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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.29 Amendment

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, amendments and modification — Treaties, interpretation

(p. 673) Article 29  Amendment

  1. 1.  Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary General shall thereupon communicate the proposed amendment to the States Parties with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph 1 of this article shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

  3. 3.  When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

1.  Introduction

Article 29 CAT is based on the fairly complicated and impractical amendment procedure of Article 51 CCPR, which has unfortunately reappeared in later human rights treaties, such as Article 50 CRC, Article 90 CMW, and Article 44 CED. While Article 51(2) CCPR requires approval by the General Assembly and a two-thirds majority of the States parties, Article 29 CAT excludes any role of the General Assembly. Instead of four stages, Article 29 only requires three stages: (1) approval of a special conference by one-third of the States parties; (2) adoption of the text of the amendment by simple majority of the States parties present at such a conference; and (3) the subsequent acceptance by two-thirds of the States parties in accordance with their respective constitutional processes.

In practice, the two-thirds requirement has turned out to be an obstacle to the entry into force of the only amendment so far adopted by States parties. But even after acceptance of this amendment by two-thirds of the States parties, the provision of Article 29(3), at least if interpreted literally, would lead to absurd results.

(p. 674) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

IAPL Draft (15 January 1978)1

Article XX

(Revision)

  1. 1.  A request for the revision of this Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations.

  2. 2.  The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

Proposal for the Preamble and the Final Provisions of the Draft Convention, Submitted by Sweden (22 December 1980)2

Article D

  1. 1.  A request for the revision of the present Convention may be made at any time by any State Party by means of notification in writing addressed to Secretary-General of the United Nations.

  2. 2.  The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.

Revised Set of Final Clauses Submitted by the Chairman-Rapporteur (31 January 1983)3

Article 28

  1. 1.  Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that at least one third of the States Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.

  3. 3.  When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

(p. 675) 2.2  Analysis of Working Group Discussions

During its meetings in 19834 and 1984,5 the Working Group discussed the final clauses, including the provision leading to Article 29, on the basis of the final clauses contained in the Swedish draft.6 Several delegations, however, voiced their preference for a procedure facilitating amendments, instead of revisions, since the latter was deemed to relate more to an overall review of the treaty. Furthermore, several speakers proposed changes relating to Article D(2) leaving it up to the General Assembly to decide on requests for reviews. In their view, this task should remain within the power of States parties, since they were also the most affected by any changes of the treaty. Opposition against any changes came from one delegation. Referring to the consistency between the similarly worded Article 23 CERD and Article D, this delegation argued, no additions or changes should be introduced.7

Taking the above outlined discussion into consideration, the Chairman-Rapporteur submitted to the Working Group in its eleventh meeting a revised set of final clauses. The draft provision, now numbered as Article 28, provided for the possibility of amendments instead of revisions and was similarly worded as Article 51 CCPR.8 Due to time constraints, the Working Group did not formally adopt any of the proposed final clauses; however, it did decide to put the revised set as presented 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

During the deliberations in 1984, opposing views emerged regarding whether the text for draft Article 28 would need further changes or additions. Some delegations voiced their preference to keep the article as it was, mirroring to a large extent Article 51 CCPR. The proposal of the delegation of the United States to insert ‘within four months from the date of such communication’ into paragraph 1, limiting the period of time in which States parties can put forward their support for a conference on a proposed amendment, did not meet any objections. In the absence of the insistence on other changes, the Working Group adopted draft Article 28 at its seventh meeting.11

The provision was later renumbered as Article 29 due to the insertion of a new Article 28 providing for an opting-out of the inquiry procedure as stipulated in Article 20.

3.  Issues of Interpretation

10  According to Article 29(1), only States parties to the Convention, ie no other States, may propose an amendment of the Convention. After communication of the proposed amendment by the Secretary-General to the States parties, a conference of States (p. 676) parties under the auspices of the United Nations shall be convened to discuss the amendment if at least one-third of the States parties are in favour of such a conference. On the proposal of the United States, a four-month time limit was inserted for such approval, which is not included in Article 51 CCPR. For adoption at such a conference, the simple majority of the States parties present and voting is sufficient. Abstentions shall, therefore, be counted as negative votes. Pursuant to Article 29(2), an amendment enters into force only when two-thirds of the States parties have accepted it in accordance with their respective constitutional processes.

11  To date, there has been one amendment put forward since the Convention entered into force in 1987. On 9 January 1992, the Australian delegation proposed an amendment in relation to Articles 17(7) and 18(5) with the intention of including the financing of the activities of the Committee against Torture in the regular budget of the United Nations. At that time, out of the seven treaty bodies, only the CAT Committee and the CERD Committee were not fully funded under the regular budget of the United Nations. The resulting financial problems and the ‘growing recognition that the proper implementation of the main human rights instruments must be a concern to the international community as a whole’12 fostered the demand for an amendment. Aware of these difficulties, the General Assembly had already earlier invited the States parties to consider the possibility of an amendment.13 The draft resolution including Australia’s proposal stated:14

  1. 1.  Decide to delete paragraph 7 of article 17 and paragraph 5 of article 18;

  2. 2.  Decide to add a new paragraph, as paragraph 4 of article 18 to read ‘The members of the Committee established under the present Convention shall receive emoluments from the United Nations resources on such terms and conditions as the General Assembly shall decide’, and as a result of inserting this provision, that the existing paragraph 4 of article 18 should be renumbered as paragraph 5;

  3. 3.  Recommend that the General Assembly take action of the implementation of the proposed amendment at its forty-seventh session;

  4. 4.  Recall that the amendment shall enter into force when it has been accepted by two thirds of the States parties to the Convention which shall have so notified the Secretary-General as depository, and on the understanding that the proposed amendments will become operative only when the General Assembly has taken appropriate action;

  5. 5.  Urge all States parties to meet their financial obligations under the existing article 17, paragraph 7, and article 18, paragraph 5, in full until such time as the proposed amendment in paragraphs 1 and 2 above entered into force;

12  In compliance with Article 29(1), the Secretary-General, acting in the capacity of depositary, forwarded the proposed amendment to the States parties. In his note verbale, dated 20 March 1992, he requested all parties to notify him within four months whether they would favour a conference for the purpose of considering and voting upon the proposal.15 As of 20 July 1992, twenty-nine States parties16 out of sixty-five had notified him (p. 677) that they would favour such a conference. Consequently, the States parties convened on 9 September 1992 in New York. Australia presented its draft resolution, joined by a number of other States17 as co-sponsor, and orally introduced a change in operative paragraph 5 where the words ‘enter into force’ should be replaced by the words ‘become operative’.18 Several delegations expressed their support for the draft amendment,19 which was finally adopted as orally amended without any objections. Although the drafters of Article 29 CAT eliminated the requirement of approval by the General Assembly, as contained in Article 51(2) CCPR, in fact the General Assembly endorsed the Australian amendment by Resolution 47/111 of 16 December 1992.

13  The endorsement of the General Assembly, which at the same time requested the Secretary-General to provide financing of the Committee out of the regular budget of the United Nations as a provisional measure beginning with the budget for the biennium 1994–1995,20 turned out to be a prudent one since the Australian amendment did not pass the third stage of the amendment procedure. Although the amendment was adopted unanimously at the conference of States parties, only thirty-one States parties21 have taken the necessary steps since 1992 to ensure acceptance in accordance with their respective constitutional processes. Since this number fails to pass the threshold put forward by Article 29(2), the amendment has not yet entered into force. Nevertheless, as a provisional measure authorized by the General Assembly, the Committee has been paid out of the regular UN budget.22 While this provisional measure has, in practice, replaced the amendment procedure, the Chairpersons of the meetings of the States parties have repeatedly called for appropriate action to bring the amendment into effect.23

14  Should the Australian amendment finally be approved by two-thirds of the States parties and enter into force, it would, according to the clear wording of Article 29(3), only be binding on those States parties which have accepted it, ‘other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted’. In other words, for the two-thirds of the States parties having accepted the Australian amendments, the financial obligations for the funding of the Committee’s work would have been transferred to the general budget of the United Nations, whereas the remaining one-third of States parties would still be bound by the old provisions of (p. 678) Articles 17(7) and 18(5) and would thus have to pay their share for the expenses of the Committee, its staff and facilities, meetings of States parties, etc. Although this seems to represent a ‘manifestly absurd or unreasonable result’ within the meaning of Article 32(b) VCLT,24 it might have the positive effect of prompting the other States parties to accept the Australian amendment quickly.

15  Article 29(3) CAT, as Article 51(3) CCPR and similar provisions in other human rights treaties, simply does not make sense for certain procedural amendments. It obviously was designed for substantive changes, including the drafting of additional rights, which in practice, are usually achieved by means of Additional or Optional Protocols rather than amendments.25 Even the addition of new procedures is usually achieved by means of Optional Protocols.26 But certain procedural amendments can only be achieved by changing the text of a treaty provision. When the States parties to the CRC decided in 1995 to increase the number of members of the Committee on the Rights of the Child from ten to eighteen, they simply applied the two-thirds rule of Article 50(2) CRC and ignored the provision of Article 50(3) CRC, which is identical to Article 51(3) CCPR and Article 29(3) CAT.27 We propose that the States parties of CAT also follow this course of action if need be.

Giuliana Monina

Footnotes:

1  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.

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

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

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

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

6  E/CN.4/1427 (n 2); see above § 4.

7  E/CN.4/1983/63 (n 4) para 75; 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) 91.

8  E/CN.4/1983/WG.2/WP.15 (n 3); see above § 5.

9  E/CN.4/1983/63 (n 4) 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 2) Art F).

10  E/CN.4/1983/63 (n 4) para 83.

11  E/CN.4/1984/72 (n 5) para 64.

12  CAT/SP/SR.4, para 3; see above Art 17 § 63; Art 18 § 8.

13  GA Res 46/111 of 17 December 1991.

14  See also Australia’s proposed amendment in relation to the financing of the CERD, CERD/SP/45; CAT/SP/1992/L.1.

15  C.N.10.1192.TREATIES-1.

16  Australia, Austria, Brazil, Canada, Colombia, Cyprus, Czech and Slovak Federal Republic, Denmark, Ecuador, Finland, France, Germany, Hungary, Jordan, Liechtenstein, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Panama, Portugal, Romania, Russian Federation, Spain, Sweden, Switzerland, and Uganda.

17  Denmark, Egypt, Germany, Luxembourg, New Zealand, Portugal, and Spain.

18  CAT/SP/SR.4, para, 29.

19  Switzerland (CAT/SP/SR.4, para 32), United Kingdom (CAT/SP/SR.4, para 34), Canada (CAT/SP/SR.4, para 35).

20  GA Res 47/111, paras 9(a), 10.

21  As of December 2017: Australia (15 October 1993), Belgium (11 November 2016), Bulgaria (2 March 1995), Canada (8 February 1995), China (10 July 2002), Colombia (1 September 1999), Cyprus (22 February 1994), Denmark (3 September 1993), Ecuador (6 September 1995), Finland (5 February 1992), France (24 May 1994), Germany (8 October 1994), Iceland (23 October 1996), Liberia (16 September 2005), Liechtenstein (24 August 1994), Luxembourg (31 January 2005), Mexico (15 March 2002), Morocco (11 September 2012), Nauru (26 September 2012), Netherlands (24 January 1995), New Zealand (8 October 1993), Norway (6 October 1993), Philippines (27 November 1996), Poland (23 March 2009), Portugal (17 April 1998), Seychelles (23 July 1993), Spain (5 May 1999), Sweden (14 May 1993), Switzerland (10 December 1993), Ukraine (17 June 1994), United Kingdom (7 February 1994). See the UN Treaty Collection, ‘Status of Treaties (Chapter IV 9a)’ <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9-a&chapter=4&clang=_en> accessed 2 November 2017.

22  Chris Ingelse, United Nations Committee Against Torture: An Assessment (Martinus Nijhoff 2001) 106; see also A/CONF.157/PC/62/Add.11/Rev, para 183.

23  cf CAT/SP/SR.9, para 5; CAT/SP/SR.11, para 3; CAT/SP/SR.12, para 3; CAT/SP/SR.13, para 4.

24  cf Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) (CCPR Commentary) 813ff.

25  cf eg the second OP to the CCPR and the two OPs to the CRC.

26  cf eg the first OP to the CCPR, the OP to CEDAW, the OP to the CAT, and OP to the CESCR and CRC.

27  cf GA Res 50/155 of 21 December 1995 and CRC/SP/33 and 34. The amendment of Art 43(2) CRC entered into force on 18 November 2002. See also Nowak, CCPR Commentary (n 24) 814.