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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.30 Settlement of Disputes

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

Previous Edition (1 ed.)

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

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Subject(s):: Torture — Treaties, interpretation — Arbitration

(p. 679) Article 30 Settlement of Disputes

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

2. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by paragraph 1 of this article. The other States Parties shall not be bound by paragraph 1 of this article with respect to any State Party having made such a reservation.

3. Any State Party having made a reservation in accordance with paragraph 2 of this article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

1. Introduction

1 Most contemporary human rights treaties, such as the ECHR, ACHR, ACHPR, and all nine core human rights treaties of the UN provide for the establishment of regional human rights courts or quasi-judicial expert bodies entrusted with the specific task of monitoring the compliance of States parties with their respective treaty obligations by means of special reporting, complaints, and inquiry procedures. The system of specific international human rights monitoring bodies and procedures has developed in response to the experience of the more traditional methods of international law used to solve disputes between States; methods which have proven not to be sufficient for the protection of human rights.

2 Nevertheless, so far neither the optional inter-State communication procedure nor the dispute settlement procedure has proven more successful. Though the dispute settlement procedure is applicable to more States parties than the inter-State communication procedure—out of 162 States parties only twenty-four States parties are currently making (p. 680) use of their opting-out power under Article 30(2)—up until now Article 30 has been applied only once, in the case Belgium v Senegal before the ICJ. Reasons may be because States do not wish to accept any compulsory jurisdiction of the ICJ, wish to exclude a second additional dispute settlement mechanism, or simply because they are not interested enough to protect human beings in another country against violations by other governments. This shows that although States, by becoming parties to a human rights treaty, have a legal interest, and even a certain obligation, to ensure that all other States parties comply with their respective obligations and thereby respect, protect, and ensure the human rights of all individuals subject to their jurisdiction, in practice they usually only take action if their own nationals are threatened, or if specific political, economic, financial, or other tangible State interests are concerned.

3 Other monitoring procedures, such as individual complaints by the victims of human rights violations, ex officio inquiries by an independent monitoring body, or the examination of State reports seem, therefore, more appropriate for the protection of human rights than traditional inter-State procedures. The practice of the last few years indicates that States Parties prefer to use other fora to deal with divergent views on human rights, such as the Universal Periodic Review.¹

4 Specific inter-State human rights complaints mechanisms usually exclude general dispute settlement mechanisms under international law. On the contrary, the CAT constitutes the first human rights treaty which simultaneously provides for an inter-State communication procedure (under Article 21) and for the traditional inter-State dispute settlement procedure before both an arbitration body, which is unrelated to the respective treaty monitoring body, and, finally, the ICJ (Article 30). This is clearly an anomaly which leads to difficult questions of interpretation regarding the relationship between both procedures.

2. Travaux Préparatoires

2.1 Chronology of Draft Texts

5 IAPL Draft (15 January 1978)²

Article XIV

(Settlement of disputes)

Any dispute by Contracting Parties arising out of the interpretation, application or implementation of this Convention which has not been settled by negotiation, arbitration or referral to an independent and impartial body shall, at the request of any party to the dispute, be brought before the International Court of Justice.

6 Draft Implementation Provisions Submitted by the Chairman-Rapporteur (1 February 1982)³

(p. 681)

Article 20

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. The existence of a dispute shall particularly be recognized when one State Party to the Convention has addressed to another State Party a written communication alleging that this other State Party to whom the communication has been addressed denies the allegation or fails to reply within 45 days.
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. 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 a 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. 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 constituting one of the parties to the dispute shall appoint:

1. (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
2. (b) one conciliator not 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 in 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 chairman of the Conciliation Commission.
If the appointment of the chairman or of 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 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.

3. The Conciliation Commission shall decide its own procedure. Decisions and recommendations of the Commission shall be made by a majority vote of the five members.
(p. 682) 4. The Commission shall hear the parties to the dispute and examine the claims and objections. It may make recommendations at any time and shall present a Final Report within 180 days after its constitution. The Report, and any recommendations made by the Commission, shall not be binding upon the parties and shall have no other character than that of recommendations submitted for consideration to the parties.
5. The Secretary-General shall provide the Commission with 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.

7 Proposal by the Netherlands Delegation at the 1983 Working Group⁴

Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.

8 Proposal by the French Delegation at the 1984 Working Group⁵

1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.
3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

2.2 Analysis of Working Group Discussions

9 From the very start of the negotiations, the IAPL draft of 1978⁶ contained a provision concerning a mandatory procedure for settlement of disputes between States parties on questions of interpretation, application, or implementation of the Convention. On the other hand, the Swedish draft of 1978,⁷ on which the Working Group based its discussions, left the final clauses to be elaborated at a later stage. In 1980, Sweden proposed a set of final provisions,⁸ which, however, did not foresee a regulation of potential disputes between the States parties.

(p. 683) 10 In 1982, during the course of the discussions on the complaints procedures, and particularly on the question of inter-State complaints, the Brazilian delegation noted that such complaints were actually allegations by one State that another State failed to fulfil its obligations under the Convention. It could therefore be considered that, in essence, complaints of this sort refer to a dispute between States over the interpretation or application of the Convention, and should thus be resolved by the procedures for peaceful settlement set forth by the Charter of the United Nations. Consequently, the delegation proposed to establish an obligation of the States parties to the Convention to accept a system of mandatory conciliation in case of a dispute, unless they agreed to another procedure.⁹

11 The Chairman-Rapporteur of the Working Group, Herman Burgers, was authorized to elaborate an alternative set of implementing provisions which he introduced to the Working Group on the first day of the session of the Commission on Human Rights.¹⁰ Inspired by the proposals made by the Brazilian delegation, Article 20 of these implementing provisions foresaw a mandatory conciliation procedure which was based on the corresponding Article and Annex of the VCLT, instead of an inter-State complaints procedure. In this regard, the Chairman-Rapporteur also mentioned the Convention on the Law of the Sea.¹¹ The proposed provision was only supported by the Brazilian delegation. Other delegations held the opinion that the treaties referred to by the Chairman-Rapporteur could not be compared to the envisaged CAT as they dealt with different matters. Furthermore, it was noted that there was a difference between disputes with regard to the application of the Convention, such as questions of jurisdiction or extradition, and disputes over the occurrence of torture in a State party. The first category of disputes could be resolved by judicial or quasi-judicial procedures, whereas the second would be a natural subject of a complaints procedure. A number of delegations noted that their governments could only accept an optional conciliation procedure. Another proposal was made to insert a mandatory procedure for the judicial settlement of questions pertaining to interpretation or application by the ICJ, such as contained in Article 22 CERD and various other treaties.¹² The delegations decided that the Swedish procedure on inter-State complaints¹³ was preferable over the proposal by the Chairman-Rapporteur and the question of dispute settlement regarding interpretation and application of the Convention in general was to be discussed at a later stage.

12 The issue of dispute settlement was taken up again by the Working Group in 1983, when the Netherlands delegation introduced a draft Article, which followed the example of Article 22 CERD and envisaged the compulsory referral to the ICJ ‘unless the disputants agree to another mode of settlement’.¹⁴ While some delegations supported the draft, the French delegation asked for the addition of a second paragraph to the draft Article which would provide for an opting-out clause for States parties concerning the referring of disputes to the ICJ. Again, the discussions on this issue were postponed.¹⁵

(p. 684) 13 In the final Working Group of 1984, some delegations declared their support for the Netherlands’ proposal of 1983, while others again expressed their objections to a compulsory jurisdiction of the ICJ.¹⁶ An alternative draft article was introduced by the French delegation, and was modelled on the corresponding articles of the Convention for the Suppression of Unlawful Seizure of Aircraft, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and other UN treaties.¹⁷ The Working Group adopted the French draft article in 1994 at its seventh meeting.¹⁸

3. Issues of Interpretation

3.1 Opting-out Procedure (Article 30(2) and (3))

14 Contrary to the inter-State communication procedure, which is subject to the State Party’s optional declaration, Article 30 binds all States Parties unless they have opted-out through a reservation in conformity with Article 30(2). The possibility of opting out is modelled on the inquiry procedure as provided for in Article 28.¹⁹ A reservation under Article 30(2) can only be made at the time of signature and ratification or accession, but not succession.

15 In accordance with Article 30(3), reservations may also be withdrawn at any time by notification to the Secretary General. Such a withdrawal is irreversible, unless the State concerned wishes to denounce the Convention in accordance with Article 31 and thereafter accede again with a respective reservation. Since the adoption of the Convention, a total of thirty-three States parties have made a reservation deciding not to recognize the dispute settlement procedure foreseen in this Article. Nine States parties, above all former Socialist States, later withdrew their reservations,²⁰ leaving the number of States parties that are presently to be considered as having opted out to twenty-four.²¹

16 Whereas most of the States parties mentioned above simply put forward a reservation declaring that they did not consider themselves bound by paragraph 1 of Article 30, the Government of Cuba stated that it was of the view that any dispute between States parties should be settled by negotiation through diplomatic channels.²² Ghana, Afghanistan, and Indonesia declared that the submission of a dispute to arbitration or the ICJ shall only be possible with the consent of all the parties concerned.²³ The United States declared that it does not consider itself bound by Article 30(1), but that it reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.²⁴

(p. 685) 17 Similarly to Article 21, the procedure is based on reciprocity. If one party to a dispute has opted out of the dispute settlement procedure by making a reservation, no other State party is authorized to invoke the procedure against it. In turn, according to Article 30(2), the other States Parties shall not be bound by Article 30(1) with respect to any State Party having made such a reservation. This means that a State party that has opted out of the procedure cannot request the referral of a dispute to arbitration or the ICJ, even when the other party to the dispute has accepted the dispute settlement procedure. Essentially, in order to make use of the procedure under Article 30 both parties to a dispute need to have accepted it.

18 In practice, so far disagreement over the interpretation or application of the Convention has reached a level where negotiations, arbitration or judicial settlement were deemed necessary only once. In the case Belgium v Senegal, Belgium invoked the ICJ jurisdiction to complain about the non-compliance by Senegal with the Convention’s obligations on the basis of the dispute settlement procedure under Article 30 to which both States were bound. As explained below, the ICJ adopted a landmark judgment in 2012.²⁵ Other controversial issues were raised by States Parties through objections to reservations and declarations,²⁶ such as the declaration made by the German Democratic Republic that the only Committee expenses it would cover would be its share of those arising from activities recognized by the German Democratic Republic to be under the Committee’s competence, were met by a number of objections from other States parties. Another example of a reservation that met with a number of objections was the declaration made by Qatar which attempted to outlaw all interpretations of provisions in the Convention which conflicted with the precepts of Islamic law and religion. Although these reservation also triggered a number of objections, none of the States parties felt that it should be subject to a settlement procedure.

3.2 The Meaning of ‘any dispute’

19 States parties may not agree on what constitutes a dispute within the meaning of Article 30. The first step in the resolution of the dispute is to establish if a dispute exists in the circumstances of the case.²⁷

20 As of today, the Committee has never had the opportunity to clarify the concept of ‘dispute’ under Article 30. It is thus necessary to look at ICJ jurisprudence for guidance on such concept. According to the ICJ there exists a dispute when it can be shown that ‘the claim of one party is positively opposed by the other’.²⁸ In order to do so, the ICJ conducts an ‘objective determination’²⁹ examining the facts of the case.³⁰ Moreover, in (p. 686) order for the ICJ to have jurisdiction, the dispute must exist at the time of the submission of the application before the ICJ.³¹

21 The term dispute was also assessed in the case of Belgium v Senegal, concerning Senegal’s compliance with the CAT’s obligations to establish jurisdiction over the crimes of Mr Habré, former President of the Republic of Chad, for the systematic acts of torture which were committed during his regime from 1982 to 1990, and to prosecute or extradite him for the purposes of criminal proceedings (Articles 5, 6, and 7).³² While the ICJ found no jurisdiction in regard to Article 5 CAT because the dispute had ceased to exist by the time Belgium lodged the application in 2009 as Senegal had by then already adopted a series of legislative measures to establish jurisdiction under Article 5 CAT,³³ it affirmed its jurisdiction for the claims relating to Articles 6(2) and 7(1). To this extent, the ICJ held that the controversy between Belgium and Senegal amounted to a dispute concerning the ‘interpretation and application’ of the Convention.³⁴ The ICJ rejected Senegal’s argument that Belgium was not entitled to invoke its international responsibility because none of the alleged victims of the acts said to be attributable to Mr Habré was of Belgian nationality at the time when the acts were committed. It found Belgium’s claim admissible arguing that being a Party to the CAT Convention was sufficient to have standing before the ICJ.³⁵ On this point, the legal reasoning of the Court relies in particular on the object and purpose of the Convention which is ‘to make more effective the struggle against torture … throughout the world’ and on the existence of a ‘common interest’ of all States Parties in ensuring the prevention of acts of torture and the fight against impunity. Departing from those considerations, the ICJ concluded that the ‘common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention’, thus amounting to ‘obligations erga omnes partes’.³⁶

22 The ICJ has drawn a parallel to the Convention on the Prevention and Punishment of the Crime of Genocide and clarified that each State party has standing to enforce the Convention provisions regardless the existence of a specific link to the alleged victim nor a special interest.³⁷

(p. 687) 3.3 Negotiations, Arbitration, and Jurisdiction of the ICJ (Article 30(1))

23 Once the existence of a dispute has been established, Article 30 sets two additional conditions that need to be met before a State Party may bring the dispute before the ICJ. These conditions are that the dispute cannot be settled through negotiation; and that the parties are ‘unable to agree’ on the organization of the arbitration within six months from the submitting of a request for arbitration by one of the parties.

24 According to the ICJ, in order to prove that a dispute ‘cannot be settled through negotiation’ there must be ‘at the very least[,] a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute’.³⁸ This implies that a theoretical impossibility would not suffice³⁹ and that, in practice, the condition is met only when ‘there has been a failure of negotiations or when negotiations have become futile or deadlocked’.⁴⁰ With regard to the second condition, the ICJ held that

the lack of agreement between the parties as to the organization of an arbitration cannot be presumed. The existence of such disagreement can follow only from a proposal for arbitration by the applicant, to which the respondent has made no answer or which it has expressed its intention not to accept.⁴¹

In the Belgium v Senegal case, the ICJ went on and concluded that the fact that Belgium did not make a detailed proposal for determining the issues to be submitted to arbitration and its organization—but submitted a general request to refer the matter to arbitration—did not mean that this condition was not fulfilled.⁴²

25 Although the draft of the Chairman-Rapporteur of 1982 contained a detailed proposal for an arbitration or conciliation mechanism,⁴³ Article 30(1) does not contain any provisions for its composition or procedure.⁴⁴ Moreover, in contrast to Article 21, Article 30 solely establishes that it is up to the States involved in a dispute to ‘agree on the organization of the arbitration’. According to this provision, the Committee against Torture has no role to play. This is surprising, as the Committee is considered to be the guardian of States parties’ compliance with the Convention.

26 As was seen above, one option could be that the ad hoc Conciliation Commission envisaged in Article 21(1)(e) may serve as an arbitration mechanism under Article 30(1). This interpretation could provide a way to involve the Committee in the dispute settlement procedure under Article 30. However, it still remains that the Committee can only be involved upon explicit agreement of the States parties concerned. Yet, the ICJ did not give any consideration to Article 21(1)(e) CAT when assessing admissibility of Belgium’s claim in the Habré case.⁴⁵

27 Finally, despite the criticism of some States parties,⁴⁶ pursuant to Article 30(1) a request to arbitration or to the ICJ can be submitted by one of the States parties only.

(p. 688) 3.4 Relationship with the Inter-State Complaints Procedure

28 As mentioned in the introduction, the existence of specific inter-State human rights complaints mechanisms usually excludes general dispute settlement mechanisms under international law. The CAT constitutes the first human rights treaty, which simultaneously provides for an inter-State communication procedure (under Article 21) and for the traditional inter-State dispute settlement procedure before an arbitration body unrelated to the respective treaty monitoring body, and finally, the ICJ.

29 The drafting history of the Convention shows that the issue had been discussed during the Working Group sessions, where some delegations expressed the opinion that an inter-State communications procedure was preferable to the classical dispute settlement procedure under international law. Some delegations also 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 would not exclusively be dealt with between the States parties but that the ‘implementation organ’ of the Convention would be involved in the matter.⁴⁷ In the end, however, both procedures were simultaneously adopted in Articles 21 and 30 without any reference to their interplay.

30 A different approach is taken by most other UN human rights treaties.⁴⁸ While some of them provide only for the inter-State communication procedure (CCPR, CESCR-OP) or the dispute settlement mechanism (CEDAW), others include both of them (CERD, CMW, and CED). Yet, unlike the CAT, the CERD, CMW, and CED expressly contain a clause regulating the relationship between the two procedures. For example, under Article 22 CERD, disputes between two or more States parties regarding the interpretation or application of CERD shall be referred to the ICJ only if they are not settled by negotiation ‘or by the procedures expressly provided for in this Convention’. This explicit reference relates, above all, to the mandatory inter-State communication procedure regulated in Articles 11 to 13. Similar clauses are expressly included in the CMW, and CED.

31 The CCPR, though regulating only the inter-State communication procedure, nevertheless stipulates that the provisions for the implementation of the Covenant ‘shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them’. Thus, States parties to the CCPR, which have accepted the compulsory jurisdiction of the ICJ under Article 36(2) of its Statute, may also bring a dispute concerning the interpretation or application of the Covenant before the ICJ. But Article 44 ICCPR does not by itself establish any jurisdiction of the ICJ. In contrast, some UN human rights treaties (CEDAW, CMW, and CED) expressly grant the ICJ jurisdiction in accordance with Article 36(1) of its Statute.⁴⁹

32 Regional mechanisms may be more restrictive when it comes to dispute settlement before other international settings. For example, Article 55 ECHR clearly prevents States parties from ‘avail[ing] themselves of treaties, conventions or declarations in force (p. 689) between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention’.

33 The main question of interpretation with regard to the CAT Convention, therefore, concerns the relationship between the inter-State communication procedure under Article 21 and the dispute settlement under Article 30. In the case of the CAT, the drafters seem to have overlooked the problems that could arise from the simultaneous existence of the two procedures, and unlike in other treaties, did not explicitly regulate their relationship. The only provision on this is contained in Rule 92 which simply requires the State party lodging a complaint under Article 21 to inform the Committee on ‘any other procedure of international investigation or settlement resorted to by the States parties concerned’.⁵⁰ Yet, it is not clear why such information has to be provided, as the Convention does not expressly regulate the relationship between the two instruments. This is clearly an anomaly which leads to difficult questions of interpretation regarding the relationship between the different procedures.

34 In this regard, three main questions arise: (a) Do the two procedures have the same subject-matter? (b) Can the latter only be invoked after the former has failed? (c) If not, can States parties choose which one they resort to first? Or can they even at the same time submit an inter-State communication to the Committee against Torture and refer the same dispute to the ICJ? Such questions will be relevant only for those States parties that are bound by both procedures. With reference to the first question, it shall be noted that Articles 21 and 30 do not have the same wording. While under Article 21(1) a State party may claim that ‘another State Party is not fulfilling its obligations under this Convention’, Article 30(1) refers to a ‘dispute between two or more States Parties concerning the interpretation or application of this Convention’. The question therefore arises whether it can be considered as a dispute between States when a State claims that another State is systematically practising torture? With regard to the second and third questions, one should first remember that Article 21 does not contain any provision similar to Article 22(5)(a), which would authorize the Committee to declare an inter-State communication inadmissible if the same matter has been, or is being, examined under another procedure of international investigation or settlement. Similarly, Article 30 does not contain any clause whatsoever on the relationship with Article 21. The absence of such clauses seems to support the view that a State could bring the same dispute

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