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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part V Declaration, Art.24 Temporary Opting-Out Declaration

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. 957) Article 24  Temporary Opting-Out Declaration

  1. 1.  Upon ratification, States Parties may make a declaration postponing the implementation of their obligations either under part III or under part IV of the present Protocol.

  2. 2.  This postponement shall be valid for a maximum of three years. After due representations made by the State Party and after consultation with the Subcommittee on Prevention, the Committee against Torture may extend that period for an additional two year period.

1.  Introduction

1  Article 24 OP provides States parties with the opportunity to make a declaration to the effect that the competences of the SPT or of the respective NPM will be postponed for a maximum of three years. If need be, this period may be extended for another two years. This particular ‘opting-out declaration’ was introduced by the Chairperson-Rapporteur in 2002 as a compromise for those States, including the United States and Saudi Arabia, which opposed the general prohibition of reservations to the Protocol.1 It resembles, to some extent, the possibility of ‘opting-out reservations’ in accordance with Article 28(1) CAT, where States parties have the possibility to declare at the time of signature or ratification that they do not recognize the competence of the CAT Committee provided for in Article 20 CAT on the inquiry procedure, or in accordance with Article 30(2) CAT, stipulating that States parties may declare that they do not consider themselves bound by Article 30(1) CAT (containing a specific dispute settlement procedure).2

2  Until November 2017, only seven States parties to the OP have made use of the possibility to postpone the implementation of their obligations under the Protocol.3

(p. 958) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Revised Costa Rica Draft (15 January 1991)4

Article 18

  1. 1.  The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

  3. 3.  No reservations may be made in respect of the provisions of this Protocol.

4  Text of the Articles which constitute the Outcome of the First Reading (25 January 1996)5

Article 18

  1. 3.  No reservations [incompatible with the object and purpose of the Convention and Protocol] may be made in respect of the provisions of this Protocol.

5  EU Draft (22 February 2001)6

Article 19 bis (new)

No reservations shall be made to the present Protocol.

6  Proposal by the Chairperson-Rapporteur (17 January 2002)7

Article 24

  1. 1.  Upon ratification, States parties can make a declaration postponing the implementation of their obligations either under Part III or under Part IV of the present Protocol.

  2. 2.  This postponement shall be valid for a maximum of three years. After due representations made by the State Party and after consultation with the Subcommittee on Prevention, the Committee against Torture may extend that period for an additional two-year period.

2.2  Analysis of Working Group Discussions

7  The inclusion of a temporary opting-out possibility in Article 24 constitutes an attempt by the Chairperson-Rapporteur to reach a compromise on the controversial question of reservations.8

8  At the tenth session of the Working Group from 14 to 25 January 2002, the Chairperson-Rapporteur presented her draft proposal, containing a declaration in Article 24 (Part V), which would give States parties the possibility of postponing their obligations (p. 959) either under Part III or under Part IV. The purpose of this provision was to facilitate the adoption of measures by States that would enable them to comply with their obligations under the Protocol. This Article, however, was open to negotiation, since it dealt with an issue that had not been discussed at the Working Group before.9

9  During the discussions on Article 24, the delegation of Saudi Arabia recalled that all the rules governing international instruments permitted reservations and that the Vienna regime on reservations was clear on this point. It therefore questioned the legal basis for the inadmissibility of reservations.10 The delegation of Cuba stated that Article 24 did not resolve many of the concerns expressed by several delegations.11 Other delegations, such as the delegation of Poland, while expressing concern about Article 24, were still ready to support the Chairperson’s proposal at large.12

10  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.13

3.  Issues of Interpretation

3.1  Declaration to Postpone the Implementation of Obligations

11  The temporary ‘opting-out declaration’ under Article 24(1) OP enables States parties to postpone the ‘implementation of their obligations’ either under Part III (mandate of the Subcommittee on Prevention) or under Part IV (mandate of the NPM) of the Protocol. The words ‘either … or’ indicate that States have to choose. They are not allowed to ‘opt-out’ from both procedures. To postpone the implementation of the mandate of the SPT means that the SPT has no mandate vis-à-vis the State party concerned for the period indicated in the respective declaration. In particular, the SPT is prevented from carrying out a mission to the State party concerned, and the State party has no obligations vis-à-vis the SPT under Articles 12, 14, or 15 OP. In addition, the SPT, during this initial period, cannot implement its advisory and assisting function under Article 11(b) OP in relation to the State party concerned and its NPM. Nevertheless, the State party is required to establish or designate a NPM within one year after the entry into force of the Protocol without the respective advice of the SPT.

12  The second option is to postpone the implementation of the mandate of the NPM. This means that the State party concerned postpones its obligation under Article 17 OP to establish or designate a NPM within one year after the entry into force of the Protocol, for another period of up to three years, ie for a total of four years. Within this period, the State party may, however, avail itself of the possibility under Article 11(b)(i) OP of being assisted by the SPT in its efforts to establish a NPM. The SPT may, for example, conduct a mission to the State party concerned, visit several places of detention and organize a seminar, together with the Government and relevant NGOs, on the measures necessary for establishing an independent and effective NPM.14

(p. 960) 13  According to Article 24(1) OP, the opting-out declaration may be made ‘upon ratification’. Strictly speaking, this provision prevents a State which has not signed the Protocol and becomes a party by way of accession,15 from making a respective declaration. The comparable provisions in Articles 28(1) and 30(2) CAT explicitly state that the respective reservations may be made ‘at the time of signature or ratification of this Convention or accession thereto’.16 Nevertheless, there are no strong reasons against also allowing declarations upon accession. But a State becoming a party to the Protocol by means of succession cannot use this opportunity to suspend the implementation of a part of the Protocol for a certain period.

14  In fact, the interpretation of Article 24(1) OP had proven to be quite controversial, as there existed a discrepancy between the various authentic texts of the Protocol. While the Arabic, Chinese, English, and French versions stipulated that such a declaration may be made ‘upon ratification’, the Russian and Spanish versions contained the phrase ‘once ratified’. Following Article 33 VCLT, the terms of a treaty are presumed to have the same meaning in each of its authentic texts. Consequently, after a precedent was set by Kazakhstan, that made a declaration of postponement with regard to the establishment of its NPM almost one and a half year after ratification,17 the question was referred to the UN Office of Legal Affairs, which ‘initiated a correction procedure to bring the Russian and Spanish versions of article 24 into line with the other four authentic texts’, ensuring that these versions mirrored the meaning of the phrase ‘at the time of the ratification’. The change retroactively entered into force on 29 April 2010.18

3.2  Validity of the Postponement

15  The postponement of the implementation of certain provisions of the Protocol for the State party concerned shall be valid for the period indicated in the respective declaration. Article 24(2) specifies a maximum of three years. The period starts to run as from the entry into force of the Protocol for the State party concerned, ie either on 22 June 2006, or on the thirtieth day after the deposit of its own instrument of ratification (or eventually accession).19 Until November 2017, only seven States parties to the OP have made use of the possibility to postpone the implementation of their obligations under the Protocol. While Kazakhstan, Montenegro, Romania, Hungary, Bosnia and Herzegovina, and Germany20 declared to postpone their obligations under Part IV of the Protocol (related to the designation of the NPM), the Philippines declared

(p. 961)

the postponement of the implementation of its obligations under Part III of the Optional Protocol, specifically Article 11 (1)(a) on the visitations by the SPT to places referred to in Article 4 and for them to make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment.

Already since 2008, relevant organizations active in the field of torture prevention encouraged the Philippian state authorities to demonstrate responsibility and approve the ratification instrument at the first given opportunity.21 In 2009, the CAT Committee strongly recommended that ‘the State party should take immediate steps to prevent acts of torture and ill-treatment throughout the country and to announce a policy of total elimination in respect of any ill-treatment or torture by State officials’.22 It was only in 2012, however, that the Philippines acceded to the OP. This step was highly welcomed by the international community, which then recommended to further strengthen the Philippines’ efforts to ‘[p]revent cases of torture in facilities of detention through the provision of legal safeguards for detainees and effective investigations into allegations of torture and the prosecution and sentencing of perpetrators’.23

16  Article 24(2) provides also for the possibility of extending the period of three years for an additional two years. This means that the establishment of a NPM might be postponed for a total of six years after the entry into force of the Protocol. However, a decision of extension can only be made by the CAT Committee, after due representations have been made by the State party and after consultation with the SPT. A State party to the Protocol would have to advance very strong reasons why the SPT should not be allowed to carry out its mandate vis-à-vis that State for a total period of five years, in order to convince both the SPT and the CAT Committee that such an extension is justified. Until November 2017, this possibility had not been made use of. The competence of the SPT under Article 24(2) to consult with the CAT Committee about the possibility of an extension is not affected by the declaration under Article 24(1), which only postpones the implementation of its mandate under Part III, not Part V.

17  The extension under Article 24(2) OP might become relevant in relation to the establishment of a NPM in accordance with Article 17 OP.24 If the SPT, in exercising its advisory and assisting functions under Article 11(b)(i) OP, arrives at the conclusion that the State party has taken serious efforts but still faces considerable difficulties in establishing a truly effective NPM within the first period of four years, it may recommend that the CAT Committee extend the period for another two years.

Kerstin Buchinger

Footnotes:

1  On the controversial discussions as to the permissibility of reservations to the Protocol see below Art 30 OP, 2.2.

2  See above Arts 28 and 30 OP.

3  Kazakhstan, Montenegro, Romania, Hungary, Bosnia and Herzegovina, Germany, and the Philippines.

4  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.

5  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.

6  E/CN.4/2001/WG.11/CRP.2.

7  E/CN.4/2002/CRP.1.

8  For these discussions see the analysis below Art 30 OP, 2.2.

9  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its Tenth Session (2002) UN Doc E/CN.4/2002/78, para 51.

10  ibid, para 72.

11  ibid, para 88.

12  ibid, para 107.

13  CHR Res 202/33 of 22 April 2002. See above Art 1 OP, 2.2.

14  See above Art 11 OP, 3.

15  See below Art 27(3) OP.

16  See above Art 28, 3; Art 30 OP, 3.

17  Kazakhstan ratified the Protocol on 28 October 2008, invoking the Russian version of its text to make a declaration under Art 24 OP postponing the establishment of its NPM. The declaration was made on 8 February 2010.

18  See SPT, ‘Third Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/C/44/2, para 48; Secretary-General, ‘Corrections to the Original Text of the Optional Protocol (Authentic Russian and Spanish Texts) and to the Certified True Copies’ <http://treaties.un.org/Publication/CN/2010/CN.244.2010-Eng.pdf> accessed 20 November 2017.

19  See below Art 28 OP.

20  Germany made a declaration under Art 24 on 23 March 2012, stating that ‘[t]he distribution of competences within the Federal Republic of Germany means that a treaty between the Länder (federal states), which requires parliamentary approval, is needed in order to establish the national preventive mechanism at Länder level. Because of this requirement, Germany shall postpone the implementation of its obligations under Part IV of the Optional Protocol. The Subcommittee will be informed as soon as possible of the date from which the national prevention mechanism is operational.’

21  IRCT, ‘A Step Forward: Ratifying OPCAT in the Philippines’ (30 April 2008) <http://irct.org/media-and-resources/latest-news/article/361> accessed 20 November 2017.

22  CAT, ‘Concluding Observations: The Philippines’ (2009) UN Doc CAT/C/PHL/CO/2, para 7.

23  GA, ‘Report of the Working Group on the Universal Periodic Review: Philippines’ (2012) UN Doc A/HCR/21/12, para 129.18.

24  See also APT and IIDH, Optional Protocol to the United Nations Convention against Torture: Implementation Manual (2nd rev edn, APT and IIDH 2010), 105.