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.
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.
14 E/CN.4/1982/L.40 (n 12) para 79.
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.
44 For an analysis of the CERD and CCPR procedures see ibid 780.
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).
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.
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.