6 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. Although the proposal by the IAPL did not contain any form of inter-State communication procedure, such a procedure was provided for in the original Swedish proposal under its Article 18. In this proposal, the Human Rights Committee was envisaged as a treaty monitoring body for the CAT as well, and as such could receive communications to the effect that another State is not fulfilling its obligations under the Convention. Nevertheless, it was further proposed that communications could only be issued by a State which had made a declaration explicitly recognizing the competence of the Human Rights Committee with respect to this communication procedure, and could only be issued against a State which had done so as well. Further, Article 19 provided for the establishment of an ad hoc Conciliation Commission which would be set up according to the provisions provided for in Article 42 CCPR.
7 In 1978, however, several States made written comments regarding Article 18 of the original Swedish draft.7 Austria generally supported the possibility for the Human Rights Committee to receive communications.8 Spain argued that since the rules of application of the Covenant and the new Convention were basically identical, it was not able to see the added value of the new Convention in the fight against torture. It was suggested that the proposed texts would only lead to a duplication of instruments. Spain further pointed out that it was unlikely that States which had not signed the OP to the ICCPR would recognize the competence of the Human Rights Committee under Article 18 of the draft Convention.9
8 In 1981, the Dutch delegation submitted a document with comprehensive amendments to the Swedish draft.10 According to this text, the monitoring body of the (p. 573) Convention would no longer be the Human Rights Committee, but a new Committee composed of members of the Human Rights Committee would be established. The Dutch proposal also provided for a mandatory inter-State complaints procedure.11
9 The Committee began its real deliberations on the inter-State communications procedure only at the Working Group session in 1982.12 At this session, Sweden submitted a draft text on the implementation provisions,13 regulating the inter-State procedure under Article 31. In this document, the inter-State procedure was drafted along very similar lines to Article 41 CCPR. Contrary to the original Swedish proposal, it envisaged that the competence to receive and consider communications rested with an ad hoc body, the Committee against Torture. Some delegations expressed their support for the complaint procedure under Article 31.14 Others feared that with the establishment of an ad hoc Committee against Torture there would be a risk of duplication or even (worse) a conflict between the CCPR and CAT procedures.15 Another key element of the Swedish proposal of 1982 was the optional character of the inter-State procedure. In light of this, some delegations went so far as to question the overall value of two optional complaints procedures (individual and inter-State), and suggested omitting them from the Convention altogether.16 In any event, the majority of the Working Group delegations preferred an optional inter-State complaint procedure.17
10 During the 1982 Working Group session, an unidentified State delegation further argued that State complaints based on the fact that another State is failing to give effect to the provisions of the Convention could simply be considered as a ‘dispute’ between States on the interpretation or the application of the Convention. Consequently, there would be no need to give the allegation of non-respect of the obligations the character of a ‘complaint’ and no need to establish an inter-State complaints procedure. Such a ‘dispute’ should be subject to the procedures for peaceful settlement set out in the Charter of the United Nations. Thus, in the event of such a ‘dispute’, the States parties concerned should be obliged to submit it to a mandatory conciliation procedure. The delegation argued that this would be preferable since States would more easily accept conciliation, as it would fall in the generally accepted treatment of inter-States disputes under a treaty.18
11 The 1982 sessions went on with the submission by the Chairman-Rapporteur of a draft implementation provision introducing a mandatory conciliation procedure.19 The proposal was based on the conciliation procedure provided in the VCLT20and reflected the discussions held on the original Swedish draft, thus suggesting not to provide for an inter-State communication procedure, but only for a procedure regarding disputes. Such a proposal was not, however, supported by the delegations in the Working Group.21 Some States pointed out that the international treaties on which the Chairperson-Rapporteur (p. 574) based his draft were based on subjects of an entirely different character. Others expressed the opinion that there was a difference between disputes regarding the application of the Convention, such as disputes related to jurisdiction and extradition, and disputes concerning the occurrence of torture. Disputes over the non-respect of the provisions under the Convention and/or the occurrence of torture would be more naturally the subject of the complaints procedures. The complaint procedure included in the Swedish proposal was deemed preferable as it would not only involve the States parties, but also the implementation organ of the Convention.22
12 Consequently, in 1983, the Working Group discussed the inter-State complaints procedure on the basis of the Swedish draft. The Swedish delegation informed the Working Group that it wished to maintain its proposal. The discussions were rather brief and the Chairman referred to the extensive discussions concerning the inter-State complaints procedure in 1982. Only one State assured that it could accept an optional inter-State complaints procedure as suggested by Sweden, but that it could not accept a mandatory procedure. Thus, the Working Group temporarily closed its debate on this draft Article and decided that this question, as well as the mandatory conciliation procedure for disputes between States, would be discussed at a later stage when the final clauses were under consideration.23
13 In 1984, all Working Group members agreed on a final version of the provision which provided for an optional inter-State communication procedure according to the Swedish proposal. Subsequently, Article 31 of the Swedish proposal was adopted with some minor drafting changes, as Article 21 CAT.24