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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part II Subcommittee on Prevention, Art.6 Nomination of Subcommittee Members

Kerstin Buchinger

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: 21 May 2022

Subject(s):
Torture — Treaties, interpretation

(p. 766) Article 6  Nomination of Subcommittee Members

  1. 1.  Each State Party may nominate, in accordance with paragraph 2 of the present article, up to two candidates possessing the qualifications and meeting the requirements set out in article 5, and in doing so shall provide detailed information on the qualifications of the nominees.

  2. 2.  (a) The nominees shall have the nationality of a State Party to the present Protocol;

    1. (b)  At least one of the two candidates shall have the nationality of the nominating State Party;

    2. (c)  No more than two nationals of a State Party shall be nominated;

    3. (d)  Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.

  3. 3.  At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list, in alphabetical order, of all persons thus nominated, indicating the States Parties that have nominated them.

1.  Introduction

The members of the subsidiary body of the CAT Committee (henceforth the SPT) are nominated and elected exclusively by States parties to the OP, rather than by the Committee itself. In establishing such a system, the drafters wished to underline the extent to which the SPT is, in practice, independent from the CAT Committee. The right of States parties to nominate candidates and the procedure of elections at a meeting of States parties are similar to other UN human rights treaties.

(p. 767) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)1

Article 5

  1. 1.  The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in Article 4 and nominated for the purpose by the States Parties to the present Protocol.

  2. 2.  Each State Party may nominate not more than four persons or, where there are not less than 25 States Parties, not more than two persons. These persons shall be nationals of the nominating State.

  3. 3.  A person shall be eligible for renomination.

Revised Costa Rica Draft (15 January 1991)2

Article 5

  1. 1.  The members of the Subcommittee shall be elected by the Committee against Torture by an absolute majority of votes from a list of persons possessing the qualifications prescribed in article 4 and nominated by the States Parties to the present Protocol.

  2. 2.  Within three months of the entry into force of the present Protocol, the accession of a new member or a vacancy, each State Party shall nominate three persons, at least two of whom shall possess its nationality. They shall be indicated in alphabetical order.

  3. 3.  Subject to article 4, paragraph 1, the Committee against Torture shall hold elections whenever there is an accession to the present Protocol or a vacancy in the Subcommittee.

  4. 4.  A member shall be eligible for re-election if renominated.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)3

Article 5

  1. 1.  The members of the Sub-Committee shall be elected in the following manner:

    1. (a)  Each State Party may nominate up to three persons possessing the qualifications and meeting the requirements set out in article 4 [one of whom may be a national of a State Party other than the nominating State Party];

    2. [(b)  From the nominations received the Committee against Torture shall prepare a list of recommended candidates, taking due account of article 4 of the (p. 768) present Protocol. This list shall consist of not less than twice the number of members of the Sub-Committee to be elected and not more than two and a half times the number of members to be elected;]

    3. (c)  The members of the Sub-Committee shall be elected by [the States Parties] [the Committee against Torture] by secret ballot [from a list of recommended candidates prepared by the Committee against Torture].

  2. 2.  Elections of the members of the Sub-Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Sub-Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

  3. 3.  The initial election shall be held no later than [to be determined] after the date of the entry into force of the present Protocol. At least four months before the date of the meeting of the Committee against Torture which precedes the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them [and shall submit it to the Chairman of the Committee against Torture]. [The Chairman of the Committee against Torture shall submit to the Secretary-General the list of recommended candidates prepared in accordance with paragraph 1 (b) of this article.] [The Secretary-General shall submit this list of recommended candidates to the States Parties.]

  4. 4.  In the election of the members of the Sub-Committee, eligible for election in accordance with article 4, consideration shall be given to equitable geographical distribution of membership, to a proper balance among the various fields of competence referred to in article 4 and to the representation of different forms of civilization and of the principal legal systems.

  5. 5.  Consideration shall also be given to a balanced representation of women and men on the basis of the principles of equality and non-discrimination.

  6. 6.  If a member of the Sub-Committee dies or resigns or for any other cause can no longer perform the member’s Sub-Committee duties, [the Committee against Torture shall, after having consulted the State Party of which the member was a national,] [the State Party which nominated the member shall] appoint another person of the same nationality possessing the qualifications and meeting the requirements set out in article 4 to serve for the remainder of the member’s term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

Text of the Articles which Constitute the Outcome of the Second Reading (26 March 1999)4

Article 5

  1. 1.  Each State Party may nominate, in accordance with paragraph 2, up to two candidates possessing the qualifications and meeting the requirements set out in (p. 769) article 4, and in doing so shall provide detailed information on the qualifications of the nominees.

  2. 2.  (a) Nominees of the Subcommittee shall have the nationality of a State Party to the present Protocol.

    1. (b)  At least one of the two candidates shall have the nationality of the nominating State Party.

    2. (c)  Not more than two nationals of a State Party shall be nominated.

    3. (d)  Before a State Party nominates a national of another State Party, it shall seek and obtain the written consent of that State Party.

  3. 3.  At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them.

2.2  Analysis of Working Group Discussions

During the first session of the Working Group, held from 19 to 30 October 1992, Article 5 was discussed under the basket of issues called ‘Composition and Structure of the Subcommittee’.5

Regarding Article 5(2), some delegations questioned both the requirement in the text for States parties to nominate three persons and the possibility to nominate non-nationals. It was argued that it may be difficult to find qualified candidates with enough flexibility in their private positions that they may have the time to devote to significant and time-consuming responsibilities. The duty to nominate three persons was considered to be onerous but was not necessarily conducive to the nomination of the most highly qualified persons. Others, however, stated that this technique was highly useful in order to enable the Committee to have the widest possible choice of candidates and qualifications. Some delegates were of the opinion that the facility to nominate non-nationals would help smaller States nominate appropriate candidates. Others found that this would require careful consideration in light of the other articles of the Protocol. They were of the opinion that the members of the body should show a clear connection with the preventive system through their States and that the full implications of the idea to allow for a nomination of non-nationals were not entirely clear.

The general assessment that emerged from the debate surrounding paragraph 4 was that the possibility of indefinite re-election should be subject to some appropriate limitation. A number of delegations considered that this was not conducive to renewal and dynamism in the body and felt that a limit on re-election of one additional term was more suitable. One delegate stated that re-election to the CPT was only possible once and that this system should be taken as a model.

During the second session of the Working Group from 25 October to 5 November 1993, the issue of nomination was further discussed.6 With respect to Article 5(1), the Working Group agreed on the text as contained in the Annex to the second Working Group report. Regarding subparagraph (a), there was a consensus that the number of (p. 770) candidates to be nominated should not be mandatory. With respect to subparagraphs (b) and (c), it was decided to reflect the different views of the delegations by inserting square brackets where appropriate.

10  During the fifth session from 14 to 25 October 1996,7 the delegations of Brazil and Cuba and the observer for Nigeria stated that the States parties should only nominate their own nationals as members of the SPT. The representative of Brazil proposed to delete Article 5(1)(b) as it did not favour the idea of investing in the CAT Committee the power of veto over the election of members. With respect to Article 5(1)(c), the delegations of Brazil, Japan, the Philippines, and Nigeria expressed the view that members of the SPT should be elected by States parties. In her subsequent report, the Chairperson of the drafting group stated that the outcome of discussions was the requirement that at least one of two nominees of a State party should be a national of the nominating State.

11  The text of Article 5 of the draft, as agreed upon during the fifth session in October 1996,8 featured in subsequent drafts and was adopted without any changes by the Commission on Human Rights in April 2002 as Article 6 OP.9

3.  Issues of Interpretation

12  The SPT is a subsidiary body of the CAT Committee. Usually, the parent body elects the members of its subsidiary bodies from within its own membership. Since the functions of the SPT are primarily of a preventive nature, while the CAT Committee acts more as a quasi-judicial body, it was never envisaged that some CAT Committee members should, in addition to their functions under CAT, also perform the tasks of the SPT. This would also have been difficult given that the Committee only consists of ten members.

13  But the Revised Costa Rica Draft of 1991, which had proposed for the first time to entrust the task of preventive visits to a Subcommittee of the Committee against Torture, envisaged that the members of the SPT should be elected by the CAT Committee upon nomination by States parties.10 From the beginning of the discussions in the Working Group, States, for the aforementioned reasons, questioned the election of the SPT members by the CAT Committee. During the fifth session of the Working Group in October 1996, the delegates discussed a text which, in a fairly complicated procedure, had attempted to strike a fair balance which consisted of:11 the nomination of up to three candidates per State party; short listing by the Committee; and election by States parties or, alternatively, by the Committee. During the discussions, the delegations of various States insisted that the SPT shall be elected by States parties and, at the same time, called for the deletion of the short-listing function of the CAT Committee. The agreed text of 1996, which follows the normal nomination and election procedure of human rights treaty bodies,12 was not changed in any of the later drafts.

(p. 771) 14  The right of States parties to nominate up to two candidates follows the model of Article 29(2) CCPR13 regardless of the fact that, for tactical reasons, the nomination of two candidates has become a rare practice.14 So far, none of the States parties to the OP has nominated two candidates at once. For the elections in October 2016, Niger had initially nominated two experts but withdrew one of these nominations again before the elections took place.15 The same holds true for States parties, with the consent of another State party, to nominate nationals of that other State.16 According to Article 6(3), the Secretary-General shall invite States parties, at least five months before the elections, to submit their nominations within three months. In practice, States parties usually also accept nominations which were submitted after this deadline.17 As practice shows, the same holds true for nominations of SPT members.

15  In a note verbale dated 18 July 2006, the Secretary-General invited the States parties to the OP to submit their nominations for the election of the first ten members of the SPT within three months, ie by 18 October 2006. In fact, four candidates who had been nominated after this deadline were also allowed to participate in the elections on 18 December 2006.18 Altogether, fifteen States parties nominated a total of fifteen candidates, all of whom were nationals of the nominating State.19

16  In accordance with Article 9 OP, the term of half of the members elected in December 2006 was about to expire at the end of 2008. Thus, in a note verbale of 15 May 2008, the Secretary-General invited the States parties to submit their nominations for the elections of five members of the SPT (replacing those whose terms were due to expire on 31 December 2008) by 14 August 2008.20 Out of seven candidates that had been nominated within this deadline, five had been renominated by the respective States parties.

17  In 2010, five members had to be elected to fill the vacancies of those whose terms of office was about to expire on 31 December 2010. Moreover, in conformity with Article 5(1) OP, fifteen new members were to be elected following the fiftieth ratification, which took place in September 2009. Once more, out of seventeen nominees by 11 August 2010, all five candidates, whose terms were about to expire at the end of 2010 had been (p. 772) nominated for re-election.21 By 11 September 2010, another ten candidates had been nominated for the upcoming elections.22

18  Preparation and documentation for the submission of nominations for the elections in 2014 were done in compliance with the respective paragraphs of GA Resolution 68/268.23

Kerstin Buchinger

Footnotes:

1  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica (1980) UN Doc E/CN.4/1409.

2  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights (1991) UN Doc E/CN.4/1991/66.

3  Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fourth session (1995) UN Doc E/CN.4/1996/28, Annex I; see also Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1993) UN Doc E/CN.4/1994/25, Annex.

4  Report of the working group on the draft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its seventh session (1998) UN Doc E/CN.4/1999/59, Annex I. Similar provisions are contained in the Mexican Draft of 13 February 2001 (E/CN.4/2001/WG.11/CRP.1, art 10, former art 5); the EU Draft of 22 February 2001 (E/CN.4/2001/WG.11/CRP.2, art 6, former art 5); and the Proposal by the Chairperson-Rapporteur of 17 January 2002 (E/CN.4/2002/WG.11/CRP.1, art 6).

5  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) UN Doc E/CN.4/1993/28, para 26.   

6  E/CN.4/1994/25 (n 3) paras 37ff.

7  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fifth session (1996) UN Doc E/CN.4/1997/33.

8  E/CN.4/1999/59 (n 4) Annex I. See above Art 1 OP, 2.2.

9  CHR Res.2002/33 of 22 April 2002.

10  E/CN.4/1991/66 (n 2). See above 2.1.

11  Art 5 of the draft contained in E/CN.4/1996, 28, Annex I: see above para 4.

12  eg Art 8 CERD; Arts 29 and 30 CCPR; Art 17 CEDAW; Art 17 CAT.

13  Arts 8(2) CERD, 17(2) CEDAW, and 17(2) CAT provide for the nomination of only one candidate per State party.

14  See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) (CCPR Commentary) 672.

15  See Secretary-General, ‘Election of 12 members of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—Addendum’ (2016) UN Doc CAT/OP/SP/14/Add.1.

16  Until 2017, none of the States parties had ever nominated nationals of another State party.

17  See Nowak, CCPR Commentary (n 14) 677.

18  See Secretary-General, ‘Election of 10 members of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in accordance with article 7 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) UN Doc CAT/OP/SP/1 and Adds 1 and 2.

19  UN Doc CAT/OP/SP/1, para 4; CAT/OP/SP/1/Add.1, para 2; CAT/OP/SP/1/Add.2, para 2. For the composition of the SPT, see above Art 5, 3.2.

20  See Secretary-General, ‘Election, in Accordance with Articles 7 and 9 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of Five Members of the Subcommittee on Prevention to Replace Those Whose Terms Are due to Expire on 31 December 2008’ (2008) UN Doc CAT/OP/SP/5.

21  See Secretary-General, ‘Election, in Accordance with Articles 7 and 9 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of Five Members of the Subcommittee on Prevention to Replace Those Whose Terms Are due to Expire on 31 December 2010, and 15 Additional Members to the Subcommittee on Prevention in Accordance with Article 5’ (2010) UN Doc CAT/OP/SP/8 3 Annex I.

22  See Secretary-General, ‘Election, in Accordance with Articles 7 and 9 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, of Five Members of the Subcommittee on Prevention to Replace Those Whose Terms Are due to Expire on 31 December 2010, and 15 Additional Members to the Subcommittee on Prevention in Accordance with Article 5 - Addendum’ (2010) UN Doc CAT/OP/SP/8/Add.1.

23  See also above Art 5 OP, para 27.