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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part II Subcommittee on Prevention, Art.9 Term of Office

Kerstin Buchinger

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 07 December 2023

Subject(s):
Torture — Treaties, interpretation

(p. 786) Article 9  Term of Office

The members of the Subcommittee on Prevention shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half the members elected at the first election shall expire at the end of two years; immediately after the first election the names of those members shall be chosen by lot by the Chairman of the meeting referred to in article 7, paragraph 1(d).

1.  Introduction

1  Article 9 OP is a standard provision in UN human rights treaties providing for a four-year term of office and the principle of partial renewal with ‘staggering’ elections every two years. However, for the first time in a human rights treaty, Article 9 OP restricts the re-election of members to once only. This restriction of the possibility for a continuing membership of some members of the SPT for more than two terms served as a model for later treaties, such as the CED and CRDP.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

2  Original Costa Rica Draft (6 March 1980)1

Article 5

  1. 3.  A person shall be eligible for renomination.

Article 6

  1. 1.  The members of the Committee shall be elected for a term of four years. However, at the first election half of the members shall be elected for two years. Thereafter, elections shall be held every two years for half of the members of the Committee.

(p. 787) 3  Revised Costa Rica Draft (15 January 1991)2

Article 5

  1. 4.  A member shall be eligible for re-election if renominated.

Article 6

  1. 1.  The members of the Subcommittee shall be elected for a period of four years. However, among the members elected at the first election, the terms of five members, to be chosen by lot, shall expire at the end of two years.

4  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)3

Article 6

The members of the Sub-Committee shall be elected for a term of four years. They shall be eligible for re-election [once] [twice] if renominated. The term of half of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these members shall be chosen by lot by the Chairman of the meeting referred to in Article 5, paragraph 2.

5  Text of the Articles which Constitute the Outcome of the Second Reading (2 December 1999)4

Article 9 (6)

The members of the Subcommittee shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these members shall be chosen by lot by the Chairman of the meeting referred to in Article 6, paragraph 1.

6  Mexican Draft (13 February 2001)5

Article 13 (former Article 9 [6])

The members of the Sub-Committee shall be elected for a term of four years. They shall be eligible for re-election once if re-nominated. The term of half of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these members shall be chosen by lot by the Chairman of the meeting referred to in Article 11, paragraph 1.

7  EU Draft (22 February 2001)6

Article 10 (former Article 9)

The members of the Sub-Committee shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half of the members elected at the first election shall expire at the end of two years; immediately after the (p. 788) first election the names of these members shall be chosen by lot by the Chairman of the meeting referred to in Article 7, paragraph 1.

2.2  Analysis of Working Group Discussions

8  During the first session of the Working Group, held from 19 to 30 October 1992, the election procedures and related issues were discussed under Article 5 and within the basket of issues called ‘Composition and structure of the Subcommittee’.7

9  With regard to Article 5(4) of the Costa Rica Draft of 1991, the general sense of the debate concerned the notion that the possibility of indefinite re-election should be subject to some appropriate limitation. A number of delegations considered that the given concept of re-election was not conducive to renewal and dynamism in the body and that a limit on re-election for one additional term was more suitable. In addition, differences existed regarding the eligibility for re-election for more than one term. Moreover, it was further indicated that re-election to the CPT was only possible once.8

10  Concerning Article 6(1), one delegation indicated that the proposed procedures for ‘staggering’ elections (to have half the members’ terms expiring at different times) might have some unintended consequences due to the operation of Articles 4(1), 5(3) and (6). Furthermore, several speakers felt that the transitional arrangements for entry into force would give rise to technical concerns about the periodicity of elections.

11  During its second session from 25 October to 5 November 1993, the Working Group agreed on the text for Article 5(4).9 With regard to Article 6 and the issue of re-election, however, no consensus could be reached in the course of the second session. Some delegations, again, considered that a limit on re-election to one additional term was more suitable, while other representatives supported two re-elections in order to ensure continuity, which would also take into account the experience of the CPT.10

12  In the sixth session, held from 13 to 24 October 1997, the delegates continued to discuss Article 6.11 The representative of Cuba expressed the view that Article 6 should not specify the number of times that a member of the SPT would be eligible for re-election, arguing that such limitations were not laid out in other conventions. Therefore, the words ‘once’ and ‘twice’ in brackets should be deleted. This proposal was supported by the representative of the Netherlands. The delegation of the Dominican Republic also supported the delegation of Cuba, but suggested that a re-elected member might be allowed to stand for re-election again after a certain period of time. In contrast, the delegations of Brazil and Canada and the observers for Australia, Sweden, Switzerland, and the APT preferred to limit the possibility for re-election of experts to once. The observer for the APT stated that States parties to other conventions regretted the absence of limitations with regard to the number of times that a committee member could serve. At the reconvening of the second plenary meeting on 13 October 1997, the Chairperson-Rapporteur of the drafting group reported that the drafting group had decided that members of the SPT ‘shall be (p. 789) eligible for re-election once if renominated’, as it was felt that this would ensure a balance between continuity and the need for diversity. Consequently, Article 6 was adopted and renumbered as Article 9.12 Moreover, later drafts repeated the agreement reached in 1997.

3.  Issues of Interpretation

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.

Kerstin Buchinger

Footnotes:

1  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica (1980) UN Doc E/CN.4/1409.

2  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights (1991) UN Doc E/CN.4/1991/66.

3  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995) UN Doc E/CN.4/1995/38, Annex; Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fourth session (1996) UN Doc E/CN.4/1996/28, Annex I.

4  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its eighth session (1999) UN Doc E/CN.4/2000/58, Annex II.

5  E/CN.4/2001/WG.11/CRP.1.   

6  E/CN.4/2001/WG.11/CRP.2.

7  See Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) UN Doc E/CN.4/1993/28 para 26.

8  ibid, para 67.

9  See Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1993) UN Doc E/CN.4/1994/25 para 45.

10  ibid, para 51.

11  See Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) UN Doc E/CN.4/1998/42 paras 19ff.

12  ibid, para 23.

13  cf Art 8(5)(a) CERD; Art 32 CCPR; Art 17(5) CEDAW; Art 17(5) CAT; Art 43(6) CRC; Art 72(5)(a) CMW; Art 26(4) CED; Art 34(7) CRPD .

14  ibid.

15  See Secretary-General, ‘First Meeting of the States Parties—Summary Record’ (2006) UN Doc CAT/OP/SP/SR.1.

16  See Secretary-General, ‘Elections of Members of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/OP/SP/7 paras 15–16.

17  cf above para 4.

18  See above 2.2.

19  cf eg art 8 CERD and art 17 CEDAW.

20  cf eg art 32 CCPR, art 17(5) CAT, art 43(6) CRC, art 72(5)(c) CMW.

21  cf eg art 26(4) CED and art 34(7) CRPD.

22  See the list of all Committee members and their respective terms of office in Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 1227.

23  See Secretary-General, ‘Fourth Meeting of the States Parties—Summary Record of the 4th Meeting’ (2010) UN Doc CAT/OP/SP/SR.4 para 27.