8 The Working Group of the Commission adopted its agenda at its first meeting on 19 October 1992. During this first session, the Working Group established an informal open-ended group chaired by the Canadian representative, Mr Martin Low. He was tasked with first determining the schedule for consideration of the draft articles and (p. 707) then with preparing a preliminary draft report to the Commission. The main thrust pursued during the general discussions was to recognize the importance of a preventive mechanism based on regular visits to places where persons are deprived of their liberty, and to have this importance reflected in the preamble and substantive clauses of the OP. It was emphasized that such a system is necessary in order to strengthen the protection for the persons concerned against torture and other cruel, inhuman or degrading treatment or punishment. It was further proposed that such a system should be based on the principles of cooperation, confidentiality, independence, impartiality, universality, and effectiveness. Moreover, it should take the form of a preventive, rather than adjudicative, mechanism involving an evaluation of current conditions in places of detention and recommendations on how detention practices and facilities should be improved in order to strengthen the protection against torture. Cooperation and confidentiality were judged to be essential for success.9
9 At its second meeting in 1993, the Working Group decided that it would focus primarily on the most essential policy elements contained in the draft text and would organize the articles thematically in order to undertake a broad conceptual review of the OP. It was the opinion of the Working Group that this approach would facilitate the identification of possible means for resolving the various issues that would inevitably be raised during the group sessions. The articles of the draft Protocol, as submitted by Costa Rica, were thus divided according to the ‘basket’ of issues to which they pertained. It was decided that the aims, object and purpose of the OP were to be discussed in reference to the title, preamble and Article 1 of the draft treaty.10
10 The predominant view within the Working Group was that the preamble should state, in simple and unambiguous terms, the overriding object and purpose of the proposed Protocol. It would be a clear statement designed, first, to confirm an appropriate relationship between the OP and the CAT itself and, second, to emphasize the key aim of protection by a system of preventive character achieved through regular visits rather than post facto investigative or adjudicative measures.11
11 There was general consensus within the Working Group that the aim of the Protocol should be to establish a mechanism which would assist States in taking ‘effective … measures to prevent acts of torture’ in the sense of Article 2(1) CAT, and that no substantive obligations should be articulated in the preamble other than those necessary to achieve the purpose of the system of visits. It was, however, noted that this was a very broad aim. As such, some delegations expressed an interest in including within the preamble an elaboration of the basic objectives of the Protocol detailed in precise terms. It was suggested that this method would generate further confidence among States by facilitating the acceptance and enforcement of the OP, while also acting as a guide to interpretation. This view was not shared by the majority of the Group, however, who felt that the preamble would benefit more from brevity and clarity like the traditional UN approach to text drafting. It was warned that listing and detailing purposes other than the basic or fundamental objective might limit the overall effectiveness of the treaty and create uncertainty among States about the primary thrust of the instrument. The delegations in support of this view reasoned that the other important details were better addressed in substantive Articles.
(p. 708) 12 Many delegations emphasized the importance of using the preamble to maintain a clear link between the Convention and its OP, whereby the Protocol is recognized as an instrument to enhance and perform the purposes of the Convention. It was the view of the Working Group that such an arrangement would promote coordination and cost-effectiveness by incorporating the work carried out by the body established by the Convention, namely the Committee against Torture, into the discussion on the Protocol.
13 Two delegations raised the possibility of creating a separate instrument, with a body unrelated to the Convention and its Committee, in order to permit States not parties to the Convention to take part in the Protocol’s system of visits. However, a number of delegations opposed this proposal, arguing that it could prejudicially affect the necessary coordination of the Protocol. The matter was discussed further in connection with Article 2.
14 Another debate ensued between those delegations that supported a proposal to add a reference to the provisions of the UDHR and of the CCPR, and those delegations that pointed out that such references had already been made in the preamble to the Convention and it was therefore unnecessary to repeat them in the preamble to the Protocol.
15 A third debate within the Group focused on whether or not a specific mention to the principle of confidentiality should be made in the preamble. Some delegations saw a need to emphasize the principle and thus include such a statement, while others felt that the principle of confidentiality was a key working method, rather than an aim. This latter group preferred for the principle to be mentioned in the operative articles rather than in the preamble. While it was generally agreed that the principle of confidentiality represented an essential means of achieving the objectives of the OP, one delegation felt that a reference to it in the preamble might be prejudicial given the prospect that, under the Protocol, confidentiality may be broken in certain restricted circumstances.
16 It was decided at the second session of the Working Group that further consideration of the title and preamble would be given once the whole text of the OP had been discussed and amended.12
17 At the first meeting of its eighth session which took place on 4 October 1999, the Working Group agreed with the proposal of the Chairperson-Rapporteur to hold a general discussion on, inter alia, the issue of the Protocol as a preventive, and not a punitive, agreement. It was generally felt that the goal of the OP was to create an effective system, not of sanctions, but of preventive visits in order to help States parties to improve the protection of persons deprived of their liberty. Prevention, cooperation, and confidentiality were referred to as fundamental principles of the Protocol. This discussion took place during the first and second plenary meetings and was held in reference to the preamble of the OP as well as Articles 3 and 18.13
18 Discussion then focused on the principle of confidentiality as mentioned during the first session of the Working Group. Several delegations considered the principle of confidentiality to be a modus operandi rather than a core issue. They felt that observing confidentiality was not an end itself but a tool facilitating confidence and ensuring cooperation (p. 709) among States. According to another view held by some delegations, confidentiality was one of the important principles on which the OP was based and emphasizing the principle could promote the overall acceptability of the treaty. In order to justify their view, the delegations sharing this opinion made reference to the explicit mention of the guiding principles as detailed in Article 3(3) OP. The Chairperson-Rapporteur, Ms Elizabeth Odio-Benito of Costa Rica, subsequently proposed to consider confidentiality as a principle having a complementary, facilitating function. She also proposed that a reference to confidentiality, as well as to the principle of cooperation, be included in the preamble of the OP.14
19 At the tenth plenary meeting on 14 October 1999 the observer for Australia pointed out that views were divided within the Working Group as to whether the term ‘detained’ or ‘deprived of their liberty’ should be used in the preamble. Many delegations pointed out that the latter term was more commonly used in the human rights arena and that ‘detained’ could be too narrow. Following the proposal submitted by the Chairperson-Rapporteur, the Working Group agreed to include the text of the preamble, as submitted by the drafting group to the plenary, to serve as a basis for future discussion.15
20 At the same meeting, several delegations expressed their views on the first basket of articles and related issues. The representative of Cuba, speaking on behalf of the delegations of Algeria, China, Egypt, Saudi Arabia, the Sudan, and the Syrian Arab Republic, made a joint statement on their position paper submitted to the Chair regarding the content of the preamble and Articles 1, 8, 12, 13, and X. They stated that starting from the preamble, the content of the draft Protocol should reflect clearly its cooperative, preventive, confidential, non-duplicative, and advisory nature. The aforementioned delegations expressed concern as to what the effects on national security and domestic affairs would be if the words ‘may’ and ‘any place’, as well as ‘deprived of their liberty’ were to be included in the Protocol. They held that these words were unacceptable because they were too wide, vague, controversial, and undefined.16
21 The Working Group held its tenth, and final, session from 14 to 25 January 2002. The Chairperson presented her proposal for an OP during the sixth meeting and invited delegations to submit their comments thereto. These comments were discussed at the seventh and eighth meetings on 22 January 2002. The preamble as proposed by the Chairperson placed particular emphasis on the reference to the obligation to prevent torture as contained in Articles 2 and 16 CAT. It also made specific mention of Resolution 2001/44 of the Commission on Human Rights which, first, recalled that the World Conference on Human Rights had firmly declared that efforts to eradicate torture should be concentrated on prevention, and, second, called for the early adoption of an OP to the Convention intended to establish a system to that effect based on regular visits to places of detention.17
22 The Mexican delegation supported the proposed Protocol, as submitted by the Chairperson, but stated that it would have wanted to see a reference in the preamble to Articles 55 and 56 of the Charter. Despite this comment, the Mexican delegation accepted the proposal in order to reach consensus.18