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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VII Final Provisions, Art.27 Signature, Ratification, and Accession

Stephanie Krisper

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

(p. 983) Article 27  Signature, Ratification, and Accession

  1. 1.  The present Protocol is open for signature by any State that has signed the Convention.

  2. 2.  The present Protocol is subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

  4. 4.  Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

  5. 5.  The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

1.  Introduction

Article 27 OP stipulates that only States parties that have signed, ratified, or acceded to the CAT may likewise sign, ratify, or accede to the OP. This provision results from the idea that the already existing obligations under the CAT shall be further implemented and fulfilled by the States parties of that treaty.1 The described procedure itself is common for UN and other international or multinational treaties.

The mere signature of the OP does not per se create an obligation to ratify the Protocol. However, in accordance with Article 18 VCLT, the signing of a multilateral treaty creates an obligation upon the signatory State to refrain from acts which would defeat the object and the purpose of the treaty in question, in this case the OP. Therefore, signing the Protocol expresses the willingness to become legally bound by its obligations in the near or at least medium term.

Ratification—according to Article 2(1)(b) VCLT—means the international act whereby a State establishes its definite consent to be bound by a treaty. Pursuant to Article 7 VCLT, this is usually done by the Head of the State, being its official representative. (p. 984) The act of ratification is performed by a deposit of a corresponding instrument with the UN Secretary-General.

The States in question may also become parties to the OP by way of accession. This procedure replaces signature and ratification and is likewise effected by deposit of an instrument of accession with the Secretary-General. By acceding to a treaty that has already been signed by other States, a State that is not yet a signatory to the treaty agrees to be bound by the provisions codified in the treaty in question. The legal effects of accession are the same as of ratification.

Pursuant to Article 27(5), the Secretary-General shall inform all signatory States of the present Protocol and all States that have acceded to it of every subsequent ratification or accession.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)2

Article 14

  1. 1.  The present Protocol is open for signature by any State which has signed the Convention.

  2. 2.  The present Protocol is subject to ratification or accession by any State which has ratified or acceded to the Convention. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Revised Costa Rica Draft (15 January 1991)3

Article 17

  1. 1.  The present Protocol is open for signature by any State which has signed the Convention.

  2. 2.  The present Protocol is subject to ratification or open to accession by any State which has ratified or acceded to the Convention. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

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

Article 17

  1. 1.  The present Protocol is open for signature by any State which has signed the Convention.

  2. (p. 985) 2.  The present Protocol is subject to ratification by any State which has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The present Protocol shall be open to accession by any State which has ratified or acceded to the Convention.

  4. 4.  Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

  5. 5.  The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

2.2  Analysis of Working Group Discussions

In the first session of the Working Group in 1992, the discussion on signature, ratification, and accession was limited to the question of whether the Protocol should be open to all States or otherwise limited to States that were already parties to the CAT. Whereas some delegations argued that the signature, ratification of, or accession to the OP was legally limited to States parties to the CAT, others considered the possibility of setting up an instrument that was not necessarily related to the Convention. A number of representatives stressed the need for States to have made the substantive commitments contained in the Convention prior to becoming parties to the Protocol, as the latter, in their view, sought to implement the aims of the Convention.5

10  In the fourth session of the Working Group in 1995, the Swedish observer, supported by the Netherlands and Switzerland, proposed not to link the Subcommittee provided for in the OP too closely to the Committee against Torture. Thus, the Protocol could also be opened to ratification or accession by States that were not parties to the CAT but to the CCPR, which also contained the prohibition of torture.6 Mexico spoke against this proposal. Regarding the format, the Japanese representative suggested modelling the Article on the four paragraphs of Article 8 of the First Optional Protocol to the CCPR while keeping paragraph 3 of the original Costa Rica draft on the Secretary-General’s involvement.7 Accordingly, a revised text was submitted, which after further elaboration by the drafting group was presented to the Working Group for consideration.8

(p. 986) 11  In 1997, the observer for Sweden reiterated her Government’s proposal to open the OP to States that had not ratified or acceded to the CAT. She repeated the argument that the prohibition of torture was also contained in other international instruments and, therefore, the Subcommittee’s activities in promoting implementation of this prohibition were not limited to States parties to the CAT. Furthermore, opening the OP to States not party to the CAT could also have the effect of facilitating ratification of or accession to the Convention in a second step.9 Although unusual, such provision would be, in the view of Sweden, legally possible. Regarding this proposal, a number of delegations discussed the advisability of requesting an opinion from the Office of the Legal Counsel.10 Observers of NGOs present at the Working Group raised concerns about opening the Protocol to all States and argued that promotion of universal ratification of the Convention should be given priority.11 Eventually, the Swedish observer withdrew the proposal and the Working Group at its sixth session adopted the text as submitted by the drafting group in 1995.12

12  Alternative drafts of the Protocol provided by Mexico,13 the European Union,14 and the United States15 in later sessions contained similar or identical provisions on the issue of signature, ratification, or accession and were not discussed separately.

3.  Issues of Interpretation

13  Article 27 OP is based almost literally on Article 8 of the first Optional Protocol to the CCPR.16 The only controversial issue during the drafting in the Working Group was whether the OP should be open to signature, ratification, and accession to all States (as proposed by Sweden) or only to States which had signed, ratified, or acceded to the CAT as the main treaty, which is the usual requirement for optional protocols. Most States, as well as representatives of NGOs, spoke against the Swedish proposal, which was later withdrawn.17 Apart from legal concerns, the opponents of the Swedish proposal argued that such a procedure might undermine the promotion of universal ratification of the CAT. This would have turned the OP into a free-standing treaty rather than a mere Protocol to the Convention.

14  According to Article 27(1) OP, the only requirement for signing the OP is prior signature of the Convention. This means that States that are signatories but not yet parties to the CAT are also invited to sign the Protocol. As a result, States parties to the CCPR, which are in fact bound by the prohibition of torture in Article 7 CCPR in a legally stronger manner than mere signatories of the CAT, are not invited to sign the Protocol.

15  Ratification of the Protocol is only possible for States parties to the CAT. It does not make a difference whether the State concerned became party to the CAT by way of signature and ratification, or by way of accession. In addition to being a party to the CAT, a (p. 987) State wishing to ratify the OP must first have signed the Protocol. This latter requirement does not apply to accession.

16  Although not explicitly mentioned in Article 27 OP, States may also sign, ratify, or accede to the Protocol by means of succession.18 In fact, Serbia and Montenegro had signed the Protocol on 25 September 2003. After the secession of Montenegro on 3 June 2006, Serbia decided to ratify the Protocol on 26 September 2006, whereas Montenegro, by a notification of 23 October 2006, became a signatory State by means of succession.

17  The OP was adopted by the UN General Assembly on 18 December 2002 by a majority of 127 States in favour, four against (Nigeria, Marshall Islands, Palau, and the United States), and forty-two abstentions, including Australia, China, India, Japan, the Russian Federation, and other countries from Asia, Africa, and the Arab and Caribbean regions.19 It was opened for signature on 4 February 2003. The first country to sign the Protocol on 4 February 2003 was Costa Rica, the country which had submitted the first draft for an OP in 1980, which had prepared a revised draft in 1991 as the main basis for the discussions in the Working Group, and which led the discussions in the Working Group, in particular through its former Minister of Justice, Elizabeth Odio Benito, as Chairperson-Rapporteur. Costa Rica was followed by Denmark, Sweden, and the United Kingdom, which all signed in 2003 on 26 June, the International Day for Victims of Torture. Malta was the first country to ratify the Protocol on 24 September 2003, followed by Albania’s accession on 1 October 2003, and ratification by the United Kingdom on 10 December 2003.

18  As of 12 December 2018, a total of 102 States had signed the OP (Montenegro by succession). Of the eighty-eight States parties, sixty had signed and ratified the Protocol, and twenty-five had become parties by means of accession.20 Of the eighty-eight States parties, thirty-eight belong to the European Group, fifteen to the Latin American and the Caribbean Group, twenty-one to the African Group, eleven to the Asia-Pacific Group, and none to the North American Group.

Stephanie Krisper

Footnotes:

1  cf APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 110.

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. Similar provisions are contained in 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 eighth session [1999] UN Doc E/CN.4/2000/58, Annex II, Art 18; 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 ninth session [2001] UN Doc E/CN.4/2001/67, Annex I (the Mexican Draft) Art 24; Annex II (the EU Draft) Art 19; 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 (the US Draft) Art 11; Annex I (Proposal by the Chairperson-Rapporteur) Art 27.

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 108.

6  ibid, para 103.

7  ibid, para 104.

8  E/CN.4/1996/28 (n 4) para 105. See above para 8.

9  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 sixth session [1997] UN Doc E/CN.4/1998/42, para 97.

10  ibid, para 98.

11  ibid, para 99.

12  ibid, paras 100 and 101.

13  E/CN.4/2001/67 (n 4) Annex I.

14  ibid, Annex II.

15  E/CN.4/2002/78 (n 4) Annex II E.

16  During the drafting of Article 27, Japan suggested following primarily the model of Article 8 of the first OP to the International Covenant on Civil and Political Rights (CCPR). On this provision, see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 902.

17  See above 2.2.

18  On the difficult legal issues concerning succession see above Art 24 OP, § 13.

19  UNGA, Res 57/199 of 18 December 2002.

20  cf the Status of Signature/Ratification/Accession/Succession below Appendix B3.