11 During the first session of the Working Group, held from 19 to 30 October 1992, Article 12 was discussed under the fourth basket of issues ‘Operation of the system’.15 One of the issues raised during the discussion was the access to information. Several delegates (p. 826) noted that information on specific persons might be subject to laws on privacy and data protection or the rules of professional ethics. Some felt that these paragraphs (paragraphs 2 (b), (f), and 3) should be redrafted to reflect the corresponding principles of the ECPT. One delegation was of the opinion that the consent of the person to be interviewed was essential, although a presumption of consent might be created except where the person specifically refused consent. It also noted particular concerns about the legal capacity of minors and mental patients to consent. Another delegation indicated that the aim of the provision was to protect the individual against abuse of private or personal information, rather than the State or public authority, and the provision should state the right to privacy and international standards relating thereto.16
12 At its third session from 17 to 28 October 1994, the Working Group continued to consider Article 12. During the discussions, the need to provide a delegation of the SPT with unrestricted access to the places of detention was once again strongly emphasized.17
13 During the sixth session of the Working Group from 13 to 24 October 1997, the Chairperson-Rapporteur once again invited delegations to discuss Article 12.18
14 The representative of the Netherlands pointed out that the article in question dealt with operational guidelines and not with questions of principle and, as such, should neither contain too many details nor refer to the issue of prior consent to receive missions. The representative of China expressed full support for the given proposal, stating that nothing should interfere with State sovereignty. The observer for the APT favoured a text drafted in language as close as possible to that of Article 12 as contained in the Costa Rica Draft of 1991. He pointed out that Article 12 would be one of the cornerstones of the new instrument and would allow the SPT to gain a full and clear understanding of the situation in the country visited, without which no helpful recommendations could be made. As a matter of fact, the visiting delegation must have the rights to travel without restriction to any place of detention, to enjoy unlimited access to such places and to interview detainees without witnesses. In his opinion, legitimate interests of States to restrict visits should be addressed in Article 13. Furthermore, he cautioned against lowering existing international humanitarian standards, such as the Third and Fourth Geneva Conventions. He opposed the granting of such rights in accordance with national laws, because every country had laws limiting access to detainees and providing, at least for certain categories of persons, that visits must be supervised. The observer for AI found that Article 12 was one of the most essential Articles and that the preventive effect of the OP could only be maximized if the SPT was able to visit any part of any detention facility and speak privately with detainees. The observer for the ICRC stated that access to all places and persons, together with the possibility of private talks and repeated visits, were essential conditions for a visit by his organization.
15 In the course of the discussion, the observer for Sweden proposed that the drafting group should return to the original version of Article 12 as proposed by Costa Rica in 1991. This view was supported by the representatives of Argentina, Brazil, Canada, (p. 827) Denmark, Dominican Republic, France, Italy, South Africa, Uruguay, and the observers for Australia, Finland, Norway, and Switzerland as well as for AI and the ICRC.19
16 At the tenth plenary meeting on 22 October 1997, the Chairperson of the drafting group reported on the group’s attempt to finalize Article 12, which—unfortunately—could not be done until the end of the sixth session of the Working Group.20 Upon the proposal by the Chairperson-Rapporteur, the Working Group decided to continue its work on the draft OP by considering Article 12 at its seventh session from 28 September to 9 October 1998.21
17 It was generally felt that Article 12 was of crucial importance to the whole document since it contained references to the basic commitments that States would accept by ratifying the OP. The purpose of this article was therefore to define what host governments should offer the SPT in terms of cooperation, information, and assistance. The general approach of all delegations was that the contents of the present Article 12 could be reduced to several core elements of the visits, including access to the territory, provisions of information, access to places of detention, and access to individual persons, as well as the opportunity for private interviews with such individuals and the opportunity to communicate with persons who were in a position to supply relevant information.
18 Regarding the issue of domestic laws and regulations, it was the common understanding that all visits should be effected in the framework of or in accordance with the national legislation of host countries. However, this legislation should be consistent with international law. It was emphasized that national law or regulations should not be used in order to hinder the fulfilment of the missions or visits. It was, therefore, felt that the drafting of a reference to domestic law, if needed, should be made in a balanced way.
19 However, the delegations had still failed to arrive at a final text of Article 12. Thus, the text of Article 12 was included in Annex II to the seventh report of the Working Group to serve as a basis for future work.22 In addition, the Chairperson of the Working Group also referred to three nota benes. First, there was an understanding that Article 12 has a close relationship with Article X23 dealing with national legislation, inter alia, with regard to issues of safety and privacy. It was understood that Article 12 may have to be modified based on the terms of Article X. Second, the issue was raised about gaining access to territory which is not under a State party’s jurisdiction but under its de facto control. Third, the protection of persons who have communicated with the SPT will be addressed in a separate Article.24 The question of where to place the reference to national legislation—in Article 12 or elsewhere in the text—had not been definitively settled during the discussions at the seventh session.
20 During the eighth session of the Working Group from 4 to 15 October 1999, the scope of cooperation envisaged between the States parties and the SPT was discussed under Article 12. Some delegations pointed out that their constitutional requirements (p. 828) and/or their national legislation could prevent them from giving the SPT free access to all types of information or places. Restrictions in national legislation could also limit the possibility of the SPT to require testimony from detained persons or to interview prisoners ‘without witnesses’.25 It was emphasized by some delegations that it was a prerequisite to establish a framework for the normal work of the SPT, including such elements as freedom of movement and access to all relevant information, places, and persons.
21 In the course of the Working Group’s considerations on Article 12, some delegations insisted that if an Article X on national legislation were included in the Protocol, they might be able to accept Article 12(1) as drafted. A number of others indicated that they opposed a separate Article X as it would undermine the objectives of the Protocol. All delegations agreed that paragraph 2 required further development, and as many divergent views had been expressed so far, the whole texts of Articles 12 and X were put in square brackets.26
22 In the proposal presented by the Chairperson-Rapporteur, the mandate of the SPT was described in Part III, including three main areas: visits to places of detention, technical assistance, and cooperation for the prevention of torture with relevant UN organs as well as international, regional, and national institutions. Article 12 set out the obligations of States vis-à-vis the SPT.27 During the debate on the proposal, several delegations, among them the delegation of the United States, found that the foreseen global reach of the SPT was impractical. Moreover, it stated that constitutional considerations such as appropriate restrictions on grants of authority for access to persons and places had not been accommodated.28 The delegation of Japan questioned why the article regarding so-called ‘unrestricted access’ had been kept in the proposal.29 Similarly, the Arab Group was not in favour of a SPT endowed with mandatory authority to visit States without their explicit consent.30 However, most of the delegations supported the Chairperson-Rapporteur’s proposal.
23 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.31 The fairly far-reaching obligations of States parties under Article 12 certainly contributed to the fact that so many States voted against the draft OP in the Working Group, the Commission, and ECOSOC.32