9 During the first session of the Working Group, held from 19 to 30 October 1992, it was decided to undertake a review of the draft OP8 from a conceptual perspective. In order to do so, the document was divided into several ‘baskets’ of issues. The first basket, ‘Aims, object, and purpose’, contained the title and preamble of the Protocol as well as its Article 1.9
10 In general, the Working Group wanted to integrate a very simple and clear expression of the basic international obligation that States would have to accept according to the OP, namely to permit visits to any places over which the State exercises either direct power or control and where persons are deprived of their liberty.
11 The main issues raised regarding Article 1(1) during the Working Group discussions at the first session were the following: the scope of States’ obligations; the criteria for carrying out visits; the definition of the term ‘places of detention’; the question of jurisdiction; and the standards of assessment which should be applied.
12 With regard to the scope of States’ obligations, several delegations felt that Article 1 should concentrate on the system of preventive visits as a new and unique mechanism; other important matters should be dealt with in the other provisions. In their opinion, further detail in Article 1 would only diminish the clarity of the central obligation of the Protocol, namely to permit preventive visits.
13 Regarding the criteria for carrying out visits, some delegations found that the phrase ‘in accordance with this Protocol’, as contained in the draft, established imprecise criteria for the system of visits. These delegations suggested further clarifying the terms on which visits would take place. Several other delegations, however, wanted to ensure that the competence of the Subcommittee should be kept as broad as possible.
14 A number of issues were raised regarding the wording of the phrase ‘places of detention’. The draft text covered both places where persons are detained by a public authority, and other places where detention occurs at its instigation or with its consent or acquiescence. The question of the necessary degree of Government involvement in ‘irregular’ detention gave rise to much discussion. Due consideration was given to the meaning of the concept of ‘acquiescence’. In this regard, a reference was made to Article 1 CAT, which specifically refers to ‘the consent or acquiescence of a public official’. Many delegations felt that this definition was too restrictive and that the Protocol’s system should cover more institutions, rather than just those operated by public authorities. A reference was made to a similar provision in the Declaration on the Protection of All Persons from Enforced Disappearance. Many delegations found that as a matter of State responsibility under the OP, there should be a right to visit any place where a person is deprived of liberty by another person, or body, who is either under the direct control of the State, or is subject to such direct or indirect influence by the State that control or authority should be inferred or imputed.
15 Concern was also raised with regard to the notion ‘may be held’, as some delegations had the impression that this indefinite criterion might give rise to difficulties of interpretation and administration.
16 A discussion also came up with regard to the term ‘jurisdiction’ and the more general question on the implementation of the Protocol in federal States. It was pointed (p. 719) out that the national authority in such States might have responsibility over the whole territory, however other levels of Government might also have legislative or administrative responsibilities for places to which the Subcommittee should have access.
17 With regard to Article 1(2) OP, some delegations found that the objective of the visits could be broadened to reflect more clearly the full range of activities and responsibilities of the new Subcommittee, including fact-finding, recommendations, and technical assistance.
18 Some delegations found that the standards of assessment contained in Article 1(2) (‘in accordance with international standards’) were too broad and unspecified and that it was not clear which international standards were de facto included in this notion. Some delegations were of the view that it was important to provide a broad frame of reference for the Subcommittee and the States parties that would include the major international standards. Many found that ‘international standards’ meant the standard or the definition of torture set out in the CAT and, therefore, suggested a deletion of the words ‘in accordance with international standards’ and, if necessary, inserting a specific reference to the Convention alone.
19 During the second session of the Working Group from 25 October to 5 November 1993, it was agreed to replace the words ‘agrees to’ by the word ‘shall’ and ‘within its territory’ by ‘in any territory under its jurisdiction’.10
20 The delegation of Mexico proposed to add the words ‘provided that full respect is assured for the principles of non-intervention and the sovereignty of States’ at the end of paragraph 1. This idea was supported by several other delegations and initiated an interesting discussion on the question of prior notification of visits (at that time mentioned under Article 12 of the draft text). Others, however, found that the proposed additional reference would reduce the clarity of the central obligation of the Protocol, which was to permit preventive visits. Thus, the proposed phrase was put in square brackets.
21 Moreover, it was suggested that the prevention of torture as such should be mentioned in Article 1 as a clear objective of the Protocol. The phrase ‘and to take measures for the prevention of’ was put in square brackets before the word ‘torture’ in Article 1(2).
22 The issue of applicable ‘international standards’ of assessment was once again discussed. It was then agreed to keep the word ‘standards’ and to add the words ‘instruments’ and ‘law’ and to put all three words in square brackets.
23 The Working Group held its third session from 17 to 28 October 1994.11 Although the outcome of the beginning of the first reading had already been put in an annex to the second Working Group report,12 several delegations did not agree with certain aspects of the text of Article 1(1). Thus, it was decided in the third session to insert the following words into the footnote: a proposal was made by some delegations that further consideration be given at the second reading to adding the words ‘arrest or detention’, following the words ‘deprived of their liberty’.13
(p. 720) 24 During the fifth session from 14 to 25 October 1996 the Working Group decided to consider Articles 1 and 8 together. Although the Working Group decided in the second plenary meeting on 17 October 1996 to suspend the drafting process on Articles 1 and 8, certain negotiations had taken place on both provisions.14
25 Different opinions still existed on the question of prior consent (for some States, the ratification of the Protocol would in itself mean prior consent to any mission; for others, consent would have to be expressed on each occasion and the Protocol as such should only regulate the different forms of consent). In the course of the discussions, many delegations (among them Australia, Brazil, Canada, Chile, Denmark, Ethiopia, France, Germany, the Netherlands, South Africa, Switzerland, and Uruguay) stated that the ratification of the Protocol itself should be sufficient and no further consent would be needed. In the view of various NGOs (APT, AI, the International Commission of Jurists, IFACAT, ISHR, IFHRL, HRW, and the Women’s International League for Peace and Freedom), the entire purpose and functions of the Protocol would be undermined if a requirement of prior consent to receive missions was integrated into the text of the Protocol, as this would permit States parties to avoid obligations under the instrument. Negotiations for each and every visit would be the consequence. The delegation of Mexico, however, strongly favoured the idea of prior consent and held that the text of the first reading remained valid. It was supported by the delegations of Cuba, China, and Japan, who shared most of Mexico’s concerns.
26 Another point of discussion was the question of how fundamental principles contained in the Charter of the United Nations (in particular the principles of non-intervention and sovereignty of States) were to be reflected in the OP.
27 On 25 October 1996, the Chairperson noted that no agreement could be reached on the texts of Articles 1 and 8 during the fifth session, and it was decided to consider the draft texts of these Articles (which constituted the basis for future work) at a later stage.
28 At the sixth session from 13 to 24 October 1997 and at the seventh session from 28 September to 9 October 1998, Article 1 was not discussed. However, the observer for Australia, who chaired the informal consultation at the seventh plenary meeting on 6 October 1998, indicated that with regard to Article 1, the following elements were discussed:15
With regard to Article 8, the close and delicate link to Article 1 was generally recognized.
(p. 721) 29 The Working Group held its eighth session from 4 to 15 October 1999,16 where it decided to hold a general discussion on several issues, among them the issue of dialogue and cooperation between the Subcommittee and the States parties. Articles 1 (purpose and scope of the Protocol) and 8 (types of missions and their notification) were considered to be directly relevant to this discussion.17 During the discussion, the following main issues were raised with regard to Article 1.
30 It was brought up that the wording of Article 1(1), permitting visits to any place in any territory under a State party’s jurisdiction, might infringe upon domestic legislation or have a potential impact on non-States parties to the Protocol (eg in cases when access would be sought to diplomatic missions or foreign military installations).
31 Furthermore, it was suggested by some delegations that the phrase ‘at its instigation or with its consent or acquiescence’ should be deleted, because it provided a wide scope for controversy.
32 Several delegations found that the notion ‘may be held’ was too broad and imprecise, while others supported this formulation.
33 With regard to the wording ‘in accordance with applicable international law and relevant international standards’, as contained in Article 1(2), it was discussed whether or not this formula was sufficiently clear, and whether only binding or also recommendatory standards were comprised by this notion.18
34 Another issue that was scrutinized again during the eighth session was the question of prior consent. Concerning this open issue, still no consensus could be found within the Working Group. It was emphasized by some delegations that in the absence of a standing invitation, the OP would not bring much, if any, added value to the Convention since Article 20 CAT already allowed the Committee to undertake confidential missions with the prior consent of the State party concerned. Several delegations found that the principle of a standing invitation was in full conformity with the principle of national sovereignty, since the ratification of the Protocol was optional, and the decision to ratify was itself an act of national sovereignty. Others, however, were of the opinion that such far-reaching competences would be an infringement of the sovereignty of States and thus unacceptable.19
35 During the ninth session from 12 to 23 February 2001, the Working Group held a general debate on the alternative draft, introduced at the second meeting of the Working Group on 13 February 2001, and submitted by the delegation of Mexico with the support of GRULAC. The draft proposed that States parties to the Protocol should create national mechanisms for the prevention of torture. The draft was strongly supported by most of the delegations who especially emphasized the complementary nature of the proposed national and international mechanisms.20
36 During the tenth session of the Working Group from 14 to 25 January 2002, a general debate was held on the proposed two-pillar system, which would involve combining an international visiting mechanism with national mechanisms in each participating State.21
37 With regard to the question of prior consent, the delegations of Denmark and Finland once again emphasized that the visiting powers should be exercised on the basis of an open invitation in order to make the mechanisms as efficient as possible.
(p. 722) 38 On 17 January 2002, the Chairperson-Rapporteur presented her proposal for an OP.22 In drafting her proposal, she had been inspired by all the ideas expressed within the various draft texts (the initial Costa Rican draft, the drafts submitted at the ninth session of the Working Group by GRULAC and the EU, as well as the new alternative draft put forward by the US delegation).23 Part I (General Principles) of her draft set out the objective of the Protocol, ie to establish a system of regular visits by independent international and national mechanisms in Article 1.
39 On 22 January 2002, a debate was then held on the Chairperson’s proposal.24 The following States were in favour: Spain (on behalf of the European Union and the Central European and Eastern European States), Switzerland, Guatemala, Canada, Latvia, New Zealand, Norway, Hungary, Argentina, Slovenia, Mexico, Ecuador, Georgia, Uruguay, Poland, Peru, Costa Rica, Czech Republic, Chile. Others were against it or at least expressed concern: United States of America, Egypt, Russian Federation, Saudi Arabia, Japan, Cuba, India, Syrian Arab Republic, Kuwait, Israel, Algeria, and the Arab Group. China and Turkey seemed to be indifferent.
40 At its fiftieth meeting on 22 April 2002, the Commission on Human Rights finally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by twenty-nine votes to ten, with fourteen abstentions.25
41 In July of the same year, the draft OP was brought before the ECOSOC. Again, the adoption process met with opposition as the United States proposed—like Cuba had done before—an amendment to the resolution aiming at reopening the drafting discussion on the text of the OP. However, the US proposal was rejected by twenty-nine votes and, therefore, the resolution aiming at the adoption of the Protocol was adopted by thirty-five votes in favour, eight votes against, and ten abstentions (totalling fifty-three members of ECOSOC).26
42 The draft text was then forwarded for further consideration to the Third Committee of the UN General Assembly, which addressed it during its meeting in November 2002. By that time, it was Japan who felt that the vote should be postponed for at least twenty-four hours in order to reconsider the financial aspect laid down in the draft text. But again, after only a short discussion, the proposal was voted down. After the United States had tried to hinder the ongoing adoption of the OP a second time by submitting an amendment which foresaw that the new visiting mechanism should only be financed (p. 723) by contributions of States parties, the issue itself was submitted to a vote and approved by the Third Committee with 104 votes in favour, eight votes against, and thirty-seven abstentions.27