28 As mentioned in the introduction, the existence of specific inter-State human rights complaints mechanisms usually excludes general dispute settlement mechanisms under international law. The CAT constitutes the first human rights treaty, which simultaneously provides for an inter-State communication procedure (under Article 21) and for the traditional inter-State dispute settlement procedure before an arbitration body unrelated to the respective treaty monitoring body, and finally, the ICJ.
29 The drafting history of the Convention shows that the issue had been discussed during the Working Group sessions, where some delegations expressed the opinion that an inter-State communications procedure was preferable to the classical dispute settlement procedure under international law. Some delegations also 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 would not exclusively be dealt with between the States parties but that the ‘implementation organ’ of the Convention would be involved in the matter.47 In the end, however, both procedures were simultaneously adopted in Articles 21 and 30 without any reference to their interplay.
30 A different approach is taken by most other UN human rights treaties.48 While some of them provide only for the inter-State communication procedure (CCPR, CESCR-OP) or the dispute settlement mechanism (CEDAW), others include both of them (CERD, CMW, and CED). Yet, unlike the CAT, the CERD, CMW, and CED expressly contain a clause regulating the relationship between the two procedures. For example, under Article 22 CERD, disputes between two or more States parties regarding the interpretation or application of CERD shall be referred to the ICJ only if they are not settled by negotiation ‘or by the procedures expressly provided for in this Convention’. This explicit reference relates, above all, to the mandatory inter-State communication procedure regulated in Articles 11 to 13. Similar clauses are expressly included in the CMW, and CED.
31 The CCPR, though regulating only the inter-State communication procedure, nevertheless stipulates that the provisions for the implementation of the Covenant ‘shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them’. Thus, States parties to the CCPR, which have accepted the compulsory jurisdiction of the ICJ under Article 36(2) of its Statute, may also bring a dispute concerning the interpretation or application of the Covenant before the ICJ. But Article 44 ICCPR does not by itself establish any jurisdiction of the ICJ. In contrast, some UN human rights treaties (CEDAW, CMW, and CED) expressly grant the ICJ jurisdiction in accordance with Article 36(1) of its Statute.49
32 Regional mechanisms may be more restrictive when it comes to dispute settlement before other international settings. For example, Article 55 ECHR clearly prevents States parties from ‘avail[ing] themselves of treaties, conventions or declarations in force (p. 689) between them for the purpose of submitting, by way of petition, a dispute arising out of the interpretation or application of this Convention to a means of settlement other than those provided for in this Convention’.
33 The main question of interpretation with regard to the CAT Convention, therefore, concerns the relationship between the inter-State communication procedure under Article 21 and the dispute settlement under Article 30. In the case of the CAT, the drafters seem to have overlooked the problems that could arise from the simultaneous existence of the two procedures, and unlike in other treaties, did not explicitly regulate their relationship. The only provision on this is contained in Rule 92 which simply requires the State party lodging a complaint under Article 21 to inform the Committee on ‘any other procedure of international investigation or settlement resorted to by the States parties concerned’.50 Yet, it is not clear why such information has to be provided, as the Convention does not expressly regulate the relationship between the two instruments. This is clearly an anomaly which leads to difficult questions of interpretation regarding the relationship between the different procedures.
34 In this regard, three main questions arise: (a) Do the two procedures have the same subject-matter? (b) Can the latter only be invoked after the former has failed? (c) If not, can States parties choose which one they resort to first? Or can they even at the same time submit an inter-State communication to the Committee against Torture and refer the same dispute to the ICJ? Such questions will be relevant only for those States parties that are bound by both procedures. With reference to the first question, it shall be noted that Articles 21 and 30 do not have the same wording. While under Article 21(1) a State party may claim that ‘another State Party is not fulfilling its obligations under this Convention’, Article 30(1) refers to a ‘dispute between two or more States Parties concerning the interpretation or application of this Convention’. The question therefore arises whether it can be considered as a dispute between States when a State claims that another State is systematically practising torture? With regard to the second and third questions, one should first remember that Article 21 does not contain any provision similar to Article 22(5)(a), which would authorize the Committee to declare an inter-State communication inadmissible if the same matter has been, or is being, examined under another procedure of international investigation or settlement. Similarly, Article 30 does not contain any clause whatsoever on the relationship with Article 21. The absence of such clauses seems to support the view that a State could bring the same dispute first before the ICJ, and then to the Committee, even while it is still pending before the ICJ. Nevertheless, the relationship between Articles 21 and 30 CAT shall be interpreted in a reasonable manner, taking into account the possibility that the drafters of both provisions may have overlooked the problems arising from a simultaneous application of both provisions.
35 One solution could be to adopt the model taken by the CERD (and the CED). The model for such interpretation can be found in the explicit reference in Article 22 CERD to ‘procedures expressly provided for in this Convention’, which was unfortunately omitted during the drafting of Article 30 CAT.51 Thus, States parties claiming that another State party is not fulfilling its (substantive or procedural) obligations under the Convention, shall first submit an inter-State communication to the Committee against (p. 690) Torture in accordance with the procedure envisaged in Article 21. If the mediation efforts of the Committee and/or the ad hoc conciliation commission fail, this definitely constitutes a dispute which may then be settled by the ICJ in accordance with Article 30.
36 As mentioned before, the procedure under Article 21, in particular the mediation efforts of the ad hoc Conciliation Commission, may even be interpreted as constituting one of the arbitration mechanisms envisaged in Article 30(1). If the preliminary procedure provided for in Article 21(1)(a) fails and the parties cannot agree, within six months, on the establishment of an ad hoc conciliation commission in accordance with Article 21(1)(e), this might be interpreted as the States concerned being ‘unable to agree on the organization of the arbitration’ pursuant to Article 30(1), which means that the applicant States may refer the dispute directly to the ICJ. The respective jurisdiction of the ICJ derives from Article 36(1) of its Statute which refers to ‘all matters specially provided for … in treaties and conventions in force’. Yet, again, in the Belgium v Senegal case, the ICJ did not give any consideration as to whether the parties had first resorted to the CAT Committee and the Conciliation Commission under Article 21 when assessing the admissibility of Belgium’s claim.52