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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.33 Denunciation

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: 16 May 2022

Subject(s):
Torture — Treaties, interpretation

(p. 1011) Article 33  Denunciation

  1. 1.  Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Protocol in regard to any act or situation that may occur prior to the date on which the denunciation becomes effective, or to the actions that the Subcommittee on Prevention has decided or may decide to take with respect to the State Party concerned, nor shall denunciation prejudice in any way the continued consideration of any matter already under consideration by the Subcommittee on Prevention prior to the date on which the denunciation becomes effective.

  3. 3.  Following the date on which the denunciation of the State Party becomes effective, the Subcommittee on Prevention shall not commence consideration of any new matter regarding that State.

1.  Introduction

Pursuant to Article 33, a State party may denounce the OP at any time by written notification to the Secretary-General, being the sole requirement for withdrawal. The possibility and procedure of denunciation is quite common with regard to international treaties, at least as to their optional elements. However, a State party may not tackle its obligations under the present Protocol until the expiration of one year calculated from the date of receipt of the notification by the Secretary-General. Furthermore, and in order to hinder States parties from denouncing the Protocol for the purpose of suppressing any grievances, the act of denunciation does not function retroactively.

The provision at hand is based on Article 31 CAT, which—unlike the CCPR1—contains an explicit provision on denunciation. The ECPT also contains a comparable (p. 1012) provision for the European system in its Article 22, especially as regards the date on which the denunciation becomes effective.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)2

Article 16

Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall inform the other States Parties and the Committee. Denunciation shall take effect one year after the date of receipt of the notification. Denunciation shall not affect the execution of measures authorised prior to it.

Revised Costa Rica Draft (15 January 1991)3

Article 19

Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties, the Committee against Torture and the Subcommittee. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

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

Article 19

  1. 1.  Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Protocol in regard to any act or situation which occurs prior to the date at which the denunciation becomes effective, or to the actions that the Sub-Committee [the Committee against Torture] has decided or may decide to adopt with respect to the State Party concerned, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Sub-Committee [the Committee against Torture] prior to the date at which denunciation becomes effective.

(p. 1013) Text of the Articles which Constitute the Basis for Future Work (2 December 1999)5

Article 21

  1. 1.  Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Protocol in regard to any act or situation which occurs prior to the date at which the denunciation becomes effective, or to the actions that the Subcommittee has decided or may decide to adopt with respect to the State Party concerned, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Subcommittee prior to the date at which denunciation becomes effective.

  3. 3.  Following the date at which the denunciation of the State Party becomes effective, the Subcommittee shall not commence consideration of any new matter regarding that State.

2.2  Analysis of Working Group Discussions

The issue of denunciation was only briefly considered during the first session of the Working Group in 1992, when one delegation questioned the need to inform the CAT Committee of such a denunciation as contained in the Costa Rica Draft which formed the basis for discussions.6

In 1995, the representatives of Australia, Chile, and the Netherlands supported the retention of a clause dealing with the effect of a denunciation with regard to any act or situation occurring prior to it into the provision. Similar clauses could also be found in Article 31(2) CAT and Article 12 of the first OP to the CCPR. According to this clause, a denunciation should not have the effect of releasing a State party from its obligations under the Protocol in relation to any act or omission which occurred prior to the date at which the denunciation becomes effective, nor should the denunciation prejudice the continued consideration of any matter before the SPT.7

In 1997, the outcome of the first reading was modified in so far as a reference to the CAT Committee in paragraph 2 of the Article, dealing with the effects of a denunciation, was deleted. Furthermore, Mexico reintroduced a third paragraph preventing the SPT commencing considerations of any new matter after the date at which the denunciation becomes effective. The text of the provision was then adopted by the Working Group.8

(p. 1014) 10  Alternative drafts of the Protocol provided by Mexico9 and the European Union10 in later sessions contained identical provisions on the question of denunciation and were not discussed separately. The draft by the United States,11 which provided for the possibility of denunciation, remained silent on the effects of such denunciation.

3.  Issues of Interpretation

11  Article 33 OP is based on the detailed provisions of Article 31 CAT. On the various questions of interpretation related to the denunciation clause, the reader is referred to the respective comments on Article 31 CAT.12 In the following, we will only focus on the differences between both provisions.

12  By inserting the words ‘at any time’ in paragraph 1, Article 33 OP only confirms the interpretation applied to Article 31 CAT, namely that States parties are free to denounce the Protocol even immediately after having deposited the respective instruments of ratification or accession.

13  Article 33(2) OP confirms that the State party concerned remains fully bound by the provisions of the Protocol for the one-year period between the notification of the respective denunciation and its entry into force. But the formulation also refers to any ‘situation’ that may occur during this period as well as to ‘the actions that the SPT has decided or may decide to take with respect to the State Party concerned’. The word ‘situation’ may be interpreted as referring, for example, to a serious deterioration of prison conditions caused by riots or similar events which the State party has to address as if it had not denounced the Protocol. It might also refer to a situation in which a comprehensive prison or police reform project has just started, with the financial assistance of the Special Fund in Article 26, aimed at implementing a specific recommendation of the SPT. The actions which the SPT may decide to take within this one-year period are, above all, to carry out a regular or a follow-up mission to the country concerned, to maintain contacts with the NPM in the country and to provide the NPM with training, advice, and technical assistance in the evaluation of the needs and means necessary to improve the conditions of detention in the country and to strengthen the protection of detainees against torture and ill-treatment.13

14  As with respect to Article 31 CAT, any reasonable interpretation of Article 33(2) and (3) OP must strike a fair balance between the legitimate concern of the SPT not to be prevented from finalizing pending procedures and activities and the legitimate concern of the respective State party that this one-year period will not be misused by the SPT to arbitrarily initiate, continue, and perhaps delay certain proceedings and activities as a reaction to its notification of denunciation.14 This means that the SPT may, of course continue its preparations for a country mission and even start a new country mission at the beginning of the one-year period, and finalize its report and recommendations also after the one-year period. The same holds true for any training, advice, and assistance activities (p. 1015) in relation to the NPM. But the SPT should not start the initiative for a new country mission or a new training programme with the NPM ten months after the notification of denunciation in order to be able to carry out as many activities as possible even after the one year period, although strictly speaking, this would not be prevented by Article 33(3) OP.

15  The denunciation of the OP only has the legal effect that the SPT shall not commence new activities after the date of its entry into force, but it has no similar automatic effect on the NPM. If the State party also wishes to discontinue the functioning of the NPM, it would have to take the required legislative and other action. Such measures should, however, only be commenced after the entry into force of the denunciation, ie after the one-year period foreseen in Article 33(1) OP.

Kerstin Buchinger

Footnotes:

1  Only Art 12 of the first OP to the CCPR contains a similar denunciation clause; the Covenant itself can only be terminated in accordance with the general rules of international law or Arts 54–72 VCLT. See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR-Commentary (2nd rev edn, NP Engel 2005) XXXVI, 905ff.

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 (1996) 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 Eighth Session (1999) UN Doc E/CN.4/2000/58, Annex II. Later drafts contain similar or identical provisions: see Art 27 of the Mexican Draft of 13 February 2001 (E/CN.4/2001/WG.11/CRP.1); Art 22 of the EU Draft of 22 February 2001 (E/CN.4/2001/WG.11/CRP.2); Art 13 of the US Draft of 16 January 2001 (E/CN.4/2002/78); Art 33 of the Proposal of the Chairperson-Rapporteur of 17 January 2002 (E/CN.4/2002/CRP.1).

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 (1992) UN Doc E/CN.4/1993/28, para 113.

7  E/CN.4/1996/28 (n 4) para 122.

8  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) UN Doc E/CN.4/1998/42, paras 115ff.

9  E/CN.4/2001/WG.11/CRP.1.

10  E/CN.4/2001/WG.11/CRP.2.

11  E/CN.4/2002/78 (n 5) Annex II E.

12  See above Art 31.

13  See above Art 11 OP.

14  See above Art 31.