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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.29 Validity in Federal States

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: 25 January 2022

Subject(s):
Torture — Treaties, interpretation

(p. 993) Article 29  Validity in Federal States

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

1.  Introduction

The text uses the same wording as Article 50 CCPR and Article 10 of the first OP to the CCPR.1 This provision, which might be called an ‘anti-federal clause’,2 clearly indicates that the Protocol and its provisions shall be binding for the whole territory of each State party, irrespective of its actual given (political) structure. This interpretation is in line with Article 29 VCLT, referring to the ‘[t]erritorial scope of treaties’ and stipulating that: ‘Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.’

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

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

Article 18

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

(p. 994) Text of the Articles which Constitute the Basis for Future Work (2 December 1999)4

Article 20

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

2.2  Analysis of Working Group Discussions

Although the Costa Rica Draft did not contain or propose any ‘federal State clause’, this issue had already been raised during the first session of the Working Group in 1992.5 In the course of the fourth Working Group session in 1995, the delegation of China finally suggested adding a new article to the OP relating to the application of the Protocol in federal States.6 The Working Group adopted Article 18 bis (now Article 29) at its sixth session on 15 October 1997 without any further amendments.7

Alternative drafts of the Protocol provided by Mexico,8 the European Union,9 and the United States10 in later sessions contained identical provisions on the issue of federal States and were not discussed separately.

3.  Issues of Interpretation

The ‘anti-federal clause’ of Article 29 OP was inserted into the Protocol on the initiative of China and corresponds literally to Article 50 CCPR and Article 10 of its first OP. During the drafting of the CCPR and CESCR, certain States, including the United States, Australia, Denmark, and India, had proposed the insertion of a ‘federal clause’ to the effect that for matters falling within the responsibility of constituent states, provinces, or cantons, the international obligation of the federal Government would be limited to transmitting the provisions to the responsible authorities with a recommendation that the necessary steps be taken.11 The opponents of a ‘federal clause’, above all the Soviet Union, argued that this would conflict with the principle of universality and establish an unequal status between federal and unitary States. Their counter-motion of inserting an ‘anti-federal clause’ ultimately prevailed, although the same effect would have been (p. 995) achieved without an explicit rule. According to Article 29 VCLT, a treaty is binding upon each party for its entire territory, unless a ‘federal clause’ or ‘colonial clause’ restricts its applicability to constituent states or dependent territories.

Accordingly, a federal structure cannot be used as an excuse for failing to fully implement obligations under the Protocol, meaning that federal and centralized States should be equally bound by the present Protocol’s provisions to allow for preventive visits to all places of detention by both the Subcommittee and NPMs. Thus, the federal governments remain responsible for the proper fulfilment and respect for their obligations under the Protocol, even if their regional governments fail to do so.12 However, decentralized States encounter certain difficulties in fully and effectively implementing international human rights treaties. Therefore, in order to overcome such challenges, a general framework for the implementation of the OP has to be considered with regard to federal or decentralized States.

First of all, it is necessary to assess whether the federal Government has enough constitutional authority to pass the corresponding implementing legislation. Subsequently, an adequate process of ratification or implementation must be ensured, either by referring to an existing process or by establishing an ad hoc negotiation process. Accordingly, it must be assessed whether legislative changes are necessary in order to ensure that the Subcommittee on Prevention possesses the powers required in the Protocol.

Possible models for NPMs in decentralized States are (a) a unified national body, enacted and appointed by the federal Government only or by the federal and regional governments together, or (b) multiple bodies acting on a regional basis for the territory for which the regional Government is responsible.13

10  The latter approach is quite controversial for several reasons. Although this approach has its advantages for States which are geographically large and feature a divided constitutional authority, additional efforts and resources are necessary in order to ensure the system’s consistency in terms of recommendations and findings as well as its effectiveness and efficiency with regard to the communication between the NPMs and the Subcommittee. A possible solution for this problem can be found in the designation or creation of an administratively unified preventive mechanism, which could still comprise a large number of members and geographically widespread offices, reflecting the decentralized structure of the State.14

11  It is up to the States concerned to develop a well-functioning national system of prevention. The overall aim in centralized as well as in decentralized States shall be to ensure the coverage of all places where persons may be deprived of their liberty,15 to guarantee the expertise and powers required by the Protocol and to obtain effective and consistent results.16

(p. 996) 12  Brazil was one case in which the SPT recommended the authorities with reference to Article 29 OP to ‘take all appropriate measures to ensure the establishment and effective functioning of preventive mechanisms in all states of the country’.17

Stephanie Krisper

Footnotes:

1  cf Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) (CCPR Commentary) 808 and 904.

2  ibid 809.

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 eighth session [1999] UN Doc E/CN.4/2000/58, Annex II. All subsequent drafts contain an identical provision. 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 on its ninth session [2001] UN Doc E/CN.4/2001/67, Annex I, Art 26; Annex II, Art 21; 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 I (Proposal by the Chairperson-Rapporteur) Art 29.

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 110.

6  E/CN.4/1996/28 (n 3) para 118.

7  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 113.

8  E/CN.4/2001/67 (n 4) Annex I.

9  ibid, Annex II.

10  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.

11  cf Nowak, CCPR Commentary (n 1) 808.

12  cf Matt Pollard, ‘Implementation of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in Federal and other Decentralized States’, discussion paper for the seminar ‘The Optional Protocol to the UN Convention against Torture: Implementation in Federal States and Decentralized States’ Brazil, 22–24 June 2005 <https://www.files.ethz.ch/isn/103004/Federal_English.pdf> accessed 12 December 2018, 10, n 29.

13  cf ibid 11.

14  cf ibid 12.

15  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, paras 24 and 33.

16  cf ibid. For legal, political and practical considerations and respective recommendations, see Association for the Prevention of Torture (APT), ‘OPCAT Briefing, Implementation of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Federal and Other Decentralised States’ (2011) <https://www.apt.ch/content/files_res/OPCAT%20and%20Federal%20States%20-%20Eng.pdf> accessed 15 November 2017.

17  SPT, ‘Report on the Visit to Brazil’ (2012) UN Doc CAT/OP/BRA/1, para 95; SPT, ‘Report on the Visit to Brazil undertaken from 19 to 30 October 2015: Observations and Recommendations addressed to the State Party’ (2016) UN Doc CAT/OP/BRA/3, para 96: Vis-à-vis the lack of political will to create local NPMs, the SPT called upon state governments concerned to ‘take action and to establish preventive mechanisms at state level, in compliance with OPCAT requirements, with functional independence and sufficient resources to allow these bodies to carry out their functions effectively’, as foreseen by the Federal Law; and para 97: finally, the SPT recommended that the Federal Government ‘take a more proactive approach as part of an established national public program, in coordination with state-level authorities, to foster the creation of local mechanisms. This may include meetings with high-level state authorities, regular advocacy visits to the states, technical support to the drafting of legislation and economic incentives through allocation of funds’.