14 Despite the similarities between Article 19 of the draft Convention and Article 40 CCPR, and despite the establishment of comparable reporting procedures under various other human rights treaties, such as Article 18 CEDAW and Article 9 CERD, consensus on paragraphs 3 and 4 of this article was only reached in the Third Committee meeting of the General Assembly in 1984.12 The debate focused primarily around the words ‘comments or suggestions’ in paragraphs 3 and 4. Some States, particularly the delegation of the Soviet Union, supported by the delegation of the Ukrainian SSR and the German Democratic Republic, were against the idea of authorizing the Committee to make ‘comments and suggestions’ on the report of States parties and to include such ‘comments and suggestions’ in its annual report to the General Assembly. They proposed to replace the disputed terms with ‘general comments’ and ‘comments’ respectively.
15 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 made by several States in 1978 regarding Article 16 of the original Swedish draft, influenced the subsequent discussions of the Working Group.13 Draft Article 16 provided for a system which required States parties to submit reports to the HRC established under Article 28 CCPR upon special request only.14 Austria welcomed the reporting system as proposed in the original Swedish draft and stated that it would be undesirable to establish another obligation of regularly submitting reports, since the number of reporting procedures under international human rights law had sharply risen over the last years.15 The USA and Switzerland also supported draft Article 16 and the idea of the HRC as monitoring body of the CAT. The delegation of France, on the other hand, considered the proposed arrangement legally unsatisfactory, since the two instruments concerned are different and the States parties would not necessarily be the same.16
16 In 1981, in a pre-sessional meeting of the Working Group, the Netherlands presented a new implementation proposal in the form of amendments to the original Swedish draft.17 It was the first proposal that provided for the establishment of a new Committee (p. 513) composed of members of the HRC. Thus, according to this proposal the States parties would submit their reports to the new Committee.
17 In 1982 the Working Group began its actual deliberations on the reporting procedure basing its discussion on draft Article 29 of the Swedish proposal for implementation provisions.18 This proposal had incorporated some of the State comments made in 1978 and, instead of referring to the HRC as its implementation organ, provided for a Committee against Torture composed of nine members. Several delegations supported the proposal contained in draft Article 29 according to which States would be required to submit reports and other information relating to the application of the Convention to the new Committee.19 Other States objected to the inclusion of ‘other information’ in the provision. Consequently, the Brazilian delegation submitted a proposal amending draft Article 29 which did not explicitly request States to submit other information. The proposal was further amended according to the discussion in the Working Group.20 The revised version which authorized the Committee in its second paragraph to transmit comments and suggestions to the States parties was accepted by the Swedish delegation and no other delegation objected to the new text.21
18 Article 18 of the alternative proposal for the implementation provisions submitted by the Chairman-Rapporteur did not contain any new elements but simply reflected the outcome of the discussions concerning Article 29 of the Swedish proposal that had taken place.22
19 In 1983, the Working Group based its deliberations regarding the implementation mechanism on the four draft implementation provisions submitted by the Chairman-Rapporteur reflecting the outcome of the 1982 Working Group discussion on the reporting procedure under Article 19.23 According to Article 19(3) States parties were allowed to submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2.
20 The question of whether the implementation procedures under the Convention, including the reporting mechanism, should be mandatory or optional was a central point of discussion and disagreement. Most States supported a mandatory nature of the implementation organ and consequently also a mandatory reporting procedure. Some delegations were in favour of an optional complaints procedures, but welcomed the mandatory reporting procedure. A third group of States was of the opinion that all implementation provisions should be optional.24 An alternative suggestion by the Ukrainian Soviet Socialist Republic proposed to insert a clause in paragraph 1 which only obliged States parties who have recognized the Committee’s status to report on the measures taken.25
21 More specifically, the delegation of Australia stressed that reporting ‘whenever new measures have been taken’ would be too burdensome for States parties and (p. 514) therefore suggested the establishment of a periodic reporting cycle.26 Many States supported Australia’s proposal, while others stated that the existing obligation to report periodically under other human rights treaties was already burdensome for many countries. As a result, the Chairman submitted several new proposals which took into account the outcomes of the discussion.27 The last proposal, establishing a reporting periodicity of four years, did not meet any objections from the Working Group.28
22 Furthermore, the discussion on draft Article 19 focused on the word ‘measures’. There was general agreement among the delegations that this term did not mean any limitation in scope but was intended to include legislative as well as judicial, administrative, and other measures.29 Moreover, the Australian delegation, requesting clarification on paragraphs 2 and 3, stated that it was not clear if the reports would lead to a dialogue between the Committee and the State party concerned. Following interventions by other delegations, Australia submitted an informal suggestion to reformulate the latter paragraphs.30 This suggestion was taken into consideration by the Chairman-Rapporteur who subsequently submitted consolidated new text proposals.31 The Working Group delegations agreed on a final version.32
23 During the 1984 Working Group, the USSR withdrew its previous demands that all implementation procedures be optional and objected only to the Article 20 inquiry procedure.33 This meant that an agreement had been reached between all delegations regarding the mandatory reporting procedure under Article 19. However, the USSR stated that it disagreed with the present formulation of paragraphs 3 and 4 authorizing the Committee to, first, make such ‘comments or suggestions’ on the report of whichever State party it considers appropriate and, secondly, to include such ‘comments or suggestions’ in its annual report to the General Assembly. The Soviet delegation, supported by the delegation of the Ukrainian Soviet Socialist Republic and the German Democratic Republic, proposed replacing the words ‘comments or suggestions’ by the words ‘general comments’ in accordance with Article 40 CCPR. However, the majority of speakers wished to keep the formulation ‘comments or suggestions’, which had met with no opposition during the prior Working Group sessions. Several delegations stressed that, in contrast to the CCPR, the CAT was more specific and should therefore provide that appropriate comments can be made by the CAT Committee.34
24 Furthermore, the States discussed whether the States parties’ reports could be transmitted to the General Assembly. India suggested the following additional sentence to paragraph 4: ‘If so requested by the State Party concerned, the Committee may also transmit a copy of the report submitted by the State under paragraph 1.’35 The proposal was accepted by the Working Group and the sentence added to paragraph 4. Nevertheless, there was still disagreement on the terms ‘comments or suggestions’ and the draft Article could not be adopted at this stage.36
(p. 515) 25 By the time the Working Group presented its text to the Human Rights Commission in February 1984, it had reached consensus on all articles except on paragraphs 3 and 4 of Article 19 and Article 20.37 Herman Burgers, the Chairman-Rapporteur of the Working Group, handed over the task of finalizing the text to the Commission.38
26 At the Commission’s thirty-second meeting, the Federal Republic of Germany stated that the procedures provided for in Articles 19 and 20 were the absolute minimum needed to ensure the effectiveness of the enforcement mechanisms and joined the USA in expressing their regret that, although a consensus of a large majority within the Working Group had been reached, some States had refused to accept Article 19(3) and (4) as well as Article 20. In fact, the representative from the USA accused the two objecting delegations, the Soviet Union and the Ukrainian Soviet Socialist Republic, of blocking consensus on the remaining articles. The German Democratic Republic, however, seriously objected to what it saw as the broad scope of procedures under Articles 19 and 20, noting that this delegation saw it as an infringement on State sovereignty.39
27 The following day, at the Commission’s thirty-third and thirty-fourth meetings, Uruguay, Argentina, Switzerland, and Australia supported the current version of paragraphs 3 and 4 of Article 19 and stated that in their opinion the Committee should be empowered to make any ‘comments or suggestions’ it considered appropriate; to forward them to the State party concerned; and to include them in its annual report.40 The USSR, supported by the delegation of Bulgaria, objected to this version, preferring the replacement of the term ‘comments or suggestions’ with ‘general comments’. It was proposed that this wording would avoid the risk of interference in internal affairs, deemed inherent to the expression ‘comments or suggestions’.41 Italy suggested a compromise solution which would replace ‘comments or suggestions’ by the word ‘comments’ only.42
28 Rather than voting on Articles 19 and 20 or renewing the mandate of the Working Group in order to continue debate on these articles, the Commission submitted the draft Convention as it stood, with the unresolved language in square brackets, to the General Assembly.43 It did so by adopting a resolution introduced by Finland and the Netherlands, based on consultations with delegations from different regions.44 After a seven-year process, many delegations were eager for the adoption of a final draft. Further, many members of the Commission had not participated in the Working Group and were not closely familiar with the concerns involved in the discussion.45
29 Pursuant to the above-mentioned resolution, the Commission transmitted the report of the Working Group46 as well as the summary records of the Commission’s debate on the item during its fortieth session to the General Assembly.47 Additionally, the Secretary-General invited all States to communicate their comments on the draft (p. 516) Convention.48 Australia, Belgium, Canada, Denmark, France, Italy, the Netherlands, Sweden, Switzerland, the UK, the USA, Cyprus, Greece, Luxembourg, and Spain expressed their support for adopting Article 19(3) and (4) as drafted including the expression ‘comments or suggestions’.49 Some of them emphasized at the same time that the implementation procedures should be mandatory. Italy expressed its opinion that these provisions would render the dialogue between the Committee and the reporting State more effective and added that the gravity of torture and other similar treatment or punishment does require more advanced implementation provisions than those established by Article 40 CCPR and its OP.50 Finland, New Zealand, Norway, Ireland, and the Syrian Arab Republic expressed overall support and acceptance of the text but did not specifically mention Article 19(3) and (4).