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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.34 Amendments

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: 29 June 2022

Subject(s):
Torture — Treaties, interpretation

(p. 1016) Article 34  Amendments

  1. 1.  Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph 1 of the present article shall come into force when it has been accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

  3. 3.  When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment that they have accepted.

1.  Introduction

This provision provides for the common UN procedure for amendments, being in line with the minimum standards of the VCLT1 and literally corresponding to Article 29 CAT, which is based on Article 51 CCPR.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)2

(p. 1017)

Article 19 bis

  1. 1.  Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

  2. 2.  An amendment shall come into force when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

  3. 3.  When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment which they have accepted.

Text of the Articles which Constitute the Basis for Future Work (2 December 1999)3

Article 22

  1. 1.  Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph 1 of the present article shall come into force when it has been accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional process.

  3. (p. 1018) 3.  When amendments come into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment which they have accepted.

2.2  Analysis of Working Group Discussions

In the first session of the Working Group in 1992, it was noted that the Costa Rica Draft of 1991, on which the Working Group based its discussions, did not contain a provision for amendments of the Protocol.4 A proposal by the drafting group presented at the fourth session in 1995, which combined elements of Article 11 of the first OP to the CCPR as well as of Article 29 CAT, was adopted by the Working Group as draft Article 19 bis.5

The discussion was opened again in the course of the second reading of draft Article 19 bis in 1997, when the representative of Mexico noted that the Article was inconsistent with the wording of the Convention. Accordingly, the Working Group decided to adopt only paragraph 3 of Article 19 bis and postponed the adoption of paragraphs 1 and 2.6

A lengthy discussion on the issue of amendments followed in 1998, where a number of questions were raised by the delegates, such as whether an amendment should be approved by a two-thirds majority or by all States parties, whether an approval of the General Assembly was needed for an amendment, or whether the matter was exclusively for the States parties to decide. The representative of the Netherlands made the proposal to delete the whole provision, since Article 40 VCLT was applicable in any case. This proposal did not find support among the participants. Taking into consideration all arguments, the Chairperson of the drafting group presented a revised provision on amendments, which was adopted by the Working Group after the second reading as new Article 22.7

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 question of amendments and were not discussed separately.

3.  Issues of Interpretation

In contrast to Article 51(2) CCPR, the words ‘within four months from the date of such communication’ have been inserted in paragraph 1 of Article 34 OP. Further, the requirement of approval by the UN General Assembly, contained also in Article 51(2) CCPR, has been left out.

Article 34 OP is almost identical to the wording and substance of Article 29 CAT. The only substantial difference to Article 29(1) CAT, which merely requires a simple (p. 1019) majority, is that the number of States parties required for the adoption of the amendment under Article 34(1) OP was raised from a simple majority to a two-thirds majority of the States parties present and voting. This was the reaction to the proposal of the delegate of the Netherlands to delete this article in order to make the provisions of the VCLT directly applicable.11 However, this higher requirement does not solve the problem. It would either be necessary to raise the requirement of acceptance of the amendment in Article 34(2) from a two-thirds majority to all States parties,12 or to accept that a procedural amendment could also become binding on all States parties after acceptance by only two-thirds of the States parties. The first option is applied, for example, to all procedural Protocols to the ECHR;13 the second option was applied by the States parties to the CRC when in 1995 they decided to raise the number of members of the Committee on the Rights of the Child from ten to eighteen by simply ignoring the respective provision of Article 50(3) CRC.14

10  On the various questions of interpretation and the non-practicality of a procedural amendment, which shall only be binding on the States parties that have accepted it, the reader is referred to the remarks on Article 29 CAT.15

Stephanie Krisper

Footnotes:

1  See Vienna Convention on the Law of Treaties (adopted 22 May 1969, opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) Arts 39ff.

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 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.

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 eighth session [1999] UN Doc E/CN.4/2000/58, Annex II. Later drafts contained similar or identical provisions: 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 (the Mexican Draft) Art 28; Annex II (the EU Draft) Art 23; 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 34.

4  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 112.

5  E/CN.4/1996/28 (n 2) paras 126ff. See above para 3.

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 sixth session [1997] UN Doc E/CN.4/1998/42, paras 119ff.

7  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, paras 86ff. See above para 4.

8  E/CN.4/2001/67 (n 3) Annex I.

9  ibid, Annex II.

10  E/CN.4/2002/78 (n 3) Annex II E.

11  See above para 7.

12  This was in fact proposed in the Working Group but did not find approval.

13  cf the relevant provisions in Protocols Nos 2, 3, 5, 8, 9, 10, 11, and 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). This high requirement is the only reason why the Fourteenth Protocol, aimed at reforming the procedure before the European Court of Human Rights, has not yet entered into force, as the Russian Federation refuses to ratify it.

14  cf UNGA, Res 50/155 of 21 December 1995.

15  cf also Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 811ff.