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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.26 Accession and Succession

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

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

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 — State succession

(p. 655) Article 26  Accession and Succession

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

1.  Introduction

1  The Convention was adopted and opened for signature, ratification and accession by GA Resolution 39/46 on 10 December 1984, the United Nations’ human rights day, without a vote. Article 26 supplements Article 25 on signature and ratification and stipulates how to become party to the Convention by means of accession. Though succession is not explicitly mentioned, in practice, several States have used this means to become Party to the Convention.1

2  The Convention entered into force on 26 June 1987, on the thirtieth day after the twentieth State party had submitted its instrument expressing the consent to be bound by the treaty with the Secretary-General. Out of these first twenty States parties, five States had joined the Convention by means of accession. As of December 2017, in total, seventy-eight States have deposited their instrument of accession with the Secretary-General of the United Nations, while seventy-eight States joined by means of ratification. Seven States declared themselves to be bound by the Convention by means of succession.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  IAPL Draft (15 January 1978)2

(p. 656)

Article XVIII

(Accession)

Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations

4  Proposal for the Preamble and the Final Provisions of the Draft Convention, Submitted by Sweden (22 December 1980)3

Article A

  1. 1.  The present Convention is open for signature by all States at United Nations Headquarters in New York.

  2. 2.  Any State which does not sign the Convention before its entry into force may accede to it.

Article B

  1. 1.  The present Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary General of the United Nations.

  2. 2.  Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5  Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (31 January 1983)4

Article 26

This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

2.2  Analysis of Working Group Discussions

6  The Working Group discussed the final clauses including the provisions leading to Article 26 during its meetings in 19835 and 1984.6

7  During the Working Group’s discussion, a contradiction between Articles A(2) and Article C(1) was noted. While the earlier provision was understood as limiting the possibility to accede to the Convention to the period after it had entered into force, the latter allowed for the deposit of the instrument of accession prior to its entry into force. The solutions put forward to settle this issue included inter alia deletion of the words ‘or accession’ in Article C(1), keeping the Convention open for signature indefinitely as well as allowing for accession right from the beginning, or introducing changes in Article A(1) allowing signatures only for a limited time period.7

8  Taking this contradiction and the proposed solutions into consideration, the Chairman-Rapporteur submitted to the Working Group in its eleventh meeting a revised (p. 657) version of the final clauses.8 The new Article, now numbered as Article 26, stipulated that ‘[t]his Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.’ Accordingly, the Convention was to provide for accession as well as signature followed by ratification, both prior to and after it had entered into force.

9  Due to time constraints, the Working Group eventually did not formally adopt any of the discussed final clauses in 1983. It decided to put the revised set of final clauses as proposed by the Chairman-Rapporteur in brackets to the annex of its report to the Commission on Human Rights.9 On 24 February 1983, the Working Group adopted this report without a vote.10

10  On 30 January 1984, the Working Group adopted Article 26 as contained in the annex to the 1983 report.11 After the conclusion of its deliberations, the Article was included without brackets in the report to the Commission on Human Rights12 and was eventually adopted by the General Assembly.13

3.  Issues of Interpretation

3.1  Accession

11  Accession is an alternative to signature and subsequent ratification of a treaty and it leads to the same end, ie becoming a party to the treaty.14 In principle, States are free whether they wish to sign a treaty first and later submit it to ratification or to accede without prior signature. If a treaty remains open for signature only for a certain period of time,15 States wishing to become party after this deadline can only join by means of accession. Certain treaties provide for accession only after their international entry into force.16 Article A(2) of the Swedish draft of final provisions was based on this assumption when it envisaged that any State which does not sign the Convention ‘before its entry into force’ may accede to it.17 The final text of Article 27 confirms, however, that accession to the Convention may take place before and after its entry into force.18 This expression of consent is performed by lodging a corresponding instrument with the Secretary-General. Article 26 assigns to the Secretary-General the function of depositary.19

(p. 658) 12  Both Articles 25 and 26 contain an ‘all States clause’. This corresponds more to recent UN human rights treaties than it does to both Covenants and CERD, since the latter require an explicit invitation by the General Assembly to become party by means of ratification or accession.20 In practice, there is no difference between the two as the General Assembly has invited all States to accede.21 Only independent States which exhibit all the elements of statehood required under international law are allowed to sign, ratify or accede to the Convention. In case of doubt, the UN Secretary-General as depository usually consults the General Assembly for advice.

3.2  Succession

13  Succession is not explicitly mentioned as a means of becoming party to the Convention. Although Article 26, as with other UN human rights treaties, is silent about succession, a total of seven States became parties to the Convention by means of succession:22 Croatia (12 October 1992), the Czech Republic (22 February 1993), Slovakia (28 May 1993), Bosnia and Herzegovina (1 September 1993), the former Yugoslav Republic of Macedonia (12 December 1994), Serbia and Montenegro (12 March 2001), and Montenegro (23 October 2006). The sixth former Yugoslav Republic, Slovenia, however, acceded on 16 July 1993. Since the Russian Federation was considered the principal State successor to the former Soviet Union, which had ratified the Convention already on 3 March 1987, it deposited neither an instrument of accession nor succession after the dismemberment of the Soviet Union. The other former Soviet Republics acceded to the Convention, albeit at considerably different dates as the following chronological list shows: Estonia (21 October 1991), Latvia (14 April 1992), Armenia (13 September 1993), Georgia (26 October 1994), Tajikistan (11 January 1995), Uzbekistan (28 September 1995), Republic of Moldova (28 November 1995), Lithuania (1 February 1996), Azerbaijan (16 August 1996), Kyrgyzstan (5 September 1997), Kazakhstan (26 August 1998), and Turkmenistan (25 June 1999). Belarus and Ukraine, although formerly part of the USSR (Byelorussian and Ukrainian Soviet Socialist Republics), were considered as separate subjects of international law during the Soviet time and, therefore, as the Russian Federation, did not deposit any instrument of accession.

14  This State practice raises a number of difficult questions of interpretation, since ‘State succession is an area of great uncertainty and controversy’.23 Are States free to choose between accession and succession? If any of the successor States refrains from depositing an instrument of accession or succession or does so with a considerable delay, does this mean that it has no obligations under the Convention after the dismemberment of the predecessor State? Is the deposit of an instrument of succession of a constitutive or only declaratory nature?

15  The Human Rights Committee has addressed some of these questions in relation to the CCPR by means of a ‘General Comment on issues relating to the continuity of obligations (p. 659) to the International Covenant on Civil and Political Rights’.24 The question of succession is closely related to the question of denunciation or withdrawal which, in the absence of a specific provision in the relevant treaty, is only permitted under the VCLT if it is intended by the parties or implied from the nature of the treaty.25 The HRC concluded that ‘the Covenant is not the type of treaty which, by its nature, implies a right of denunciation’.26 Furthermore, the

rights enshrined in the Covenant belong to the people living in the territory of the State party. The HRC has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in Government of the State party, including dismemberment in more than one State or State succession or any subsequent action of the State party designed to divest them of the rights guaranteed by the Covenant.27

On the basis of these legal considerations, the HRC refused to accept the notification of withdrawal by the Democratic People’s Republic of Korea and developed the doctrine of continuity of obligations even in the absence of any formal instrument of succession.28 For example, despite the fact that Kazakhstan had not deposited any instrument of accession or succession after the dismemberment of the Soviet Union, the HRC treated the Central Asian Republic as a continuing State party and requested the submission of State reports. This doctrine was also applied to Hong Kong and Macau.29

16  In contrast to both Covenants, Article 31 CAT contains an explicit denunciation clause.30 Nevertheless, in the absence of a notification of denunciation by a successor State, the doctrine of continuity of obligations, in our opinion, equally applies to CAT. Since no State has ever denounced the Convention, the people in the former Czechoslovakia, the former Yugoslavia and in all Republics of the former Soviet Union (not just in the Russian Federation, Belarus and the Ukraine), therefore, continued to enjoy all rights stipulated in the Convention. This implies also that in the period between dismemberment and the deposit of an instrument of accession or succession, the newly independent States had automatically taken over the various substantive and procedural obligations from their predecessor States. The Government of Turkmenistan which, for example, only deposited its instrument of accession in 1999, was nevertheless bound to comply with all obligations deriving from the Convention between the dismemberment of the Soviet Union and 1999, including the obligation under Article 19 to submit periodic reports to the Committee.

17  The Committee against Torture seems, however, to have taken a different view. During the 1990s, Turkmenistan was never listed as a State party in the Committee’s annual reports.31 After its instrument of accession was received on 25 June 1999, Turkmenistan was listed as a new member State with 25 July 1999 indicated as the date of the Convention’s entry into force, with the consequence that the initial report was (p. 660) due on 25 July 2000.32 This means that the Committee is under the impression that the Convention only entered into force on 25 July 1999, ie thirty days after the deposit of the instrument of accession, as specified in Article 27(2). In other words, the Committee clearly did not apply the doctrine of continuing obligations to Turkmenistan.

18  Similarly, Slovenia, which deposited its instrument of accession on 16 July 1993, is considered as having become a State party on 15 August 1993, ie thirty days after the deposit but more than two years after its independence from the former Yugoslavia.33 On the other hand, Bosnia and Herzegovina, which deposited its instrument of succession on 1 September 1993, is considered as having become a State party to the Convention on 6 March 1992, ie at the time of independence from the former Yugoslavia.34 Similarly, Croatia and Montenegro which deposited instruments of succession respectively on 12 October 1992 and 23 October 2006, are considered as having become a State party on 8 October 1991 and 3 June 2006, ie at the time of independence from the former Yugoslavia.35 This practice seems to indicate that the Committee makes a distinction between accession and succession. Since the dates of the receipt of the instruments of succession with respect to successor States are not consistent in the annual reports, it is, however, difficult to assess whether the Committee applies the doctrine of continuity of obligations to States which deposited an instrument of succession rather than of accession.

19  The status of Yugoslavia (Serbia and Montenegro) and as of 2006 Serbia under the Convention is worth further consideration. The Socialist Federal Republic of Yugoslavia signed the Convention on 18 April 1989 and deposited its instrument of ratification on 10 September 1991, ie during a violent armed conflict between its two federal Republics of Serbia and Croatia. The Convention entered into force on 10 October 1991.36 While the 1993 annual report lists the country as Yugoslavia (Serbia and Montenegro),37 the following reports simply refer to Yugoslavia. In the 2002 annual report, Yugoslavia suddenly appears on the list of successor States, with 10 September 1991 as the date of receipt of the instrument of succession.38 In the following year, however, Yugoslavia disappears from the list of States parties and is replaced by Serbia and Montenegro as a successor State with 12 March 2001 as the date of receipt of the instrument of succession.39 12 March 2001 is also indicated as the date of entry into force of the declarations (p. 661) under Articles 21 and 22.40 After the independence of Montenegro, the same date is used to indicate the date of receipt of the instrument of succession of Serbia.41 In the table concerning the situation of overdue reports, the second and third periodic reports of Serbia and Montenegro were listed as having been due on 9 October 1996 and 9 October 2000, respectively.42 It seems, therefore, that the Committee had treated Serbia and Montenegro and then, Serbia, simply as the main successor State of the former Yugoslavia without any interruption in the protection of human rights, similar to the status of the Russian Federation as the principle successor State of the former Soviet Union. This was also underlined by the treatment of individual complaints against Yugoslavia (Serbia and Montenegro).43

20  Despite the difference between the Covenants and the Convention with regard to the possibility of denunciation, the practice of the Human Rights Committee seems to be more convincing than that of the Committee against Torture. If one applies the doctrine of continuity of obligations, it is no longer relevant whether successor States deposit an instrument of accession, succession, or no instrument at all. This is the only way of ensuring that there is no gap in the protection of human rights in the case of dismemberment of States. As from the day of independence, the Government of the newly independent State takes over from its predecessor all substantive and procedural obligations under the Convention, including the obligation to submit periodic reports. If it does not wish to be bound by the Convention, it has the possibility of denunciation under Article 31. But the fact that a Government, for whatever reason, is a few years late in depositing its instrument of accession or succession, as with most Central Asian States, cannot be the reason for an interruption of the international human rights protection of its inhabitants. Similarly, the fact that a Government, for whatever reason, deposits an instrument of accession instead of succession, as in the case of Slovenia, cannot be a valid reason for a gap in the human rights protection of its inhabitants either.

21  There remains the question as to whether successor States are also bound by the reservations under Articles 28 and 30 and by the declarations under Articles 21 and 22 of predecessor States. This issue is for example relevant for the successor States of the Socialist Federalist Republic of Yugoslavia, which at the time of ratification had made declarations recognizing the competence of the Committee with regard to Articles 21 and 22. Among them, Croatia, Yugoslavia (Serbia and Montenegro), and then Montenegro confirmed the declarations under Article 21 and 22 (respectively, on 12 October 1992, 12 March 2001, and 23 October 2006). On the contrary, Bosnia Herzegovina confirmed only the declaration of the Socialist Federalist Republic of Yugoslavia concerning the competence of the Committee in relation to individual complaints (4 June 2003) but not the competence in relation to inter-State complaints. The former Yugoslav Republic (p. 662) of Macedonia has confirmed neither of them. The Committee does not list the former Yugoslav Republic of Macedonia under the countries accepting the competence of the Committee under Articles 21 and 22 nor Bosnia Herzegovina under those accepting the Committee’s competence under Article 21.44 In other words, it seems that only those successor States that have explicitly confirmed their predecessor declarations under Article 21 and 22 are considered by the Committee among those accepting the Committee’s competence for the inter-State and individual complaints procedures.

Giuliana Monina

Footnotes:

1  See below § 13.

2  Draft Convention for the Prevention and Suppression of Torture Submitted by the International Association of Penal Law (1978) UN Doc E/CN.4/NGO/213.

3  Proposal for the Preamble and the Final Provisions of the Draft Convention Submitted by Sweden (1980) UN Doc E/CN.4/1427.

4  Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (1993) UN Doc E/CN.4/1983/WG.2/WP.15.

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

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

7  E/CN.4/1983/63 (n 5) para 73; J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 90.

8  E/CN.4/1983/WG.2/WP.15 (n 4); see above § 5.

9  E/CN.4/1983/63 (n 5) para 82; the revised set of final clauses did not include Art F, later Art 33, since no changes were proposed. It was therefore included in the appendix as formulated in the Swedish proposal (E/CN.4/1427 (n 3) Art F).

10  E/CN.4/1983/63 (n 5) para 83.

11  E/CN.4/1984/72 (n 6) para 59   .

12  ibid.

13  Report of the Third Committee, 39th Session (1984) UN Doc A/39/708, para 18.

14  cf Art 15(a) VCLT; Ian Brownlie, Principles of Public International Law (5th edn, Clarendon Press 1998). For a template of instrument of accession see CTI and APT, ‘UNCAT Ratification tool’ (2nd edn, 2016) 21 <https://cti2024.org/content/images/CTI%20Ratification%20tool%20-%20executiveaction%20and%20annexes%20compilation%20Nov%20201…pdf> accessed 3 December 2017.

15  cf eg Art 125(1) ICC Statute which provides for 31 December 2000 as the latest date of signature.

16  See eg IACPPT (Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women), European Convention on the Legal Status of Children Born out of Wedlock, European Agreement on Transfer of Responsibility for Refugees, Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Convention on the Transfer of Sentenced Persons, ECPT (in combination with Protocol No 1).

17  E/CN.4/1427 (n 3); see above Art 25, 3

18  See below Art 27, §§ 12–13.

19  cf Art 16(b) VCLT.

20  Art 48 CCPR; Art 26 CESCR; Art 17 CERD.

21  See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) (CCPR Commentary) 805.

22  cf CAT, ‘Report of the Committee against Torture Thirty-fifth Session (14–25 November 2005) Thirty-sixth Session (1–19 May 2006)’ (2006) UN Doc A/61/44, Annex I.

23  Brownlie (n 14) 622. See also the Vienna Convention on Succession of States in respect of Treaties (1978) 17 ILM 1488, the provisions of which, however, ‘are not reflected by the practice of states’: Brownlie (n 14) 633.

25  CCPR/C/21/Rev.1/Add.8/Rev.1 (n 24) para 1 and Art 56 VCLT.

26  CCPR/C/21/Rev.1/Add.8/Rev.1 (n 24) para 3.   

27  ibid, para 4.

28  cf Nowak, CCPR Commentary (n 21) XXXVII.   

29  ibid, XXXVIII.

30  See below Art 31.

31  See eg CAT, ‘Report of the Committee Against Torture’ (1998) UN Doc A/53/44, Annex I.

32  See CAT, ‘Report of the Committee Against Torture’ (1999) UN Doc A/54/44, Annex I; CAT, ‘Report of the Committee Against Torture’ (2000) UN Doc A/55/44, Annexes I and VI; A/61/44 (n 22) Annexes I and V. See also the dates for the second periodic reports of Tajikistan, Kyrgyzstan and Kazakhstan. Similarly, the second periodic report for Tajikistan was due on 9 February 2000, for Kazakhstan on 24 September 2003, and for Kyrgyzstan on 4 September 2002.

33  A/61/44 (n 22) Annex V; CAT, ‘Report of the Committee Against Torture’ (1994) UN Doc A/49/44, Annexes I and III.

34  A/61/44 (n 22) Annex V. In the annual report of 1993, Bosnia and Herzegovina was, however, not yet listed as a State party: A/48/44, Annexes I and III. It figures for the first time in the 1994 annual report, however, with 6 March 1992 as both the date of receipt of the instrument of succession and the date of entry into force: CAT, ‘Report of the Committee Against Torture Twenty-seventh Session (12–23 November 2001) Twenty-eighth Session (29 April–17 May 2002)’ (2002) UN Doc A/57/44, Annexes I and V.

35  cf A/61/44 (n 22) Annex I. Again, the dates in the earlier reports are different. In the annual report of 1993, 8 October was indicated as both the date of receipt of Croatia’s instrument of succession and as the date of entry into force of the Convention: A/48/44, Annexes I and III.

36  CAT, ‘Report of the Committee Against Torture’ (1992) UN Doc A/47/44, Annexes I and III.

37  CAT, ‘Report of the Committee Against Torture’ (1993) UN Doc A/48/44, Annexes I and III.

38  A/57/44 (n 34) Annex I.

39  CAT, ‘Report of the Committee against Torture, 29th session (11–22 November 2002) and 30th session (28 April–16 May 2003)’ (2003) UN Doc A/58/44, Annex I.

40  ibid, Annex III.

41  CAT, ‘Report of the Committee Against Torture Thirty-seventh Session (6–24 November 2006) Thirty-eighth Session (30 April–18 May 2007)’ (2007) UN Doc A/62/44, Annex I.

42  ibid, para 22. The initial report of Yugoslavia had been submitted on 20 January 1998: CAT/C/16/Add.7.

43  See the various individual complaints which concerned violations of the Convention during the Milosevic regime: Ristic v Yugoslavia, No 113/1998, UN Doc C AT/C/26/D/113/1998, 11 May 2001; Hajrizi Dzemajl et al v Yugoslavia, No 161/2000, UN Doc CAT/C/29/D/161/2000, 21 November 2002; Jovica Dimitrov v Serbia and Montenegro, No 171/2000, UN Doc CAT/C/34/D/171/2000, 3 May 2005; Danilo Dimitrijevic v Serbia and Montenegro, No 172/2000, UN Doc CAT/C/35/D/172/2000, 16 November 2005; Slobodan Nikolic and Ljiljana Nikolic v Serbia and Montenegro, No 174/2000, UN Doc CAT/C/35/D/174/2000, 24 November 2005; Dragan Dimitrijevic v Serbia and Montenegro, No 207/2002, UN Doc CAT/C/33/D/207/2002, 24 November 2004.

44  Bosnia and Herzegovina was included in the States parties having accepted the competence of the CAT Committee under both Articles 21 and 22 from 2004 (A/59/44) until 2009 (A/64/44), but not in the annual reports published after 2010: see A/65/44 and following.