11 Because Article 20 had no exact precedent in the CCPR, or in other human rights instruments,10 it proved to be one of the more controversial provisions in the Working Group; so much so that a consensus on the text was only reached at the Third Committee meeting in 1984.11 Although the specific language and procedures contained in Article 20 were innovative, the idea of an ex officio procedure to examine gross and systematic violations of human rights by States parties was not completely novel. The Article 20 procedure has its roots in Resolution 1503 of the ECOSOC (1970)12 and a number of other mechanisms, such as for example the ILO’s supervisory procedures.13
12 The Working Group did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. However, the written comments of several States in 1978 regarding Article 17 of the original Swedish draft14 shaped the subsequent discussions within the Working Group.15 This original draft, which envisioned the Human Rights Committee (HRC) as the supervisory mechanism, allowed for visits to the State party provided that the Government of that State gave its consent.16 Austria and Switzerland supported the draft Article, with Switzerland proposing that the procedure be strengthened by shifting the presumption to one of consent, so that a State party under inquiry would have to object actively if it opposed such a visit.17 The German Democratic Republic objected to the draft Article because it considered the powers granted to the HRC to be outside the scope of its mandate as derived from the CCPR.18 At this early stage, France and the USA also voiced objections, but their concerns were with specific provisions of the procedure rather than with the existence of the procedure itself. France felt that the HRC should not begin an inquiry at all without first obtaining the State party’s consent. The proposal submitted by the USA would have required a State party expressly to declare its recognition of the implementation organ’s competence to carry out such inquiries. Once it had done so, however, that State party would be bound to accept any visits the organ deemed necessary.19 (p. 545) None of these ideas were explicitly adopted in the 1981 draft, although that draft did include a provision requiring that the inquiry itself be confidential.20
13 In its 1982 session, the Working Group began its examination of the inquiry procedure for allegations of systematic torture,21 basing its discussion on Article 30 of the Swedish proposal for implementation provisions.22 This draft had incorporated some of the States’ comments made in 1978 and no longer referred to the HRC as its implementation organ.
14 Some delegations criticized draft Article 30 for not clarifying that the procedure should involve three distinct steps. They noted that the implementation organ should, first, consider whether or not there were sufficient reasons for addressing itself to a State party. It should then take into account all relevant information at its disposal in order to consider whether it would be warranted to initiate an inquiry. Finally, the organ should consider, in the light of the results of the inquiry, whether to transmit any comments or suggestions to the State party concerned. The delegations further noted that the draft Article failed to clarify that each phase of the proceeding should be confidential.23
15 One delegation suggested that the grave nature of torture justified further strengthening of the procedure. It proposed granting the implementation organ greater power to go public if the Government clearly failed to comply with the necessary measures of its suppression (action to prosecute) after one year.24 It highlighted criminal prosecution as one such measure; the lack of which could trigger publication of a summary account of the inquiry in its public report to the ECOSOC.25 Some delegations disagreed with this proposal, making a distinction between the obligation to submit cases to competent authorities to decide about prosecution, which was required by the Convention, and the obligation to prosecute. It was also noted that adequate measures to suppress torture may often be of a different character than criminal prosecution.26
16 At this same 1982 session, Sweden submitted a revised text to the Working Group.27 Under this draft, the Committee could contact a State party pursuant to information which appeared to indicate, rather than that which simply indicated, the practise of systematic torture. Furthermore, the draft Article provided that the decision to initiate an inquiry should be made on the basis of all relevant information available to the Committee, including any explanations provided by the State party concerned. It also gave the implementation organ the option of transmitting its comments or suggestions to the State party; and specified that all proceedings under the Article were to be confidential. The revision also, without stated explanation, removed the requirement that the information received be ‘reliably attested’, an issue that would resurface under slightly different language in the next Working Group discussion.28
17 Some members favoured empowering the Committee by increasing its ability to analyse the information independently in order to discern whether a systematic practice of torture was taking place and, if so, whether it warranted an inquiry. Amendments to (p. 546) this effect were presented and accepted.29 The Working Group also replaced ‘explanations’ in paragraph 2 with a more neutral term; included the clause ‘when informed of the intended visit’ in the last sentence of paragraph 3; and substituted ‘does not give its consent’ for ‘refuses to give its consent’.
18 The Working Group continued its discussion in 1983 and, as a basis for its deliberations, used the Chairman’s four draft Articles on implementation30 which had been reformulated to incorporate the changes made to Article 20 adopted at the 1982 session.31 First, the Working Group rejected the Ukrainian proposal to make the procedure apply only to States parties that had announced their recognition of the Committee’s status.32 However, because many delegations deemed it important to include a requirement of reliability for the information or source, paragraph 1 was redrafted so that the new text required information to contain ‘reliable indications that torture was being systematically practised’.33 Paragraph 2 was amended to highlight the importance of observations submitted by the State party. Further, in order to appease several delegations that wanted the Committee to seek cooperation with the State party in order to initiate the inquiry, paragraph 3 was redrafted to read: ‘If an enquiry is made … the Committee shall seek the co-operation of the State party concerned. In agreement with that State party, such an enquiry may include a visit to its territory.’34
19 Debate ensued as to whether the Committee should submit the final report to the State party. Some felt that it should, whereas others noted that the confidentiality of some sources might be compromised. The delegations agreed that the State party had, at least, a right to know the Committee’s findings as a result of the inquiry. Consequently, the new version of paragraph 4 referred explicitly to the Committee’s findings and made it mandatory for them to be transmitted to the State party.35 The 1982 draft had not required the Committee to transmit anything at all; it had merely given the Committee the option of transmitting comments or suggestions, without mention of the findings themselves.
20 While there was consensus within the Working Group as to confidentiality during the proceedings, no conclusions were reached at this stage as to whether confidentiality need be maintained once the inquiry had been completed. The Working Group decided to give the Committee the option of publicizing a summary of the results and added the following provision to paragraph 5: ‘After such proceedings have been completed with regard to an enquiry made in accordance with paragraph 2, the Committee may, at its discretion, decide to include a summary account of the results of the proceedings in its annual report … ’36
21 At this phase, the Working Group did not reach a decision on whether Article 20 and other implementation procedures should be optional or mandatory. Most delegations supported the mandatory nature of the inquiry procedure and all other implementation procedures, willing to cede the optional character only in the case of individual complaint procedures. Some were adamant that without strong implementation procedures, (p. 547) the Convention would lose its effectiveness. Making implementation optional, they said, was tantamount to allowing a qualified commitment to the struggle against torture. In contrast, some delegations, including the USSR, felt that mandatory implementation procedures would make it difficult for the Convention to gather worldwide support. The Soviets added that such procedures were unnecessary for States already bound by similar procedures under the CCPR. They favoured removing those procedures from the draft Convention and placing them in an optional protocol. The Ukrainian Soviet Socialist Republic proposed a compromise in which the implementation provisions were retained within the draft Convention, but Articles 17, 19, and 20 were amended so as to make them binding only on States parties that expressly accepted their competence. Meanwhile, some delegations were still not ready to make a decision.
22 This discussion, on what would prove to be the most enduring and contentious of debates, continued at the 1984 Working Group session. There, the USSR and Ukraine withdrew demands that all implementation procedures be optional, but continued to object to a mandatory Article 20 inquiry procedure.37 The German Democratic Republic supported the USSR’s position. Most delegations, however, remained strongly in favour of keeping Article 20 mandatory, and saw its existence as essential to implementation and progress in the realm of human rights treaties. Making it optional, they stated, would seriously weaken its value. They argued that sufficient safeguards had already been built into the procedure. These safeguards included requirements that there be constant cooperation between States parties and the Committee; that States must give their consent for visits; and that high standards are abided by for Committee membership as set out in Article 17. They noted further that the ILO already used such a procedure without encountering any problems. No consensus was reached at this stage and Article 20 was not adopted.
23 By the time the Working Group presented its text to the Human Rights Commission in February 1984, it had reached consensus on all articles except Article 20 and paragraphs 3 and 4 of Article 19.38 Jan Herman Burgers, the Chairman-Rapporteur of the Working Group, handed over to the Commission the task of finalizing the text.
24 At the Commission’s thirty-second meeting, Canada, the USA, and the Federal Republic of Germany expressed their opinion that Article 20 should be mandatory. Canada went as far as to say that a Convention without such a feature would not be worth signing. It noted that only a minority of delegations had held out for optionality, and even accused a few delegations of seeking to tie the Committee’s hands. The USA said that the only two States blocking consensus on the remaining articles were the USSR and the Ukrainian Soviet Socialist Republic.39 The German Democratic Republic, however, voiced its own serious objections to what it saw as the broad scope of procedures under Articles 19 and 20, which it considered an infringement on State sovereignty.
25 The following day, at the Commission’s thirty-third and thirty-fourth meetings, Italy, France, Senegal, Uruguay, Argentina, Sweden, Norway, Switzerland, and Australia joined the delegations supporting the view that Article 20 be mandatory.40 The USSR continued (p. 548) to object. It claimed that the inquiry procedure was unnecessary given that the systematic practice of torture, because of its widespread nature, was easily identifiable, and that specific details could already be obtained through the Commission’s other procedures. It further commented that the inquiry procedure would allow States, individuals, or NGOs to vilify publicly other States parties. This would be an unacceptable situation given that the ‘reliable indications’ provided for by Article 20(1) could easily prove to be unreliable, and thus such accusations would not only be unfounded, but would also constitute an unjustified interference in domestic affairs. It further argued for the importance of producing a Convention that could gather a broad consensus in order to ensure that States parties which did not ratify it would feel sufficiently politically isolated. Finally, the Soviets countered the claim made by the USA that it and the Ukraine were the only two delegations opposing the inquiry procedure. Claiming that other delegations had mischaracterized the division on this article, the USSR said that in fact, only Western States had supported the procedure, whereas many other States had objected. Unlike the other delegations, the USSR favoured resubmitting the draft to the Working Group, rather than passing it on to the General Assembly. Bulgaria expressed the view that, although it was not yet ready to reach a final decision, it supported the USSR and Ukrainian proposals. Senegal noted that it was an example of a non-Western State that fully supported a mandatory Article 20 procedure.
26 Several NGOs expressed their views on the draft Convention. The International Commission of Jurists, in particular, noted that it attached the greatest importance to Article 20, observing that the USSR, because it accepted Resolution 1503, had no reason to reject the procedures provided for by the Article in question.
27 Rather than voting on Articles 19 and 20, or renewing the mandate of the Working Group so that it could continue debating the Articles, the Commission sent the draft Convention as it stood to the General Assembly, with the unresolved language issues in square brackets.41 The Working Group was given authority to do so by the adoption of a resolution that was based on consultations with delegations from different geographic regions and was introduced by Finland and the Netherlands. After seven years, it was clear that many delegations were eager for the adoption of a final draft. Furthermore, the sponsors were aware that many members of the Commission had not participated in the Working Group and were not closely familiar with the concerns involved in the discussion.
28 Pursuant to the above resolution, the Commission also transmitted the report of the Working Group on the draft Convention, as well as the summary records of the Commission’s debate on the item during its fortieth session, to the General Assembly.42 Additionally, the Secretary-General invited all States to communicate to the Secretary-General their comments on the draft Convention.43 Australia, Austria, Belgium, Burundi, Canada, Cyprus, Denmark, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, the UK, the USA, and Venezuela expressed their support for adopting the text of Article 20 as drafted, which ensured that the inquiry procedure remained mandatory.44 Finland, New Zealand, Panama, and the Syrian (p. 549) Arab Republic expressed overall support or acceptance of the text but did not specifically mention Article 20 or the other implementation procedures.45 Hungary, Thailand, and Yugoslavia, however, objected to the text of draft Article 20 and/or to mandatory implementation mechanisms.46
29 At the thirty-ninth session of the General Assembly in September 1984, the Netherlands chaired several meetings in an attempt to reach a consensus on Articles 19 and 20.47 These meetings revealed that Western and Latin American States, along with some Asian and African States, supported the language of these Articles as it stood. The USSR and other Eastern European States were willing to adopt the Convention, but only if the procedures in question were made optional. Meanwhile, other African and Asian States questioned the Article 20 inquiry procedure and some favoured its deletion from the Convention altogether. Many States were not prepared to take a strong stand either way. Support for an expedited adoption of the Convention was not as robust among the general membership as it had been among the members of the Commission on Human Rights. Objections were raised with regard to other Articles of the Convention, and some States even favoured a return to the drafting table. These considerations led Argentina, the Netherlands and Sweden to propose the immediate adoption of the Convention.48
30 At the fifty-sixth meeting of the General Assembly on 3 December 1984, after the Ukraine had again proposed, unsuccessfully, that paragraph 1 of Article 20 include a requirement that a State party make a declaration recognizing the competence of the Committee to make inquiries, the Byelorussian Soviet Socialist Republic proposed a compromise. It suggested adding an Article 28 that would allow a State party to declare that it did not recognize the competence of the Committee under Article 20.49 Although the Byelorussian language would present a victory for States seeking a form of optionality, it nevertheless raised the political cost of opting out by requiring a State party to reserve explicitly out of the procedure, unlike previous proposals, which would have allowed States to ratify the Convention fully without acceding to the inquiry competence.
31 In the end, the draft sponsors chose to seek consensus rather than pursue further confrontation.50 The draft as it stood would have resulted in several negative votes among the Soviet bloc and many abstentions from African and Asian States. This could have seriously weakened the chances for wide adherence to the Convention. Alternatively, there might have been no conclusive vote at all, which would have led to the reopening of debate and, probably, a watered-down Convention. Finding unacceptable many of the other demands placed by the Soviet Union and other Eastern States, the sponsors chose to compromise on Article 20, in consideration also of the misgivings expressed by several African and Asian States.
32 At the General Assembly’s sixtieth meeting, then, the Netherlands provided an oral revision of Article 20.51 The new draft shifted the requirement of reliability to the information received by the Committee, rather than to the indications of systematic torture. It proposed, instead, that those indications be well-founded. It also made clear that the (p. 550) Committee’s invitation to the State party to submit observations was for the purpose and in the service of cooperating with the State party in the examination of information. With regard to confidentiality, the new draft provided that the Committee would include the summary account after consultations with the State party concerned, rather than at its own discretion. Furthermore, it specified that even though absolute confidentiality is provided for only in the procedures detailed in paragraphs 1 to 4, the cooperation of the State party should be sought at all stages of the procedure; seeming to include, by implication, the publication of the summary as well. Perhaps most significantly, the sponsors accepted the Byelorussian amendment, thus adding an article that allowed States parties to opt out of Article 20.52
33 On 10 December, the Soviet bloc delegations withdrew their remaining amendments, and the Third Committee of the General Assembly adopted the revised draft resolution without a vote.53