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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.18 Rules of Procedure

Giuliana Monina

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, 2021. All Rights Reserved.date: 06 December 2021

Subject(s):
Heads of state and other senior officials — Torture — Treaties, interpretation

(p. 496) Article 18  Rules of Procedure

  1. 1.  The Committee shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that:

    1. (a)  Six members shall constitute a quorum;

    2. (b)  Decisions of the Committee shall be made by a majority vote of the members present.

  3. 3.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.

  4. 4.  The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

  5. 5.  The States Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 of this article.

1.  Introduction

Article 18 CAT corresponds to Articles 35 to 39 CCPR. The Committee against Torture (CAT Committee or Committee), as the Human Rights Committee (HRC), elects its officers (a Chairperson, three Vice-Chairpersons and a Rapporteur) and adopts its own Rules of Procedure (RoP), subject only to the procedural provisions in Articles 19 to 22 and a few other rules contained in the Convention. This means that the Committee (p. 497) is free to decide about the number of its sessions (subject, of course, to financial constraints and the availability of UN conference services), its officers and subsidiary bodies (working groups and rapporteurs), its official and working languages, and its conduct of business, including voting and election methods.

As it will be seen below, the Committee first deliberated on its RoP on the basis of draft rules prepared by the Secretary-General. After their adoption at the first session, the RoP were further expanded and amended at the second, thirteenth, fifteenth, twenty-eighth, forty-fifth, and lastly fiftieth session. The RoP of the Committee are modelled on those of the HRC which, in turn, are based on the RoP of the Committee on the Elimination on Racial Discrimination (CERD).

After a short overview of the travaux préparatoires, this article provides a brief overview of the general rules (1 to 64) of the RoP in light of the practice of the Committee, the Secretariat and States parties. The rules (65 to 121) relating to the functions of the Committee in the State reporting, inquiry, inter-State, and individual complaints procedures will be analysed in the context of the relevant provisions in Articles 19 to 22.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Draft Implementation Provisions, submitted by the Chairman-Rapporteur (1 February 1982)1

Article 17

  1. 1.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance and functions of the group established in accordance with the paragraphs 1 and 2.

Four Draft Articles on Implementation, with the Explanatory Note, submitted by the Chairman-Rapporteur (24 December 1982)2

Article 18

  1. 1.  The Committee shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Committee shall establish its own rules of procedures, but these rules shall provide, inter alia, that:

    1. (a)  five members shall constitute a quorum

    2. (b)  decisions of the Committee shall be made by a majority vote of the members present.

  3. 3.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.

  4. 4.  The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

(p. 498) 2.2  Analysis of Working Group Discussions

The Working Group of the Human Rights Commission did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. Although the Working Group started its deliberations on the implementation provisions in 1981, Article 18 was discussed for the first time only during the 1983 session. The Working Group based its discussion on the draft Article 18 submitted by the Chairman-Rapporteur.3 Paragraphs 1, 2, 3, and 4 of this draft Article are modelled on Articles 39(1)–(2), 36, and 37(1)–(2) CCPR. The Working Group reached a consensus on the first four paragraphs, making only one amendment based on Chairman-Rapporteur J Herman Burgers’ observation that the second paragraph contained an error and should read ‘six members’ instead of ‘five members’.

The Working Group discussions on this draft focused almost exclusively on the financial aspects because paragraph 5 constituted a new type of financial regulation in the field of human rights treaties. The United States suggested adding the following final paragraph:4

The States Parties shall be responsible for expenses incurred in connection with the holding of the meetings of the States Parties and of the Committee, including reimbursement to the United Nations for any expenses, such as the cost of the staff and facilities, incurred by the United Nations pursuant to paragraph 3 above.

Some delegations supported this paragraph, considering it inappropriate for the United Nations (UN) to bear expenses for an entity existing outside the UN, and to which UN members were not legally committed to finance or support. Other States said that they could not accept the new paragraph because it might hinder less affluent States in their decision to become a member of the Convention. In addition, they worried that this rule would give the impression that the UN considered the fight against torture less important than the elimination of discrimination against women,5 whose Committee is funded by the UN.6

Nevertheless, during the Working Group session in 1984, no delegation persisted in its opposition to paragraph 5, and it was consequently adopted during the fifth meeting.7

3.  Issues of Interpretation

3.1  Rules of Procedure

10  Article 18 did not give rise to major discussions during its drafting in the Working Group and contains only a few provisions in need of interpretation. Article 18 (2) empowers the Committee to establish its own RoP by simple majority, without approval of any other organ.8 The RoP established by the Committee are modelled on the RoP of the HRC which, in turn, are based on those of the CRPD Committee. During its first session, the Committee deliberated on the basis of draft rules prepared by the Secretary-General.9 After the adoption (p. 499) at the first session,10 the RoP were further expanded and amended at the second, thirteenth, fifteenth, twenty-eighth, forty-fifth, and lastly fiftieth session.11

11  The RoP with regard to the inquiry procedure under Article 20 were only first discussed at the second session.12 Since this was a new procedure in the field of human rights treaties, the Secretary of the Committee preferred first to undertake a detailed review of other similar procedures existing within the UN system before proceeding further.13 The amendments made during the thirteenth, fifteenth, and twenty-eighth sessions primarily concerned the Rules regarding the State reporting procedure under Article 19 and the individual complaints procedure under Article 22.14 At its forty-fifth session extensive changes were introduced especially with regard to the decisions taken by the meetings of chairpersons of human rights treaty bodies and the inter-committee meetings, and to bring them in line with new methods of work that the Committee is implementing as well as to include the adoption of new procedures.15 Amendments in the fiftieth session aimed at strengthening the independence and impartiality of the members and were adopted to endorse the Addis Ababa guidelines.16

12  The RoP are divided into two parts: the first part sets out general rules governing the functioning of the Committee and its decision making (Rules 1 to 64); the second part covers rules relating to the functions of the Committee (Rules 65 to 121). In contrast to other UN human rights treaties, the RoP of the CAT Committee do not contain a specific section on interpretation, nor do they include the RoP of their Optional Protocol, as Article 10 OPCAT empowered the Subcommittee on the Prevention of Torture (SPT) to adopt its own RoP.17

(p. 500) 3.2  Meaning of ‘officers’

13  Article 18(1) is taken verbatim from Article 39(1) CCPR, which is based, in turn, on Article 21(1) of the ICJ Statute. Rule 15 provides for the election of five officers: a Chairperson, three Vice-Chairpersons and a Rapporteur.18

14  According to Article 18(1), the Committee shall elect its officers for a term of four years. Chapter IV (Rules 16 to 21) is entitled ‘Officers’ but does not really define the term. Since the RoP have been amended several times, it is no longer clear who the officers of the Committee are and what their respective functions are called. Rule 16 provides, similar to other RoP of human rights treaty bodies, that the ‘Committee shall elect from among its members a Chairperson, three Vice-Chairperson and a Rapporteur’. But Rule 17 refers ‘Chairperson, members of the Bureau and Rapporteurs’.19 This gives the impression that there are more than the five officers indicated in Rule 16.

15  The term ‘Bureau’ is nowhere defined but usually the five officers together constitute the Bureau. For a Committee of only ten members, a Bureau of five members seems to be excessive. In larger bodies, such as the Human Rights Council, a Bureau of five members serves the purpose of equitable geographic distribution among the five regional groups of the UN system. The Committee does its best to ensure an equal distribution, but this would require in the present composition that the single members from Asia and Africa must always be elected officers.

16  Having clarified that the Bureau consists of the Chairperson, three Vice-Chairpersons and one Rapporteur, the question remains why Rules 12 and 16 speak of ‘Rapporteurs’ in plural. It seems that the Committee mixed up the Rapporteur of the Committee (the member responsible for the annual report to the General Assembly) with other ‘Rapporteurs’ who, according to Rule 61(3), may be appointed by the Committee to perform such duties as mandated by the Committee, eg Country Rapporteurs, the Rapporteurs on Follow-up and the Rapporteurs on reprisals. Are such Rapporteurs also officers to be elected for a term of two years in accordance with Article 18(1), as suggested by Rule 16? Since Rule 61(3) uses the term ‘appoint’ rather than ‘elect’, it is believed that the plural of ‘Rapporteurs’ in Rules 12 and 16 is simply a mistake, that only the five persons mentioned in Rule 15 are to be considered as officers (together as Bureau) to be elected in accordance with Article 18(1), and that other Rapporteurs and similar subsidiary bodies may also be appointed for a shorter term of office, such as one year.20

17  Rules 11 to 14 determine election procedures, beginning of term of office, the filling of vacancies and the solemn declaration of members of the Committee. These five officers of the Committee are elected for a term of two years and may be re-elected (Rule (p. 501) 17). If any of the officers is unable to continue serving in his or her position, a new officer is elected for the unexpired term of his or her predecessor (Rule 21). As of the forty-fifth session in 2010, the RoP explicitly provide that in electing its officers the Committee ‘shall give consideration to equitable geographical distribution and appropriate gender balance and, to the extent possible, rotation among members’.21

18  Rule 61(1) permits the Committee to establish ad hoc subsidiary bodies, such as working groups, and define their composition and mandate as it deems necessary. The subsidiary body shall elect its own officers and adopt its own RoP. Failing such, the Committee’s RoP are to apply. In addition, Rule 61(3) sets out the possibility for the Committee to generally appoint one or more of its members as ‘Rapporteurs’ with mandates to perform special duties.22

19  With regard to the individual complaint procedure, Rule 112 further specifies that the Committee may establish a working group for the purpose of deciding on the admissibility and making recommendations on the merits of the complaint or otherwise assisting the Committee. The members of the working group should be no less than three and no more than five. The working group can also designate Special rapporteurs for specific complaints.23 Moreover, since 2002 the Committee has established a Pre-sessional working group of three to five members to assist the plenary in its work under Article 22, a Rapporteur for new complaints and interim measures; a Rapporteur for follow-up on decisions adopted under Article 22 (Rule 120); and a Rapporteur on reprisals under Article 22.24 The Pre-sessional working group seems to be no longer in place as of 2005.25

20  Similar functions were created in the framework of the reporting procedure under Article 19, namely a Country Rapporteur and alternate Rapporteurs, a Rapporteur for follow up to concluding observations (Rule 72), and a Rapporteur on reprisals under Article 19;26 and the inquiry procedure under Article 20, namely a Rapporteur for follow up under Article 20 (which is exercised jointly by the Rapporteur for follow up under Article 22); and a Rapporteur on reprisals under Article 20.27

21  Strictly speaking, with the entry into force of the OPCAT in 2006, another subsidiary body, the SPT, was established.28 As the OPCAT was established with a view to complement and reinforce the provisions of the Convention, the two treaties set up various ways in which the CAT Committee and the SPT interrelate. First and foremost, Article (p. 502) 10(3) OPCAT and Rule 62 CAT provide that the CAT Committee shall meet with the SPT at least once a year, during the regular session they both hold simultaneously in November. They have also decided to set up an informal contact group to strengthen their cooperation.29 Secondly, Article 16(3) OPCAT and Rule 63 CAT oblige the SPT to submit its annual report to the CAT Committee, who references it in its own annual report to the States parties and the GA. Finally, under Article 16(4) OPCAT if a State party refuses to cooperate with the SPT, the CAT Committee may, at the request of the SPT, decide to make a public statement or to publish the report of the SPT.30 In practice, however, the SPT has developed in a fairly autonomous way with its own RoP31 and has presented itself as ‘a brother committee’ rather than a ‘sub-committee’.32

3.3  Voting (Article 18(2))

22  While Article 18(2)(a) provides that the quorum should be constituted by six members, Article 18(2)(b) establishes that ‘[d]ecisions of the Committee shall be made by a majority vote of the members present’. If the vote is equally divided, then the matter—with the exception of elections—is regarded as rejected (Rule 51).

23  But the CAT Committee decided, since its first session in April 1988, to follow the practice of the HRC to expressly include in its RoP that Committee members should try to reach decisions by consensus before voting, provided that such attempts did not unduly delay the work of the Committee. However, at the request of any member or the Chairperson, the proposal can be put to vote.33 Towards the outside world, the Committee, as with other human rights treaty bodies, pretends that its decisions are adopted by consensus, and some commentators maintain that ‘no vote has been taken to date’. Although the adoption of general comments, concluding observations by consensus might enhance the authority of the Committee’s decisions and opinions, one should not forget that the consensus rule dates from the Cold War and reflects the fears of the former members from Socialist States of being overruled by others. In practice, the Committee applies the consensus rule in a fairly flexible manner. Since elections are held by secret ballot pursuant to Rule 58, the consensus principle cannot be applied. Moreover, in the individual complaints procedure, the Committee allows for individual (concurring or dissenting) opinions in order to provide members with the opportunity to express their (p. 503) disagreement. It would be strange to maintain that a decision with a dissenting opinion attached was adopted by consensus.

24  The voting normally takes place by show of hands, unless a member requests a roll-call, which is then taken in alphabetical order (Rules 52 and 53). Parts of a proposal shall be voted on separately if a Committee member requests that the proposal be divided. Once each section is approved, the proposal will be put to vote as a whole (Rule 55). In the case of amendments to a proposal, the Committee shall first vote on the amendments, beginning with the furthest removed in substance (Rule 56). With regard to two or more proposals relating to the same question, the Committee shall, unless it decides otherwise, vote on the proposals according to the order in which they have been submitted (Rule 57).

25  Rules 58 to 60 determine the method of elections within the Committee, ie its officers and subsidiary bodies. Rule 58 provides that elections are to be held by secret ballot. Unlike the practice of the HRC, the elections within the CAT Committee are conducted by secret ballot.34 In this respect, Chairperson Joseph Voyame explained during the first session of the Committee that elections are always to be held by secret ballot, and that only in cases in which there was one single candidate for one election could the Committee decide to proceed otherwise.35

3.4  Staff and Facilities (Article 18(3))

26  In performing its various functions, the Committee is assisted by a Secretary and other staff members of the OHCHR in Geneva. The role of the Secretariat is regulated by Article 18(3), which is taken verbatim from Article 36 CCPR, and Chapter V of the RoP. Subject to the fulfilment of the financial obligations undertaken by States parties in accordance with Article 18(5), the Secretary-General shall provide the necessary staff (the Secretariat) and facilities for the effective performance of the Committee’s functions (Rule 22).

27  The Secretary-General or his representative (the Secretary of the Committee) shall attend all Committee meetings and has the right to make oral or written statements (Rule 23). The latter is also responsible for keeping the members of the Committee informed of any questions which may have been submitted for the Committee’s consideration (Rule 25). In addition, the Secretary, a professional of the OHCHR, is responsible for all necessary arrangements for meetings of the Committee and its subsidiary bodies. He or she organizes the meetings and takes care of the documentation, conference room, interpreters, and minutes. Furthermore, the Secretary, in consultation with the Chairperson of the Committee, prepares the provisional agenda for regular Committee sessions (Rule 6).

28  At its Fourteenth session in 1995, the Committee, taking into consideration that the increased workload of the Committee was also increasing the work of the Secretariat, included in its annual report a request to the Secretary-General to increase substantially the staff assigned to service the Committee.36 In practice, the Committee is currently (p. 504) served by one full-time Secretary. Its sessions and inquiries are serviced by a pool of professionals in one of the two treaty implementation teams in the Treaties and Council Branch of the OHCHR. Furthermore, the Petitions Unit within the OHCHR is responsible for the individual complaints under Article 22.

29  Since its forty-fifth session in 2010, the Committee’s official languages are Arabic, Chinese, English, French, Russian, and Spanish. These are also ‘to the extent possible’ the working languages. (Rule 27).37 All formal decisions and official documents shall be issued in all official languages. (Rule 30). Speeches made in any of the working languages shall be interpreted into the other working languages (Rule 28). If speakers address the Committee in a language other than the working languages, the speakers shall provide for interpretation into one of the working languages. Interpretation into the other working languages may be based on the interpretation given in the first language (Rule 29).

3.5  Meetings (Article 18(4))

3.5.1  Sessions

30  The CAT Committee works in sessions, rather than through the whole year. The initial meeting was convened by the Secretary-General from 18 to 22 April 1988, pursuant to Article 18(4). The number of further sessions and meetings was set by the Committee in Rule 2. The Committee, like most other treaty bodies, decided at its first session to convene twice a year for two-week sessions.38 However, beginning in 1994, it became clear that under the increasing workload caused by individual complaints and States parties’ reports, as well as the increased activities relating to the inquiry procedure, four weeks of meeting time per year was not enough. The Committee recognized the risk that it might not be able to comply with Rule 1, which provides that the Committee will hold as many meetings as necessary for the satisfactory performance of its functions.39 Hence, over the years the Committee’s sessions have been prolonged several times. Further to the decisions taken by the GA in its Resolution 68/268 of 2014, with effect of 2015 the Committee is meeting for three sessions per year, for a total of 11.6 weeks, normally two four-week sessions in November and April/May and one three-week session in July/August.40

31  The Committee decides in consultation with the Secretariat on its meeting schedule (Rule 2(2)). According to Rule 3, the Committee can also convene special sessions. This rule has, however, never been applied. The sessions of the Committee are normally held at the UN Office in Geneva (Rule 4). Prior to each session, the Secretariat prepares, in consultation with the Chairperson of the Committee, a provisional agenda for the session (Rules 6 to 7).

3.5.2  Public and Private Meetings

32  Rule 31 establishes the principle of public meetings of the Committee. Various NGOs with ECOSOC consultative status, as well as the media, regularly benefit from this provision. (p. 505) However, Rule 31 also explicitly states that the Committee may hold private meetings if it decides to do so and if it appears from the relevant provisions of the Convention that the meeting should be held in private. Closed meetings are held with regard to the inquiry procedure under Article 20 (Rule 79), examinations of inter-State complaints under Article 21 (Rule 95) and examinations of individual complaints under Article 22 (Rule 107).

33  During its first session, the Committee had several long discussions on whether NGOs, specialized agencies and regional intergovernmental organizations with consultative status with ECOSOC should be given observer status in public meetings of the Committee.41 Organizations and agencies enjoying such status would be formally invited to Committee meetings, issued the Committee’s official documents, and permitted to speak after Committee members.42 Given that no consensus could be reached on this issue, despite long discussions, such a rule was not included in the RoP.43 Consequently, NGOs are only allowed to attend the Committee meetings ‘as members of the general public’.44 Similarly, the draft of the rule on submission of information, documentation, and written statements prepared by the Secretariat proposed to invite NGOs with ECOSOC consultative status, specialized agencies, concerned UN bodies, and regional intergovernmental organizations to provide information to the Committee. Committee member Kithrin from the USSR objected to this proposal on the grounds that the Committee would be exceeding its powers. The majority of the Committee members, however, were in favour of this rule.45 Thus, the CAT Committee is the first human rights treaty body to allow NGOs and other organizations to provide information under its RoP. NGOs may provide information in the context of all procedures: the State reporting procedure under Article 19, the inquiry procedure under Article 20, the inter-State complaints procedure under Article 21, and the individual complaints procedure under Article 22. According to Rule 107, NGOs can also lodge a complaint on behalf of victims under Article 22.

34  With regard to the Committee’s interaction with the media and the general public, Rule 32 foresees that a communiqué may be issued by the Committee in order to inform the media and the general public of its activities at its closed meetings (Rules 80, 96, 108 concerning closed meetings under Articles 20, 21, and 22, respectively).

3.5.3  Records

35  Summary records of public meetings, reports, formal decisions, and all other official documents of the Committee are published, unless the Committee decides otherwise (Rules 34, 35). Summary records are prepared by the Secretariat and first distributed to the Committee members in a provisional form. After correction by the Committee members, they are published in final form. Reports, formal decisions, and other official documents of the Committee relating to Articles 20, 21, and 22 CAT are directly distributed to the Committee members and concerned States parties (Rule 35(2)).

3.5.4  Conduct of Business

36  Provisions on the conduct of business are contained in Rules 36 to 48. Six members constitute a quorum, according to Article 18(2)(a) and Rule 36. The Chairperson opens (p. 506) and closes the Committee meetings, determines the points of order, calls the Committee members to order regarding time limits on statements, and announces the list of speakers (Rules 37 to 40). Each Committee member may move to adjourn or close a debate, and to suspend or adjourn a meeting. These motions are put to an immediate vote (Rules 41 to 44). Proposals and substantive amendments or motions are to be introduced in writing (Rule 45). Motions calling for the decision on the competence of the Committee to adopt a proposal shall be put to the vote immediately before a vote is taken on the proposal in question (Rule 46). Furthermore, motions may be withdrawn before voting and reintroduced at a later stage by any Committee member (Rule 47). However, adopted or rejected proposals may in principle (unless the Committee decides otherwise) not be reconsidered at the same session (Rule 48).

3.6  Financing of the Committee (Article 18(5))

37  At their first meeting, the States parties discussed the financial issues raised in Article 18(5) on the basis of a document prepared by the secretariat containing a statement by the Secretary-General saying that the Convention was the first human rights instrument that was completely dependent on the contributions of its States parties.

38  In practice, the novelty of a human rights body entirely depending on States parties financial contributions has proven to be a bad idea. States have paid late or simply missed payments completely. In light of this difficulty, Australia suggested amendments to Articles 17(7) and 18(5) in 1992 to bring the expenses of the Committee under the general UN budget.46 Despite their adoption by the General Assembly in 1992, such amendments have never entered into force, as they have not been accepted by two thirds of the States parties, as required by Article 29(2).47 Nevertheless, the expenses of the Committee have since then been covered out of the general UN budget on the basis of a provisional decision of the GA.48 This provisional solution of simply overruling non-functioning provisions of the Convention seems to have become a permanent one, and nobody requests that States parties comply with their treaty obligation of reimbursing the OHCHR for all expenses incurred in connection with the monitoring functions of the Committee.

Giuliana Monina

Footnotes:

1  Draft Implementation Provisions Submitted by the Chairman-Rapporteur of the Working Group (1982) UN Doc E/CN.4/1982/WG.2/WP.6.

2  Four Draft Articles on Implementation Submitted by the Chairman-Rapporteur of the Working Group (1983) UN Doc E/CN.4/1983/WG.2/2.

3  ibid.

4  Proposal for Draft Article 18 Submitted by the United States (1983) UN Doc E/CN.4/1983/WG.2/WP.2.

5  Draft Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1983) UN Doc E/CN.4/1983/WG.2/WP.16, paras 43–47.

6  See Art 17(8)–(9) CEDAW.

7  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 48; see also above Art 17, 3.4.

8  For a similar provision cf Article