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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.23 Privileges and Immunities

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: 17 August 2022

Subject(s):
Torture — Immunities — Privilege — Treaties, interpretation

(p. 638) Article 23  Privileges and Immunities

The members of the Committee and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

1.  Introduction

The system of privileges and immunities of United Nations (UN) officials and experts has its origin in Article 105 UN Charter, which reads as follows:

  1. 1.  ‘The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

  2. 2.  Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

  3. 3.  The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose’.

In accordance with Article 105(3), the General Assembly adopted a resolution on 13 February 1946 in which it approved the General Convention on the Privileges and Immunities of the United Nations.1 This UN treaty applies to both UN officials and experts on mission. Since the UN human rights treaty monitoring bodies, with the exception of the Committee on Economic, Social, and Cultural Rights which was established by ECOSOC, are in the strict legal sense not organs of the UN, the UN Legal Counsel recommended during the drafting of the Covenants the adoption of a specific provision aimed at extending the privileges and immunities of UN experts on mission to the members of the Human Rights Committee (HRC). Consequently, a respective provision was adopted in Article 43 CCPR, which applies not only to (p. 639) the members of the HRC, but also to those of ad hoc conciliation commissions established under Article 42 CCPR.2 This provision served as the model for Article 23 CAT. Other UN human rights treaties, such as CERD, CEDAW, and CRC, do not contain a similar provision, but there seems to be no doubt that the members of the respective treaty monitoring bodies shall be entitled to the same privileges and immunities. Later treaties, such as Article 72(9) CMW, Article 26(8) CED and Article 34(13) CRPD, and Article 35 OPCAT contain more precise provisions referring to the relevant sections of the Immunities Convention.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Swedish Proposal for Implementation Provisions (22 December 1981)3

Article 33

The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under Article 31, paragraph 1(e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Draft Convention submitted by the Working Group in 19834

Article 23

The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under Article 21, paragraph 1(e), shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of 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. However, the written comments of several States, made in 1978, on the implementation provisions of the original Swedish draft convention5 shaped the subsequent discussions of the Working Group.6

The first time the implementation provisions were discussed within the Working Group was in 1981. The general debate which took place during that session was largely (p. 640) based on the original Swedish draft.7 In 1982 the Working Group considered implementation provisions more thoroughly,8 that time on the basis of a revised Swedish draft.9

The wording of Article 23 of the draft Convention submitted by the Working Group in 1983 was identical to that of Article 33 proposed by Sweden in 1981.10 This provision did not give rise to further discussions, but was not formally adopted at that stage.11 In 1984, draft Article 23, which met with no objections from the Working Group, was formally adopted.12

3.  Issues of Interpretation

Article 23 CAT is taken verbatim from Article 43 CCPR. Comparable provisions are also included in regional international human rights instruments.13 Conversely, certain UN treaty monitoring bodies have not been granted such explicit privileges and immunities.14 Following some early discussions and proposals within the Human Rights Commission regarding Article 43 CCPR,15 it was finally decided to grant members of the HRC and of the ad hoc Conciliation Commission established in accordance with Article 42 CCPR the same facilities, privileges, and immunities as those of experts in the field of the UN. The same status applies to members of the Committee against Torture and of its ad hoc Conciliation Commissions.

As stated in Section 23 of the Immunities Convention, the basic principle of this immunity is designed to serve the interests of the UN as an organization, rather than the interests of individuals themselves. The privileges and immunities laid out in the latter cover immunity from personal arrest or detention; seizure of personal baggage; legal process with respect to words spoken or written and acts performed in the course of the Committee functions, as well as the inviolability of all papers and documents and the right to use codes for communications with the UN.16 These privileges and immunities apply to all States in which Committee members perform their tasks, or through whose territory they travel for this purpose. Since Committee members only exceptionally carry out field missions,17 Article 23 primarily applies to Switzerland and the home countries of the Committee members.

10  As they pertain to words spoken or written, as well as to acts performed by experts in their official capacity, these immunities are said to be functional.18 Moreover, as clearly stated in Section 22(b) of the General Convention, members of the Committee will continue to be granted this specific immunity even when they are no longer in UN service.19

11  The Secretary of the Committee operating within the UN system, provided by the Secretary-General of the UN according to Article 18(3) CAT,20 is UN personnel and (p. 641) therefore benefits from the privileges and immunities of UN officials as laid down in Article V of the Immunities Convention.21

12  Finally, regarding those persons providing assistance during the inquiry procedure, such as forensic experts and interpreters, Rule 88(3) of the RoP entitles them to the same facilities, privileges, and immunities as the members of the Committee, under Article 23 CAT.22

Giuliana Monina

Footnotes:

1  GA Res 22 A (I), 1 UNTS 16. See further Alison Duxbury, ‘The Privileges and Immunities of United Nations’ Experts’ (2000) APJHRL 88; Paul C Szasz and Thordis Ingadottir, ‘The UN and the ICC: The Immunity of the UN and its Officials’ (2001) 14(4) LJIL 867.

2  See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) (CCPR Commentary) 787.

3  Draft Articles Regarding the Implementation of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1981) UN Doc E/CN.4/1493.

4  Report of the Working Group of the Commission on Human Rights (1983) UN Doc E/CN.4/1983/63.

5  Draft Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285.

6  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314, paras 99–103. See also Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 242.

7  E/CN.4/1285 (n 5).

8  Report of the Working Group of the Commission on Human Rights (1982) UN Doc E/CN.4/1982/L.40.

9  E/CN.4/1493 (n 3); see above § 3.

10  E/CN.4/1983/63 (n 4) explanatory note.

11  ibid, para 63.

12  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 57.

13  Art 51 ECHR; Art 70 ACHR; Art 43 ACHPR.

14  See eg the following treaties: CERD, CEDAW, and CRC.

15  Nowak, CCPR Commentary (n 2) 787.

16  Art VI, s 22(a)–(f).

17  cf above Art 20, §§ 68–72.

18  Szasz and Ingadottir (n 1) 872.

19  ibid.

20  Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 111.

21  Nowak, CCPR Commentary (n 2) 788.

22  For the members of the SPT, experts assisting during its mission, and for members of national preventive mechanisms, see below Art 35 OP.