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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.21 Inter-State Communications

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 28 January 2023

Subject(s):
Torture — Treaties, interpretation

(p. 567) Article 21  Inter-State Communications

  1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

    1. (a)  If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

    2. (b)  If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

    3. (c)  The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

    4. (d)  The Committee shall hold closed meetings when examining communications under this article;

    5. (e)  Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission;

    6. (f)  In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

    7. (g)  The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

    8. (p. 568) (h)  The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

      1. (i)  If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

      2. (ii)  If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

    In every matter, the report shall be communicated to the States Parties concerned.

  2. 2.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

1.  Introduction

As most contemporary human rights treaties, the Convention against Torture provides for the establishment of a series of monitoring procedures aiming at enforcing the compliance of States parties with their respective treaty obligations.1 As with other human rights treaties,2 the CAT allows States Parties to complain about alleged violations of the treaty by another State Party through the inter-State communication procedure.3

(p. 569) The inter-State communication procedure represents the weakest monitoring procedures under the Convention. As of December 2017, only 63 out of a total of 162 States parties have made the optional declaration under Article 21(1) recognizing the competence of the Committee against Torture to receive and consider inter-State communications. To date none of them has ever resorted to such procedure. Despite this, the article below will give an overview of how this procedure works.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Swedish Draft (18 January 1978)4

Article 18

  1. 1.  A State party may at any time declare under this article that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Human Rights Committee. No communications shall be received by the Human Rights Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  Communications received under this article shall be dealt with in accordance with the procedure provided for in article 41 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Committee.

Article 19

If a matter referred to the Human Rights Committee in accordance with article 18 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission. The procedures governing the Commission shall be the same as those provided for in article 42 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Swedish Proposal for Implementation Provisions (22 December 1981)5

Article 31

  1. 1.  A State Party to the present Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. (p. 570) Communications received under this article shall be dealt with in accordance with the following procedure.

    1. (a)  If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter.

    2. (b)  If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State.

    3. (c)  The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

    4. (d)  The Committee shall hold closed meetings when examining communications under this article;

    5. (e)  Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc Conciliation Commission.

    6. (f)  In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.

    7. (g)  The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.

    8. (h)  The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report:

      1. (i)  If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.

      2. (ii)  If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

      3. (iii)  In every matter, the report shall be communicated to the States Parties concerned.

  2. 2.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such (p. 571) a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Draft Implementation Provisions, Submitted by the Chairman-Rapporteur (1 February 1982)6

Article 20

  1. 1.  The States Parties to the Convention shall seek a solution to any dispute that may arise between them concerning the interpretation or application of the Convention through the means indicated in article 33 of the Charter of the United Nations.

  2. 2.  The existence of such a dispute shall particularly be recognized when a State Party to the Convention has addressed to another State Party a written communication alleging that this other State Party has failed to fulfil of its obligations under the Convention and the State Party to whom the communication has been addressed denies the allegation or fails to reply within 45 days.

  3. 3.  If after the expiry of a period of 45 days after the existence of the dispute is recognized the States Parties concerned have not agreed on another method of settlement, any of them may set in motion the procedure of conciliation specified in the Annex to the present Convention, through a request made to the Secretary-General of the United Nations.

Annex

  1. 1.  A list of conciliators consisting of persons of high moral character and recognized competence in the field of human rights shall be maintained by the Secretary-General of the United Nations. To this end, every State Party to the Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of conciliator, including that of any conciliator nominated to fill a vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraphs.

  2. 2.  When a request has been made to the Secretary-General in accordance with article 20, paragraph 3, of the Convention, the Secretary-General shall bring the dispute before a Conciliation Commission constituted as follows.

    The State or States constitution one of the parties to the dispute shall appoint:

  3. (a)  one conciliator of the nationality of that State or one of those States, who may or may not be chosen from the list referred to in paragraph 1, and

  4. (b)  one conciliator of the nationality of that State or of any of those States, who shall be chosen from the list.

    The State or States constituting the other party to the dispute shall appoint two conciliators the same way. The four conciliators chosen by the parties to the dispute shall be appointed within 45 days following the date on which the Secretary-General receives the request.

    The four conciliators shall, within 45 days following the appointment of the last of them, appoint a fifth conciliator from the list, who shall be the chairman of the Conciliation Commission.

    (p. 572) If the appointment of the chairman or any of the other conciliators has not been made within the period prescribed above for such appointments, it shall be made by the Secretary-General within 45 days following the expiry of that period. Any of the periods within which the appointments must be made may be extended by agreement between the parties to the dispute.

    Any vacancy shall be filled in the manner prescribed for the initial appointment.

  5. 3.  The Conciliation Commission shall decide its own procedure. Decisions and recommendations of the Commission shall be made by a majority vote of five members.

  6. 4.  The Commission shall hear the parties to the dispute and examine the claims and objections. It may make recommendation at any time and shall present a Final Report within 180 days after its constitution. The report, and any recommendation made by the Commission, shall not be binding upon the parties and shall have no other character than that of recommendations submitted for the considerations to the parties.

  7. 5.  The Secretary-General shall provide the Commission such assistance and facilities as it may require for the performance of its function. The expenses of the Commission shall be borne by the United Nations.

2.2  Analysis of Working Group Discussions

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.

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

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

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

3.  Issues of Interpretation

3.1  Scope of Application

14  As recalled in the introduction, similarly to other international treaties, the CAT allows States parties to complain about alleged violations of the treaty by another State party. This inter-State communication procedure is regulated by Article 21 and Rules 91 to 101. Article 21 CAT is taken almost literally from Article 41 CCPR.

15  Pursuant to Article 21(1), a State party may submit a communication when it claims that ‘another State party is not fulfilling its obligations under this Convention’. On the other hand, the wording of Article 21(1)(a) is different, stipulating that a State party may bring its initial written communication to another State party if it considers that the latter ‘is not giving effect to the provisions of this Convention’. The formulation of both provisions indicates, however, that the subject of an inter-State communication may relate to any alleged violation of a substantive or procedural provision of the Convention. (p. 575) For instance, a State party may complain that another State party has practised torture in violation of its prevention duty under Article 2; has violated the non-refoulement principle under Article 3; has not exercised universal jurisdiction in accordance with Articles 5(2) and 7; or has not complied with any of its reporting obligations under Article 19.

16  The scope of application of Article 21 should also be read in conjunction with Article 30 on dispute settlement. As it was seen in the analysis of the travaux préparatoires, the opportunity to include a procedure on inter-State communications and/or dispute settlement was widely discussed during the Working Group sessions. Eventually, it was decided that the Convention should include both. The Convention, however, does not explicitly regulate the relationship between the two articles and thus the question arises as to whether they have the same scope of application.25 For example, the question remains open as to whether a State’s claim that another State is systematically practising torture can be considered only under Article 21 or also under Article 30 as a dispute between States. During the drafting history some delegations pointed out 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. In the latter case especially, it seemed important that the matter was not exclusively dealt with between the States parties and that the Committee would be involved in the matter.26

3.2  Optional Character

17  Though the drafting history of the Convention shows that a mandatory inter-State complaints procedure had been discussed,27 all Working Group members had eventually agreed on an optional inter-State communication procedure. The optional character of the procedure implies that every State party may submit a declaration recognizing the Committee’s competence to receive and consider inter-State communications.28

18  As of December 2017, 63 out a total of 162 States parties have made the optional declaration under Article 21.29 There are several reasons for the reluctance of States to make the optional declaration and/or to lodge inter-State complaints:

  • •  Inter-State complaints represent the traditional means of States to solve disputes amongst themselves under international law. However, since human rights violations do not constitute disputes between States, this means of conflict resolution is not considered an adequate remedy. But individual complaints against States to an international monitoring body were only gradually accepted as a more appropriate means to hold States accountable. In the early days of international human rights protection, inter-State complaints were, therefore, regarded as a substitute.

  • •  The submission of a formal complaint against another State accusing it of violating human rights constitutes an unfriendly act. In the 1950s and 1960s, when the UN Human Rights Commission was blocked by the ‘no power to take action doctrine’, this seemed, however, the only effective method by which States could express their concerns about gross and systematic human rights violations in other States. Today, (p. 576) there are many less formal and more effective ways and means for States to raise human rights concerns in the Human Rights Council, the General Assembly, and even in the Security Council.

  • •  In certain cases, such as the situation of gross and systematic human rights violations in Greece during the military dictatorship of the late 1960s, or in Turkey during the military regime of the early 1980s, a joint inter-State complaint lodged by a group of States30 might be more effective than many individual complaints. But this only holds true if the inter-State complaint can lead to a final decision by an independent human rights monitoring body. Under UN human rights treaties, the procedure is, however, much weaker than under regional human rights treaties or respective ILO procedures.

  • •  With respect to the CAT, it is more effective for States to provide the Committee with reliable information about the systematic practice of torture and to request it to start an ex officio inquiry under Article 20 CAT,31 because this procedure leads to a quasi-judicial assessment of the situation and to suggestions of how to improve it.

19  The procedure functions on a reciprocal basis. At the time a communication is submitted by State A against State B, both States must have made the relevant declaration in accordance with Article 21(1). The wording of Article 21 clearly states that the reciprocity relates to the date on which the communication is submitted to the Committee and not to the date of the alleged violation. Thus, a State party may submit a communication to the Committee although it had not yet made the declaration of the Committee’s competence on the day of the alleged violation. In other words, a State party may issue such a declaration and the next day transmit a communication to another State party about a human rights violation which occurred several years ago, but still after the entry into force of the Convention for the State party concerned.32

20  Under Article 21(2) States parties may also withdraw at any time their previously made declarations recognizing this optional procedure by notification to the Secretary-General. Such a withdrawal ‘shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article’. As a consequence of the withdrawal, ‘no further communication by any other State party shall be received’. Since Article 21 uses the term ‘communication’ to describe both the initial communication by State A to State B (Article 21 (1) (a)) and the communication to the Committee (Article 21 (1) (b)), this provision requires some interpretation. While this was not elaborated on during the drafting phase of the CAT, the same issue was discussed when Article 41(2) of the CCPR was drafted. Hence, an analysis of the travaux préperatoires of the CCPR can provide some clarity. During the discussion in the third Committee of the GA, the position prevailed that the term ‘communication’ refers not to the communication to the Committee but rather to the initial communication by State A to State B. Otherwise, it would be possible for State B to withdraw its declaration after receipt (p. 577) of the initial communication and thereby to avoid the adoption of the matter by the Committee.33 Similarly, it can be concluded that a withdrawal, pursuant to Article 21(2) CAT, does not have an effect on any existing communications but simply precludes the acceptance of new communications. To date no State party has withdrawn its previous declaration under Article 21.

3.3  Procedure

3.3.1  Preliminary Procedure (Article 21(1)(a))

21  Before the Committee can receive a communication the complaining State must first try to resolve the matter by sending a written communication to the State accused of not giving effect to the provisions of the Convention. Pursuant to Article 21(1)(a), within three months after the receipt of the communication, the receiving State shall give the State which sent the communication an explanation or any other statement in writing clarifying the matter. If appropriate and possible, the communication should include references to domestic procedures and remedies taken, pending, or available on the matter.

3.3.2  Notification of the Committee (Article 21(1)(b))

22  If the matter is not treated to the satisfaction of both States concerned within six months after the State has received the written communication, both States may refer the matter to the Committee by giving notice both to the Committee and the other State. Rule 92(2) RoP requires that the communication referred to the Committee shall contain, or be accompanied by information regarding (a) steps taken to adjust the matter in accordance with Article 21(1)(a) and (b), including the text of the initial communication and any subsequent written explanation or statement by the States parties; (b) steps taken to exhaust domestic remedies; (c) any other procedure of international investigation or settlement resorted to by the States parties concerned.34 The Secretary-General maintains a permanent register of all inter-State communications received by the Committee.35

3.3.3  Admissibility Requirements (Article 21(1)(b) and (c))

23  In addition to the declaration under Article 21, two additional requirements must be respected for the Committee to consider an inter-State communication: the six month time limit prescribed in Article 21(1)(b); and the exhaustion of domestic remedies as required by Article 21(1)(c).36

24  Under the latter requirement, the Committee may only consider a communication if all domestic remedies have been invoked and exhausted. The exhaustion of domestic remedies requirement in Article 21(1)(c) is subject to conformity with the ‘generally recognized principles of international law’.37 However, as established in the final sentence of Article 21(1)(c), there are two exceptions to this admissibility requirement: the first applies when the remedy is unreasonably prolonged, the second when the remedy is (p. 578) ‘unlikely to bring effective relief to the person who is the victim of the violation of this Convention’.38

25  Article 21, however, does not contain any provision to the effect that the Committee shall not consider an inter-State communication if the same matter has already been examined under, or is pending before, another procedure of international investigation or settlement. In contrast, Article 22(5)(a) prohibits the double consideration of individual communications. The absence of the non-duplication principle with respect to the inter-State communications procedure corresponds to international practice and points to the fact that States and individuals are different legal subjects under international law. While individuals should not be encouraged to submit multiple complaints on the same subject, States ‘should be able to use cumulatively every peaceful means of settling disputes’.39 But Rule 92(c) requires the complaining State when referring the matter to the CAT Committee to inform it of any other international procedure to which it had previously resorted. Even if one of the States parties concerned has referred the same dispute to an arbitration mechanism or the ICJ in accordance with the procedure foreseen in Article 30 CAT, the Committee would not be empowered to declare the communication inadmissible.40

26  Although no other admissibility requirements are mentioned in this Article, the Committee must nonetheless examine whether the communication is compatible with the Convention ratione materiae, loci, personae, and temporis. If the alleged violation concerns an obligation which is either not contained in the Convention or which occurred before the entry into force of the Convention for the State party concerned, the Committee may declare such communication inadmissible ratione materiae or temporis, respectively.

3.3.4  Friendly Solution (Article 21(1)(e))

27  The main function of the Committee in the inter-State communication procedure is to mediate, that is to ‘make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention’ in accordance with Article 21(1)(e).41 As soon as the Committee has declared an inter-State communication admissible, it shall attempt to mediate between the States parties concerned. The procedure for dealing with inter-State communications represents a pure mediation and conciliation procedure without the possibility of a final decision if the efforts to reach conciliation fail.42

28  On the other hand, a friendly solution must be reached ‘on the basis of respect for the obligation provided for in this Convention’. Thus, it is important that the Committee does not simply mediate between the States parties concerned, but that it ensures that any (p. 579) friendly solution is based on the respect for the obligations under the CAT, as required by Article 21(1)(e). One should bear in mind that an inter-State complaints mechanism does not relate to a classical dispute among States, which might be settled by means of compensation or trade-offs, but to allegations of serious human rights violations relating to the absolute and non-derogable prohibition of torture and ill-treatment. If the Committee finds that torture is indeed practised systematically in the State party against which a communication had been lodged, it would not be compatible with this provision if that State offered to pay a certain amount of compensation to the State party which had submitted the communication. The State found to violate the obligations under the Convention would have to ensure by legislative and other measures that the systematic practise of torture stops, that the victims of torture are provided with adequate reparation in accordance with Article 14 CAT, and that the perpetrators of torture are brought to justice.

3.3.5  Ad Hoc Conciliation Commission (Article 21(1)(e))

29  Article 21(1)(e) further stipulates that ‘when appropriate’ the Committee may establish an ad hoc Conciliation Commission for the purpose of its activities in the context of its good offices.

30  Conciliatory Commissions are equally envisaged in other UN treaties, such as the CERD (Articles 11 to 13) and the CCPR (Article 42). Each of the three treaties, however, regulate the ad hoc Commission in a different manner. While the procedure under the CCPR is triggered only if the Human Rights Committee failed its efforts to achieve a friendly solution,43 the CAT does not set up a similar condition and simply states that the Committee may set up an ad hoc Conciliation Commission if it finds it ‘appropriate’, which means for example also at an early stage of the proceedings. In both treaties, however, the establishment is optional. Yet, unlike the Human Rights Committee, the CAT Committee does not need the prior consent of the States parties concerned. In contrast, the setting up of an ad hoc Commission under CERD is mandatory and envisaged as a second phase after the CERD Committee has collected all relevant information on admissibility and fact-finding. Under CERD, the Commission shall additionally submit a report including its findings on the relevant factual questions and recommendations for resolving the dispute.

31  Whilst the CERD and CCPR include elaborate provisions on the establishment and functioning of such ad hoc Commissions,44 the CAT simply confers the power to establish a Commission to the CAT Committee but is silent on the composition, mandate, and procedure that the ad hoc Commission should have.45 Since the RoP also do not contain any provisions to this effect, it will be up to the Committee, when establishing such a Conciliation Commission, to amend its RoP or else leave this entirely up to the Conciliation Commission itself. To facilitate the achievement of an amicable solution it seems, however, useful to appoint the members of the Conciliation Commission in agreement with the States parties concerned, as provided for in Article 42(1)(b) CCPR.46 As it currently stands, Article 42 CCPR has the potential to serve as a model for conciliation if ever the Committee against Torture is confronted with a disagreement or inter-State communication to that effect.

(p. 580) 3.3.6  Other Procedural Provisions (Article 21(1)(d), (f), (g))

32  The inter-State communication procedure is confidential. This follows from the requirement of Article 21(1)(d) that the Committee shall hold closed meetings when examining such communications.

33  Furthermore, pursuant to subparagraph (g), States Parties have the right to be represented when the matter is being considered by the Committee and make submissions, except during the Committee’s deliberations on the report.47 For this reason, the States parties concerned shall be informed of the opening date and duration of the session as early as possible.48 In addition, Rule 96 provides that the Committee, after consultation with the States parties concerned, may issue communiqués for the use of the information by the media and the general public regarding its activities under Article 21, including during ongoing proceedings.

34  Finally, under Article 21(1)(f), the Committee may request States Parties to submit additional information,49 and set up a deadline for the submission of the requested information.50

3.4  Conclusion of the Procedure and Report (Article 21(1)(h))

35  Unlike the individual complaints procedure, under Article 21 the Committee is not empowered to adopt a decision, but can only ‘submit a report’. Such report shall be adopted within twelve months after having received the notice by one of the States parties concerned.

36  Pursuant to Article 21(1)(h) if a solution is reached (due to the good offices provided by the Committee) the report shall be confined to a brief statement of the facts and of the solutions reached.51 If the attempts of the Committee, and perhaps also of the ad hoc Conciliation Commission, to reach a friendly solution fail, the Committee shall submit a report which shall, according to Article 21(1)(h)(ii), contain a brief statement of the facts as well as the written and oral submissions of the States parties concerned.52

37  Although the final report of the Committee shall not contain any legal assessment whether or not the State party concerned violated its obligations under the Convention, it shall in any case (whether a friendly solution has been achieved or not) contain a ‘brief statement of the facts’. This requires at the very least, a minimum of fact-finding as well as the evaluation of such facts. But Article 21(1)(h), in contrast to Article 20(3), does not authorize the Committee to carry out fact-finding missions to the territory of the State party concerned. It may only call upon the States parties concerned to ‘supply any relevant information’ pursuant to Article 21(1)(f) and Rule 99 as well as to hold oral hearings in accordance with Article 21(1)(g) and Rule 100. Although neither the Convention nor the RoP use the term ‘oral hearing’, this clearly derives from the right of the States parties concerned under Article 21(1)(g) ‘to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing’.53

38  Taking into account that the Committee only meets a few times a year, it seems very difficult for it to carry out its various fact-finding and mediation functions, including oral hearings and the establishment of an ad hoc Conciliation Commission, within one year. Nevertheless, the Committee is required to submit a report. In practice, such a report will most likely only be of a preliminary nature, since nothing in the Convention (p. 581) prevents the Committee from continuing its fact-finding and mediation efforts after this date and supplementing its preliminary report with a concluding report at a later stage.

39  Although the Committee is not authorized to make a legal assessment as to whether or not the State party concerned violated its obligations under the Convention, the statement of the facts, of course, contains a certain evaluation whether or not torture was in fact practised or whether other obligations were implemented or violated. It would, therefore, also be advisable for the Committee to provide for a certain follow-up to such a report to ensure that the State party concerned complies with the terms of the friendly solution. In particular, nothing would prevent the Committee from ex officio initiating an inquiry procedure under Article 20 CAT on the basis of the information which it received in the course of an inter-State communications procedure, provided that such information is reliable and contains well-founded indications that torture is being systematically practised in the territory of the State party concerned. In this case, the Committee would be authorized to conclude with a legal assessment, findings, and suggestions and to include at least a summary account of the results of the proceedings in its annual report.54 Finally, any State party concerned is authorized to submit this unsolved dispute to another arbitration mechanism and, in the last instance, to the ICJ under the procedure provided for in Article 30.55

40  The Convention is silent regarding the possibility of publishing the final report or at least a summary account of the results of the proceedings in the annual report, as provided for in Article 20(5). The fact that the report, according to the last sentence of Article 21(1), shall be communicated only to the States parties concerned may be used as an argument against such publication.56 On the other hand, the confidentiality requirement described above only refers to ‘meetings’, and similar provisions relating to the individual complaints procedure in Article 22(6) and (7) have not prevented the Committee, along with other UN treaty monitoring bodies, from publishing the full text of all final decisions in the annual reports. It follows, therefore, that the Committee is authorized also to publish the full text of its reports under Article 21(1)(h).57

3.5  Entry into Force (Article 21(2))

41  Article 21(2) provides that the inter-State communication procedure shall enter into force when five States Parties had made a declaration under Article 21(1). The low number of signature required by the Convention was meant to facilitate the entry into force of the provision, avoiding that the mechanism would enter into force only years after, as it happened for Article 41(2) CCPR.58 In practice, the inter-State communication procedure entered into force, together with the Convention on 26 June 1987.59 The first five States parties to accept the CAT inter-State procedure were: Argentina, France, Norway, Sweden, and Switzerland.60

Giuliana Monina

Footnotes:

1  Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 279.

2  Inter-State communications procedure are similarly envisaged by the following UN human rights treaties: CCPR (arts 41–43); CERD (arts 11, 12); CESCR-OP (arts 10); CRC-OP- IC (art 12); CMW (art 76); CED (art 32). Similarly, among regional mechanisms see ECHR (art 24); ACHR (art 45); ACHPR (art 47).

3  In the present article the terms inter-State communication procedure and inter-State complaint procedure are used interchangeably.

4  Draft Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285.

5  Draft Articles Regarding the Implementation of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1981) UN Doc E/CN.4/1493.

6  Draft Implementation Provisions of the International Convention Against Torture and Other Cruel, Inhumane or Degrading treatment or Punishment Submitted by the Chairman-Rapporteur of the Working Group (1982) UN Doc E/CN.4/1982/WG.2/WP.6.

7  E/CN.4/1285 (n 4); see above § 3. For comments see Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314.

8  E/CN.4/1314 (n 7) para 109.

9  ibid, paras 110–12.

10  Amendments to the Swedish Proposals Submitted by the Netherlands (1981) UN Doc E/CN.4/1981/WG.2/WP.3.

11  J 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) 75.

12  Report of the Working Group of the Commission on Human Rights (1982) UN Doc E/CN.4/1982/L.40; see also Boulesbaa (n 1) 281.

13  E/CN.4/1493 (n 5).

14  E/CN.4/1982/L.40 (n 12) para 79.

15  ibid.

16  ibid.

17  ibid, para 80.

18  ibid, para 81.

19  ibid, para 82.

20  VCLT, Art 66 (b) and Annex. See also Boulesbaa (n 1) 282.

21  E/CN.4/1982/WG.2/WG.6 (n 6).

22  E/CN.4/1982/L.40 (n 12) paras 82–83.

23  Report of the Working Group of the Commission on Human Rights (1983) UN Doc E/CN.4/1983/63, paras 63–64.

24  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 57. Main differences to Art 41 ICCPR: Art. 21(1)(c) regarding requirement of exhaustion of domestic remedies adds exception where it ‘is unlikely to bring effective relief to the person who is the victim of the violation of this Convention’; Art 21(1)(e) makes reference to a friendly solution on the basis of ‘respect for the obligations provided in this Convention’. In contrast to the CCPR, the CAT is silent on the establishment and functioning of an ad hoc Conciliation Commission. Art 21 enters into force when five States parties have made a declaration under paragraph 1; see Burgers and Danelius (n 11) 165.

25  Under Article 21(1), a State party may claim that ‘another State party is not fulfilling its obligations under this Convention’. Art 30(1), however, refers to a ‘dispute between two or more States Parties concerning the interpretation or application of this Convention’.

26  E/CN.4/1982/L.40 (n 12) paras 82–83.

27  E/CN.4/1981/WG.2/WP.3 (n 10); Burgers and Danelius (n 11) 75.

28  Art 21(1); see also Rule 91.   

29  For more details see Appendices A3 and A4.

30  See the respective inter-State complaints lodged by the Governments of Denmark, Netherlands, Norway and Sweden v Greece App nos 3321–3323, 24 January 1968 and CM Resolution DH (70) 1 of 15 April 1970 and App 3344/67, 31 May 1968, CM Resolution DH (74) 2 of 26 November 1974; and by the Governments of Denmark, France, the Netherlands, Norway and Sweden v Turkey App nos 9940–9944/82, 6 December 1983, resolved through friendly settlement.

31  See also Chris Ingelse, United Nations Committee Against Torture: An Assessment (Kluwer Law International 2001) 200.

32  Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) (CCPR Commentary) 763.

33  Nowak, CCPR Commentary (n 32) 763.

34  See below 3.3.3, on the requirements for admissibility.

35  CAT, ‘Rules of Procedure, as Lastly Amended by the Committee at its Fiftieth Sessions (06 May 2013–31 May 2013)’ (2014) UN Doc CAT/C/3/Rev.6, Rule 93.

36  See also Rule 97 (b) and (c) respectively.

37  On the requirement to exhaust domestic remedies as a recognized principle of international law see also Nowak, CCPR Commentary (n 32) 768.

38  See eg TPS v Canada, No 99/1997, UN Doc CAT/C/24/D/99/1997, 16 May 1999, para 10.1; for examples by the HRC see Ländsmann v Finland, No 511/1992, CCPR/C/52/D/511/1992, 26 October 1994, para 6.2; Faurisson v France, No 786/1997, CCPR/C/58/D/550/1993 19 July 1995, para 6.1. The second exception concerning ineffective remedies is not included in any other UN human rights treaties see eg ICCPR (art 41(1)(c)); CESCR-OP (art 10 (1)(c)); CERD (art 11 (3)); and CMW (art 76 (1) (c)), which all provide only that domestic remedies shall not be unreasonably prolonged. The texts of CED (art 32) and the CRC-OP- IC (art 12) do not provide any exception of this kind. For an example by the ECtHR see Ireland v the United Kingdom (1978) Series A no 25.

39  See Manfred Nowak, Dorothea Steurer, and Hannes Tretter (eds), Fortschritt im Bewußtsein der Grund- und Menschenrechte: Progress in the Spirit of Human Rights: Festschrift für Felix Ermacora (Engel 1988) 189; Nowak, CCPR Commentary (n 32) 763.

40  On the relationship between the Arts 21 and 30 see below Art 30, 3.4.

41  Rule 98; in this sense see also Ingelse (n 31) 198.   

42  cf Nowak, CCPR Commentary (n 32) 759.

43  ibid 777ff.

44  For an analysis of the CERD and CCPR procedures see ibid 780.

45  ibid 777ff.

46  Article 42(1)(b) CCPR states that ‘The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission, the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members.’

47  Rules 100 and 101 (2).   

48  Rule 100.   

49  Rule 99.   

50  Rule 99.

51  Article 21(1)(h)(i) CAT.

52  Article 21(1)(h)(ii) CAT.

53  On the possibility of oral hearings in the individual complaints procedure see below Art 22, § 155.

54  See above Art 20.

55  See below Art 30.

56  See also r 101(3).

57  In this sense see also Ingelse (n 31) 199.

58  Art 41 of the CCPR required ten declarations. The CCPR inter-State procedure entered into force only on 28 March 1979, that is, more than three years after the Covenant.

59  For the entry into force of the Convention see below Art 27.

60  Declarations were made on 2 December 1986. See A/43/46, Annex I. But see A/61/44, Annex III, which indicates that Uruguay might have made its declaration on 24 October 1986, ie before Switzerland. According to the latter annual report, seven States parties (including Hungary which at that time was a still a Socialist State) had recognized the inter-State communication procedure by the date of entry into force of the Convention on 26 June 1987.