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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Preamble

Manfred Nowak, Moritz Birk, 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

Previous Edition (1 ed.)

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

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Subject(s):: Torture — UN Charter — Treaties, interpretation

(p. 15) Preamble

The States Parties to this Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:

1. 1. Introduction 15
2. 2. Travaux Préparatoires 16
  1. 2.1 Chronology of Draft Texts 16
3. 2.2 Analysis of Working Group Discussions 17
4. 3. Issues of Interpretation 19

1. Introduction

Under Article 31 of the VCLT, the provisions of international treaties are not to be interpreted in isolation but rather in their context. The treaty’s text including the preamble and annexes, together with relevant agreements between the States parties, may be drawn upon. This legal significance of the preamble has been generally recognized under international law.¹

Like most other international human rights treaties, the Convention against Torture contains an extensive preamble. It places the obligations of States parties contained in the Convention in the context of the principles proclaimed in the Charter of the United Nations, and it emphasizes the natural-law origins of human rights. The text is based on (p. 16) the preambles of the two International Covenants of 1966² and of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of 1975.³ The text, as proposed in the original Swedish draft of 1980, was unanimously adopted with only a few changes suggested during the drafting in the Working Group of the Commission on Human Rights. The preamble reiterates the absolute prohibition of torture and CIDT, as contained in Article 5 UDHR and Article 7 CCPR, and expresses the desire ‘to make more effective the struggle against Torture’ and CIDT. This seems to constitute the central object and purpose of the Convention.

2. Travaux Préparatoires

2.1 Chronology of Draft Texts

Declaration (9 December 1975)⁴

The General Assembly,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Considering that these rights derive from inherent dignity of the human person,

Considering also the obligation of States under the Charter, in particular article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Adopts the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the text of which is annexed to the present resolution, as a guideline for all States and other entities exercising effective power.

Proposals for the preamble and the final provisions of the Draft Convention, submitted by Sweden (2 December 1980)⁵ The States Parties to the present Convention,

Recognizing that these rights derive from the inherent dignity of the human person,

(p. 17) Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Desiring to convert the principles of the Declaration into binding treaty obligations and to adopt a system for their effective implementation,

Have agreed as follows:

2.2 Analysis of Working Group Discussions

Whereas the Working Group of the Commission on Human Rights had already begun discussing the substantive elements of the Convention in 1980, work on the preamble only began in 1983. The Group took as its basis the draft clauses submitted by Sweden in 1980.⁶

The first issue raised by various delegations within the Working Group concerned the scope of the Convention as defined in the title and reflected in the text. The preamble was regarded by all as a reiteration of the purpose of the Convention at hand. In order to ascertain whether the object and purpose of the treaty was accurately reflected in the text, it was deemed relevant to discuss the overall scope of the Convention within the specific discussion of the preamble itself. While some delegations expressed the view that the draft Convention related principally to criminal law and procedure and that this should be reflected in the title of the instrument,⁷ others noted that this was not necessarily the case. As one representative pointed out, the subject-matter of the Convention against Torture is inherently linked to the agenda item under which it had previously been discussed, namely, ‘The question of the human rights of all persons subjected to any form of detention or imprisonment’.⁸ The Swedish delegation, however, argued that the subject-matter of the Convention had already been defined by the mandate given to the Commission as laid out in General Assembly Resolution 32/62:

To draw up a draft Convention against torture and other cruel, inhuman or degrading treatment or punishment in the light of the principles embodied in the Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.⁹

This mandate had been confirmed by subsequent General Assembly resolutions. According to the Swedish representative, it therefore followed that no limitations applied (p. 18) to the subject-matter of the Convention other than those specified in the aforementioned mandate.

Discussion then proceeded onto the preambular clauses themselves. A first suggestion made was to delete the phrase ‘of the inherent dignity and’ which existed in both the first and the second paragraphs. Since there was general agreement that the words were redundant, the suggestion was accepted and the change made to the first paragraph.¹⁰

With regard to the third paragraph, a proposal was made to include a reference to the principle of non-discrimination as enshrined in either Article 55 of the United Nations Charter, or in Article 2(1) of the International Covenant on Civil and Political Rights. This suggestion received wide support from the Working Group and the text was amended so as to include a mention of Article 55.¹¹

Several delegations within the Working Group expressed discontent with the sixth preambular clause as drafted by Sweden.¹² The observer for Amnesty International, for instance, argued that the clause in question risked undermining the authority and effectiveness of the 1975 Declaration.¹³ As a result, the following phrase was proposed by the Argentine delegation as a replacement for the Swedish draft: ‘Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’.¹⁴ The proposal gained general support and was subsequently accepted by the Working Group.

The appropriate amendments, as detailed above, were made and the Chairman-Rapporteur of the sessional Working Group, Jan Herman Burgers, submitted the revised set of preambular clauses which were then adopted by the Group during its 1983 session.¹⁵

There was still, however, one outstanding issue. During the second reading of the draft preambular clauses, which took place at the 11th meeting,¹⁶ the Peruvian delegation had proposed the following paragraph for inclusion in the preamble:

Recognizing that the essential rights of men are not derived from one’s being a national of a certain State, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention.¹⁷

The Group was of the opinion that this was a proposal that warranted careful deliberation at a later stage. The Group recommenced the discussion of this proposal in 1984 when it was agreed that although the intention of the Peruvian delegation was commendable, the ideas contained in the proposal were too broad and too controversial for inclusion.¹⁸ Moreover, it was largely agreed that the existing second paragraph of the preamble incorporated many of the same ideas without being couched in as broad terms. The Peruvian delegation thus withdrew its proposal and the Group decided that the preamble would consist of the revised set of clauses as adopted in 1983.¹⁹

(p. 19) 3. Issues of Interpretation

The first paragraph is modelled on the first preambular paragraph of both Covenants. The phrase ‘recognition of the inherent dignity’ was, however, deleted during the Working Group discussions because these words were also contained in the second paragraph. The term ‘principles proclaimed in the Charter of the United Nations’ refers both to the principles enshrined in Article 2 and to the purposes of the United Nations laid down in Article 1 of the Charter,²⁰ ie peace and security, development and human rights. The interdependence of these three main objectives of the world organization was emphasized by former Secretary General Kofi Annan in his well-known report ‘In Larger Freedom’ of 21 March 2005 as follows: ‘Accordingly, we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights’.²¹ The significance of human rights as a precondition for both security and development was already envisaged in the preambles of both Covenants and the CAT which state that recognition of human rights ‘is the foundation of freedom, justice and peace in the world’.

The second paragraph is identical with the second preambular paragraph of both Covenants and expresses, like the first paragraph, that human rights have their origin in natural law. The reference to the ‘inherent dignity of the human person’ is of particular relevance for the prohibition and prevention of torture as any act of torture, like slavery, constitutes a direct and deliberate attack on the dignity of the human person. Torture presupposes a situation in which one person exercises total control over another person. The victim of torture finds itself in a situation of powerlessness, and the perpetrator aims at depriving the victim of its dignity and humanity.²²

The third paragraph is taken from the fourth preambular paragraph of both Covenants. During the drafting in the Working Group, a particular reference to Article 55 of the UN Charter was added. According to Article 55(c), the United Nations shall promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. It is this emphasis on the principle of non-discrimination which the drafters had in mind when proposing an explicit reference to Article 55.²³ This principle is also stressed in Article 1 CAT: in addition to extraction of a confession or information, punishment and intimidation, discrimination is explicitly listed as one of the purposes of torture.²⁴

The fourth paragraph refers to the absolute prohibition of torture and CIDT, as contained in already existing instruments, such as Article 5 UDHR and Article 7 CCPR. Apart from its preamble, the Convention against Torture does not contain any provision explicitly prohibiting torture or CIDT or providing for a human right not to be subjected to torture or CIDT. The Convention only contains additional obligations of States parties to criminalize torture under domestic law, to provide victims of torture with a right to remedy and reparation, and to prevent torture and CIDT.

The fifth paragraph refers to the 1975 Declaration which forms the direct basis for the Convention against Torture. In the United Nations, binding human rights treaties (p. 20) are often preceded by a non-binding declaration on the same subject. As the UDHR of 1948 formed the basis for the two Covenants of 1966, the same three steps (declaration, convention, and implementation) are often found in relation to specialized human rights topics as well.²⁵ Most of the ideas of strengthening the prohibition and prevention of torture and CIDT, which are elaborated in the Convention against Torture, were already contained in the 1975 Declaration. The original Swedish Draft of 1980, which formed the principal basis for the drafting of the Convention in the Working Group, is to a great extent modelled on the 1975 Declaration. This was explicitly mentioned in the sixth preambular paragraph of the Swedish Draft which expressed the desire ‘to convert the principles of the Declaration into binding treaty obligations and to adopt a system for their effective implementation’.²⁶ During the discussions in the Working Group, the observer for Amnesty International and others regarded this formulation as undermining the authority and effectiveness of the 1975 Declaration and, consequently, replaced it with a stronger wording.²⁷

The final wording of the sixth paragraph is based on an Argentine amendment in the Working Group of 1983.²⁸ This formulation expresses the overall objective of the Convention against Torture: the desire ‘to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’. It reflects the experience that the mere prohibition of torture and other ill forms of ill treatment under international human rights law is not enough to eradicate this ‘plague of the twentieth century’. Innovative ideas were brought forward to make the struggle against torture more effective: the IAPL Draft proposed to make torture a crime under international law, similar to genocide and apartheid, and to require States to bring the perpetrators of torture to justice before domestic courts; the original Swedish Draft introduced the principle of universal criminal jurisdiction, based on various treaties combating the crimes of terrorism and hijacking, and contained a number of specific State obligations to prevent torture; and the Costa Rica Draft suggested a system of preventive visits to all places of detention, based on the experience of the ICRC. It is surprising that, despite strong opposition by a large number of States from all regions of the world, the Working Group, under the efficient chair of Jan Herman Burgers from the Netherlands, succeeded to include most of these ideas in the final text of the Convention.²⁹ In addition to a broad variety of provisions aimed at preventing torture, providing support to torture victims, and at bringing perpetrators of torture to justice before domestic courts, the Convention also contains a new procedure of international monitoring, ie an ex officio inquiry procedure in case of systematic practice of torture.³⁰ The following article by article analysis of all provisions of the Convention will show the extent to which these innovative provisions of combating torture and other ill-treatment were actually implemented by States parties during the thirty years since the entry into force of the Convention on 26 June 1987.

Footnotes:

¹ cf ILC Yearbook, Vol 2 (1964) 57, 203.

² GA Res 2200/A (XXI) of 16 December 1966.

³ GA Res 3452 (XXX) of 9 December 1975.

⁴ ibid.

⁵ Proposal for the Preamble and the Final Provisions of the Draft Convention (1980) UN Doc E/CN.4/1427.

⁶ Draft Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1983) UN Doc E/CN.4/1983/WG.2/WP.16, para 5. See E/CN.4/1427 (n 5) for the draft preambular clauses.

⁷ E/CN.4/1983/WG.2/WP.16 (n 6) para 6.

⁸ ibid.

⁹ GA Res 32/62 of 8 December 1977.

¹⁰ E/CN.4/1983/WG.2/WP.16 (n 6) para 8. See also Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 84.

¹¹ E/CN.4/1983/WG.2/WP.16 (n 6) para 9; Burgers and Danelius (n 10) 84.

¹² E/CN.4/1983/WG.2/WP.16 (n 6) para 10.

¹³ Burgers and Danelius (n 10) 84.

¹⁴ E/CN.4/1983/WG.2/WP.16 (n 6) para 10.

¹⁵ Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 6.

¹⁶ ibid.

¹⁷ E/CN.4/1983/WG.2/WP.16 (n 6) para 12.

¹⁸ E/CN.4/1984/72 (n 15) para 7.

¹⁹ Burgers and Danelius (n 10) 92.

²⁰ cf Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 2.

²¹ A/59/2005, para 17.

²² On the significance of the situation of powerlessness for the definition of torture see below Art 1.

²³ See above ,2.2.

²⁴ See below Art 1, 3.1.4

²⁵ cf eg the Declaration and Convention on the Elimination of Racial Discrimination of 1963 and 1965; the Declaration and Convention on the Elimination of Discrimination against Women of 1967 and 1979; the Declaration and Convention on the Rights of the Child 1924, 1959 and 1989; and the Declaration and Convention on Enforced Disappearance 1992 and 2006.

²⁶ See above 2.1.

²⁷ See above 2.2.

²⁸ E/CN.4/1983/WG.2/WP.16 (n 6) para 10.

²⁹ The system of preventive visits to places of detention, proposed by Costa Rica, was only realized by the adoption of the OPCAT in 2002: see below Preamble OP.

³⁰ See Manfred Nowak in Fortschritt im Bewußtsein der Grund- und Menschenrechte: Progress in the Spirit of Human Rights: Festschrift für Felix Ermacora (Engel 1988) 189 and see below Art 20.

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