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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VI Financial Provisions, Art.25 Financing of the Subcommittee

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: 01 October 2023

Subject(s):
Torture — Right to non-discrimination — Treaties, interpretation

(p. 965) Article 25  Financing of the Subcommittee

  1. 1.  The expenditure incurred by the Subcommittee on Prevention in the implementation of the present Protocol shall be borne by the United Nations.

  2. 2.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee under the present Protocol.

1.  Introduction

1  Experience shows that the system of financing of treaty monitoring bodies by contributions of States parties, as provided for in Articles 17(7) and 18(5) CAT, simply does not work and leads to serious obstacles for the treaty bodies in performing their functions.1 This is the reason why Australia in 1991 submitted a proposal for amending these provisions, together with the respective provisions of CERD. Both provisions were amended in accordance with the procedure envisaged in Article 29 CAT. However, these amendments never entered into force as the required ratification by two-thirds of the States parties was never achieved.2 Nevertheless, the General Assembly, when endorsing these amendments in December 1992, as a provisional measure agreed to cover the expenses of the CAT and CERD Committees out of the general UN budget.3 This provisional measure seems to have become a permanent solution.

2  The activities of the SPT, in particular after having grown to twenty-five members conducting missions to an increasing number of States parties, entail considerable expenses that go well beyond those of other human rights treaty monitoring bodies. Keeping the negative experiences of the CAT Committee with a funding model by States parties in mind, it is not surprising that all relevant drafts for the OP provided for funding of the SPT out of the regular UN budget.4 Some delegations, above all the United States of America, nevertheless insisted that the costs of the SPT should be borne exclusively by (p. 966) the States parties to the Protocol.5 No compromise could be achieved, and the majority adopted the model of UN financing, supplemented by the creation of a Special Fund to help States parties financing the implementation of the Protocol on the domestic level.6

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Original Costa Rica Draft (6 March 1980)7

Article 13

  1. 1.  Each State Party shall contribute to the expenditure incurred in the implementation of the present Protocol on the basis of the scale used by the United Nations Organization.

  2. 2.  The draft annual budget, after approval by the Committee, shall be submitted by the Secretary-General to the annual Assembly of the States Parties.

4  Revised Costa Rica Draft (15 January 1991)8

Article 16

The expenditure incurred by the implementation of the present Protocol, including all its missions, shall be borne by the United Nations.

  1. [1.  States Parties shall contribute to the expenditure incurred in the implementation of the present Protocol on the basis of the scale used by the United Nations.

  2. 2.  There may be established a Special Fund based on voluntary contributions of States, intergovernmental organizations, non-governmental organizations, private institutions and individuals.

  3. 3.  The Special Fund shall supplement the financing by the States Parties of all the activities provided for in this Protocol. It shall be managed by the Subcommittee, which shall report to a Board of Trustees appointed by the States Parties.

  4. 4.  Any expenses, such as the cost of staff, interpreters and facilities, incurred by the United Nations pursuant to Article 7 paragraph 4, shall be reimbursed by contributions of the States Parties and the Special Fund.]

5  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)9

Article 16

  1. 1.  The expenditure incurred by the implementation of the present Protocol, including missions, shall be borne by the United Nations, [subject to the approval of the General Assembly].

  2. (p. 967) 2.  The Secretary-General of the United Nations shall provide necessary staff and facilities for the effective performance of the functions of the Sub-Committee under the present Protocol.

6  Text of the Articles which Constitute the Outcome of the Second Reading (2 December 1999)10

Article 16 [16]

  1. 1.  The expenditure incurred by the implementation of the present Protocol, including missions, shall be borne by the United Nations.

  2. 2.  The Secretary-General of the United Nations shall provide necessary staff and facilities for the effective performance of the functions of the Subcommittee under the present Protocol.

7  Mexican Draft (13 February 2001)11

Article 20 (former Article 16, amended)

  1. 1.  The expenditure incurred by the implementation of the present Protocol shall be borne by the United Nations.

  2. 2.  The Secretary-General of the United Nations shall provide the staff and services necessary for the effective performance by the Sub-Committee of its functions under the present Protocol.

8  EU Draft (22 February 2001)12

Article 17 (old 16)

  1. 1.  The expenditure incurred by the implementation of the present Protocol, including missions and visits, shall be borne by the United Nations.

  2. 2.  The Secretary-General of the United Nations shall provide necessary staff and facilities for the effective performance of the functions of the Sub-Committee under the present Protocol.

9  US Draft (16 January 2002)13

Article 9

  1. 1.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee under this Protocol.

  2. 2.  The States Parties which shall have accepted this Protocol shall be responsible for expenses incurred in connection with the operation of the Subcommittee on Prevention, in a manner based upon the United Nations scale of assessment prorated to take into account the number of States Parties to the Protocol.

(p. 968) 2.2  Analysis of Working Group Discussions

10  During the first session of the Working Group, held from 19 to 30 October 1992, Article 16 of the revised Costa Rica Draft of 1991 was discussed under ‘Logistics and financial considerations’.14 The general approach of most delegations was that the implementation of the proposed system and the operations of the SPT should not be jeopardized by inadequate financing. There should be an assurance of sufficient financial and other resources, on a continuing basis, to meet the needs of the efficient operation of the system. Most representatives expressed the view that Article 16 needed further consideration, based on a financial evaluation of the projected costs of implementing the Protocol. Delegations requested the preparation of a detailed financial analysis of the costs associated with the operation of the proposed system of visits, to be provided to the Working Group in the course of its future deliberations.

11  Many delegations supported the principle that expenditures deriving from the implementation of the Protocol should be borne by the regular UN budget. Reference was made in this connection to the proposal made by the meeting of Chairpersons of the supervisory bodies that all treaty bodies be financed from the regular UN budget and that all new instruments should provide for the financing of new bodies from the regular budget. Further consideration would be needed, however, in light of the decision taken by the General Assembly at its forty-seventh session on the effective operation of the treaty bodies. If the General Assembly proposed changes to the CAT to allocate costs of the CAT Committee to the general budget, it was suggested that the same system should apply to the Protocol. The reliance on voluntary contributions, or on payments by States parties alone, would not provide the necessary assurance of resources to permit sound administration.

12  Some delegations nevertheless found that the idea that States parties should bear the expenditures should be retained for consideration. Others feared that if the entire costs were to be borne by States parties, this might inhibit many countries from ratifying the instrument.

13  Several speakers stressed the need for adequate financial resources as a prerequisite to the efficient implementation of the Protocol and expressed the fear that voluntary contributions would not be sufficient for this purpose. A number of delegations expressed the opinion that in a time of significant financial constraints, the establishment of this mechanism should not be at the expense of the effective functioning of other areas of the human rights treaty system.

14  At the fourth Working Group session from 30 October to 10 November 1995, it was the general approach of all delegations that the expenditures incurred in the implementation of the Protocol and the activities of the special fund should be dealt with in separate Articles.15

15  Most delegations supported the principle that expenditure deriving from the implementation of the Protocol should be borne by the regular UN budget. Reference was (p. 969) made to GA Resolution 47/111 of 16 December 1992, in which the Assembly endorsed respective amendments to two conventions, including CAT, providing for the financing of the CAT Committee from the regular budget.

16  The representative of Cuba suggested deleting the introductory part of Article 16, and the observer for Nigeria also stated that the contributions should be paid by the States parties themselves.

17  The delegation of the United States of America called on other delegations to take into account the financial situation of the United Nations and the resource situation of the Centre for Human Rights. It would not be advisable to impose a financial burden on the Centre unless it was assured that the Centre would receive additional resources for servicing that additional body, which would be quite expensive. It believed that the Working Group should place on record that if regular budget funding was decided upon, the Secretary-General should provide additional resources from within the existing regular UN budget to compensate the Centre of Human Rights for the additional expenses occasioned by the establishment of the SPT.

18  The majority of delegations, however, expressed the belief that the financial difficulties of the United Nations were temporary. It was generally felt that it was necessary to draft Article 16(2) along the lines of Article 18(3) CAT. Thus, a paragraph with such wording was added as paragraph 2.16

19  At the fifth plenary meeting on 9 November 1995, the Chairperson of the informal drafting group submitted the text of Article 16, stating that it was proposed that the article should contain two paragraphs, setting out that the expenditure incurred in the implementation of the Protocol should be borne by the United Nations. Paragraph 2 stipulated that the UN Secretary-General should provide the necessary staff and facilities for the effective performance of the SPT. The Working Group then agreed on this proposal.17

20  At the sixth session, held from 13 to 24 October 1997, the representatives of Cuba and Egypt once again stated that States parties should be responsible for the expenditures incurred by the implementation of the present Protocol.18 The observer for Amnesty International noted that human rights work was an integral part of the mainstream work of the United Nations, that special funding could be uncertain and payment difficult to ensure, and that independence would be best guaranteed by regular budget funding. She recalled the problem of funding of the CAT Committee which eventually resulted in a change of funding from States parties to the regular budget. At the fourth plenary meeting on 14 October 1997, paragraph 2 of Article 16 was adopted without amendments.19 At the sixth plenary meeting on 15 October 1997 the Chairperson of the drafting group decided to place a full stop after the words ‘United Nations’ and to delete the bracketed text. At the same meeting, paragraph 1 of Article 16 was adopted.20

21  During the ninth session from 12 to 23 February 2001, while considering the alternative draft text proposed by Mexico with the support of GRULAC, some delegations raised concerns about the financial implications of creating national and international mechanisms. They expressed reluctance to accept that the international mechanism should be funded under the regular UN budget and asked to receive information from the Secretariat concerning what the budget cost of the proposed mechanisms might be.21

(p. 970) 22  At the tenth session of the Working Group from 14 to 25 January 2002, the delegation of the United States of America suggested that it would not be appropriate to fund the international visiting mechanism from the regular UN budget, as that would mean that every member of the United Nations would contribute to the mechanism whether or not it was a party to the OP. Therefore, the costs should be borne by the States parties to the Protocol themselves. Furthermore, the delegation, supported by the delegation of Saudi Arabia, expressed concern about the financial implications of creating an international mechanism and the budgetary consequences of such a mechanism on other human rights mechanisms.22

23  The delegations of Sweden, Denmark, and Finland were of the view that the international mechanism should be funded under the regular budget and recalled the provision to that effect contained in the draft presented by the European Union in 2001. This solution would also guarantee the independence and neutrality of the mechanism.23

24  The delegation of the Netherlands underlined the importance of financing through the regular budget. The UN treaty system was part of the United Nations and as such all member States contributed (per ratio) to the system, irrespective of the treaties they had signed or ratified. It would also be unfair for States parties to put a price tag on a human rights treaty. That would mean that only rich States would be in a position to become parties to such treaties. Many people would be denied human rights because their governments could not afford to become a party.24

25  According to the proposal presented by the Chairperson-Rapporteur, the SPT would be financed from the regular UN budget. The Chairperson was aware that certain delegations, including that of the United States of America, had very strong feelings about this issue. However, she recalled that this point had already been discussed and negotiated by the Working Group before.25

26  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.26

3.  Issues of Interpretation

3.1  Budget of the SPT

27  Article 25(1) OP, according to which all costs of the SPT shall be borne out of the regular UN budget, is based on the philosophy that UN human rights treaties were not drafted for the benefit of a small group of States but rather in general served the promotion of international cooperation and other objectives of the UN, such as achieving international peace, security, and development,27 which called for the closest possible links with the world organization. In addition, it proved to be the only practical method of ensuring the smooth functioning of UN treaty bodies and constitutes the standard model of UN human rights treaties.28

(p. 971) 28  Article 25(1) is silent about the costs created by the additional work of the CAT Committee based on the Protocol. The Committee has only very limited functions under the Protocol. However, costs occur as it holds joint meetings with the SPT, discussing the various SPT reports, including its annual reports, it may decide about making a public statement on a particular country situation or publishing a country mission report of the SPT, extend the ‘opting-out declaration’ under Article 24 OP, and include in its own annual report a section on the implementation of the Protocol.29 These additional costs also are and will be borne out of the general UN budget in accordance with GA Resolution 47/111 of December 1992.

29  Since the expenses of the SPT members are borne out of the regular UN budget, the Secretary-General must also provide the necessary staff and facilities for the effective performance of the functions of the SPT under the OP. The respective provision in Article 25(2) is in line with all other human rights treaties the implementation of which is financed by the UN.30 In practice, the servicing of the SPT, as all other human rights treaty bodies, is carried out by the Office of the UN High Commissioner for Human Rights in Geneva.

30  In practice, the SPT has to face serious budgetary constraints ever since it started to be operational. When it began its work in 2007, no funding had been approved for it to carry out its mandate accordingly. Meanwhile, the SPT was supported by the High Commissioner for Human Rights, ‘who provided resources, including interim secretariat assistance, from extrabudgetary funds’.31 For the biennium 2008–2009, a regular budget of US$925,600.00 (being an average of slightly more than US$460,000 per year) had been approved for the SPT,32 meaning that on this basis it was not even able to carry out one regular mission to each of the then thirty-four States parties once every eight years.33 The assumptions on which the SPT budget was based would have allowed for four regular missions lasting for ten days each per year (as well as for two additional short follow-up missions of three days each), involving two SPT members, two persons of the secretariat, and two external experts.34 Especially the assumptions about expenditure for a regular mission in the SPT’s view appeared ‘to significantly underestimate the actual cost of a Subcommittee visit’.35 Moreover, the SPT expressed its concern that there had been ‘no specific provision within the regular budget for the Subcommittee mandate to work in direct contact with national preventive mechanisms, since the existing budget lines [were] limited to sessions and visits’.36 The OP itself expressly foresees and promotes cooperation between the SPT and NPMs, and in fact, quite a number of procedures and opportunities apart from sessions and country missions can be used in order to foster cooperation and communication between these bodies.37

(p. 972) 31  During its second year, the SPT had to limit its planned programme to three missions per year.38 Thus, the SPT made detailed proposals for a revision of the original budget assumptions for the biennium 2010–2011. The proposal was based on the assumption that an average mission would require at least four SPT members.39 Moreover, the costs for UN security officers accompanying the SPT delegations as well as costs for interpretation on missions should be seen as additional costs and should be included in all future budgetary provisions.40 Finally, the proposal addressed the previous lack of a specific provision for the SPT’s mandate to work in direct contact with the NPMs.41

3.2  Staff and Facilities of the SPT

32  Following the expansion in the number of SPT members from ten to twenty-five, the UN General Assembly recognized the need to grant the SPT more resources in order to fulfil its mandate in an adequate manner.42 However, the ‘challenge of resources’ remained an issue of concern for the SPT also in the following years, especially as no stable, core secretariat was in place ‘to service its cycle of work’.43 With regard to paragraph 26(d) of the General Assembly resolution 68/268,44 the SPT strongly believed that in the course of 2015 and beyond it would benefit from the extra provision for capacity-building measures that the General Assembly called upon the Secetary-General to provide through the OHCHR.45 In its ninth Annual Report, however, the SPT expressed its regret that this had not been the case.46 Thus, it found it necessary to seek additional meeting time in order ‘to ensure that its work is as effective as possible’.47

33  Since the Special Fund48 that had been set up in accordance with Article 26 OP was only meant to help finance the implementation of the SPT’s recommendations after a mission, but not the conduct of its missions, one had to think about other means to acquire voluntary contributions for the expenses of the SPT and its staff. The SPT is, therefore, being financially and/or resource-wise supported by certain States parties and called upon States parties to continue to do so in order to enable the SPT to conduct its work and mandate ‘more fully and efficaciously’.49

Kerstin Buchinger

Footnotes:

1  See above Art 17, 6. See also Manfred Nowak, ‘Proposals for Improving the UN Human Rights Programme’ (1993) 11 NQHR 162 with further references.

2  See above Art 29, 4.

3  GA Res 47/111 of 16 December 1992.

4  See below 2.1.

5  cf Art 9(2) of the US Draft below, para 9, and the discussions in the Working Group below, 2.2.

6  See below Art 26 OP.

7  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.

8  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.

9  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.

10  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 I.

11  E/CN.4/2001/WG.11/CRP.1.

12  E/CN.4/2001/WG.11/CRP.2.

13  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, Annex II E.

14  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, paras 101ff.

15  E/CN.4/1996/28 (n 9) para 74.

16  ibid, para 81.

17  ibid, para 82.

18  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 para 82.

19  ibid, para 85.

20  ibid, para 88.

21  ibid, para 26.

22  E/CN.4/2002/78 (n 13) para 32.

23  ibid, para 33.

24  ibid, para 34.

25  ibid, para 52; see also E/CN.4/2002/WG.11/CRP.1.

26  CHR Res 2002/33 of 22 April 2002; see above Art 1 OP, 2.2.

27  On the interdependence of the three main UN aims and objectives, security, development, and human rights, see Kofi Annan, ‘In Larger Freedom’ (2005) UN Doc A/59/2005, paras 12–17.

28  cf eg Art 17(8) CEDAW; Art 43(12) CRC; Art 72(8) CMW; Art 26(7) CED; Art 34(12) CRPD.

29  See above Arts 10(3) OP, 16(4) OP, 24(2) OP.

30  cf eg Art 17(9) CEDAW; Art 43(11) CRC; Art 72(7) CMW; Art 26(7) CED; Art 34(11) CRPD. See also above Art 17, 6 OP.

31  See SPT, ‘First Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2008) UN Doc CAT/C/40/2, para 47.

32  On this basis, the budget would allow for only four regular visits, lasting ten days each per year and two short follow-up visits of three days each.

33  See CAT/C/40/2 (n 1) para 50.

34  ibid.

35  ibid, para 52.

36  ibid, para 53.

37  See Arts 11(b) and 20(f) OP above; see also Moritz Birk and others, Enhancing Impact of National Preventive Mechanisms, Strengthening the Follow-up on NPM Recommendations in the EU: Strategic Development, Current Practices and the Way Forward (Ludwig Boltzmann Institute of Human Rights 2015) 75.

39  ibid, para 71.

40  ibid, paras 72–73.

41  ibid, para 74.

42  See GA Res No 64/153 of 18 December 2009, para 36.

44  GA Res No 68/268of 9 April 2014 (Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System). Paragraph 26(d) stipulates the need for an adequate allocation of financial and human resources to those treaty bodies whose main mandated role is to carry out field visits.

47  SPT, ‘Decision on the Need for Additional Meeting Time for the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc CAT/OP/28/1. See also Secretary-General ‘Status of the Human Rights Treaty Body System’ (2016) UN Doc A/71/118, paras 57 and 91.

48  See Art 26 OP below.

49  CAT/C/54/2 (n 15) para 100.