing international bodies with extensive jurisdiction and stated that the implementation provisions should be made optional.26

(p. 482) 19  The continued deliberations regarding the nature and composition of the implementation organ were based on a new Swedish proposal with a complete set of eighteen alternative implementation provisions, mostly modelled according to the corresponding provisions of the CCPR27 and an alternative proposal of four draft articles and an explanatory note by the Chairman-Rapporteur.28 The latter suggested a supervisory body consisting of five members of the Human Rights Commission (nationals of the States parties) who were appointed by the Chairman of the Human Rights Commission (paragraph 2 of the Rapporteur’s draft article); this formula was borrowed from the International Convention on the Suppression and Punishment of the Crime of Apartheid.29 The Swedish proposal provided for the establishment of a new Committee against Torture consisting of nine nationals of the States parties to be nominated and then elected by States parties.

20  In general, a number of delegations reacted to the Chairman’s proposal by stating that such a supervisory body would introduce strong political factors, which was undesirable since the Convention aims to prohibit torture by public officials.30 Furthermore, questions were raised regarding the criteria for selection.31 Thus, it was proposed that the members of the new supervisory body should be appointed by the Chairman of the HRC from the members of the latter Committee.32

21  Although some representatives of States parties expressed their concern regarding the multiplication of international organs, pointing out that a new body would create sizeable financial implications,33 a number of delegates stated their preference for the Swedish proposal. They pointed to its advantage of providing for independence of Committee members from governmental instructions or pressures since the members of the Committee would serve ‘in their personal capacity’.34 In the opinion of these delegations, the fact that the members of the Committee should ‘so far as possible’ also be members of the Committee would enhance harmonization between the implementation mechanism of the CCPR and the Convention and avoid the legal problems pointed out by the Legal Counsel of the United Nations.35

22  In 1982 the Working Group did not come to any consensus and continued its discussions regarding the nature and composition of the implementation organ during its session in 1983. The majority of delegations clearly preferred the implementation organ to be elected by States parties, as had been proposed by Sweden.36 However, since the Swedish proposal regarding the implementation provisions was drafted in considerable detail in twelve articles modelled according to the CCPR, the Chairman-Rapporteur submitted a draft with four simpler provisions on implementation taking into consideration the corresponding provisions in CERD and CEDAW.37 On the basis of this draft, the delegations discussed the size of the Committee. Some speakers stated that nine was too small as decisions may sometimes be taken by only three members since the quorum (p. 483) was set at five.38 Moreover, it would be difficult to reflect an equal geographical distribution with nine experts.39

23  The delegations were still unable to agree on whether the implementation system should have an optional or mandatory character. Some States continued to object to a mandatory character of the implementation provisions. In particular the Soviet Union, arguing that the inclusion of a mandatory implementation system in the Convention was not necessary for those States that were already bound by the implementation provisions of the CCPR, suggested an optional protocol containing the implementation procedures and said that this would facilitate worldwide support of the Convention.40 Other delegations were in favour of provisions with a mandatory character, stating that to make implementation optional was tantamount to allowing a qualified commitment to the fight against torture; moreover, it could lead to varying degrees of obligations on States parties. The delegation of the Ukrainian Soviet Socialist Republic suggested as a compromise, to retain the implementation provisions in the Convention but to introduce a clause which required that a State party recognize the competence of the Committee.41 No final decision was taken regarding the abovementioned issues.

24  During this Working Group session Article 17(6) and (7) of the Chairman’s proposal was also a topic of discussion. Some delegations criticized the modus of filling vacancies provided for in paragraph 6 which had been taken verbatim from the corresponding mechanisms of the anti-discrimination Conventions of 1965 and 1979.42 Ideally, vacancies should be filled using the same system as used for designating the original members, namely through election by States parties (eg articles 33 and 34 CCPR). Therefore, the Chairman-Rapporteur submitted another proposal for paragraph 643 which suggested that the appointment of a new member should be ‘subject to the approval of the majority of States Parties’.44

25  Regarding the proposal for paragraph 7, according to which States parties shall be responsible for the expenses ‘in the same proportion as their contributions to the general budget of the United Nations’, some delegations stated that States parties to the Convention may not necessarily be members of the United Nations. They therefore expressed their preference for the analogous provision of CERD, providing for the coverage of the expenses of the members for their Committee duties by States parties, such as submitted in proposal by the Chairman-Rapporteur.

26  During its fifth session in 1984, the Working Group finally adopted Article 17 CAT. The Soviet Union had informed the Group that it would no longer insist on the optional character of the provision concerning the creation of an implementation organ, and the Ukrainian Soviet Socialist Republic also took a similar stand and withdrew its respective draft Article 17.45 Furthermore, the Working Group had decided that the Committee should consist of ten instead of nine experts elected for four years. In this (p. 484) regard, the part of the second sentence of paragraph 5 stating that after the first election four members should be chosen by the Chairman to serve only for two years, was accordingly amended to ‘five’ members.46 Concerning all other paragraphs the Working Group agreed on the last submitted version.

3.  Issues of Interpretation

3.1  Nature and Functions of the Committee

27  The aims of the Convention are threefold: to establish specific obligations for States parties to prevent torture and to assist victims of torture; to require the use of criminal law and jurisdiction to fight impunity of torturers; and to provide for stronger measures of international monitoring of States’ compliance with the absolute prohibition of torture.

28  The original Swedish draft contained a proposal which would entrust the HRC with the monitoring of State compliance. The IAPL even suggested that the eighteen-member HRC appoint a five-member Special Committee on the Prevention of Torture. After the Legal Counsel of the UN explained the legal difficulties of burdening an already existing treaty body with additional duties stemming from another treaty, the Working Group finally agreed on the creation of an independent treaty body for the CAT. However, reaching this conclusion had not been easy. Argentina and Brazil had even proposed that each State oversee its own implementation of the Convention, while the Soviet Union wished to make international monitoring purely optional, and the Dutch Chairman-Rapporteur suggested entrusting the monitoring to a group of five members of the Human Rights Commission, similar to the Apartheid Convention. Despite a certain reluctance against a further proliferation of UN treaty monitoring bodies, the Working Group finally agreed on the creation of a fourth independent treaty body, after the CERD Committee (established in 1970), HRC (established in 1976), and the CEDAW Committee (established in 1981). Yet the States continued insisting that the CAT Committee be smaller than the other treaty bodies. The Swedish proposal of nine members was later extended to ten. Since the prohibition of torture was already contained in the CCPR, the Swedish proposal for implementation provisions also maintained a certain link between the HRC and the CAT Committee. This is reflected in Article 17(2) CAT according to which States parties shall bear in mind the usefulness of nominating persons who are also members of the HRC.

29  The main monitoring functions of the Committee are laid down in Articles 19 to 22: consideration of State reports including adoption of concluding observations and general comments; conducting of ex officio inquiry procedures including fact-finding missions to the countries concerned; examination of inter-State communications including the establishment of an ad hoc conciliation commission; and examination of individual communications. After the entry into force of the OPCAT in June 2006, the SPT was established with the functions of carrying out preventive visits to places of detention and of cooperating with the national preventive mechanisms to be established in every State party to the OPCAT. Article 10(3) OPCAT and Rule 62 CAT provide that the Committee shall meet with the SPT at least once a year, during the regular sessions they both hold simultaneously. According to Article 16(3) OP and Rule 63 CAT, the SPT shall present a public annual report on its activities to the (p. 485) Committee. If a State party refuses to cooperate with the SPT, the Committee, in accordance with Article 16(4) OP, may decide to make a public statement on the findings, recommendations and observations of the SPT in relation to a specific visit.

3.2  Composition of the Committee—Article 17(1)

30  The respective provisions of Article 17 are based on Articles 28 to 32 CCPR.47 In contrast to the HRC and the majority of other UN treaty monitoring bodies, the CAT Committee only consists of ten members.48

31  Although the members are nominated by States parties and elected by the meetings of States parties, they serve, pursuant to Article 17(1), as individual ‘experts of high moral standing and recognized competence in the field of human rights’ who ‘shall serve in their personal capacity’, ie they do not represent their country nor their region. This independence from States parties is further underlined by Article 23, which entitles them to the ‘facilities, privileges and immunities of experts on mission for the United Nations’. Before assuming their duties, according to Rule 14, Committee members shall make a solemn declaration that they will perform their duties ‘honourably, faithfully, impartially and conscientiously’. Rule 15 further emphasizes the importance of impartiality and independence. In the performance of their duties, Committee members shall maintain the ‘highest standards of impartiality and integrity’. Members are ‘accountable only to the Committee and their own conscience’. Hence, they shall ‘neither seek nor accept instructions from anyone’.49 Rule 15 also explicitly recalls the Addis Ababa Guidelines on the independence and impartiality of members of the human rights treaty bodies, which since 2014 are integral part of the RoP of the CAT constituting an Annex.50 This high degree of independence and impartiality justifies regarding the Committee as a quasi-judicial organ. Yet, in reality ambassadors and other civil servants have regularly been elected to the Committee.51 In this regard, more clarity is brought by the Addis Ababa Guidelines.52 Explicitly regulating the relationship of treaty members with States, the Guidelines specify that independence and impartiality ‘is compromised by the political nature of their affiliation with the executive branch of the State’ and that treaty bodies’ members should therefore ‘avoid functions or activities which are, or are seen by a reasonable observer to be, incompatible with the obligations and responsibilities of independent experts’ (Guideline D). The Guidelines further spell out that individual holding or assuming decision-making positions in any organization or entity which may give rise to a real or (p. 486) perceived conflict of interest shall ‘whenever so required, not undertake any functions or activities that may appear not to be readily reconcilable with the perception of independence and impartiality’ (Guideline E). The relevance of the independence of members of human rights treaty bodies was further reaffirmed in the GA resolution 68/268, where it was stressed how important it is that all stakeholders, including the Secretariat, respect the independence of the members and avoid any interference with their mandate.53

32  Pursuant to Article 17 there are other relevant factors to be taken into account when electing Committee members. Further to being independent, under Article 17(1) members of the Committee shall also be experts of ‘high moral standing and recognized competence in the field of human rights’. In this regard, if the GA recommendations 68/268 of 2014 generally encourages States to nominate individuals with competence and expertise ‘in particular in the field covered by the relevant treaty’,54 Article 17 provides explicitly that for the election of CAT members consideration shall be given to the ‘usefulness of the participation of some persons having legal experience’. This provision has been taken literally from Article 28(2) CCPR but has no equivalent in other UN human rights treaties. In addition, Article 17(2) provides that States parties shall bear in mind the ‘usefulness of nominating persons who are also members of the HRC’. Both provisions underline that the prevention and prohibition of torture is primarily a civil right that requires specific legal expertise. Since the prohibition of torture and cruel, inhuman or degrading treatment is already contained in Article 7 CCPR, the original Swedish draft had even suggested entrusting the specific monitoring functions of the Convention to the HRC. After respective legal problems had been raised by the Legal Counsel of the UN and a number of States, a compromise of establishing a certain link with the HRC and its legal expertise had been reached which was first reflected in the revised Swedish draft.55

33  In practice, while the HRC consists almost exclusively of persons with a legal background which is also underlined by the high legal quality of its work,56 the composition of the CAT Committee is more diverse. While law professors and legal practitioners constitute the majority, many experts have a different professional background, above all medical doctors, psychologists, political scientists, and journalists.57 In our opinion, this composition better corresponds to the multidisciplinary task of combating and preventing torture.

34  On the other side, the idea of linking the membership of the CAT Committee with the HRC was implemented only in a few cases. For example, the French judge Christine Chanet, who served on the HRC from 1987 until 2006, also served on the CAT Committee from 1988 until 1991. The first Chairperson of the HRC, Ambassador Andreas Mavrommatis from Cyprus, who served on the HRC from 1977 to 1996, was elected to the CAT Committee in 1998 and has acted as its Chairperson from 2006 to 2008. Julio Prado Vallejo from Ecuador who served as an expert within the HRC from 1976 to 1986, was also a member of the CAT Committee for a short period in 2006 before he died on 20 October 2006.

(p. 487) 35  Article 17(1) further requires to give consideration to ‘equitable geographical distribution’. Although there is no formal quota, such requirement can be found in every UN human rights treaty as a general principle for the composition of UN bodies.58 Most treaties, including Article 9 of the ICJ Statute and Article 31(2) CCPR, also contain the need for an ‘equitable representation of the different forms of civilization and of the principal legal systems’, which is, however, not reflected in Article 17 CAT.59 Since the CAT Committee consists of only ten members, the most equal geographical distribution would be two members per each of the five UN geopolitical regions. On the other hand, ‘equitable’ distribution means a composition which corresponds as proportionally as possible to the number of States parties per region.60 Whether the maintenance of an Eastern European Group and a Western and Others Group is still justified more than twenty years after the end of the Cold War is another question that might be taken into account when considering the most equitable geographic distribution.

36  After the first election in 1987, the Committee was composed of four experts from the Western Group, two each from the Eastern European and Latin American Groups, and only one each from the Asian and African Groups. At that time, the Western Group had by far the highest number of States parties (nine out of a total of twenty-seven States parties). Some representatives, in particular those from African States, regretted that only one African member was elected, which in their view contradicted the informal consensus of one member from Asia, two from Latin America, two from Eastern Europe, three from Western Europe, and two from Africa, reached during the preparatory consultations in form of a ‘gentleman’s agreement’.61 Two years later, the States parties gave due account to the consensus regarding equitable distribution; two African representatives were elected.62 As of December 2017, the Committee consists of four experts from the Western Group (40%); two from the African (20%) and the Asian Groups (20%), and one from the Latin American (10%), and the Eastern European groups (10%).63 Compared to the number of States parties from the respective regions (30 Western European and other; 49 African, 23 Latin American, 23 Eastern European, and 38 Asia Pacific States), this composition can no longer be considered equitable.

37  Although not explicitly mentioned in the Convention, gender equality should also be taken into consideration.64 In this sense, the GA in its resolution 68/268 of 2014 (p. 488) explicitly encouraged States parties to inter alia consider ‘balanced gender representation’ within each treaty body Committee.65 As of December 2017, four out of ten members of the Committee are women.66 The GA further encouraged States parties to nominate ‘experts with disabilities in the membership of the human rights treaty bodies’.67 As it will be seen below, since the elections must be carried out by secret ballot, there is no guarantee that any of the principles mentioned above are fully taken into account.

3.3  Nomination and election of Committee members— Article 17 (2)−(6)

3.3.1  Nomination

38  The nomination and election of Committee members are regulated by Article 17(2)−(6) and Rules 11 to 15, which elaborate further on the election procedure, the filling of vacancies, the solemn declaration, and the independence and impartiality of members of the Committee.

39  Under Article 17(2) the right of nomination of candidates rests exclusively with States parties to the Convention. While CCPR and OPCAT empower each State party to nominate up to two candidates,68 the CAT restricts the right of nomination to one person who must be a national of the nominating State. In practice, this no longer makes much of a difference since nominating two persons necessarily reduces their election chances.69 Regional groups often agree on a reduced number of candidates from their respective groups in order to increase their chances of being elected. Usually, political considerations and trade-offs among States play a role which is as decisive as the individual qualification of the respective candidates. At least four months before the date of each election, the UN Secretary-General shall address a letter to all States parties to the Convention inviting them to submit their nominations within three months. The Secretariat will then prepare a list of candidates and nominating States and shares it with the States parties.70 If such deadline is not respected, it cannot be guaranteed that candidate’s details are processed and shared to all States parties before the date of the election. In any event, it is a well-established practice for the meeting of States parties to endorse the nomination of candidates received after the deadline.71

40  Although the CAT leaves the nomination process up to States parties, in exercising their right to nomination States parties shall bear in mind the usefulness of nominating persons who are also members of the HRC. Furthermore, the High Commissioner for Human Rights has encouraged States to adopt an open and transparent process, give consideration to expertise in the relevant area, willingness to take over responsibilities, avoid nominations of candidates holding positions that might create conflicts of interests or lack of independence, and limit the terms of service of a member to a reasonable number.72 All candidates may be withdrawn and re-nominated, whether elected or not.

(p. 489) 3.3.2  Election

41  Pursuant to Article 17(3) Committee members are elected at biennial meetings of States parties convened by the UN Secretary-General. In contrast to other UN human rights treaty bodies, for which meeting of States parties always take place at UN Headquarters in New York, for the CAT elections take place in Geneva in the month of October every two years (odd years).73 In practice, meetings of States parties are organized by OHCHR.

42  The election procedure is laid down in Article 17(3) and in the RoP of the Meeting of States parties to the CAT.74 These are modelled on Article 30 CCPR and the RoP of the Meeting of States parties to the CCPR.75 At least two-thirds of the States parties shall be represented in the meeting of States parties (quorum). If less than two-thirds of the States parties are present, elections cannot take place. Candidates must be elected, through a secret ballot, by an absolute majority of States parties present and voting. Representatives of States parties who abstain from voting are considered as not voting.76 Each State party may vote for as many candidates as there are seats to be filled, ie usually five. Should more than five candidates receive an absolute majority, those who obtain the largest number of votes are elected. In the case of a draw on the vote, although no provision is included with this regard in the RoP of the Meetings of States parties, it is most likely that the situation would be resolved by a tie-breaker vote.77 If fewer than five candidates receive an absolute majority, additional balloting is required.78 Votes may be cast for those unelected candidates who obtained the most votes in the previous ballot, with a maximum of twice as many candidates being eligible for election as there are places remaining to be filled. If all five members are still not elected after the third inconclusive ballot, then all candidates are to take part in subsequent balloting. In this situation as well, draws on the vote would likely to be resolved by a tie-breaker vote.79 Since Article 17(3) CAT expressly requires an absolute majority of votes, in no case may a candidate who has achieved only a relative majority be considered elected.80

43  It is, in fact, not uncommon for either of the scenarios to occur. One example is the election procedure of the tenth meeting of the States parties to the CAT in 2005.81 During this meeting, five members were elected to the CAT Committee to replace those whose terms of office were due to expire on 31 December 2005. Following the standard procedure, in accordance with Article 17, a vote was taken by secret ballot. Of the eight candidates up for election, six obtained the required majority of fifty-eight votes. Because there were more successful candidates than there were available seats, the five candidates having obtained both the required majority and the largest number of votes were elected to the Committee.

44  The opposite situation has also occurred, albeit less frequently. As exemplified during the fourth meeting of the States parties to the CAT in 1993, the standard voting procedure is slightly more complicated when the election yields fewer successful candidates than seats available.82 This specific election required four separate ballots to fill the (p. 490) five vacant seats. Moreover, despite complying with Rule 15, the procedure followed in order to determine the candidates for the last vacant seat met with opposition from four different delegations. The issue in this case was that there were five seats up for election, yet after both the first and second ballots, only three candidates had obtained the required majority (three in the first ballot, and none in the second). Since no candidate had been successful after the second ballot, according to Rule 12, a third ballot was needed. One candidate obtained the required majority in the third ballot and a fourth ballot was proposed in order to elect the fifth and final member of the Committee. The Chairperson proposed that the election should be between the two candidates with the largest number of votes among those who had not obtained the necessary majority in the third ballot. The delegations of Uruguay, Morocco, Yemen, and Jordan objected to the procedure as proposed by the Chairperson and referred to Rule 15, which stated that ‘after the third inconclusive ballot, votes may be cast for any eligible nominee’. However, the Secretary of the Committee emphasized the need to restrict the voting to the candidates who had obtained the largest number of votes. He also referred to Rule 15 in order to explain that the rule pertaining to ‘inconclusive’ ballots did not apply in this instance and, therefore, the voting should proceed as proposed by the Chairperson. Although the Chairperson took note of the comment made by the Uruguayan representative who pointed out that the text of Rule 15 was not harmonized in all languages because the Spanish text did not contain the word ‘inconclusive’, he still endorsed the Secretariat’s position regarding Rule 15. He also said that it was necessary to respect the precedent established during the election of members to the Committee on the Rights of the Child. A fourth ballot was thus held between the two candidates who had amassed the largest number of votes in the previous election and a final member was the fifth elected. The initial election had to be held no later than six months after the entry into force of the Convention.83 Pursuant to Article 27(1), the Convention entered into force on 26 June 1987, and the first elections took place exactly five months later during the first meeting of the States parties on 26 November 1987.84

45  Under Article 17(5), also based on Article 32(1) CCPR, Committee members are elected for a term of four years and are eligible for re-election if renominated. In contrast to other UN treaties,85 the CAT does not limit the number of renominations and re-elections, allowing in principle unlimited re-election. In accordance with Rule 12(1), the term of office of the members elected at subsequent elections shall begin on the day after the date of expiry of the term of office of the members whom they replace. In 2002, the Committee added a second paragraph to this rule, thereby allowing the officers of the Committee to continue performing their duties until one day before the first meeting of the Committee, composed of its new members, when it then elects its officers (Rule 12(2)).86

(p. 491) 46  In order to ensure continuity in membership, as in other UN human rights treaties,87 elections are staggered and the principle of partial renewal applies. Immediately after the first election, the names of five elected members whose term of office expired after two years were chosen by lot. The meeting of States parties agreed that the term of office of all Committee members started on 1 January 1988.88 Since the term of the five members chosen by lot expired on 31 December 1989, the second regular meeting of States parties took place on 19 December 1989. Every two years, the States parties elect five members. In doing so, they aim to strike a fair balance between the principles of continuity and that of renewal.

47  Some Committee members have been re-elected several times.89 Three original members of the Committee, Mr Alexis Dipanda Mouelle from Cameroon (January 1988 to December 1997), Mr Bent Sørensen from Denmark (January 1988 to December 1999) and Mr Peter Thomas Burns from Canada (January 1988 to December 2003) served for respectively ten, twelve, and sixteen years in their function. From the current Committee members, Ms Felice Gaer from the USA has served since 2000, which makes her the longest serving member thus far.

3.3.3  Casual Vacancies

48  Article 17(6) and Rule 13 regulate the occurrence of causal vacancies, the declaration of vacant seats, and filling of casual vacancies in the CAT Committee. A casual vacancy may occur in three cases: if a Committee member dies, resigns, or if he/she ‘for any other cause can no longer perform his Committee duties’. During its discussions of the RoP in 1988, the Committee considered the meaning of the term ‘any other cause’ in Article 17(6). While the Committee thought it difficult to define the term more precisely, it rightly stressed that this provision cannot be interpreted as referring to any kind of political interference on the part of a State but rather relates to the personal circumstances of the Committee member to be replaced.90 In practice, nine Committee members have so far resigned from their duties and two experts passed away while they were members. They were replaced by other experts appointed by the respective States parties without any objections from other States parties.91 Questions of interpretations in relation to the words ‘any other cause’ arose in one case. A member from Uruguay, Mr Hugo Lorenzo, who had been elected to the Committee in 1991, was appointed to serve as an international civil servant within the UN human rights mission MINUGUA in Guatemala. Although he was not allowed by the UN Secretary-General to attend the fourteenth session in May 1995 and further meetings of the Committee on grounds of (p. 492) alleged incompatibility between his present status of international civil servant and that of member of the Committee, he did not resign. Neither did the Secretary-General declare his seat vacant according to the procedure foreseen in Rule 13. As the respective discussions in the Committee revealed uncertainty about a possible incompatibility between the two functions, the Committee simply waited until his term of office expired.92 There is no convincing argument why the function of international civil servant (as domestic civil servant) should be considered generally incompatible if the respective expert finds sufficient time to attend Committee meetings. Rather this should depend on the question of independence and availability as for all other professions.

49  Where one of these three situations occur, in accordance with Rule 13(1), the Secretary-General shall immediately declare the seat of that member to be vacant and request the State party whose expert has ceased to function as a member to appoint another expert from among its nationals within two months, if possible, to serve for the remainder of the term of his or her predecessor. The appointment is subject to the silent approval of the majority of States parties. According to Article 17(6) and Rule 13(2), if States parties do not agree with the appointment they have to respond within six weeks after having been informed by the Secretary-General. Only objections by half of all States parties—which is highly unlikely ever to occur in practice—can prevent the appointment of a Committee member who is not deemed qualified or independent.

50  The procedure for filling casual vacancies set up by the CAT differs from that of other UN treaty bodies for two main reasons. First, unlike the CCPR, the CAT does not provide for the possibility of casual vacancies to be filled by an election at an extraordinary meeting of States parties if the State party does not replace the member within six months.93 During the discussions in the Working Group, some delegations criticized this modus of filling vacancies and proposed, instead, to follow the system of special elections as provided for in Articles 33 and 34 CCPR.94 In practice, however, the holding of special meetings of States parties to the CCPR for the sole purpose of filling vacancies of members of the HRC proved to be a fairly futile exercise because the States parties always elected the compatriots of the members who had died or resigned.95 In addition, the procedure foreseen in Article 33 CCPR of declaring a seat of a HRC member vacant remained ‘dead law’.96 On the other hand, the system in the two anti-discrimination treaties, namely to subject the appointment by the State party to the approval of the respective expert bodies, does not seem to be an effective procedure against abusive practices by States parties.97 The Chairman-Rapporteur, therefore, proposed a compromise aimed at avoiding the need to hold special sessions of States parties for the sole purpose of filling one vacancy, while at the same time providing States parties with the right to object to nominations which did not fulfil the minimum criteria of Committee membership provided for in Article 17.98 Second, under the CAT the nomination of the new member by the original nominating State must be approved by the other States parties and not by the respective Committee as in most UN human rights treaties.99

(p. 493) 51  Furthermore, the procedure for declaring a seat of a Committee member vacant under Article 17(6) and Rule 13(1) is less specific than comparable provisions in other human rights instruments, most notably the CCPR. Article 17(6) CAT fails to specify any procedure to determine whether or not a member of the CAT Committee, apart from death or resignation, can no longer perform his or her duties due to illness, disability or any other cause. In contrast, Article 33(1) CCPR provides for a special impeachment procedure, involving the HRC, its Chairman and the UN Secretary-General. The procedure allows the Committee to terminate the term of office of a member who, in the unanimous opinion of the other members, “has ceased to carry out his functions for any cause other than absence of a temporary nature”. Whether the CAT Committee felt empowered to itself declare a seat of a Committee member vacant due to personal inconvenience or difficulty was deliberately left open during its discussions of the RoP in 1988. It is highly doubtful whether the impeachment procedure under Article 33 CCPR could be applied per analogiam if a member of the CAT Committee, for whatever reason, does not resign voluntarily. Even if a member is seriously ill or refrains from participating in the Committee’s sessions without any proper excuse, it is more prudent to wait until the expiry of his or her term of office rather than to remove the person without a proper procedure explicitly provided for in the Convention.100

3.4  Financing of the Committee—Article 17(7)

52  Articles 17(7) and 18(5) deal with the financial issues of the Convention and its Committee. Whereas the activities of other treaty bodies do not provide for any financial responsibilities of States parties for the expenses of their Committees which are funded in the context of the regular UN budget, the CAT and CERD are the first international instruments in the field of human rights which provided for an implementation system relying on voluntary financial contributions of States parties.101

53  With respect to the financing of UN human rights treaty bodies, two different philosophies emerged.102 One line of argument is that UN treaty bodies are not organs of the UN and only carry out functions in relation to the respective States parties which, therefore, shall alone be responsible for bearing all the expenses for the members of treaty bodies, its secretariat, meetings, conference services, etc. This philosophy found its expression first in Article 8(6) CERD and was followed by other treaties, including Articles 17(7) and 18(5) CAT. During the Cold War, this was the argument most forcefully advanced by the Soviet Union and its allies. The opposite line of argument stressed that UN human rights treaties were not drafted merely for the benefit of a small group of States but rather in general served the promotion of international cooperation and other objectives of the United Nations, which called for the closest possible link with the world organization and the payment of all expenses out of the general UN budget. This philosophy, which was primarily advanced by Western States (with the exception of the United States), first found its expression in Article 35 CCPR. According to the aforementioned Article, members of the HRC shall ‘receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities’. In addition, Article 36 CCPR (p. 494) stipulates that the UN Secretary-General shall provide the necessary staff and facilities for the effective performance of the functions of the HRC. This model was followed by other human rights treaties, eg Article 17(8) and (9) CEDAW, Article 43(11) and (12) CRC, and Article 72(7) and (8) CMW, Article 36(7) CED, and Article 34(11) and (12) CRPD.

54  These two philosophies led to different treatment of UN treaty bodies. While the members of the other human rights treaties received a modest annual honorarium of US$3,000 (for the Chairperson, US$5,000), members of the CERD and CAT Committees received no honorarium. In practice, this financial dependence on States’ contributions has been of great hindrance to the work of the Committee. The Committee had experienced severe difficulties in discharging its functions as a result of the delayed payments or non-payments of the contributions by States. During the UN financial crisis starting in the late 1980s, the CERD and CAT Committees were most seriously affected and had to cancel more sessions than other Committees due to a large number of outstanding contributions owed by the respective States parties. Consequently, the Chairpersons of the various treaty bodies called upon the General Assembly to finance all treaty bodies from the regular UN budget.103 This recommendation has also been strongly supported by a well-known study by Philip Alston on UN treaty body reform.104

55  In 1992, Australia proposed amendments to the relevant provisions of CERD and the CAT with a view to including the financing of the activities under the Convention in the regular budget of the UN. A conference of States parties, convened in accordance with Article 29(1) by the Secretary-General in New York on 9 September 1992, adopted those amendments which were subsequently endorsed by the General Assembly in its Resolution 47/111.105 The General Assembly requested the Secretary-General to take the appropriate measures for financing the Committee from the regular budget of the UN beginning from the biennium 1994 to 1995.106 According to the amendment, Articles 17(7) and 18(5) should be deleted and a new provision should be inserted as new paragraph 4 of Article 18: ‘The members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide.’107 Amendments will enter into force after they have been accepted by two-thirds of the States parties. As of December 2017, only thirty-one parties have notified the Secretary-General that they have adopted the amendment.108 Therefore, this amendment is not yet in force. However, as a provisional measure, the General Assembly has agreed to cover the expenses of the Committee out of the UN budget.109 In 2002, the General Assembly also decided to reduce the modest honorarium paid so far to the members of the HRC, the CEDAW, and CRC Committee (p. 495) as well as to the International Law Commission and similar expert bodies to the symbolic sum of US1$, which was strongly criticized by the respective bodies.110 On the other hand, one might argue that equality among the UN experts (members of treaty bodes, special procedures, etc) has been achieved. Taking into account, however, how much time many UN experts spend on their respective UN functions, only few privileged individuals, such as university professors, affluent practising lawyers, or retired civil servants, can afford to serve several months per year for the UN without any honorarium.

Giuliana Monina

Footnotes:

1  On the role of UN treaty monitoring bodies see eg Philip Alston and James Crawford, The Future of UN Human Rights Treaty Monitoring (Cambridge University Press 2000); Anne F Bayefsky, The UN Human Rights Treaty System in the 21st Century (Kluwer Law International 2000); Michael O’Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies (Springer 2002); Manfred Nowak, Introduction to the International Human Rights Regime (Brill Nijhoff 2003) 78; OMCT, Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Treaty Bodies, vol 4 (2nd edn, OMCT 2014).

2  Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) (CCPR Commentary) 668; on the CAT see, in particular, Manfred Nowak in Dorothea Steurer and Hanne