Jump to Content Jump to Main Navigation

Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part II Subcommittee on Prevention, Art.8 Filling of Vacancies

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: 29 June 2022

Subject(s):
Torture — Treaties, interpretation

(p. 782) Article 8  Filling of Vacancies

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no longer perform his or her duties, the State Party that nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in article 5, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the States Parties, 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.

1.  Introduction

The procedure of filling vacancies following the death, resignation or incapacity of SPT members is based to a large extent on Article 17(6) CAT. This procedure, which differs from Article 34 CCPR, has the disadvantage of giving a certain State party an almost exclusive right to have a national of its choice on the SPT.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)1

Article 5

  1. 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 (p. 783) 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)2

Article 7

If a member of the Subcommittee dies or resigns or for any other cause can no longer perform the member’s Subcommittee duties, the State Party which nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in Article 4, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the State Parties, subject to 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.

2.2  Analysis of Working Group Discussions

During the first four sessions of the Working Group, the issue of how to deal with vacant seats within the SPT was not discussed separately.

In the course of the fifth session from 14 to 25 October 1996, the Chairperson of the drafting group presented the considerations on the relevant articles and referred to the outcome of the second reading.3 With respect to the new Article 7, the Chairperson stated that the agreed text had been adopted by the drafting group to be presented to the plenary meeting, despite the different views among some delegations. She explained that they would have preferred to establish a more transparent method of replacing a member of the Sub-Committee who could no longer perform his or her duties before expiry of the term, but that all delegations had finally agreed on the text of Article 7 as contained in Annex I.4

The proposal presented by the Chairperson-Rapporteur, in January 2002, is almost identical with the 1999 draft and follows very closely the procedures contained in other UN human rights instruments.

At its fiftieth meeting on 22 April 2002, the Commission on Human Rights finally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by twenty-nine votes to ten.5

(p. 784) 3.  Issues of Interpretation

Since Article 8 OP largely follows the procedure for the filling of vacancies of the CAT Committee, reference shall be made to the issues discussed in relation to Article 17(6) CAT.6 Vacancies may arise if a member of the SPT dies or resigns or can no longer perform his or her duties for any other cause. The term ‘any other cause’ relates to the personal circumstances of a SPT member to be replaced,7 eg if a member is seriously ill or refrains from participating in the SPT’s sessions without any proper excuse. There are, however, a few differences in the wording of the articles designed to avoid the situation whereby States have the right simply to appoint one of their own nationals. First, the word ‘appoint’ in Article 17(6) CAT was replaced by ‘nominate’. Second, the nominated candidate must possess the respective qualifications and meet the requirements set out in Article 5 OP, ie independence, impartiality, availability, morality, and a relevant professional experience. Third, States parties shall take into account the ‘need for a proper balance among the various fields of competence’. If, for example, the variety of professions represented was not satisfactory before the resignation of a member, the State party shall take this factor into consideration. For instance, a State party should obviously not nominate another prison manager, if there is a lack of medical experts on the SPT. Finally, the person nominated to fill a vacancy shall not serve for the remainder of the term of his or her predecessor, but only until the next meeting of the States parties. If a member resigns during the first year after his or her election, the successor shall only fill this vacancy until the next biennial meeting of States parties, rather than for the remaining three years, as provided for by Article 17(6) CAT. These changes to the OP definitely improve the method of filling vacancies.

Thus far the procedure stipulated in Article 8 OP and specified in Rule 8 has only been applied four times. Due to the fact that Ms Casale (UK) and Mr Torres Boursault (Spain), two of the original ten experts who had been elected members of the SPT, had resigned in 2009, Mr Evans (UK) and Mr Ginés Santidrián (Spain) were appointed in order to fill the vacancies in mid-2009.8 After Mr Pross (Germany) and Mr Obrecht (France), who had been elected members of the SPT since 2010, had laid down their duties under the OP, Ms Osterfeld (Germany) and Ms Paulet (France) succeeded to the places vacated in January 2014.

10  All four experts that followed those who had resigned from their duties under the OP earlier had later become elected members of the SPT following the elections that took place past their respective appointments (in autumn 2010, 2012, 2014, and 2016).9

11  By referring to Article 5, Article 8 again stipulates the need for a proper balance among the various fields of competence. So far, all outgoing experts had been replaced by (p. 785) experts who more or less show the same professional backgrounds as their predecessors.10 Thus, the opportunity to increase the non-legal expertise among SPT members was missed also with regard to the filling of vacancies following the procedure set out in Article 8 of the OP.11

Kerstin Buchinger

Footnotes:

1  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.

2  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 12, former Art 7); the EU Draft of 22 February 2001 (E/CN.4/2001/WG.11/CRP.2, Art 8, former Art 7); and the Proposal by the Chairperson-Rapporteur of 17 January 2002 (E/CN.4/2002/CRP.1, Art 8).

3  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 paras 49ff.

4  ibid, para 65.   

5  CHR Res 2002/33 of 22 April 2002. See above Art 1 OP, 2.2.

6  Cf above Art 17 CAT.   

7  cf CAT/C/SR.5, paras 33–44.

8  Another of the initial SPT members, Mr Coriolano (Argentina), resigned from his duties on 1 October 2012 following the election as a member of the United Nations Human Rights Council Advisory Committee. He was followed by Mr Font (Argentina) from 1 January 2013 who had been elected member on 25 October 2012; thus, the procedure set out in Article 8 OP had not been applied in this case.

9  See Secretary-General, ‘Fourth Meeting of the States Parties—Summary Record of the 4th Meeting’ (2010) UN Doc CAT/OP/SP/SR.4, para 17; Secretary-General, ‘Fourth Meeting of the States Parties—Summary Record of the 1st Meeting’ (2012) UN Doc CAT/OP/SP/4/SR.1, para 16; Secretary-General, ‘Fifth Meeting of the States Parties—Summary Record of the 1st Meeting’ (2014) UN Doc CAT/OP/SP/5/SR.1, para 18; Secretary-General, ‘Sixth Meeting of the States Parties—Summary Record of the 1st Meeting’ (2016) UN Doc CAT/OP/SP/6/SR.1, para 19.

10  Mr Torres Boursault and Ms Casale have a legal background and had been members of the CPT. Mr Ginés Santidrián and Mr Evans, their successors, are both legal experts with a particular focus on the prevention of torture. Mr Pross is a medical doctor and psychotherapist specialized in psychotraumatology; Ms Osterfeld is a psychiatrist and psychotherapist as well as a member of the German National Agency for the Prevention of Torture (NPM). Mr Obrecht and Ms Paulet also have an established medical background, Ms Paulet also having been member of the CPT since 1999.

11  See Antenor Hallo de Wolf, ‘Visits to Less Traditional Places of Detention: Challenges under the OPCAT’ (2009) 6 EHRLR 73, 89.