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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.28 Opting Out of the Inquiry 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, 2022. All Rights Reserved.date: 23 January 2022

Subject(s):
Torture — Treaties, interpretation — Fact-finding and inquiry

(p. 667) Article 28  Opting Out of the Inquiry Procedure

  1. 1.  Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

  2. 2.  Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

1.  Introduction

Compared to the monitoring procedures established in earlier UN human rights treaties, the inquiry procedure under Article 20 CAT was a major innovation. During the drafting of Article 20, delegations from Socialist States strongly objected to this procedure, which went so far as to envisage fact-finding missions by the Committee on the territory of the State concerned.1 In addition to watering down the procedure to a considerable extent, the aforementioned States demanded that this new mechanism be optional rather than mandatory. The Commission on Human Rights could not find a consensus on this controversial issue. In the General Assembly, the USSR submitted an amendment to the effect that the inquiry procedure should be only applicable to States parties which had recognized the individual and inter-State communication procedures under Articles 21 and 22. As a compromise, the Byelorussian Soviet Socialist Republic proposed an opting-out possibility, which was finally accepted by Western and other States in order to ensure that the Convention was adopted by consensus.2

This opting-out clause was strongly criticized in the literature as a serious setback.3 But in practice, an opting-out clause has a much less limiting effect on the acceptance of a procedure than the requirement of an optional declaration. In fact, as of December 2017 only fourteen States parties out of 162 have opted out to the inquiry procedure. This shows that it makes a great difference if States parties, wishing to recognize an optional mechanism, are required to make a specific declaration as opposed to simply refraining (p. 668) from doing anything. The burden is shifted to the States that do not wish to be bound to make a special reservation at the time of signature, ratification, or accession. While the lists of States which made the respective declarations under Articles 21 and 22 are ‘positive lists’ of States parties willing to accept international scrutiny, the list of States which made the reservation under Article 28 is a ‘black list’ of States parties averse to international monitoring. Finally, if a State withdraws this reservation, it has no further possibility to make another reservation at a later date, unless it chooses to denounce the Convention and re-accede.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Proposal by the Byelorussian Soviet Socialist Republic (29 November 1984)4

Article 28

  1. 1.  Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.

  2. 2.  Any State Party having made a reservation in accordance with the preceding paragraph may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

2.2  Analysis of the Discussions in the General Assembly

The origin of Article 28 is most closely linked to the discussions on Article 20.5 The question of whether the inquiry procedure embodied in Article 20 should be made mandatory or not, had been a bone of contention throughout the meetings of the Working Group, which, in 1984, eventually reached a consensus on all provisions except for Articles 20, and 19(3) and (4). The task of finalizing the text was ultimately handed over to the Commission on Human Rights, where its members had to choose between the option of renewing the mandate of the Working Group with the request to seek a consensus on the remaining points; to settle them by voting in the Commission; or to transmit the draft as it stood including Article 20 and parts of Article 19 in brackets to the General Assembly. In light of the already advanced state of the draft Convention, after seven years of negotiations in the Working Group, and the fact that a considerable number of members of the Commission on Human Rights were not familiar with the details related to Articles 19 and 20,6 many delegations favoured the adoption of a resolution transmitting, through the Economic and Social Council, the draft Convention to the General Assembly. After a discussion of the Working Group’s report, which also included the question on the mandatory character of Article 20, the Commission adopted such a resolution without a vote.7

(p. 669) In the first meeting of the Third Committee, to which the General Assembly had assigned the item, the Netherlands delegation announced the facilitation of multi and bilateral consultations in order to address the prevalent concerns regarding the present draft Convention. As became clear, all Western and most Latin American States advocated for an adoption of the Convention including a mandatory inquiry procedure. This position found support from a limited number of African and Asian States. The Soviet Union together with other East European States voiced their readiness in principle to adopt the draft Convention, however, provided that Articles 19 and 20 would be modified. Many African and Asian States preferred to remain undecided in that respect.8

These opposing and block-centred views, which were already looming in the course of the informal consultations and the earlier Working Group discussions, hardened when the Third Committee convened in order to discuss the issue.9 In reaction to information that certain delegations were about to table a draft resolution asking for a postponement of action to the next session of the General Assembly, the delegations of Argentina, the Netherlands, and Sweden decided to put forward a proposal to adopt the draft Convention as prepared by the Working Group, but without the brackets on the contested Articles 19 and 20.10

Soon afterwards, on 26 November 1984, the USSR, together with nine co-sponsors,11 submitted two amendments12 relating to Articles 19 and 20 as contained in the annex of the draft resolution. In order to avert the mandatory character of the inquiry procedure provided for in the resolution, the Socialist States proposed to insert the words ‘which has made a declaration in accordance with article 21, paragraph 1, and article 22, paragraph 1’ after the words ‘in the territory of a State Party’ in Article 20(1). Hence, Article 20 would be only applicable to those States parties which had also accepted both procedures for inter-State and individual complaints.13

Three days later, the delegation of the Byelorussian Soviet Socialist Republic came forward with another amendment to Article 20 as included in the annex of the draft resolution. The proposal suggested the insertion of a new Article, after Article 27, which provided for a declaration upon signature or ratification, or accession by the State party not to recognize the Committee’s competence set out in Article 20. States wishing to withdraw their declaration may do so at any time by notifying the Secretary-General.14 Although the amended article would still allow States parties to opt out of the inquiry procedure, it would now require a corresponding reservation. This was a novelty in so far as earlier amendments put forward by East European countries had still provided for the possibility to ratify the Convention fully without being subjected to the inquiry procedure. (p. 670) This preference had apparently been waived by the delegation of the Byelorussian Soviet Socialist Republic and could be read as a conciliatory step towards those interested in a mandatory Article 20.15

When the Third Committee started to consider the draft resolution, including its provision for a mandatory inquiry procedure, the head of the Netherlands delegation, representing the sponsors, announced that in a spirit of compromise a number of changes would be accepted. These changes included, in addition to modifications in relation to Articles 19(3) and (4)16 and 20(1)17 and (5),18 the insertion of a new Article 28 as earlier proposed by the Byelorussian delegation. These measures were however dependent on the withdrawal of all other pending amendments which had previously been put forward by the USSR and other East European States.

10  The Yugoslav delegation suggested postponing the decision on the draft resolution in order to be able to consult with their missions, but withdrew its proposal after urgent pleas by Morocco and Senegal. The delegation of Kuwait refrained from putting forward a motion to defer the decision-taking to the next session of the General Assembly.19 The Soviet delegation announced that the pending amendments20 would be withdrawn. After the sponsors accepted a request by the Byelorussian delegation to include an additional amendment21 to Article 19, the draft resolution, including the new Article 28, was adopted by the Third Committee without a vote.22

3.  Issues of Interpretation

11  As the drafting history of the Convention shows, in 1987, the Western States had the choice between putting the Convention—with a mandatory inquiry procedure—to the vote, which would have resulted in a considerable number of Socialist (and possibly also some African and Asian) States voting against and, therefore, not joining as States parties, or accepting the Byelorussian compromise of an opting-out clause.23

12  According to Article 28 reservations can only be made ‘at the time of signature or ratification of this Convention or accession thereto’.24 It follows that reservations under Articles 28, as any other reservation, cannot be made at any later stage. But reservations may be withdrawn ‘at any time’. A withdrawal is, however, irreversible, unless the State concerned decides to denounce the Convention pursuant to Article 31 and later accedes with a respective new reservation. It is important to note that Article 28 does not refer to (p. 671) succession. Consequently, States depositing an instrument of succession are not permitted to use this opportunity to make a reservation under Article 28 if the predecessor State had not taken advantage of this opting-out possibility. Since Yugoslavia, which had acceded to the Convention only in October 1991, had abstained from making a reservation under Article 28, none of the successor States were in a position to opt-out. The same holds true for the successor States of the USSR, since the USSR had already withdrawn its reservation in October 1991. When former Czechoslovakia split into the Czech Republic and Slovakia, both successor States inherited the reservation and withdrew it thereafter.25

13  For the first ten years, the Committee’s annual reports did not contain any list of States that had made opting-out reservations in accordance with Article 28. It was only the 1998 report which included for the first time a list of eleven States parties.26 The lists were published in the Committee’s annual reports until 2014, but are regrettably no longer included as of 2015, presumably due to the word limit.27 The lists did not contain any information about States that had already withdrawn an earlier reservation. Such an information can, however, be retrieved from the UN Treaty Collection’s website.28

14  From the entry into force of the Convention until December 2017, a total of twenty-six States parties have made a reservation in accordance with Article 28.29 Twelve States parties have later withdrawn such reservations.30 Hence, fourteen States—out of the 162 that are parties to the Convention—have opted out of the inquiry procedure. Among them, ten belong to the Asia Pacific Group, three to the African Group, and one to the Western Europe and Other Group.31

15  State practice shows that most reservations were done in the early years of entry into force of the Convention (twelve in the 1980s; six in the 1990s), when all Socialist States parties (the USSR, the Byelorussian and Ukrainian Soviet Socialist Republics, all other Eastern European States, China, and Afghanistan) and Chile had availed themselves (p. 672) of this possibility. But Chile withdrew immediately after a democratic Government had come to power in 1990. Since the USSR had already withdrawn its reservation on 1 October 1991, no issue of succession arose. Slovakia and the Czech Republic inherited the reservation from the former Czechoslovakia and withdrew it in 1995 and 1996, respectively. All other Central and Eastern European States withdrew their respective reservations between 1989 (Hungary) and 2003 (Ukraine). The only Socialist State which still adheres to this practice is China.32 An additional ten reservations were made after 2000, mainly by States parties coming from the Asia Pacific Group (six)33 and African States (three).34

16  When compared with the acceptance rates of the procedure under Articles 21 and 22, this result clearly shows that the opting-out procedure limits the level of State acceptance much less than the requirement of an optional declaration.35

17  Some governments used Article 28 as a possibility for interpretive declarations. Cuba, for example, declared ‘in accordance with article 28 of the Convention, that the provisions of paragraphs 1, 2 and 3 of article 20 of the Convention will have to be invoked in strict compliance with the principle of the sovereignty of States and implemented with the prior consent of the States Parties’.36 When the German Democratic Republic declared in 1987, in addition to opting out of the inquiry procedure, that it would ‘bear its share only of those expenses in accordance with article 17, paragraph 7, and article 18, paragraph 5, of the Convention arising from activities under the competence of the Committee as recognized by the German Democratic Republic’, many governments objected to this declaration which they considered as a reservation contrary to the object and purpose of the Convention.37 In objecting to the declaration made by the German Democratic Republic, Greece, Spain, and Italy took the position that the Convention does not permit any reservations other than those explicitly authorized under Articles 28(1) and 30(2). On the other hand, the Convention does not exclude other reservations, and it is difficult to argue that all reservations, apart from Articles 28(1) and 30(2), are necessarily incompatible with the object and purpose of the Convention, in the sense of Article 19(b) VCLT. In fact, various States have entered reservations in relation to a number of provisions of the Convention, without other States objecting to them.38

Giuliana Monina

Footnotes:

1  See above Art 20, 2.2.

2  See below § 3.

3  Chris Ingelse, United Nations Committee Against Torture: An Assessment (Kluwer Law International 2001) 84, 157, 172, 393; Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 272.

4  Proposal by the Byelorussian Soviet Socialist Republic (1984) A/C.3/39/L.66.

5  See above Art 20, § 11–33.

6  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) 99–100.

7  Commission on Human Rights Res 1984/21 (1984) UN Doc E/CN.4/RES/1984/21 (Draft Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment); see also Burgers and Danelius (n 6) 101.

8  Burgers and Danelius (n 6) 103.

9  ibid; Summary Records of the Sixtieth and Sixty-first Meeting of the Third Committee, Thirty-ninth Session (1984) UN Doc A/C.3/39/SR.60 and A/C3/39/SR.61.

10  Draft Resolution Submitted by the Netherlands to the General Assembly (1984) UN Doc A/C.3/39/L.40; in addition to Argentina, the Netherlands, and Sweden, the draft resolution was sponsored by Bolivia, Colombia, Costa Rica, Denmark, the Dominican Republic, Finland, Gambia, Greece, Norway, Samoa, and Spain.

11  Afghanistan, Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Mongolia, Poland, the Ukrainian Soviet Socialist Republic, and Vietnam.

12  A/C.3/39/L.49 and L.50.

13  Burgers and Danelius (n 6) 104. This proposal went further than an earlier amendment put forward by the Ukrainian Soviet Socialist Republic in February 1984, interlinking Art 20 only with Art 21; Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 52.

14  A/C.3/39/L.66 (n 4); and Burgers and Danelius (n 6) 104.

15  It appears noteworthy that the Byelorussian Soviet Socialist Republic had not co-sponsored the amendment A/C.3/39/L.50 of 1984 tabled by the USSR.

16  Deletion of ‘or suggestions’ in Report of the Third Committee, 39th Session (1984) UN Doc A/39/708, para 10; Burgers and Danelius (n 6) 105.

17  Replacing ‘information’ by ‘reliable information’; replacing ‘reliable indications’ by ‘well-founded indication’; inserting ‘to co-operate in the examination of the information and to this end’ after the words ‘the Committee shall invite that State Party’ in A/39/708 (n 16) para 11; Burgers and Danelius (n 6) 105. See above Art 20, §§ 30–33.

18  Insertion of ‘and at all stages of the proceedings the co-operation of the State Party shall be sought’ at the end of the first sentence; replacing in the second sentence ‘at its discretion’ by ‘after consultations with the State party concerned’; A/39/708 (n 16) para 11; Burgers and Danelius (n 6) 105. See above Art 20, §§ 30–33.

19  Burgers and Danelius (n 6) 105.

20  A/C.3/39/L.50, L.63, L.64; A/39/708 (n 16) para 13.

21  A/C.3/39/L.67: insertion of ‘general’ before ‘comments’ in Art 19(3) and (4).

22  A/39/708 (n 16) paras 14, 18.

23  Burgers and Danelius (n 6) 104; see also above § 3.

24  For a template of instrument of ratification see CTI and APT, ‘UN Ratification Tool’ (2nd edn, 2016) 22 <https://cti2024.org/content/images/CTI%20Ratification%20tool%20-%20executiveaction%20and%20annexes%20compilation%20Nov%20201…pdf> accessed 4 December 2017.

25  See Appendices A3 and A4.

26  CAT, ‘Report of the Committee Against Torture’ (1998) UN Doc A/53/44, Annex II. The 11 States parties listed there were: Afghanistan, Bahrain, Belarus, Bulgaria, China, Cuba, Israel, Kuwait, Morocco, Saudi Arabia, and the Ukraine.

27  For the latest annual report publishing the list see CAT, ‘Report of the Committee Against Torture Fifty-First Session (28 October–22 November 2013) Fifty-Second Session (28 April–23 May 2014)’ (2014) UN Doc A/69/44, Annex 2. On the word limit of the Committee’s annual report see above Art 24, § 19.

28  UN Treaty Collection, ‘Status of Treaties’ <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en> accessed 2 November 2017.

29  Appendices A3 and A4.

30  As of December 2017, the States parties that have later withdrawn their reservations under Art 28 are: Bahrain, Belarus, Bulgaria, Chile, Czech Republic, Guatemala, Hungary, Morocco, Russian Federation, Slovakia, Ukraine, Zambia.

31  As of December 2017, the fourteen opting-out States are in the Asia Pacific Group: Afghanistan, China, Fiji, Kuwait, Lao People’s Democratic Republic, Pakistan, Saudi Arabia, Syria, United Arab Emirates, and Vietnam; in the African group: Equatorial Guinea, Eritrea, Mauritania; in the Western Europe and Other Group: Israel. The situations of Cuba and Poland are somewhat unclear and need further explanations: Cuba ratified the Convention on 17 May 1995 with a declaration stating: ‘in accordance with article 28 of the Convention, that the provisions of paragraphs 1, 2 and 3 of article 20 of the Convention will have to be invoked in strict compliance with the principle of the sovereignty of States and implemented with the prior consent of the States Parties.’ The Committee has included Cuba in its ‘black list’ of opting out States from 1998 to 2000 (A/53/44, Annex II; A/54/44, Annex II; A/55/44, Annex II; A/56/44, Annex II) and then again in 2007 (A/62/44, Annex II), but not in its annual reports from 2002 to 2006 (from A/57/44 to A/61/44) and from 2008 (from A/53/44 to A/69/44). Cuba was also classified as an opting-out State in the first edition of this Commentary. However, given that as of 2008 the Committee has no longer included Cuba in the list and the UN Treaty Collection does not report any reservations/declarations under Art 28 other than that made upon ratification, the authors of this Commentary have decided to revise their previous interpretation and—in light of the available information—consider Cuba as bound by the inquiry procedure under Art 28 CAT. With regard to Poland, the Committee has not included Poland in the lists of opting out States published in its Annual Reports from 1998 until 2005. But Poland was included in the Committee’s lists from 2005 until 2009 (A/60/44, Annex II; A/61/44, Annex II; A/62/44, Annex II; A/63/44, Annex II; A/64/44, Annex II), and then was removed again from the Committee’s lists as of 2009 (A/64/44, Annex II; A/65/44, Annex II; A/66/44, Annex II; A/67/44, Annex II; A/68/44, Annex II, A/69/44, Annex II). The ‘UN Treaty Collection—Status of Treaties’ website reports that Poland has made a reservation to Article 20 upon signature, but neither the text of the reservation nor its withdrawal are reported under the webpage ‘UN Treaty Collection website—Depositary Notifications’.

See also Appendices A3 and A4.

32  See Appendix A3.

33  See Fiji, Lao People’s Democratic Republic, Pakistan, Syria, United Arab Emirates, Vietnam. See also Appendices A3 and A4.

34  See Equatorial Guinea, Eritrea, and Mauritania. See also Appendices A3 and A4

35  cf below Art 21, 3.2; Art 22, 3.1; see also Appendix A3.

36  Similarly Indonesia: see below Appendix A4.

37  Objections were made by the UK, France, Luxembourg, Sweden, Austria, Denmark, Norway, Canada, Greece, Spain, Switzerland, Italy, Portugal, Australia, Finland, New Zealand, and the Netherlands. See Appendix A4.

38  See Appendix A4.