Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.27 Entry into Force
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
- Subject(s):
- Torture — Treaties, entry into force — Treaties, interpretation
(p. 663) Article 27 Entry into Force
1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.
1. Introduction
1 On 26 June 1987, the Convention against Torture entered into force. Thirty days earlier, Denmark had submitted its instrument of ratification with the Secretary-General, passing the threshold of twenty instruments for the treaty’s entry into force as stipulated in Article 27(1). Reflecting the importance of this date, the UN General Assembly (GA) adopted in 1998 a resolution1 following a recommendation of ECOSOC in which it declared 26 June as the International Day in Support of Victims of Torture.
2 As of December 2017, a total of 162 States were parties to the CAT. Compared with the number of States parties to other international human rights treaties, such as CRC (196 parties), CEDAW (189), CERD (179), the CCPR (169), or the CESCR (166), the Convention ranks somewhat lower. This seems surprising as the prohibition of torture constitutes jus cogens under international law.
3 As provided by Article 27, the Secretary-General acts as depositary. According to Article 77(1)(f) VCLT, this function also includes the task of informing ‘the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited’.
(p. 664) 2. Travaux Préparatoires
2.1 Chronology of Draft Texts
4 IAPL draft (15 January 1978)2
Article XIX
(Entry into force)
1. This Convention shall enter into force on the thirtieth day after the deposit of the tenth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the tenth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.
5 Proposal for the Preamble and the Final Provisions of the Draft Convention, Submitted by Sweden (22 December 1980)3
Article C
1. The present Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying the present Convention or acceding to it after the deposit of the tenth instrument of ratifications or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.
6 Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (31 January 1983)4
Article 27
1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the [twentieth] instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the [twentieth] instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.
2.2 Analysis of Working Group Discussions
8 In 1983, the discussion on Article C of the Swedish draft set of final clauses focused mainly on the number of ratifications or accessions necessary for the entry into force of the Convention. Some delegations favoured a threshold of thirty-five ratifications or (p. 665) accessions, similar to Article 49 CCPR and Article 27 CESCR. Other delegations deemed such a high number neither necessary nor desirable and referred to other instruments such as the OP to the CCPR or the CEDAW, requiring a substantially lower number of ratifications or accessions (ten and twenty ratifications or accessions, respectively).7
9 With regard to Article C(2), providing for the possibility to accede to the Convention before its actual entry into force, the Working Group observed a contradiction with Article A(2) of the same proposal, since the latter only allowed for an accession after its entry into force. The solutions put forward included, inter alia, the deletion of the words ‘or accession’ in Article C(1), keeping the Convention open for signature indefinitely as well as allowing for accession right from the beginning, or introducing changes in Article A(1) allowing signatures only for a limited time period.8
10 Reflecting the above summarized discussions, the Chairman-Rapporteur submitted to the Working Group a revised version of the final clauses.9 As a new threshold for the Convention’s entry into force, the proposed Article, now numbered as Article 27, struck a balance between the earlier voiced opinions with the requirement of twenty instruments of ratification or accession.
11 Due to time constraints, the Working Group eventually did not formally adopt any of the proposed final clauses in 1983, but decided to put the revised set of final clauses as proposed by the Chairman-Rapporteur in brackets to the annex of its report to the Commission on Human Rights.10 On 24 February 1983, the Working Group adopted this report without a vote.11 On 30 January 1984, the Working Group finally adopted Article 27 without any further changes.12
3. Issues of Interpretation
12 While the two principal human rights Covenants, the CCPR and CESCR, required thirty-five ratifications or accessions for entering into force, which in fact happened only ten years after their adoption by the GA,13 the drafters of Article 27(1) CAT finally agreed on a compromise of twenty States, which is in line with other similar human rights treaties.14 The first twenty States that had signed and ratified or acceded to the Convention were Sweden, Mexico, France, Belize, the Philippines, Egypt, Norway, Senegal, Argentina, Uruguay, Uganda, Switzerland, Bulgaria, Cameroon, the Ukrainian Soviet Socialist Republic, the Soviet Union, the Byelorussian Soviet Socialist Republic, Afghanistan, Hungary, and Denmark. The latter had submitted its instrument of ratification on 27 May 1987, triggering the thirty-day period for the entry into force of the Convention. Consequently, the Convention entered into force on 26 June 1987, less than three years after its adoption on 10 December 1984. For all States that ratified or (p. 666) acceded to the Convention after this date, it entered into force on the thirtieth day after the deposit of its respective instrument. The instrument of Austria’s ratification was, for example, received on 29 July 1987, which meant that the Convention entered into force on 28 August 1987. The same holds true for accessions. The date of receipt of instruments of succession is, however, of no legal significance as the successor State only declares that it has taken over the obligations from its predecessor State as from the date of independence, or another date indicated by the successor State. In its earlier annual reports, the Committee had wrongly indicated the date of independence as the date of receipt of the respective instrument of succession, whereas more recent reports indicate the actual date of receipt.15 If a successor State, for whatever reason, chooses to deposit an instrument of accession, the Committee treats it as a new State which became a party on the thirtieth day after the deposit of its instrument of accession.16
13 The reference to ratification and accession in both paragraphs of Article 27 clarifies that accession can take place both prior to and after the entry into force of the Convention. This question caused much confusion and discussion during the drafting of Articles 25 to 27.17 In fact, five States (Belize, the Philippines, Egypt, Uganda, and Cameroon) had acceded to the Convention before its entry into force.18 Since the Convention does not indicate any deadline for signature, States may still sign the Convention and ratify it thereafter. In fact, Andorra for example signed on 5 August 2002 and San Marino on 18 September 2002. States are completely free to choose between signature and ratification on the one hand, and accession on the other, both before and after the date of entry into force.
14 As of December 2017, a total of 162 States were parties to the Convention, out of which 75 became members by signature and ratification, 80 by accession, and 7 by succession. Ten States have signed the Conventions pending its ratification.19 The seven States having joined the Convention by means of succession are the Czech Republic and Slovakia as well as all former republics of the Socialist Federal Republic of Yugoslavia, with the exception of Slovenia, which acceded to the Convention.20
Giuliana Monina
Footnotes:
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.
7 E/CN.4/1983/63 (n 5) para 74; see also 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) 90.
8 E/CN.4/1983/63 (n 5) para 73.
9 E/CN.4/1983/WG.2/WP.15 (n 4).
10 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 into the appendix as formulated in the Swedish proposal (E/CN.4/1427 (n 3) Art F).
11 E/CN.4/1983/63 (n 5) para 83.
12 E/CN.4/1984/72 (n 6) para 59.
13 Both Covenants were adopted by the GA on 16 December 1966. The CESCR, in accordance with Art 27, entered into force on 3 January 1976; the CCPR, in accordance with Art 49, on 23 March 1976.
15 See above Art 26, 3.2.
16 For the dates of entry into force of the Convention indicated in the annual reports of the Committee for Slovenia and Turkmenistan see above Art 26, 3.2.
18 See above Art 26, 3.
19 In chronological order: Gambia (23 October 1985), Sudan (4 June 1986), India (14 October 1997), Sao Tome and Principe (6 September 2000), Comoros (22 September 2000), Bahamas (16 December 2008), Palau (20 September 2011), Haiti (16 August 2013), Angola (24 September 2013), Brunei Darussalam (22 September 2015).
20 CAT, ‘Report of the Committee against Torture Thirty-Fifth Session (14–25 November 2005) Thirty-Sixth Session (1–19 May 2006)’ (2006) UN Doc A/61/44, Annex I: Croatia (12 October 1992), Czech Republic (22 February 1993), Slovakia (28 May 1993), Bosnia and Herzegovina (1 September 1993), the Former Yugoslav Republic of Macedonia (12 December 1994), Serbia (12 March 2001), and Montenegro (23 October 2006). Slovenia is the only State of the former Yugoslavia which did not succeed but acceded to the Convention. See above Art 26, 3.2.
