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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.7 Election of the Subcommittee

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, 2021. All Rights Reserved.date: 04 December 2021

Subject(s):
Torture — Treaties, interpretation

(p. 773) Article 7  Election of the Subcommittee

  1. 1.  The members of the Subcommittee on Prevention shall be elected in the following manner:

    1. (a)  Primary consideration shall be given to the fulfilment of the requirements and criteria of article 5 of the present Protocol;

    2. (b)  The initial election shall be held no later than six months after the entry into force of the present Protocol;

    3. (c)  The States Parties shall elect the members of the Subcommittee on Prevention by secret ballot;

    4. (d)  Elections of the members of the Subcommittee on Prevention shall be held at biennial meetings of the 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 Subcommittee on Prevention shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting.

  2. 2.  If during the election process two nationals of a State Party have become eligible to serve as members of the Subcommittee on Prevention, the candidate receiving the higher number of votes shall serve as the member of the Subcommittee on Prevention. Where nationals have received the same number of votes, the following procedure applies:

    1. (a)  Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Subcommittee on Prevention;

    2. (b)  Where both candidates have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall become the member;

    3. (c)  Where neither candidate has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which candidate shall be the member.

(p. 774) 1.  Introduction

As noted above,1 the members of the SPT, despite its nature as a subsidiary body of the CAT Committee, are nominated and directly elected by the States parties to the OP without any involvement of its parental body. This was not uncontroversial during the drafting of the OP. However, ultimately the delegates of States prevailed who argued that the usual procedure of nominating and electing UN human rights treaty monitoring bodies should also be followed with regard to the case of the SPT.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)2

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.

Revised Costa Rica Draft (15 January 1991)3

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.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)4

Article 5

  1. 1.  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 (p. 775) 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.

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

  5. 5.  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)5

Article 6

The members of the Subcommittee shall be elected in the following manner:

  1. 1.  Elections of the members of the Subcommittee 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 Subcommittee 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.

  2. 2.  The initial election shall be held no later than six months after the date of the entry into force of the present Protocol.

  3. 3.  The States Parties shall elect the members of the Subcommittee by secret ballot.

  4. 4.  In the election of the members of the Subcommittee, primary consideration shall be given to the fulfilment of the requirements and criteria of article 4. Furthermore, due consideration shall be given to a proper balance among the various fields of competence referred to in article 4, to equitable geographical distribution of membership and to the representation of different forms of civilization and legal systems of the States Parties.

  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. (p. 776) 6.  If, during the election process, two nationals of a State Party have become eligible to serve as members of the Subcommittee, the membership of the Subcommittee shall be resolved in the following manner in conformity with article 4, paragraph 3:

    1. (a)  The candidate receiving the higher number of votes shall serve as the member of the Subcommittee.

    2. (b)  Where the nationals have received the same number of votes, the following procedure applies:

      1. (i)  Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Subcommittee;

      2. (ii)  Where both nationals have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall be the member;

      3. (iii)  Where neither national has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which national shall be the member.

Mexican Draft (13 February 2001)6

Article 11 (former Article 6)

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

    1. (a)  Elections of 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 the States Parties present and voting;

    2. (b)  The initial election shall be held no later than six months after the date of the entry into force of the present Protocol;

    3. (c)  The States Parties shall elect the members of the Sub-Committee by secret ballot;

    4. (d)  In the election of the members of the Sub-Committee, primary consideration shall be given to the fulfillment of the requirements and criteria of article 9. Furthermore, due consideration shall be given to the equitable geographical distribution of membership and to the representation of the different forms of civilization and legal systems of the States Parties.

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

  3. 3.  If, during the election process, two nationals of a State Party have become eligible to serve as members of the Sub-Committee, the candidate receiving the higher number of votes shall serve as the member of the Sub-Committee.

EU Draft (22 February 2001)7

Article 7 (old 6)

The members of the Sub-committee shall be elected in the following manner:

  1. 1.  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 (p. 777) 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 the States Parties present and voting.

  2. 2.  The initial election shall be held no later than six months after the date of entry into force of the present Protocol.

  3. 3.  The States Parties shall elect the members of the Sub-Committee by secret ballot.

  4. 4.  In the election of the members of the Sub-Committee, primary consideration shall be given to the fulfilment of the requirements and criteria of article 5. Furthermore, due consideration shall be given to a proper balance among the various fields of competence referred to in article 5, to equitable geographical distribution of membership and to representation of the different forms of civilization and legal systems of the States Parties.

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

  6. 6.  If, during the election process, two nationals of a State Party have become eligible to serve as members of the Sub-Committee, the membership of the Sub-Committee shall be resolved in the following manner, in conformity with article 5, paragraph 3:

    1. (a)  The candidate receiving the higher number of votes shall serve as the member of the Sub-Committee;

    2. (b)  Where the nationals have received the same number of votes, the following procedure applies:

      1. (i)  Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Sub-Committee;

      2. (ii)  Where both nationals have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall be the member;

      3. (iii)  Where neither national has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which national shall be the member.

US Draft (16 January 2002)8

Article 5

The members of the Subcommittee on Prevention shall be elected in the same manner as members of the Committee referred to in paragraphs 2 to 6 of Article 17, consideration being given to equitable geographical distribution and to the usefulness of the participation of persons having professional experience in the field of the administration of justice, criminal law, prison or police administration, or in the various medical fields relevant to the treatment of persons deprived of their liberty.

(p. 778) 2.2  Analysis of Working Group Discussions

During the first session of the Working Group, held from 19 to 30 October 1992, the election procedures were discussed under the basket of issues called ‘Composition and Structure of the Subcommittee’.9 During the discussions, some delegations considered that the proposed model of election was a desirable approach, as it gave States parties the right to nominate candidates while leaving the CAT Committee the power to make the final selection from the list of qualified candidates. It was argued that an indirect election would be most conducive to the essential attributes of impartiality, independence, and objectivity.10 Other delegations took the view that a direct election by States parties was more in line with other precedents, including that of the ECPT. In addition, the point was made that the CAT Committee is composed of persons acting in their personal capacity and that electoral responsibilities would subject them to undue political influence. It was also argued that a direct election could best ensure the recognition of important factors, including equitable geographical distribution, which might not be given adequate weight by the CAT Committee. It would also serve to bolster the prestige and credibility of the members in their dealings with representatives of national administrations. One delegate stressed that the key point was a system of election that would best promote such matters as competence, regional and other balance in representation, and thus enhance the State confidence in the integrity of the system.11

10  During the second session of the Working Group from 25 October to 5 November 1993, the electoral issues under Article 5 were further discussed.12 With respect to subparagraphs (b) and (c), it was decided to reflect the different views of the delegations by inserting square brackets where appropriate. Several delegations were in favour of States parties to the Protocol directly electing members of the envisaged body. Other delegations proposed that the members of the SPT shall be elected by the CAT Committee, as this would depoliticize the election and guarantee the essential attributes of impartiality, independence, and objectivity. Moreover, some delegations asked for clarification of the possible voting procedures (ie, secret ballot, roll-call, etc). In regard to subparagraph (c), one delegation suggested inserting, after the word ‘ballot’, the words ‘taking due account of the principle of equitable geographical distribution’. Referring to Article 17(3), (4) and (6) CAT, the Working Group agreed on the texts for Article 5(1), (2), (3), (4) and (5).

11  During the fifth session from 14 to 25 October 1996, several delegations made general comments on Article 5. The representative of China stated that the method of election of the proposed body should adhere to the general procedures followed by other human rights bodies. The representative felt that it was not appropriate for the CAT Committee to be involved in the composition of the SPT.13

12  In the following drafts, including the proposal presented by the Chairperson-Rapporteur of 22 January 2002, the election of its members followed the procedures contained in other UN human rights instruments very closely.

(p. 779) 3.  Issues of Interpretation

13  The election procedure, by and large, follows the procedures contained in Article 17 CAT14 and in other human rights treaties.15 According to Article 7(1)(a) OP, primary consideration shall be given to the fulfilment of the requirements and criteria for an ideal composition of the SPT set out in Article 5 OP,16 namely gender balance, equitable geographic distribution, the representation of different forms of civilization and legal systems, a good mix of different professional backgrounds, and the individual qualification of the candidates as independent and impartial experts of high moral character with enough free time to serve the SPT efficiently. Since elections are held by secret ballot17 it is, however, difficult to ensure that all these criteria are in fact complied with. As the composition of the SPT during its initial phase showed, at least gender balance as well as equitable geographic and cultural distribution had not been achieved then. However, strong efforts were taken in this direction during recent years, and after the elections of 27 October 2016, thirteen out of twenty-five present SPT members are female and the geographical distribution of members seems to be quite balanced.

14  According to Article 7(1)(b) OP, the initial election had to be conducted no later than six months after the entry into force of the Protocol, ie no later than 22 December 2006. In fact, the first elections took place at the UN Office in Geneva on 18 December 2006.18

15  According to Article 7(1)(d) OP, elections shall be held at biennial meetings of States parties in Geneva. The presence of delegates from two-thirds of all States parties constitutes the required quorum, otherwise elections cannot take place.

16  From all the candidates nominated, those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States parties present and voting are elected. Each State party may vote for as many candidates as there are seats to be filled. If more than twenty-five candidates receive an absolute majority, only those who receive the largest number of votes are elected. If fewer than twenty-five candidates receive an absolute majority, additional balloting is required.19 If it should ever happen that two nationals of a State party receive an absolute majority, Article 7(2) provides, in a detailed manner, how this situation should be solved. It seems a little odd that this question has received so much attention in the text of Article 7 OP, whereas other more important questions such as how draws shall be resolved and whether abstentions shall be considered as voting or non-voting, were left open. Unfortunately, the RoP of States parties to the OP do not further elaborate on these issues.20

(p. 780) 17  On 18 December 2006, the election of the first ten members of the SPT took place at the UN Office in Geneva. Exactly ten of the fourteen candidates received the required absolute majority at the first ballot, whereas the remaining four candidates missed this requirement. Consequently, these ten candidates were elected and no further ballot was required. The States parties decided that the SPT would assume office on 1 January 2007. It was further decided by lot that Ms Casale, Mr Coriolano, Mr Hájek, Mr Lasocik, and Mr Rodriguez Rescia would serve for a term of two years (until 31 December 2008). The four-year terms of the other members were about to expire on 31 December 2010.21

18  At the third meeting of States parties on 28 October 2010, five members were to be elected to fill the vacancies of those members whose terms of office were about to expire on 31 December 2010. In addition, fifteen new members were to be elected in conformity with Article 5(1) OP, following the fiftieth ratification, which took place in September 2009. The OP itself does not stipulate any special election procedure for the election of the additional fifteen members. Accordingly, the regular provisions (Articles 5 to 9 OP) were applied and the election of the fifteen additional members coincided with the regular biennial elections to fill the vacancies of those experts whose mandates were about to expire at the end of 2010. Hence, the third meeting of States parties began first with the regular biannual election of the five members who were about to fill the upcoming vacancies; then it followed a second round of elections in order to elect the fifteen additional members. Pursuant to Article 9 OP,22 the five members elected at the first round were elected for a term of four years. The election of the additional fifteen members followed the manner in which the first ten members of the SPT were elected in 2006, also with regard to their terms of office. This was found to ensure the requirements set out in Article 7(1)(d) OP.

19  Thirty-one candidates had been nominated and accepted by the States parties. At the first ballot, none of the candidates had obtained an absolute majority. Thus, a second ballot became necessary. The voting was restricted to the candidates who had obtained the largest number of votes in the previous ballot, with the number of candidatures being limited to not more than twice the number of places remaining to be filled.23 The ten candidates who had obtained the largest number of votes in the first ballot were: Ms Definis-Gojanovic (16 votes), Mr Ginés Santidrián (21 votes), Mr Lam Shang Leen (11 votes), Ms Muhammad (14 votes), Mr Obrecht (13 votes), Mr Petersen (17 votes), Mr Pross (18 votes), Mr Sarre Iguíniz (17 votes), Mr Taylor Souto (19 votes), and Mr Villavicencio Terreros (12 votes).24 Having obtained the required majority at the second ballot, Mr Ginés Santidrián, Mr Obrecht, Mr Peterson, and Mr Taylor Souto were elected members of the SPT for a term of four years (until 31 December 2014). Since the number of candidates who had obtained the required majority was less than the number of members to be elected, a third ballot was to be held to fill the last remaining vacancy. The voting (p. 781) had been restricted to the two candidates25 who had obtained the largest number of votes in the previous ballot.26 With regard to the vote for the fifth replacement member of the SPT, fifty-six representatives of States parties to the OP had voted and fifty-three valid ballot papers had been counted. The representative of Mexico, supported by the representative of Germany, found that the phrase ‘representatives present and voting’ in Rules 11 and 12 of the provisional RoP27 meant representatives who had cast valid votes. Thus, he thought that Mr Sarre Iguíniz, having obtained twenty-eight votes, should have been elected member of the SPT. Although the present Senior Legal Adviser to the UN Office at Geneva stated that the secretariat did not share this interpretation, the (majority of) the representatives of States parties had wished to proceed in this manner. Thus, Mr Sarre Iguíniz had been elected the fifth replacement member of the SPT.28 Despite this, the representatives of States parties agreed that the standard procedure should be applied again in forthcoming rounds.29 In our opinion, the chosen approach did not correspond to the meaning of Article 7(1)(d) OP, as the term ‘present and voting’ clearly does not postulate valid, but cast votes.

20  Given that Article 6(1) and (2) OP encourages States parties to nominate up to two candidates, including one national of another State party, the election procedure outlined in Article 7(2) OP seems a little complicated, yet this provision will hardly ever be applied in practice.

Kerstin Buchinger

Footnotes:

1  See Art 6(1) OP.

2  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.

3  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.

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 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.

5  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.

6  E/CN.4/2001/WG.11/CRP.1.

7  E/CN.4/2001/WG.11/CRP.2.

8  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session (2002) UN Doc E/CN.4/2002/78, Annex II E.

9  See 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.

10  ibid, para 62.

11  ibid, para 63.

12  E/CN.4/1994/25 (n 4) paras 37ff.

13  See 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, para 57.

14  cf above Art 17 CAT.

15  eg Arts 8 CERD, 30 CCPR, 17 CEDAW; see also OHCHR, ‘Human Rights Treaty Bodies and Election of Treaty Body Members: A Guide for United Nations Delegates Based in New York’ (2013) <https://www.ohchr.org/Lists/MeetingsNY/Attachments/38/treaty-body-elections-guide.pdf> accessed 2 November 2017; OHCHR, ‘Handbook for Human Rights Treaty Body Members’ (2015) <https://www.ohchr.org/Documents/Publications/HR_PUB_15_2_TB%20Handbook_EN.pdf> accessed 3 November 2017.

16  See Art 5, paras 2–6 OP.

17  cf Art 7(1)(c) OP.

18  See Secretary-General, ‘First Meeting of the States Parties—Summary Record’ (2006) UN Doc CAT/OP/SP/SR.1, paras 21–31.

19  For problems related to additional balloting, see above Art 17 CAT.

20  The final version of the RoP of States parties to the OP was made public on 22 February 2013 (CAT/OP/3). For various issues of interpretation in connection with elections see above Art 17 CAT, and Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 678.

21  See CAT/OP/SP/SR.1 (n 18) paras 21–31.

22  See also Art 9 OP, para 13 stipulating a four-year term of office and the principle of partial renewal with ‘staggering’ elections every two years.

23  See Secretary-General, ‘Provisional Rules of Procedure of the Meetings of the States Parties to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) UN Doc CAT/OP/SP/3 r 15.

24  See Secretary-General, ‘Third Meeting of the States Parties—Summary Record of the 3rd Meeting’ (2011) UN Doc CAT/OP/SP/SR.3, para 17.

25  Mr Pross (Germany) had obtained 26 votes during the second ballot and Mr Sarre Iguíniz (Mexico) had obtained 27 votes.

26  CAT/OP/SP/3 (n 23) r 15.

27  See CAT/OP/12/3.

28  See Secretary-General, ‘Fourth Meeting of the States Parties—Summary Record of the 4th Meeting’ (2010) UN Doc CAT/OP/SP/SR.4, para 2.

29  ibid, paras 9–12.