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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.19 State Reporting Procedure

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: 01 June 2023

Subject(s):
Torture — Treaties, entry into force — Treaties, interpretation

(p. 507) Article 19  State Reporting Procedure

  1. 1.  The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

  2. 2.  The Secretary-General of the United Nations shall transmit the reports to all States Parties.

  3. 3.  Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.

  4. 4.  The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1 of this article.

1.  Introduction

1  The State reporting process serves to monitor the implementation of human rights treaties at the national level and creates a basis for constructive dialogue between States and treaty bodies. It is the only mandatory monitoring mechanism included in all nine core human rights treaties and under two Optional Protocols (OP) to the Convention of the Right of the Child (CRC).1

2  Since Article 19 CAT was drafted according to the model of Article 40 CCPR, the following interpretation will take into account the similarities and differences between both provisions. As with Article 40 CCPR, the drafting process of Article 19 CAT was dominated by the fear of delegates from Socialist States that the examination of State reports by the Committee against Torture (CAT Committee or Committee) might lead to critical observations on States’ compliance by the Committee, which they considered as undue interference with State sovereignty. As the Convention only entered into force towards the end of the Cold War, this controversy between experts from Western and Socialist States, which had dominated the first ten years of the Human Rights Committee (HRC)’s practice, no longer played a significant role in the Committee against Torture.

3  States shall submit an initial report on their domestic implementation of the Convention within one year after the entry into force of the Convention and shall thereafter submit periodic reports on any new developments every four years. In addition, they might be requested by the CAT Committee to submit other additional or special reports on an ad hoc basis. The Committee dedicates a substantial amount of its meeting time to the consideration of State reports, which usually takes place in a spirit of constructive dialogue with State representatives. Contrary to the approach of Socialist States, which aimed at avoiding any country specific conclusions and recommendations, the Committee started adopting concluding observations on each State report in the early 1990s. These concluding observations contain both positive aspects and subjects of concern, but in the course of the years, the critical comments and recommendations have gradually become the main focus of the Committee’s conclusions. As of 2002, concluding observations are also subject to a special follow-up procedure, which has now become an integral part of the reporting cycle and a key mechanisms for assessing the impact of the Committee’s recommendations.

4  In principle, the State reporting procedure is a useful tool for States parties to regularly review the actual state of their compliance with the various obligations deriving from (p. 509) the Convention, including problems and difficulties encountered (self-assessment), and for the Committee to evaluate critically the respective State’s level of compliance (external assessment by an independent expert body). But, as with other reporting systems of human rights treaty bodies, the proper functioning of the reporting procedure before the CAT Committee is hampered by the problem of late or non-reporting.2 This problem seems to be particularly relevant for the reporting procedure under the CAT which is among the UN human rights treaty per lowest reporting rate.3

5  To date there have been several initiatives at the general UN level aimed at overcoming such problems and, more generally, strengthening the treaty bodies,4 the latest being the initiative of Navi Pillay started in 2009 and resulted in GA Resolution 68/268 of 2014.5 Inter alia, the proposal advanced by Pillay encouraged States to adopt a number of measures concerning the reporting procedures, ie to introduce a comprehensive reporting calendar, a simplified and aligned procedure, as well as measures aiming at strengthening the capacity of States to implement the treaties. In this spirit, also the Committee has, since it has been operational, developed various methods and mechanism aimed at improving the States parties’ compliance with their reporting duty. Most recently, for example, the Committee has adopted the so-called simplified reporting procedure, which substitutes the traditional reporting procedure for the States parties that have decided to accept it. The new procedure aims at facilitating the reporting process and strengthening the States parties’ capacity to fulfil their reporting obligations in a timely and effective manner.6

6  In addition to the reporting procedure itself, on the basis of its experience in the State reporting (and other) procedures, the Committee may also issue general comments on the interpretation of certain treaty provisions. So far, the Committee has adopted four general comments.

7  Finally, recognizing the crucial importance of civil society in the proper functioning of the reporting procedure, the Committee has since 2012 strengthened its policy on reprisals against individuals or organizations as a consequence for having communicated with the Committee.

8  After illustrating the different types of State reports, this article will provide an overview of the reporting procedure by looking at all its different steps, namely the submission of State reports; their consideration by the Committee; and, lastly, the adoption, publication of and follow-up to the concluding observations adopted by the Committee. (p. 510) The article then continues with an overview of the problem of overdue reports as well as on the measures so far taken in this regard; and concludes with a short survey on the Committee’s policy on reprisal following Article 19.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

9  Original Swedish Draft (18 January 1978)7

Article 16

States Parties 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 International Covenant on Civil and Political Rights (hereafter referred to in the present Convention as Human Rights Committee), reports or other information on measures taken to suppress and punish torture and other cruel, inhuman and degrading treatment or punishment. Such reports or information shall be considered by the Human Rights Committee in accordance with the procedures set out in the International Covenant on Civil and Political Rights and in the Rules of Procedures of the Human Rights Committee.

10  Swedish Proposal for Implementation Provisions (22 December 1981)8

Article 29

  1. 1.  The States Parties to the present Convention undertake to submit to the Secretary-General of the United Nations

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned, reports on the measures they have taken to give effect to their undertakings under the Convention; and

    2. (b)  subsequently, when so requested by the Committee, reports or other information relating to the application of the Convention.

  2. 2.  Such reports or other information shall be considered by the Committee which shall transmit such comments or suggestions relating to them as it may consider appropriate to the States Parties. The Committee may also transmit such comments or suggestions to the Economic and Social Council along with copies of the reports it has received from the States Parties.

  3. 3.  The States Parties may submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2 of this article.

11  Draft Implementation Provisions, Submitted by the Chairman-Rapporteur (1 February 1982)9

Article 18

  1. 1.  States Parties to the Convention undertake to submit to the Secretary-General of the United Nations reports on the measures they have taken to give effect to their undertakings under the Convention:(p. 511)

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned; and

    2. (b)  whenever any new measures have been taken; and

    3. (c)  when the group established in accordance with article 17 so requests.

  2. 2.  Such reports shall be considered by the group established in accordance with article 17, which shall transmit them with such comments and suggestions as it may consider appropriate to the States Parties. The group may also transmit such comments or suggestions to the Commission on Human Rights along with copies of the report it has received from the States Parties.

  3. 3.  The States Parties may submit to the group established in accordance with article 17 observations on any comments or suggestions that may be made in accordance with paragraph 2 of the present article.

12  Four Draft Articles on Implementation, with the Explanatory Note, Submitted by the Chairman-Rapporteur (24 December 1982)10

Article 19

  1. 1.  The States Parties undertake to submit to the Secretary-General of the United Nations reports on the measures they have taken to give effect to their undertakings under the Convention:

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned; and

    2. (b)  whenever any new measures have been taken; and

    3. (c)  when the Committee so requests.

  2. 2.  Such reports shall be considered by the Committee, which shall transmit them with such comments or suggestions as it may consider appropriate to the States Parties. The Committee may also transmit such comments or suggestions to the United Nations Commission on Human Rights along with copies of the reports it has received from States Parties.

  3. 3.  The States Parties may submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2.

13  Draft Resolution Submitted by the Netherlands (et al.) to the General Assembly (23 November 1984)11

Article 19

  1. 1.  The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

  2. 2.  The Secretary-General of the United Nations shall transmit the reports to all States Parties.

  3. 3.  Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the (p. 512) State Party concerned. That State Party may respond with any observations it chooses to the Committee.

  4. 4.  The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.

2.2  Analysis of Working Group Discussions

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).51 Thailand and Venezuela, however, objected to the wording of the respective paragraphs and to the mandatory implementation mechanisms, stating that it would bear the risk of interference in internal affairs of member States.52

30  At its thirty-ninth session in September 1984, the General Assembly formally dealt with the draft Convention. The Netherlands chaired several informal meetings in an attempt to reach a consensus on Articles 19 and 20.53 These meetings revealed that Western and Latin American States, along with some Asian and African States, supported the language of the Articles as they stood. The USSR and other Eastern European States were willing to adopt the Convention, but only if the procedures in question were made optional and if their proposal was adopted for the wording of Article 19. Support for expedited adoption of the Convention was not as robust among the general membership as it had been among the members of the Human Rights Commission. Objections were raised with regard to other Articles of the Convention, and some delegations favoured a return to the drafting table.

31  These considerations compelled Argentina, the Netherlands, and Sweden immediately to propose the adoption of the Convention and to submit, along with Bolivia, Colombia, Costa Rica, Denmark, the Dominican Republic, Finland, Gambia, Greece, Samoa, Norway, and Spain, a draft resolution to that effect. The Third Committee of the General Assembly thus included, in its annex, the text of the Working Group, without the respective brackets in Article 19 and 20.54

32  In reaction to these developments, the Ukrainian Soviet Socialist Republic, supported by Afghanistan, Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Mongolia, Poland, the USSR, and Vietnam, introduced amendments to the draft resolution which contained the terms ‘general comments’ instead of ‘comments or suggestions’ in Article 19(3) and only ‘comments’ instead of ‘comments or suggestions’ in Article 19(4).55 In addition, the Soviet Union and the Byelorussian Soviet Socialist Republic submitted other amendments to the draft resolution.56

(p. 517) 33  Eventually, the draft sponsors chose to seek consensus rather than further pursue confrontation.57 The draft as it stood would have resulted in several negative votes among the Soviet bloc and many abstentions from African and Asian States. This could have seriously weakened the chances for wide adherence to the Convention. Alternatively, there might have been no conclusive vote at all, which would have led to the reopening of the debate and a likely watered-down Convention. Since the sponsors regarded many of the demands put forth by the Soviet Union and other Eastern States to be unacceptable, they chose to compromise by deleting the words ‘or suggestions’ contained in Article 19(3) and (4). Following this amendment, the Chairman made clear that all other proposals should be withdrawn.58 Nevertheless, the sponsors later also accepted that the word ‘general’ be placed before ‘comment