13 Article 9 OP covers three different issues: the term of office, the question of re-election and the principle of partial renewal. The term of office of members of the SPT is four years, which is in line with the term of office of the Committee against Torture and other UN human rights treaty monitoring bodies.13 Similarly, all relevant treaties provide for the system of partial renewal.14 This means a system of ‘staggering’ elections: after the first election, the Chairperson of the meeting of States parties shall choose by lot those five members whose term of office shall expire after two years. At the next elections, these five members may be re-elected, if again nominated by their respective State party. On 18 December 2006, the following five newly elected members of the SPT were chosen by lot: Ms Casale, Mr Coriolano, Mr Hájek, Mr Lasocik, and Mr Rodriguez Rescia.15 Their first term of office ended at 31 December 2008. All of these experts, however, had been re-elected for a period of four years (until 31 December 2012) at the elections held during the second meeting of States parties on 30 October 2008.
14 As for the additional fifteen members of the SPT that had to be elected in 2010 to bring the total number of members to twenty-five, it was decided to follow the manner in which the original ten members were first elected, also with regard to their terms of office. Thus (and as fifteen is not divisible by two), seven of the additional fifteen members were about to be selected by the drawing of lots to serve a two-year term of office.16
15 Both Costa Rica Drafts had provided for the possibility of unrestricted renomination and re-election. During the discussions in the Working Group, many delegations felt that there should be some appropriate limitation, as the concept of unlimited re-election was not conducive to renewal and dynamism. The text reflecting the outcome of the first reading in 1996 provided that re-election should only be possible once or twice.17 In October 1997, an interesting debate took place in the Working Group:18 while Cuba, the Netherlands, and the Dominican Republic pleaded for unlimited re-election, the delegations of Brazil, Canada, Australia, Sweden, and Switzerland, as well as NGOs, such as APT, argued in favour of only one possibility of re-election. Unfortunately, the latter view prevailed, and even the compromise of two re-elections, as also laid down in the Second Protocol to the ECPT, has not been further pursued.
16 In some of the older human rights treaties, the question of re-election is not addressed at all, which means that, in the absence of any restriction, members can be re-elected without limitation.19 Most of the other human rights treaties, including the (p. 790) CAT, provide explicitly for the possibility of (unlimited) re-election.20 However, some of the recently adopted treaties, such as the Convention on Enforced Disappearance and the Convention on the Rights of Persons with Disabilities, limit the possibility of re-election to once.21 Article 9 OP was the first provision in an UN human rights treaty to this effect.
17 In this respect, it is interesting to look at the experience of the CPT. Article 5(3) ECPT, which was adopted in 1987 and entered into force in 1989, provides that the members of the CPT ‘may only be re-elected once’. This provision caused a variety of problems to the professionalism and continuity of the work of the CPT in its early stages of developing its methods of work, including the methodology of country missions, such that, in 1993, a Second Protocol was adopted which amended Article 5(3) and allows for two re-elections. This Protocol entered into force on 1 March 2002.
18 It is doubtful whether the decision to limit the possibility of re-election was a wise one. The experience of the Human Rights Committee and the respective renewal and re-election of its members shows a good balance between the principles of continuity and dynamism. While many members were never re-elected or only re-elected once, some members served for almost twenty years.22 It is up to the States parties to decide whether they wish to renominate a particular expert and whether this person is in fact elected. If an expert provides an excellent contribution to the respective treaty body and all stakeholders involved are in favour of another re-election, it is regrettable if this cannot be achieved because of a restrictive provision in the respective treaty. The ‘institutional memory’ of some experts is indeed highly valuable in order to avoid certain un-reflected changes in the practice of treaty bodies. This certainly also applies to the methodology of country missions to be developed by the SPT. As the experience of the CPT clearly shows, a certain continuity of members would be highly welcome. In fact, a combination of rotation and continuity of specially qualified experts has to be found in order to achieve the best results as regards the object and purpose of the treaty.
19 The question remains, then, whether the principle of only one re-election also applies to those experts whose first term of office had been reduced by lot to two years. Strictly speaking, they may be re-elected only once, which means that their maximum term of office would be six (instead of eight) years. In light of the object and purpose of the treaty and a certain need for continuity, one might also argue that this limitation does not apply to these particular members, as their right to two terms of office, if renominated and re-elected, would have been diminished arbitrarily. In our opinion, these experts may be re-elected twice, i.e. for a maximum of ten years. In practice, this has never happened.
20 An interesting case is shown by the example of one the SPT members: Ms Definis-Gojanović (Croatia) had been one of the ten original experts of the SPT having been elected for a period of four years (ie, until 31 December 2010). On 28 October 2010, she (p. 791) had been re-elected, and it was decided by lot that she would now only serve for a term of two years (until 31 December 2012).23 In our opinion, the limitation of her term of office after re-election to two years violated the clear wording of Article 9 OP, as only those members who have been elected at the first election may be chosen by lot to serve for a period of two years.