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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.21 Inter-State Communications

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, 2022. All Rights Reserved.date: 02 July 2022

Subject(s):
Torture — Treaties, interpretation

(p. 567) Article 21  Inter-State Communications

  1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

    1. (a)  If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter;

    2. (b)  If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State;

    3. (c)  The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention;

    4. (d)  The Committee shall hold closed meetings when examining communications under this article;

    5. (e)  Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission;

    6. (f)  In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information;

    7. (g)  The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing;

    8. (p. 568) (h)  The Committee shall, within twelve months after the date of receipt of notice under subparagraph (b), submit a report:

      1. (i)  If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

      2. (ii)  If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

    In every matter, the report shall be communicated to the States Parties concerned.

  2. 2.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

1.  Introduction

As most contemporary human rights treaties, the Convention against Torture provides for the establishment of a series of monitoring procedures aiming at enforcing the compliance of States parties with their respective treaty obligations.1 As with other human rights treaties,2 the CAT allows States Parties to complain about alleged violations of the treaty by another State Party through the inter-State communication procedure.3

(p. 569) The inter-State communication procedure represents the weakest monitoring procedures under the Convention. As of December 2017, only 63 out of a total of 162 States parties have made the optional declaration under Article 21(1) recognizing the competence of the Committee against Torture to receive and consider inter-State communications. To date none of them has ever resorted to such procedure. Despite this, the article below will give an overview of how this procedure works.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Swedish Draft (18 January 1978)4

Article 18

  1. 1.  A State party may at any time declare under this article that it recognizes the competence of the Human Rights Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Human Rights Committee. No communications shall be received by the Human Rights Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  Communications received under this article shall be dealt with in accordance with the procedure provided for in article 41 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Committee.

Article 19

If a matter referred to the Human Rights Committee in accordance with article 18 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission. The procedures governing the Commission shall be the same as those provided for in article 42 of the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

Swedish Proposal for Implementation Provisions (22 December 1981)5

Article 31

  1. 1.  A State Party to the present Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. (p. 570) Communications received under this article shall be dealt with in accordance with the following procedure.

    1. (a)  If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending or available in the matter.

    2. (b)  If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State.

    3. (c)  The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

    4. (d)  The Committee shall hold closed meetings when examining communications under this article;

    5. (e)  Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in this Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc Conciliation Commission.

    6. (f)  In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.

    7. (g)  The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.

    8. (h)  The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report:

      1. (i)  If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.

      2. (ii)  If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report.

      3. (iii)  In every matter, the report shall be communicated to the States Parties concerned.

  2. 2.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such (p. 571) a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Draft Implementation Provisions, Submitted by the Chairman-Rapporteur (1 February 1982)6

Article 20

  1. 1.  The States Parties to the Convention shall seek a solution to any dispute that may arise between them concerning the interpretation or application of the Convention through the means indicated in article 33 of the Charter of the United Nations.

  2. 2.  The existence of such a dispute shall particularly be recognized when a State Party to the Convention has addressed to another State Party a written communication alleging that this other State Party has failed to fulfil of its obligations under the Convention and the State Party to whom the communication has been addressed denies the allegation or fails to reply within 45 days.

  3. 3.  If after the expiry of a period of 45 days after the existence of the dispute is recognized the States Parties concerned have not agreed on another method of settlement, any of them may set in motion the procedure of conciliation specified in the Annex to the present Convention, through a request made to the Secretary-General of the United Nations.

Annex

  1. 1.  A list of conciliators consisting of persons of high moral character and recognized competence in the field of human rights shall be maintained by the Secretary-General of the United Nations. To this end, every State Party to the Convention shall be invited to nominate two conciliators, and the names of the persons so nominated shall constitute the list. The term of conciliator, including that of any conciliator nominated to fill a vacancy, shall be five years and may be renewed. A conciliator whose term expires shall continue to fulfil any function for which he shall have been chosen under the following paragraphs.

  2. 2.  When a request has been made to the Secretary-General in accordance with article 20, paragraph 3, of the Convention, the Secretary-General shall bring the dispute before a Conciliation Commission constituted as follows.

    The State or States constitution one of the parties to the dispute shall appoint:

  3. (a)  one conciliator of the nationality of that State or one of those States, who may or may not be chosen from the list referred to in paragraph 1, and

  4. (b)  one conciliator of the nationality of that State or of any of those States, who shall be chosen from the list.

    The State or States constituting the other party to the dispute shall appoint two conciliators the same way. The four conciliators chosen by the parties to the dispute shall be appointed within 45 days following the date on which the Secretary-General receives the request.

    The four conciliators shall, within 45 days following the appointment of the last of them, appoint a fifth conciliator from the list, who shall be the chairman of the Conciliation Commission.

    (p. 572) If the appointment of the chairman or any of the other conciliators has not been made within the period prescribed above for such appointments, it shall be made by the Secretary-General within 45 days following the expiry of that period. Any of the periods within which the appointments must be made may be extended by agreement between the parties to the dispute.

    Any vacancy shall be filled in the manner prescribed for the initial appointment.

  5. 3.  The Conciliation Commission shall decide its own procedure. Decisions and recommendations of the Commission shall be made by a majority vote of five members.

  6. 4.  The Commission shall hear the parties to the dispute and examine the claims and objections. It may make recommendation at any time and shall present a Final Report within 180 days after its constitution. The report, and any recommendation made by the Commission, shall not be binding upon the parties and shall have no other character than that of recommendations submitted for the considerations to the parties.

  7. 5.  The Secretary-General shall provide the Commission such assistance and facilities as it may require for the performance of its function. The expenses of the Commission shall be borne by the United Nations.

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 proposal by the IAPL did not contain any form of inter-State communication procedure, such a procedure was provided for in the original Swedish proposal under its Article 18. In this proposal, the Human Rights Committee was envisaged as a treaty monitoring body for the CAT as well, and as such could receive communications to the effect that another State is not fulfilling its obligations under the Convention. Nevertheless, it was further proposed that communications could only be issued by a State which had made a declaration explicitly recognizing the competence of the Human Rights Committee with respect to this communication procedure, and could only be issued against a State which had done so as well. Further, Article 19 provided for the establishment of an ad hoc Conciliation Commission which would be set up according to the provisions provided for in Article 42 CCPR.

In 1978, however, several States made written comments regarding Article 18 of the original Swedish draft.7 Austria generally supported the possibility for the Human Rights Committee to receive communications.8 Spain argued that since the rules of application of the Covenant and the new Convention were basically identical, it was not able to see the added value of the new Convention in the fight against torture. It was suggested that the proposed texts would only lead to a duplication of instruments. Spain further pointed out that it was unlikely that States which had not signed the OP to the ICCPR would recognize the competence of the Human Rights Committee under Article 18 of the draft Convention.9

In 1981, the Dutch delegation submitted a document with comprehensive amendments to the Swedish draft.10 According to this text, the monitoring body of the (p. 573) Convention would no longer be the Human Rights Committee, but a new Committee composed of members of the Human Rights Committee would be established. The Dutch proposal also provided for a mandatory inter-State complaints procedure.11

The Committee began its real deliberations on the inter-State communications procedure only at the Working Group session in 1982.12 At this session, Sweden submitted a draft text on the implementation provisions,13 regulating the inter-State procedure under Article 31. In this document, the inter-State procedure was drafted along very similar lines to Article 41 CCPR. Contrary to the original Swedish proposal, it envisaged that the competence to receive and consider communications rested with an ad hoc body, the Committee against Torture. Some delegations expressed their support for the complaint procedure under Article 31.14 Others feared that with the establishment of an ad hoc Committee against Torture there would be a risk of duplication or even (worse) a conflict between the CCPR and CAT procedures.15 Another key element of the Swedish proposal of 1982 was the optional character of the inter-State procedure. In light of this, some delegations went so far as to question the overall value of two optional complaints procedures (individual and inter-State), and suggested omitting them from the Convention altogether.16 In any event, the majority of the Working Group delegations preferred an optional inter-State complaint procedure.17

10  During the 1982 Working Group session, an unidentified State delegation further argued that State complaints based on the fact that another State is failing to give effect to the provisions of the Convention could simply be considered as a ‘dispute’ between States on the interpretation or the application of the Convention. Consequently, there would be no need to give the allegation of non-respect of the obligations the character of a ‘complaint’ and no need to establish an inter-State complaints procedure. Such a ‘dispute’ should be subject to the procedures for peaceful settlement set out in the Charter of the United Nations. Thus, in the event of such a ‘dispute’, the States parties concerned should be obliged to submit it to a mandatory conciliation procedure. The delegation argued that this would be preferable since States would more easily accept conciliation, as it would fall in the generally accepted treatment of inter-States disputes under a treaty.18

11  The 1982 sessions went on with the submission by the Chairman-Rapporteur of a draft implementation provision introducing a mandatory conciliation procedure.19 The proposal was based on the conciliation procedure provided in the VCLT20and reflected the discussions held on the original Swedish draft, thus suggesting not to provide for an inter-State communication procedure, but only for a procedure regarding disputes. Such a proposal was not, however, supported by the delegations in the Working Group.21 Some States pointed out that the international treaties on which the Chairperson-Rapporteur (p. 574) based his draft were based on subjects of an entirely different character. Others expressed the opinion that there was a difference between disputes regarding the application of the Convention, such as disputes related to jurisdiction and extradition, and disputes concerning the occurrence of torture. Disputes over the non-respect of the provisions under the Convention and/or the occurrence of torture would be more naturally the subject of the complaints procedures. The complaint procedure included in the Swedish proposal was deemed preferable as it would not only involve the States parties, but also the implementation organ of the Convention.22

12  Consequently, in 1983, the Working Group discussed the inter-State complaints procedure on the basis of the Swedish draft. The Swedish delegation informed the Working Group that it wished to maintain its proposal. The discussions were rather brief and the Chairman referred to the extensive discussions concerning the inter-State complaints procedure in 1982. Only one State assured that it could accept an optional inter-State complaints procedure as suggested by Sweden, but that it could not accept a mandatory procedure. Thus, the Working Group temporarily closed its debate on this draft Article and decided that this question, as well as the mandatory conciliation procedure for disputes between States, would be discussed at a later stage when the final clauses were under consideration.23

13  In 1984, all Working Group members agreed on a final version of the provision which provided for an optional inter-State communication procedure according to the Swedish proposal. Subsequently, Article 31 of the Swedish proposal was adopted with some minor drafting changes, as Article 21 CAT.24

3.  Issues of Interpretation

3.1  Scope of Application

14  As recalled in the introduction, similarly to other international treaties, the CAT allows States parties to complain about alleged violations of the treaty by another State party. This inter-State communication procedure is regulated by Article 21 and Rules 91 to 101. Article 21 CAT is taken almost literally from Article 41 CCPR.

15  Pursuant to Article 21(1), a State party may submit a communication when it claims that ‘another State party is not fulfilling its obligations under this Convention’. On the other hand, the wording of Article 21(1)(a) is different, stipulating that a State party may bring its initial written communication to another State party if it considers that the latter ‘is not giving effect to the provisions of this Convention’. The formulation of both provisions indicates, however, that the subject of an inter-State communication may relate to any alleged violation of a substantive or procedural provision of the Convention. (p. 575) For instance, a State party may complain that another State party has practised torture in violation of its prevention duty under Article 2; has violated the non-refoulement principle under Article 3; has not exercised universal jurisdiction in accordance with Articles 5(2) and 7; or has not complied with any of its reporting obligations under Article 19.

16  The scope of application of Article 21 should also be read in conjunction with Article 30 on dispute settlement. As it was seen in the analysis of the travaux préparatoires, the opportunity to include a procedure on inter-State communications and/or dispute settlement was widely discussed during the Working Group sessions. Eventually, it was decided that the Convention should include both. The Convention, however, does not explicitly regulate the relationship between the two articles and thus the question arises as to whether they have the same scope of application.25 For example, the question remains open as to whether a State’s claim that another State is systematically practising torture can be considered only under Article 21 or also under Article 30 as a dispute between States. During the drafting history some delegations pointed out that there was a difference between disputes regarding the application of the Convention, such as disputes related to jurisdiction and extradition, and disputes concerning the occurrence of torture. In the latter case especially, it seemed important that the matter was not exclusively dealt with between the States parties and that the Committee would be involved in the matter.26

3.2  Optional Character

17  Though the drafting history of the Convention shows that a mandatory inter-State complaints procedure had been discussed,27 all Working Group members had eventually agreed on an optional inter-State communication procedure. The optional character of the procedure implies that every State party may submit a declaration recognizing the Committee’s competence to receive and consider inter-State communications.28

18  As of December 2017, 63 out a total of 162 States parties have made the optional declaration under Article 21.29 There are several reasons for the reluctance of States to make the optional declaration and/or to lodge inter-State complaints:

  • •  Inter-State complaints represent the traditional means of States to solve disputes amongst themselves under international law. However, since human rights violations do not constitute disputes between States, this means of conflict resolution is not considered an adequate remedy. But individual complaints against States to an international monitoring body were only gradually accepted as a more appropriate means to hold States accountable. In the early days of international human rights protection, inter-State complaints were, therefore, regarded as a substitute.

  • •  The submission of a formal complaint against another State accusing it of violating human rights constitutes an unfriendly act. In the 1950s and 1960s, when the UN Human Rights Commission was blocked by the ‘no power to take action doctrine’, this seemed, however, the only effective method by which States could express their concerns about gross and systematic human rights violations in other States. Today, (p. 576) there are many less formal and more effective ways and means for States to raise human rights concerns in the Human Rights Council, the General Assembly, and even in the Security Council.

  • •  In certain cases, such as the situation of gross and systematic human rights violations in Greece during the military dictatorship of the late 1960s, or in Turkey during the military regime of the early 1980s, a joint inter-State complaint lodged by a group of States30 might be more effective than many individual complaints. But this only holds true if the inter-State complaint can lead to a final decision by an independent human rights monitoring body. Under UN human rights treaties, the procedure is, however, much weaker than under regional human rights treaties or respective ILO procedures.

  • •  With respect to the CAT, it is more effective for States to provide the Committee with reliable information about the systematic practice of torture and to request it to start an ex officio inquiry under Article 20 CAT,31 because this procedure leads to a quasi-judicial assessment of the situation and to suggestions of how to improve it.

19  The procedure functions on a reciprocal basis. At the time a communication is submitted by State A against State B, both States must have made the relevant declaration in accordance with Article 21(1). The wording of Article 21 clearly states that the reciprocity relates to the date on which the communication is submitted to the Committee and not to the date of the alleged violation. Thus, a State party may submit a communication to the Committee although it had not yet made the declaration of the Committee’s competence on the day of the alleged violation. In other words, a State party may issue such a declaration and the next day transmit a communication to another State party about a human rights violation which occurred several years ago, but still after the entry into force of the Convention for the State party concerned.32

20  Under Article 21(2) States parties may also withdraw at any time their previously made declarations recognizing this optional procedure by notification to the Secretary-General. Such a withdrawal ‘shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article’. As a consequence of the withdrawal, ‘no further communication by any other State party shall be