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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VII Final Provisions, Art.28 Entry into Force

Stephanie Krisper

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 April 2024

Subject(s):
Torture — Treaties, entry into force — Treaties, interpretation

(p. 988) Article 28  Entry into Force

  1. 1.  The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession, the present Protocol shall enter into force on the thirtieth day after the date of deposit of its own instrument of ratification or accession.

1.  Introduction

Article 28 OP describes the procedure of the entry into force of the Protocol in line with Article 27 CAT. Entry into force means that the provisions laid down in the Protocol become legally binding on all States parties that have ratified or acceded to it.

The required conditions for the entry into force of the OP were met on 23 May 2006, when Bolivia and Honduras ratified it and thus brought the total number of ratifications to twenty. Accordingly, and in line with Article 28(1) OP, the Protocol entered into force under international law thirty days later, ie on 22 June 2006. As of 12 December 2018, the OP had eighty-eight States parties.1

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)2

Article 15

  1. 1.  Subject to the entry into force of the Convention, the present Protocol shall enter into force three months after the deposit of the fifth instrument of ratification or accession.

  2. (p. 989) 2.  For each State ratifying the present Protocol or acceding to it after the deposit of the fifth instrument of ratification or instrument of accession the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Revised Costa Rica Draft (15 January 1991)3

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 instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

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

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

Article 18

  1. 1.  The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the [number to be inserted] instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the [number to be inserted] instrument of ratification or instrument of accession, the present Protocol shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

  3. 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.

Text of the Articles which Constitute the Basis for Future Work (2 December 1999)5

Article 19

  1. 1.  The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of twentieth instrument of ratification or accession.

  2. (p. 990) 2.  For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or instrument of accession, the present Protocol shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

2.2  Analysis of Working Group Discussions

In the course of the initial drafting considerations, the delegations had dissenting opinions on the number of instruments of ratification or accession required for the Protocol’s entry into force. Although an expeditious entry into force was favoured by many delegations, it was argued that the proposed number of five or ten States was not enough to provide for universal participation. Moreover, some representatives claimed that the initial number of ratifications or accessions would have an impact on the number of members of the Subcommittee which in turn would influence the efficiency of the Subcommittee. Others held the opinion that ten instruments of ratification or accession were sufficient and that an early entry into force of the Protocol would attract further ratifications or accessions. One speaker favoured an even lower number than ten ratifications.6

In the Working Group of 1995, the members of the Working Group could not reach agreement and hence decided to postpone the decision on the number of ratifications or accessions required for the entry into force again.7 In this regard, Mexico also raised concerns over the financial implications this decision could have: if the Subcommittee was to be dependent on contributions by States parties rather than being financed by the regular UN budget, and the first ten States to the Protocol were not wealthy, then this might have negative impacts on the functioning of the body.8 Other issues raised in regard to this provision entailed a proposal by Chile to bring the period of time between deposit and entry into force in line with the CAT, ie the thirtieth day after the date of deposit rather than after three months as proposed in the Costa Rica draft, which was agreed upon by the Working Group.9 This proposal was agreed upon after the suggestion by delegate of Japan to name the UN Secretary-General as depositary.10

Two years later, in 1997, still no agreement was reached on the number of required ratifications or accessions. While initially Argentina, Cuba, the Czech Republic, the Dominican Republic, Finland, Italy, the Netherlands, Spain, Sweden, the Syrian Arab Republic, and Switzerland, supported by the observer of Amnesty International, were in favour of a low number as ten, Algeria, Australia, China, Denmark, Mexico, the United States, and later also Cuba preferred a number of twenty ratifications or more. Several States, such as Austria, Italy, and Switzerland, indicated in the course of the discussions that they were flexible as to the number.11

(p. 991) 10  Although a considerable number of States still preferred a low number of ratifications necessary for entry into force of the OP in the seventh session of the Working Group, many of them indicated willingness to support as a compromise, but also as an absolute maximum, the requirement of twenty ratifications or accessions.12 On the other hand, the representatives of Australia and the United States, who had argued for a higher number than twenty, agreed to this compromise.13 Thus, the number of ratifications or accessions required for the entry into force of the Protocol was set with twenty and the provision was adopted by the Working Group.14

11  Alternative drafts of the Protocol provided by Mexico,15 the European Union,16 and the United States17 in later sessions contained identical provisions on the question of entry into force and were not discussed separately.

3.  Issues of Interpretation

12  While Article 18 of the revised Costa Rica Draft of 1991 was based on Article 9 of the first OP to the CCPR (ten ratifications or accessions required and entry into force three months thereafter), the final text of Article 28 OP is in line with Article 27 CAT (twenty ratifications or accessions required, entry into force thirty days thereafter).18 The only controversial issue during the drafting process in the Working Group was the number of States parties required for the international entry into force of the Protocol. The number of twenty States parties is fairly high compared to similar procedural optional protocols, such as Article 9 of the First OP to the CCPR, Article 16 of the OP to the CEDAW, and Article 13 of the OP to the CRPD, which only require ten ratifications or accessions.19

13  However, in contrast to these treaties, the OP to the CAT provides not only for a new procedure, such as the OPs to the CCPR, CEDAW, and CRPD, but also for the establishment of a new treaty body to implement this procedure. Since only States parties to the OP have the right of nominating candidates for membership in the Subcommittee on the Prevention of Torture in accordance with Article 6 OP, a requirement of ten ratifications or accessions would have meant in fact that each of the ten States parties first ratifying the OP would have had one expert on the Subcommittee. The comparatively high number of twenty ratifications or accessions in fact did not, as was feared during the drafting process by some delegations, delay the entry into force of the Protocol, as there were only three-and-a-half years between the adoption of the Protocol on 18 December 200220 and its entry into force on 22 June 2006.

(p. 992) 14  With the entry into force on 22 June 2006, the Protocol became binding for the first twenty States parties in its entirety, as no State party had made a declaration under Article 24 OP postponing the implementation of its obligations in relation to either the Subcommittee or the NPM.21 The date of 22 June was the starting point for a number of deadlines. Within the first month thereafter, the Secretary-General had to address a letter to all States parties inviting them to submit their nominations for Subcommittee candidates in accordance with Article 6 OP until 22 October 2006.22 The initial election of the first ten Subcommittee members had to be conducted by a first meeting of States parties, according to Article 7(1)(b) OP, no later than 23 December 2006, and was in fact held on 18 December 2006.23 Furthermore, the first twenty States parties were under an obligation, pursuant to Article 17(1) OP, to establish, designate, or maintain one or several NPMs one year at the latest after the entry into force of the Protocol, ie by 23 June 2007.24

15  For each State ratifying, acceding or succeeding to the Protocol after 22 June 2006, its provisions become, pursuant to Article 28(2) OP, legally binding after the thirtieth day following the deposit of its instrument of ratification, accession, or succession.

Stephanie Krisper

Footnotes:

1  cf the Status of Signature/Ratification/Accession/Succession below Appendix B3.

2  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.

3  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.

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 fourth session [1995] UN Doc E/CN.4/1996/28, Annex I. See also 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, Annex.

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 eighth session [1999] UN Doc E/CN.4/2000/58, Annex II. All later drafts contain similar provisions: 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 ninth session [2001] UN Doc E/CN.4/2001/67, Annex I (the Mexican Draft) Art 25; Annex II (the EU Draft) Art 20; 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 (the US Draft) Art 12; Annex I (Proposal by the Chairperson-Rapporteur).

6  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 109.

7  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 [1995] UN Doc E/CN.4/1996/28, para 110.

8  ibid, para 112.

9  ibid, para 110.

10  ibid, para 111.

11  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 sixth session [1997] UN Doc E/CN.4/1998/42, paras 102ff.

12  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 seventh session [1998] UN Doc E/CN.4/1999/59, para 81.

13  ibid, paras 82 and 83.

14  ibid, para 84.

15  E/CN.4/2001/67 (n 5) Annex I.

16  ibid, Annex II.

17  E/CN.4/2002/78 (n 5) Annex II E.

18  See above Art 27.

19  See also UNGA, ‘Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty’ Res 44/128 of 15 December 1989, Art 8; UNGA, ‘Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict’ Res 54/263 of 25 May 2000, Art 10; UNGA, ‘Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography’ Res 54/263 of 25 May 2000, Art 14, which all require only ten instruments of ratification or accession.

20  UNGA, Res 57/199 of 18 December 2002.

21  cf above Art 24 OP.

22  See the note verbale of the Secretary-General dated 18 July 2006, which invited the States parties to submit their nominations by 18 October 2006.

23  See above Art 7 OP.

24  See above Art 17 OP.