13 Article 27 OP is based almost literally on Article 8 of the first Optional Protocol to the CCPR.16 The only controversial issue during the drafting in the Working Group was whether the OP should be open to signature, ratification, and accession to all States (as proposed by Sweden) or only to States which had signed, ratified, or acceded to the CAT as the main treaty, which is the usual requirement for optional protocols. Most States, as well as representatives of NGOs, spoke against the Swedish proposal, which was later withdrawn.17 Apart from legal concerns, the opponents of the Swedish proposal argued that such a procedure might undermine the promotion of universal ratification of the CAT. This would have turned the OP into a free-standing treaty rather than a mere Protocol to the Convention.
14 According to Article 27(1) OP, the only requirement for signing the OP is prior signature of the Convention. This means that States that are signatories but not yet parties to the CAT are also invited to sign the Protocol. As a result, States parties to the CCPR, which are in fact bound by the prohibition of torture in Article 7 CCPR in a legally stronger manner than mere signatories of the CAT, are not invited to sign the Protocol.
15 Ratification of the Protocol is only possible for States parties to the CAT. It does not make a difference whether the State concerned became party to the CAT by way of signature and ratification, or by way of accession. In addition to being a party to the CAT, a (p. 987) State wishing to ratify the OP must first have signed the Protocol. This latter requirement does not apply to accession.
16 Although not explicitly mentioned in Article 27 OP, States may also sign, ratify, or accede to the Protocol by means of succession.18 In fact, Serbia and Montenegro had signed the Protocol on 25 September 2003. After the secession of Montenegro on 3 June 2006, Serbia decided to ratify the Protocol on 26 September 2006, whereas Montenegro, by a notification of 23 October 2006, became a signatory State by means of succession.
17 The OP was adopted by the UN General Assembly on 18 December 2002 by a majority of 127 States in favour, four against (Nigeria, Marshall Islands, Palau, and the United States), and forty-two abstentions, including Australia, China, India, Japan, the Russian Federation, and other countries from Asia, Africa, and the Arab and Caribbean regions.19 It was opened for signature on 4 February 2003. The first country to sign the Protocol on 4 February 2003 was Costa Rica, the country which had submitted the first draft for an OP in 1980, which had prepared a revised draft in 1991 as the main basis for the discussions in the Working Group, and which led the discussions in the Working Group, in particular through its former Minister of Justice, Elizabeth Odio Benito, as Chairperson-Rapporteur. Costa Rica was followed by Denmark, Sweden, and the United Kingdom, which all signed in 2003 on 26 June, the International Day for Victims of Torture. Malta was the first country to ratify the Protocol on 24 September 2003, followed by Albania’s accession on 1 October 2003, and ratification by the United Kingdom on 10 December 2003.
18 As of 12 December 2018, a total of 102 States had signed the OP (Montenegro by succession). Of the eighty-eight States parties, sixty had signed and ratified the Protocol, and twenty-five had become parties by means of accession.20 Of the eighty-eight States parties, thirty-eight belong to the European Group, fifteen to the Latin American and the Caribbean Group, twenty-one to the African Group, eleven to the Asia-Pacific Group, and none to the North American Group.