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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part III Final Clauses, Art.31 Denunciation

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: 28 June 2022

Subject(s):
Torture — Treaties, interpretation — Treaties, invalidity, termination, suspension, withdrawal

(p. 691) Article 31  Denunciation

  1. 1.  A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.

  3. 3.  Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

1.  Introduction

According to Article 56 VCLT, States parties may denounce a treaty if explicitly provided for in the respective treaty; if the parties permit denunciation despite the absence of a corresponding provision;1 or if a right to denunciation can be derived from the nature of the treaty.

Some human rights treaties, such as the two International Covenants, the second OP to the CCPR, CEDAW, and the CED, do not contain a denunciation clause.2 In a General Comment on issues relating to the continuity of obligations to the CCPR, the Human Rights Committee in 1997 expressed the legal opinion that at least the two Covenants, which are part of the ‘International Bill of Rights’, do ‘not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted’.3 In principle, this argument could also be applied to other human rights treaties.

(p. 692) However, many important regional and international human rights treaties do contain an explicit denunciation clause, similar to Article 31 CAT. In practice, no States party has thus far declared that it wishes to denounce the CAT.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

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

Article 29

A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

2.2  Analysis of Working Group Discussions

The original set of final clauses submitted to the Working Group by Sweden in 1980 did not contain a clause on denunciation. During the discussions of these final provisions in 1983, the delegations noted that they wished to include an article providing for the possibility of denunciations.5 Thus, the Chairman-Rapporteur introduced a revised set of final clauses which also contained a provision on denunciations, named draft Article 29.6

Due to the insertion of a provision on dispute settlement, draft Article 29 was renumbered draft Article 30 during the sessions of the Working Group in 1984. In addition, the United States proposed a second paragraph to the Article, which was meant to ensure the continued observance of its obligations by a State party denouncing the Convention prior to the date at which the denunciation becomes effective. Furthermore, the Committee should have the possibility to conclude any consideration which it has commenced before this date.7 Most delegations felt that this additional paragraph would strengthen the protection against torture and therefore favoured its inclusion. An even stricter regime, ie that the denunciation should become effective three years instead of one year after the notification by the Secretary-General, was proposed by one delegation but did not find support. Other delegations expressed their concerns that the additional paragraph proposed by the United States would complicate the procedure and wished to keep the original draft.8

Furthermore, some representatives asked for safeguards for States parties against the risk of investigations by the Committee of matters arising after the denunciation has become effective. After informal consultations, the United States proposed yet another paragraph to draft Article 30, which ruled out the possibility for the Committee (p. 693) to commence a new investigation of any matter after the denunciation of a State party had taken effect.9 With these clarifications the Working Group reached agreement on draft Article 30, which it adopted with the additional paragraphs at its eighth meeting in February 1984.10

3.  Issues of Interpretation

Article 31(1) is taken almost literally from Article 21 CERD. Contrary to Article 58(1) ECHR and Article 78(1) ACHR, which stipulate that States parties may denounce the respective treaties only after the expiry of five years from the date on which they became parties, Article 21 CERD and Article 31 CAT do not contain any time limit. Consequently, States parties may denounce these treaties even immediately after having deposited the respective instruments of ratification or accession. Pursuant to Article 32(c), the Secretary-General, as depositary of UN treaties, shall inform all UN member States of any denunciations. Denunciations become effective one year after the date of receipt of the notification by the Secretary-General.

The first sentence of Article 31(2) has no equivalent in Article 21 CERD. It was, rather, added on the proposal of the United States with the aim of ensuring the continued observance of its obligations by a State party denouncing the Convention for the one-year period until the denunciation becomes effective under Article 31(1).11 Corresponding provisions can be found in Article 58(2) ECHR and Article 78(2) ACHR. Although this seems self-evident, these provisions emphasize, beyond any doubt, that all substantive and procedural State obligations apply fully until the date when the denunciation becomes effective. Consequently, any State party denouncing the Convention remains under an obligation during this one-year period to prevent torture and ill-treatment; to provide victims of torture with adequate reparation; to bring perpetrators of torture to justice; and to submit overdue reports under Article 19.

10  The interpretation of the second sentence of Article 31(2), which was also added by the US amendment and which roughly corresponds to Article 12(2) of the first OP to the CCPR, proves more difficult. During the drafting in the Working Group, some delegations expressed concern that this provision would complicate the procedure and entail the risk of investigations by the Committee after a denunciation becomes effective. Consequently, the United States proposed an additional provision in Article 31(3), which prevents the Committee from commencing consideration of any new matter after the one-year period.

11  Nevertheless, this additional provision does not solve most of the questions of interpretation. The combined reading of both sentences leads to the result that the Committee is free to start monitoring proceedings during this one-year period and to continue them thereafter until they are completed. However, it is not usually easy to decide when such proceedings must be considered complete. If an inter-State communication or an individual complaint is submitted during this period in accordance with Articles 21 or 22, the Committee can, of course, continue the consideration of the case until a final decision on inadmissibility or on the merits is reached.12 What, however, is the situation regarding the follow-up procedure as stipulated in Rule 120 of its RoP?13 The actions taken (p. 694) by the Rapporteur on follow-up must be considered as part of the ‘continued consideration of any matter’ arising from a decision on the merits. On the other hand, it cannot simply be at the discretion of the Rapporteur to decide when the procedure shall be terminated. Similarly, the Committee is prevented by Article 31(3) from adding new issues to a pending individual complaints procedure after the denunciation became effective.14

12  Similarly, the Committee may schedule during this one-year period a meeting with the State party concerned for the examination of a State report under Article 19. If the Committee, in its conclusions and recommendations, arrives at the conclusion that some of the obligations of that State party have not been discharged, it may appoint, pursuant to Rule 72 of its RoP, one or more Rapporteurs to follow up on the State party’s compliance with the Committee’s conclusions and recommendations.15 Again, this may be considered part of the State reporting procedure which may be continued after the one-year period. If the Government does not send a representative to a meeting scheduled for the consideration of its report, the Committee may also continue the consideration of this report by scheduling a meeting after the denunciation became effective.

13  Finally, the Committee may take the notification of a denunciation as an opportunity to initiate an ex officio inquiry procedure under Article 20, provided that it has received reliable information indicating a systematic practice of torture in the State party concerned. As the experience with past inquiries shows,16 such procedures can take several years and may lead to findings which are in need of a follow-up procedure as well.

14  These examples illustrate that the fears expressed by some delegations during the drafting of Article 31 were indeed justified. Any reasonable interpretation of paragraphs 2 and 3 must strike a fair balance between the legitimate concern of the Committee not to be prevented from finalizing pending procedures and the legitimate concern of the respective State party that this one-year period will not be misused by the Committee arbitrarily to initiate, continue, and perhaps delay certain proceedings as a reaction to its notification of denunciation.

Giuliana Monina

Footnotes:

1  Such intention of the parties may be inferred from the terms or the subject matter of the treaty but, according to the VCLT, the assumption is that the treaty is not subject to denunciation or withdrawal: see Ian Brownlie, Principles of Public International Law (5th edn, Clarendon Press 1998) 592.

2  cf Art 58 ECHR, Art 78 ACHR, Art 21 CERD, Art 52 CRC, Art 89 CMW, Art 48 CRPD, Art 12 of the first OP to the CCPR.

3  HRC, ‘General Comment on Issues relating to the Continuity of Obligations to the International Covenant on Civil and Political Rights’ (1997) UN Doc CCPR/C/21/Rev.1/Add.8/Rev.1; see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) (CCPR Commentary) XXXVII and 1133ff. See also above Art 26, 3.2.

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, para 72.

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

7  Proposal for a New Draft Article 30(2) Submitted by the United States (1984) UN Doc E/CN.4/1984/WG.2/WP.2.

8  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72 para 66.

9  ibid, para 67.

10  ibid, para 68.

11  See above § 5.

12  See also the jurisprudence of the HRC in relation to Art 12 of the first OP to the CCPR in Nowak, CCPR Commentary (n 3) 906 ff.

13  cf above Art 22, 3.12

14  See eg HRC in Damian Thomas v Jamaica, No 800/1998, UN Doc CCPR/C/65/D/800/1998, 26 May 1999, para 6.3.

15  cf above, Art 19, §§ 79–80.

16  cf above, Art 20, §§ 37–38.