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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.30 Prohibition of Reservations

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: 23 January 2022

Subject(s):
Torture — Detention — Treaties, interpretation

(p. 997) Article 30  Prohibition of Reservations

No reservations shall be made to the present Protocol.

1.  Introduction

Since both the CAT and its Protocol contain primarily procedural obligations, the question whether reservations should be permitted turned out to be highly controversial during the drafting of both instruments. In principle, the drafters had three options: either to remain silent on this issue, to adopt a provision explicitly allowing for (at least certain types of) reservations or to adopt a provision explicitly prohibiting any reservations. If a human rights treaty is silent, reservations are permissible, according to Article 19(c) VCLT, only in so far as they are not ‘incompatible with the object and purpose of the treaty’. This option has been chosen, for example, by the drafters of the two Covenants, which led to a highly controversial General Comment of the Human Rights Committee on issues relating to reservations under the CCPR and its two OPs.1 Most UN human rights treaties contain provisions explicitly permitting reservations made in accordance with the VCLT.2

After long and heated discussions, the drafters of the OP agreed on a provision which explicitly prohibits reservations. This is in line with Article 19(a) VCLT, which stipulates that States may formulate reservations ‘unless the reservation is prohibited by the treaty’. In a final attempt to reach a consensus on this controversial issue, in January 2002 the Chairperson-Rapporteur introduced the possibility of a temporary ‘opting-out declaration(p. 998) preventing visits to places of detention by either the Subcommittee or an NPM for a period of up to three years.3

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Revised Costa Rica Draft (15 January 1991)4

Article 18

  1. 3.  No reservations may be made in respect of the provisions of this protocol.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)5

Article 18 bis

  1. 3.  No reservations [incompatible with the object and purpose of the Convention and Protocol] may be made in respect of the provisions of this Protocol.

EU Draft (22 February 2001)6

Article 19 bis

No reservations shall be made to the present Protocol.

Proposal by the Chairperson-Rapporteur (17 January 2002)7

Article 30

No reservations shall be made to the present Protocol.

2.2  Analysis of Working Group Discussions

Sir Nigel S Rodley, the then UN Special Rapporteur on Torture, addressed the issue of reservations in his comments to the Working Group in 2001 and stated that no reservations should be permissible with regard to the OP: ‘It is so hard to conceive of a reservation to an instrument of this nature that would not have such an adverse effect that a general exclusion of reservations would appear appropriate.’8

Already in the first session of the Working Group the question whether any reservations should be admissible or if the Protocol should contain a clause that excluded (p. 999) this possibility triggered a heated discussion. On the one hand, it was argued that the Protocol did not contain provisions of substantive law and that therefore reservations should be inadmissible. Otherwise, it was brought forward, the effectiveness of the national preventive mechanism could be seriously hampered. Furthermore, the Protocol already envisaged a so-called ‘negotiated reservation’ allowing States to suspend a visit of the Subcommittee under certain circumstances.9 On the other hand, States advocating the possibility of making reservations stated that excluding reservations might inhibit States from becoming parties to the Protocol as this situation might make its implementation difficult for them. Moreover, allowing reservations would not be dangerous since the VCLT declared any reservation that is inconsistent with the object and purpose of the respective treaty to be inadmissible. Certain permissible reservations were discussed as a possible consensus.10

In the course of the fourth session of the Working Group in 1996, the discussion on reservations was taken up again. Certain States, such as Canada, Chile, France, the Netherlands, the Russian Federation, South Africa, Sweden, and Switzerland, supported by Amnesty International, clearly argued for excluding any reservations. On the other side, the Japanese delegate proposed to delete a provision with such content. Otherwise, it was proposed to add that only reservations incompatible with the object and purpose of the Protocol should not be permitted. This proposal was explicitly contested by the representative of Sweden with a reference to the VCLT, which declared such reservations inadmissible in any case. The delegates from Algeria, Mexico, and the United States suggested that reservations addressing procedural issues should be allowed and the US delegation made the proposal to add to the provision that reservations ‘incompatible with the object and purpose of the Convention and the Protocol’ should not be admissible.11

10  In the 1997 meeting, the two groups with contrary positions consolidated: on the one hand, Argentina, Austria, Canada, the Czech Republic, Germany, Italy, the Netherlands, and the Russian Federation, supported again by Amnesty International, reiterated that States parties should not be entitled to make reservations since such reservations could render the preventive mechanism useless. On the other hand, Algeria, Brazil, China, Cuba, the Dominican Republic, Mexico, the Syrian Arab Republic, and the United States expressed opposition to a complete exclusion of reservations. Observers of the APT and the International Commission of Jurists stated that they preferred no reservations at all but could accept a provision that excluded reservations only to the core articles of the Protocol as a compromise. The representative of South Africa, although preferring no reservations, also indicated willingness to accept reservations in the interest of reaching agreement.12

11  In the Working Group of 1999, the opponents of a possibility for reservations emphasized once again that it was not logical to permit reservations since the Protocol only contained institutional and procedural provisions, while supporters of reservations (p. 1000) countered that the Protocol also contained substantive provisions imposing obligations on States parties which in turn, should be entitled to reservations. Alternatively, they proposed to make an explicit reference in the Protocol to those Articles where a reservation was not permitted.13

12  In the ninth session of the Working Group in 2001, where some delegations cited as an argument for allowing reservations recent practice in the two OPs to the CRC, still no consensus was found.14

13  In the final session of the Working Group, the Chairperson-Rapporteur presented a draft OP, which contained a provision excluding all reservations. Although some delegations explicitly contested this provision—the representative of the United States called it an ‘unwise departure from current standard-setting trends’15 and the Russian Federation perceived it as ‘a matter of grave concern’16—the proposal of the Chairman-Rapporteur was eventually adopted with a vote on 24 January 2002.17

3.  Issues of Interpretation

14  The prohibition of any reservation (with the exception of the temporary ‘opting out-declaration’ in Article 24 OP) in Article 30 OP is based on Article 21 ECPT and Article 18(3) of the revised Costa Rica Draft of 1991.18 Although the admissibility of a provision explicitly prohibiting reservations was questioned by some delegates in the Working Group,19 there can be no doubt that Article 30 OP is in line with Article 19(a) VCLT, which permits reservations to a treaty ‘unless the reservation is prohibited by the treaty’. The main reason for the prohibition of reservations is that the Protocol only contains institutional and procedural provisions and that reservations excluding the application of some of these provisions might be incompatible with the object and purpose of the Protocol. The general prohibition of reservations can also be found in other treaties of a procedural nature, such as Article 17 of the OP to CEDAW and Article 120 of the ICC Statute.

15  One should, however, keep in mind that many compromises had been achieved during the drafting process of the OP in order to accommodate the concerns of States which opposed too far-reaching powers of the Subcommittee and the NPMs. These compromises include the possibility of a temporary ‘opting-out-declaration’ under Article 24 OP,20 and of the ‘negotiated reservationin Article 14(2) OP allowing States parties to object to a visit by the Subcommittee to a particular place of detention under exceptional circumstances.21

Stephanie Krisper

Footnotes:

1  HRC, ‘General Comment No 24 on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant’ (1994) UN Doc CCPR/C/21/Rev.1/Add.6.

2  cf eg International Convention on the Elimination of All Forms of Racial Discrimination (adopted and opened for signature on 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD) Art 20; Convention on the Elimination of All Forms of Discrimination Against Women (adopted and opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW) Art 28; Convention on the Rights of the Child (adopted and opened for signature 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) Art 51; International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (adopted and opened for signature 18 December 1990, entered into force 1 July 2003) 2220 UNTS 3 (CMW) Art 91.

3  See above Art 24 OP.

4  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.

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 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.

6  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 II.

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 tenth session [2002] UN Doc E/CN.4/2002/78, Annex I.

8  Comments and Proposals Submitted by the Syrian Arab Republic and the Special Rapporteur of the Commission on Human Rights on the Question of Torture [1994] UN Doc E/CN.4/1994/WG.11/WP.2, para 6.

9  See above Art 14(2) OP.

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 [1992] UN Doc E/CN.4/1993/28, para 111.

11  E/CN.4/1996/28 (n 5) paras 113ff.

12  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, paras 109ff.

13  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, paras 20ff.

14  E/CN.4/2001/67 (n 6) para 25.

15  E/CN.4/2002/78 (n 7), para 60.

16  ibid, para 69.

17  ibid, para 117.

18  See above para 3.

19  cf eg E/CN.4/2002/78 (n 7) para 72, the delegation of Saudi Arabia; see also the strong criticism voiced by the US and the Russian Federation, paras 60 and 69; see also above para 13.

20  This ‘declaration’ in fact comes very close to a specific reservation, similar to those permitted under Arts 28(1) and 30(2) CAT.

21  See above Art 14 OP.