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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.35 Privileges and Immunities

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: 17 August 2022

Subject(s):
Torture — Immunity from jurisdiction, state officials — Privilege — Treaties, interpretation

(p. 1020) Article 35  Privileges and Immunities

Members of the Subcommittee on Prevention and of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. Members of the Subcommittee on Prevention shall be accorded the privileges and immunities specified in section 22 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

1.  Introduction

Article 35 OP stipulates that the members of the Subcommittee on Prevention as well as of the NPMs shall be granted the necessary privileges and immunities in order to exercise their monitoring functions independently.

With regard to the members of the Subcommittee, special reference is made to the General Convention on the Privileges and Immunities of the United Nations of 13 February 1946.1 Article VI, Section 22 of the General Convention is to ensure that ‘experts … performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions’. The existing provision, which conforms with the majority of comparable human rights instruments,2 aims at ensuring that in carrying out their functions, the members of the Subcommittee are given, for example, immunity from personal arrest or detention, immunity from legal process related to the performance of their missions, and inviolability for all their papers and documents, as well as immunities and facilities regarding their personal baggage.

(p. 1021) No special reference is made to international standards regarding NPMs. However, according to Article 35 OP, its members shall be granted privileges and immunities that are necessary for the independent exercise of their functions. Consequently, similar facilities to the ones mentioned above shall be granted to the members of the national visiting bodies under the respective domestic laws in order to be able to carry out their mandates effectively.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Revised Costa Rica Draft (15 January 1991)3

Article 23

Members of the Subcommittee and of missions authorized under the present Protocol shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. In particular, they shall be accorded the privileges and immunities specified in section 22 of the Convention on Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

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

Article 20

The members of the Sub-Committee and of [its delegation] shall be entitled to the facilities, privileges and immunities [of experts on mission for the United Nations] as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

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

Article 23

Members of the Subcommittee and of missions authorized under the present Protocol shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. In particular, they shall be accorded the privileges and immunities specified in section 22 of the Convention on Privileges and Immunities (p. 1022) of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

2.2  Analysis of Working Group Discussions

Although it was not disputed in the Working Group that a provision on privileges and immunities for members of the Subcommittee should in principle be inserted in the Protocol, a delegate stated that he held a different view on privileges and immunities of experts, interpreters, and other members of a delegation visiting a country. Another speaker observed that such privileges and immunities should only be granted during the course of a mission.6

The issue was discussed again in 1995, when the representative of Japan asked for clarification as to to whom the privileges and immunities should be extended. Furthermore, she proposed to add ‘during the period of their mission’ to the draft provision. The Chinese representative reiterated that he had reservations regarding privileges and immunities for those others than members of the Subcommittee. The delegate of Sweden, supported by the United States, proposed to seek a legal opinion of the UN Legal Counsel whether a reference to existing provisions under the United Nations regarding privileges and immunities of ‘experts on mission’ was sufficient, rather than finding new wording. In this regard, Sweden considered it important to retain the reference to the UN Convention on Privileges and Immunities of the United Nations of 13 February 1946. The matter was postponed for further consideration at the second reading.7

During the sixth session and following further discussions, the United States provided the participants of the Working Group with a new proposal, accompanied by relevant existing regulations on privileges and immunities as well as an explanation of their scope, when they apply, and to whom they apply. Again, China declared that experts on mission should not enjoy the same privileges and immunities as members of the Subcommittee. The Chinese representative proposed that members of missions should be divided into three categories with varying degrees of privileges and immunities. Members of the Subcommittee should be granted the same privileges and immunities as delegations of UN Member States; experts should enjoy only such privileges and immunities necessary for their concrete needs; and interpreters, who might be nationals of the country visited, should have only limited privileges and immunities. Also, she was in favour of adding a waiver of privileges and immunities in the text of the provision. Other speakers explicitly opposed the idea of making a division between members of a delegation. A second proposal of the United States, which was based on Section 22 of the 1946 Convention on the Privileges and Immunities of the United Nations and Article 6 of the Convention on the Safety of United Nations and Associated Personnel, was supported by a number of States. The representative of Cuba wished to insert a reference to Section 23 of the 1946 Convention on Privileges and Immunities, which states that such privileges and immunities are not granted for the personal benefit of the individuals but in the interests of the United Nations, and which gives the Secretary-General the right to waive the immunity of an expert. After the drafting group had taken into consideration the comments, the provision was adopted by the Working Group. The representative of (p. 1023) China explicitly made a reservation on this issue, declaring that she regretted that her proposal to make a distinction between members of the Subcommittee and others had not been taken up in the adopted text.8

10  Alternative drafts of the Protocol provided by Mexico9 and the European Union10 in later sessions contained identical provisions on the question of privileges and immunities and were not discussed separately. Also, the proposal of the United States11 to grant the members of the Subcommittee the same privileges and immunities as held by the members of the Committee under Article 23 CAT, did not give rise to further negotiations.

3.  Issues of Interpretation

11  Article 35 OP is based on comparable provisions in Article 23 CAT and other UN human rights treaties,12 but is more explicit in referring to sections 22 and 23 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946. These two sections are part of Article VI of the Convention, which relates exclusively to experts on missions for the United Nations.

12  In the Working Group, several delegates proposed that such privileges and immunities should only be granted to members of the Subcommittee during the period of their country missions.13 This proposal was not adopted. Rather, Section 22 of the Convention specifies that experts shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions ‘during the period of their missions’. This formulation applies to experts who are appointed for a particular fact-finding mission or other mission. The word ‘mission’ therefore does not refer to the country missions conducted by the Subcommittee, but must rather be interpreted as applying to the entire period for which an expert serves as member of the Subcommittee. However, most of the privileges and immunities spelled out in Section 22, such as immunity from personal arrest and from seizure of personal baggage, are primarily relevant when members of the Subcommittee are on a country mission.

13  According to Article 13(3) OP, the members of the Subcommittee may be accompanied during their country missions by other experts, such as forensic experts; they shall be selected from a roster of experts established at the Office of the UN High Commissioner for Human Rights.14 During the drafting of Article 35 OP, China and other States stressed that the privileges and immunities shall only be accorded to members of the Subcommittee.15 The final text of Article 35 OP thus does not include any reference to the experts mentioned in Article 13(3) OP. Nevertheless, all experts selected from the roster of experts at the Office of the High Commissioner must receive a contract from the United Nations and will, therefore, be considered for this particular country mission as ‘experts on missions’ of the United Nations entitled to the same privileges and (p. 1024) immunities as members of the Subcommittee by virtue of directly applying Sections 22 and 23 of the Convention. Whether or not interpreters and other members of the delegation enjoy similar privileges and immunities depends on their respective contracts with the United Nations.

14  On the initiative of the representative of Cuba, a special reference was made in Article 35 OP to Section 23 of the Convention. This provision stipulates that the privileges and immunities granted to experts on mission are only functional immunities, which are not granted ‘for the personal benefit of the individuals themselves’. Consequently, the Secretary-General shall have the right and the duty to waive the immunity of any member of the Subcommittee in a case where immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations. For example, if a member of the Subcommittee is charged for a crime committed during a country mission which is not directly related to his or her mandate, the Secretary-General may decide to waive the respective immunity contained in Section 22(b) of the Convention. If, however, a member is charged because of criticizing the Government of the country visited in relation to the conditions of detention observed, his or her immunity shall not be waived. Difficult questions of interpretation arise in relation to a member of the Subcommittee participating in court proceedings as a witness, amicus curiae, or in any other function because of his or her UN function. The Secretary-General in such a case may also have to consider waiving immunities in relation to the right and duty of confidentiality, such as the inviolability of all documents or the right to use codes, etc.

15  Article 35 OP also contains a reference to privileges and immunities of members of the NPMs ‘as are necessary for the independent exercise of their functions’. The extent of the privileges and immunities afforded to SPT member should serve as a model in these regards.16 In any case, they should enable the NPM to independently and effectively carry out preventive and unannounced visits to all places of detention, and to conduct private interviews with detainees. The SPT elaborated that routine body searches and pat-downs contravene the spirit of the OPCAT,17 and that application of or exemption from searches shall be carried out in the same manner as for other authorities with similar or equal privileges and immunities to those granted to NPM members and ought to include freedom from such searches.18 Protection should include immunity from personal arrest, detention, and seizure of personal baggage;‎ immunity from seizure or surveillance of papers and documents; immunity from legal actions in respect to words, spoken or written, or acts performed in the course of their NPM duties; and no interference with communications relating to the exercise of NPM functions.19

16  While Article 35 OP speaks of ‘members’ of the NPM, a systematic interpretation in accordance with the ordinary meaning of the terms in the context and in the light of the object and purpose of the OP20 expands the protective scope of this provision to NPM personnel as understood by Article 18(1) OP.21 While the protection of NPM (p. 1025) members is indisputably important, the NPM can only independently and effectively carry out its work of preventive and unannounced visits, private interviews with detainees, and issuance of recommendations if all personnel involved in this substantive work enjoy the privileges and immunities provided by Article 35 OP.

17  In this sense, the SPT states in its Guidelines that ‘[t]he State should ensure that both the members of the NPM and its staff enjoy such privileges and immunities as are necessary for the independent exercise of their functions.’22 In its advice on body searches and pat-downs, it noted that, while it is accepted that essential basic security measures are to be complied with for the benefit of all concerned, it is equally important that ‘those working’ for the NPM are not in any way restricted in their work and that they do not feel that they might be subject to any form of pressure.23 Hence, ‘[m]embers of the mechanism and its staff’ should enjoy the protection of Article 35 OP.24

18  External experts are also part of NPM personnel and thereby must meet the same requirements of independence according to Article 18(1) OP and be afforded the same privileges and guarantees against reprisals as NPM members.25 In this context, the SPT states that the NPM’s legal framework should ‘outline privileges and immunities of NPM members and those who contribute to the NPM, including experts and civil society’.26

19  Changes to laws or regulations could be necessary in addition to the NPM law providing for privileges and immunities. For example, NPM personnel are to be excluded from the rule that communications with pre-trial detainees should be monitored by prison personnel.

Stephanie Krisper

Footnotes:

1  UNGA, Res 22 A (I) of 13 February 1946, 1 UNTS 16.

2  cf eg Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 (CAT) Art 23; International Covenant on Civil and Political Rights (adopted and opened for signature 16 December 1966, entered into force 23 March 1976, for all provisions except those of Article 41; 28 March 1979 for the provisions of Article 41) 999 UNTS 171 (CCPR) Art 43; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 51; and American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36 (ACHR) Art 70. See above Art 23 OP.

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.

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 contained similar or identical provisions: cf 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 29; Annex II (the EU Draft) Art 24; 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 8; 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 35.

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 114.

7  ibid, paras 130ff.

8  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 131ff.

9  E/CN.4/2001/67 (n 5) Annex I.

10  ibid, Annex II.

11  E/CN.4/2002/78 (n 5) Annex II E.

12  See above Art 23; cf also Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 787ff; cf eg Art 43 CCPR (n 2); Art 51 ECHR (n 2); Art 70 ACHR (n 2).

13  cf eg the respective Japanese proposal above, para 8.

14  See above Art 13 OP.

15  See above 2.2.

16  APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 125.

17  SPT, ‘Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc CAT/C/57/4, Annex on ‘Compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms’, para 24.

18  ibid, para 25.

19  APT and IIDH (n 16) 125.

20  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) Art 31(1).

21  See above Art 18 OP.

22  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 26.

23  CAT/C/57/4 (n 17) Annex, para 24.

24  ibid, para 25.

25  APT and IIDH (n 16) 90.

26  SPT, ‘Report on the Visit to the Netherlands for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Netherlands: Recommendations and Observations Addressed to the State Party, Report of the Subcommittee’ (2016) UN Doc CAT/OP/NLD/1, para 27.