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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.25 Signature and Ratification

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: 07 December 2023

Subject(s):
Torture — Treaties, interpretation — Treaties, ratification — Treaties, signature

(p. 651) Article 25  Signature and Ratification

  1. 1.  This Convention is open for signature by all States.

  2. 2.  This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

1.  Introduction

1  The Convention was adopted and opened for signature, ratification, and accession by GA Resolution 39/46 on 10 December 1984, the UN human rights day, without a vote. Article 25 stipulates how to become a party to the Convention by signature and ratification, while Article 26 regulates accession, which, in practice, also includes succession.1

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

2  IAPL draft (15 January 1978)2

Article XV

(Signature and accessions)

  1. 1.  This Convention is open for signature by all States.

  2. 2.  Any State which does not sign this Convention before its entry into force may accede to it thereafter.

Article XVII  (Depositing instruments of ratification)

This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

(p. 652) 3  Proposal for the Preamble and the Final Provisions of the Draft Convention, Submitted by Sweden (22 December 1980)3

Article A

  1. 1.  The present Convention is open for signature by all States at United Nations Headquarters in New York.

  2. 2.  Any State which does not sign the Convention before its entry into force may accede to it.

Article B

  1. 1.  The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

  2. 2.  Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

4  Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (31 January 1983)4

Article 25

  1. 1.  This Convention is open for signature by all States.

  2. 2.  This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

2.2  Analysis of Working Group Discussions

5  The Working Group discussed the final clauses including the provisions leading to Article 25 in its meetings in 19835 and 1984.6

6  During the Working Group’s discussion in 1983, which were based on the set of final clauses contained in the Swedish draft, participants pointed out a contradiction between Article A(2) and Article C(1) with respect to the possibility for accession prior to the Convention’s entry into force, which prompted the Chairman-Rapporteur to submit a revised set of final clauses at its eleventh meeting.7 In this version, the provisions referring to signature and ratification were joined in a new Article, now numbered as Article 25. Its wording already corresponded to the final version eventually adopted.

7  However, due to time constraints, the Working Group did not formally adopt any of the proposed final clauses. It rather decided to put the revised set of final clauses (p. 653) as proposed by the Chairman-Rapporteur in brackets to the annex of its report to the Commission on Human Rights.8 On 24 February 1983, the Working Group adopted this report without a vote.9

8  On 30 January 1984, the Working Group adopted Article 25 as contained in the annex to the 1983 report.10 After the conclusion of its deliberations, the Article was included without brackets in the report to the Commission on Human Rights11 and was eventually adopted by the General Assembly.12

3.  Issues of Interpretation

9  Article 25(1) opens the Convention for signature by all States. In accordance with Article 18(a) VCLT (Vienna Convention on the Law of Treaties), the signing of the Convention creates an obligation for the State ‘to refrain from acts which would defeat the object and purpose of the treaty’ and furthermore, entitles the State to proceed to ratification. The signature, however, neither establishes an obligation to ratify, nor the consent to be bound by the treaty. With respect to potential membership of the Convention, Article 25(1) takes a comprehensive approach by opening it for signature to all States. In contrast, non-member States of the United Nations, such as Switzerland at that time, could only sign and ratify CERD and the Covenants upon invitation by the General Assembly.13

10  Pursuant to Article 25(2) the Convention is subject to ratification. Ratification is an official and formal expression of a State’s consent to be bound by a treaty.14 In most democratic countries, such an expression has to be preceded by an approval by Parliament. The instrument of ratification is subsequently to be deposited with the Secretary-General of the United Nations, who is assigned the role of the depositary by the Convention. Article 77 VCLT provides for the functions of depositaries, which include, inter alia, the receiving of any signatures to the treaty and receiving and keeping custody of any instruments, or informing the States entitled to become parties to the treaty when the number of signatures or instruments of ratification or accession required for the entry into force of the treaty has been received.15

11  The Convention entered into force on 26 June 1987. Thirty days earlier, Denmark had been the twentieth State to express its consent to be bound by the Convention, and thus to submit the instrument of ratification with the Secretary-General. As of December (p. 654) 2017, 75 out of 162 States parties have joined the Convention by means of signature and ratification, 80 States have acceded to the treaty, and 7 States became parties by way of succession.16 Eight States became signatories to the Convention, but have not yet ratified it.17

Giuliana Monina

Footnotes:

1  See below Art 26, 3.

2  Draft Convention for the Prevention and Suppression of Torture Submitted by the International Association of Penal Law (1978) UN Doc E/CN.4/NGO/213.

3  Proposal for the Preamble and the Final Provisions of the Draft Convention Submitted by Sweden’ (1980) UN Doc E/CN.4/1427.

4  Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (1993) UN Doc E/CN.4/1983/WG.2/WP.15.

5  Report of the Working Group of the Commission on Human Rights (1983) UN Doc E/CN.4/1983/63.

6  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72.

7  E/CN.4/1983/WG.3/WP.15 (n 4).

8  E/CN.4/1983/63 (n 5) para 82; the revised set of final clauses did not include Art F, later Art 33, since no changes were proposed. It was therefore included in the appendix as formulated in the Swedish proposal (E/CN.4/1427, Art F).

9  E/CN.4/1983/63 (n 5) para 83; see also J Herman Burgers and Hans Danelius, United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 91.

10  E/CN.4/1984/72 (n 6) para 59.

11  ibid.

12  Report of the Third Committee, Thirty-ninth Session (1984) UN Doc A/39/708, para 18.

13  See eg Art 17 CERD, Art 48 CCPR, Art 26 CESCR.

14  Art 14(1)(a) VCLT. For more information on the ratification process and a template of the instrument of ratification see CTI and APT, ‘UNCAT Ratification Tool’ (2nd edn, 2016) <https://cti2024.org/content/images/CTI%20Ratification%20tool%20-%20executiveaction%20and%20annexes%20compilation%20Nov%20201…pdf> accessed 3 December 2017.

15  Art 77(1)(f) VCLT. See also below Art 27 OP.

16  See below Appendix A3.

17  In chronological order: Gambia (23 October 1985), Sudan (4 June 1986), India (14 October 1997), Bahamas (16 December 2008), Palau (20 September 2011), Haiti (16 August 2013), Angola (24 September 2013), Brunei Darussalam (22 September 2015). See below Appendices A3, A4.