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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.36 Obligations of Members of the Subcommittee during Country Missions

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: 17 August 2022

Subject(s):
Torture — Treaties, interpretation

(p. 1026) Article 36  Obligations of Members of the Subcommittee during Country Missions

When visiting a State Party, the members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of the present Protocol and such privileges and immunities as they may enjoy:

  1. (a)  Respect the laws and regulations of the visited State;

  2. (b)  Refrain from any action or activity incompatible with the impartial and international nature of their duties.

1.  Introduction

Article 2 OP specifies that the SPT shall be guided by the purposes and principles of the UN and observe the principles of confidentiality, impartiality, non-selectivity, universality, and objectivity.1 Nevertheless, when discussing the duties of States parties in relation to the SPT’s country missions and visits of places of detention under Articles 12 and 14 OP, several delegations insisted that during such missions the members of the SPT should also be bound by the relevant domestic laws and regulations.2 After lengthy and highly controversial discussions,3 the Working Group agreed to insert a special provision directly related to the privileges and immunities of SPT members under Article 35 OP.4

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

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

(p. 1027)

Article 22

In the conduct of missions, all members shall without prejudice to the provisions and purposes of the present Protocol and such privileges and immunities as they may enjoy:

  1. (a)  Respect the laws and regulations of the visited State; and

  2. (b)  Refrain from any action or activity incompatible with the impartial and international nature of their duties.

2.2  Analysis of Working Group Discussions

The question of a reference to national law in the Protocol proved to be much contested. The discussion on this issue mainly took place in the context of Article 14 OP dealing with the obligations of States parties vis-à-vis the SPT. In the third session of the Working Group, some speakers brought forward the argument that members of the SPT should be obliged to respect national laws while visiting a country. Others considered a reference to national laws counterproductive and raised concerns that these laws could be invoked by States as a means of restricting the delegation’s access to places of detention. Furthermore, the insertion of a reference to ‘professional ethics’ was proposed. One delegation suggested limiting the reference to national rules relating to privacy, data protection, and principles of medical ethics.6

At its sixth session in 1997, a considerable number of States participating in the Working Group expressed concern about a reference to national law in the context of the SPT’s rights. They argued that the primary aim of the Protocol was to maintain international standards, which lay outside the domestic sphere. On the other hand, some delegations, such as China, Cuba, and Egypt, insisted that the respect of national laws was a necessary counterweight to the obligations put on the States parties, such as the granting of unrestricted access to all places of detention. The representative of the ICRC explained that although national laws were respected during visits of the ICRC, the States would remove certain restrictions in order to allow an effective fulfilment of the mandate.7 At the same session, the representative of Uruguay noted that she preferred no reference to national law in the Protocol. However, if it was deemed necessary to include such a reference, she would prefer not to link it to the provision on the obligations of States towards the SPT but rather to the provision on privileges and immunities.8 The Chairperson of the drafting group reported later that the drafting group had agreed on inserting an article on national law after the provision on privileges and immunities, which was based on Article 6 of the Convention on the Safety of UN and Associated Personnel of 9 December 1994. She explained that many delegations had made a link between the introduction of this provision and the provision on the specific liberties that were to be granted to the SPT. Thus, their approval was dependent on a positive satisfactory outcome of the latter provision.9

In the following session, the issue of a reference to national laws beyond what was already contained in draft Article 22 was brought up on several occasions. In particular, in the seventh session of the Working Group a major part of the negotiations was dedicated (p. 1028) to the issue of domestic law. It was common understanding that all visits of the SPT should be conducted in the framework of the national legislation of the host country. However, this legislation should be consistent with international law, the UN Charter and other international obligations of this State. Some delegates emphasized that national laws should not be used to obstruct the fulfilment of a mission and that a balance between the rights and duties of the host State and those of the SPT should be established. Nevertheless, some participants felt that national legislation was essential to complement and implement the provisions of the Protocol and that a clear reference to national laws had to be made. Otherwise, they argued, the SPT might be seen as a ‘supranational’ body that enjoyed ‘compétence de sa compétence’, or even had the right to interpret national laws unilaterally. Furthermore, national legislation could never contradict the provisions of the Protocol because it had to be consistent with its provisions as part of each State party’s international obligations. Another argument for the insertion of such a reference was that this was necessary to safeguard the SPT’s integrity, as the non-observance of domestic regulations might put its members at risk.10

At the same session, the Chairperson of the drafting group presented two paragraphs dealing with the issue of national legislation, which in her view could be best placed into the Article with the liberties and rights of the SPT in the context of a mission. While some representatives felt that the proposal could form a basis for further discussions, others insisted that such a reference was not necessary. In the following discussion, the delegations of Cuba, China, Germany, and Egypt brought forward other proposals on this question. The delegations of Algeria, China, Cuba, Egypt, Saudi Arabia, Sudan, and the Syrian Arab Republic commonly observed that for the aforementioned reasons a reference to domestic law in the context of visits of the SPT was fundamental. Also in this regard, the representative of the United States made a detailed statement at the end of the seventh session, explaining that the Fourth Amendment of the US Constitution guaranteed its citizens that public officials could not have access to private homes without a court decision or else under very narrow circumstances. These national provisions were also applicable to the SPT, which, if it had ‘excessive powers’, could conduct visits virtually everywhere if it were of the opinion that a person might be detained with State acquiescence.

Also in the eighth session of the Working Group, no consensus could be found. While some States noted that they could only accept the provision on the rights of the SPT if a paragraph or even separate Article on domestic legislation was inserted, others refused to accept such a reference as this would undermine the objectives of the Protocol.11 Eventually, the text proposed by the Chairperson-Rapporteur in the last meeting of the Working Group only referred to national laws in Article 36, which had already been agreed upon during the sixth session.

(p. 1029) 3.  Issues of Interpretation

The obligations under Article 36 are directly related to the privileges and immunities accorded to members of the SPT. While such privileges and immunities apply to the entire period of serving as UN experts on the SPT, ie also in their home countries and third countries, the duties under Article 36 only apply to country missions in accordance with Articles 11 to 16 OP. In fact, the issue of SPT members having to respect domestic laws and regulations came up during the discussions on Article 12 OP.12

That members of the SPT, as stipulated in Article 36(b) OP, shall refrain from any action or activity incompatible with the impartial and international nature of their duties is self-evident and follows from their duty under Article 2 to be guided by the UN Charter and the principles of impartiality and objectivity.13

10  More controversial, however, is their obligation under Article 36(a) OP to ‘[r]espect the laws and regulations of the visited State’. Again, it is self-evident that the SPT shall not commit crimes in contravention of domestic criminal law and shall respect particular religious or traditional rules and customs of the country concerned. Their privileges and immunities are only of a functional nature and are not granted for the ‘personal benefits’ of the SPT members.14

11  A strict interpretation of Article 36(a) OP might, however, also lead to the result that the members of the SPT, during a country mission, must respect all provisions of prison rules, codes of criminal procedure, and similar laws to the same extent as the public in general. For example, all countries in the world have enacted specific legal provisions restricting access to places of detention by providing visiting hours for family members and other persons permitted to visit detainees, and even legal counsel may be prevented from conducting private interviews with their clients while in pre-trial detention. In military facilities, the taking of photographs is usually restricted or prohibited for the purpose of protecting military secrets, but at the same time it is part of the professional conduct of forensic examination of detainees that the forensic expert takes photos of the signs alleged to have been inflicted by torture. The same holds true for electronic equipment and other tools which the members of the delegation need to bring into a detention facility in order to carry out their work in a professional manner.

12  A reasonable interpretation of all relevant provisions of the Protocol, including the respective obligations of States parties to grant the SPT unrestricted access to all places of detention, their installations and facilities, as well as all relevant documents, to grant the delegation the factual opportunity to have private interviews with detainees, and to respect all privileges and immunities as UN experts on mission, as well as the obligations of the SPT members to comply with the principles of confidentiality, impartiality, objectivity, and professional conduct respectful of the general laws, traditions, and rules of the country to be visited, must strike a fair balance between legitimate interests of the States parties as well as the legitimate interests of the SPT to carry out its mandate of visiting places of detention in a professional manner in accordance with its mandate as laid down in the Protocol.15 Guided by the overall principle of cooperation between States parties and the SPT under Article 2(4) OP,16 States parties shall refrain from all actions aimed at obstructing the professional work of the SPT and, in particular, must not misuse prison (p. 1030) laws and regulations as a pretext for unduly restricting the freedom of the SPT to visit all places of detention and to communicate freely with all persons it wants to interview. At the same time, the SPT members must not misuse their specific rights, privileges, and immunities under this Protocol for their personal benefit and shall act respectfully towards all persons they interact with, above all detainees, witnesses, and staff of places of detention. Most importantly, they shall always respect the privacy of all interview partners, their right to confidentiality and data protection, as well as their right, on the basis of the principle of informed consent, to refuse to speak with the delegation or to provide certain information to the delegation.

13  The rights, privileges, and immunities of the members of the SPT are similar to other bodies visiting places of detention and conducting private interviews with detainees, above all the CPT and the Special Rapporteur on Torture (SRT).17 During the preparations for his visit to the Russian Federation in autumn 2006, the SRT was informed by the Government of Russia that certain elements of his terms of reference for carrying out visits to detention facilities would contravene Russian Federation law, particularly with respect to carrying out unannounced visits, and holding private interviews with detainees. Since these issues could not be resolved prior to the visit, he had to announce that he was not in a position to proceed as planned and the visit had to be postponed.18 Generally, the rights to carry out unannounced visits and to conduct private interviews with detainees are fundamental to any international and national body concerned with the investigation or prevention of torture and ill-treatment, and States should refrain from obstructing the work of such mechanisms by invoking national legislation in this regard. Missions carried out by any of the relevant mechanisms under such restrictions, such as restricted access to detainees, would serve to undermine the credibility and objectivity of their findings as well as their impartiality and independence.19

Kerstin Buchinger

Footnotes:

1  See above Art 2 OP, 3.

2  See above Art 12 OP, 2.2 and 3.

3  See below 2.2.

4  See above Art 35 OP, 3.

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 (1997) UN Doc E/CN.4/1998/42, Annex 1. Later drafts contain similar provisions: cf Art 30 of the Mexican Draft of 13 February 2001 (E/CN.4/2001/WG.11/CRP.1); Art 25 of the EU Draft of 22 February 2001 (E/CN.4/2001/WG.11/CRP.1); Art 36 of the Proposal of the Chairperson-Rapporteur of 17 January 2002 (E/CN.4/2002/CRP.1).

6  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1995) UN Doc E/CN.4/1995/38, paras 45ff.

7  E/CN.4/1998/42 (n 5) paras 74ff.

8  ibid, para 143.

9  ibid, paras 148ff.

10  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 26ff.

11  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, para 58.

12  See above Art 12 OP, 2.2 and 3.

13  See above Art 2 OP, 3.

14  See above Art 35 OP, 3.

15  See also above Art 12 OP, 3.

16  See above Art 2 OP, 3.

17  On the terms of reference of the UN special procedures, and in particular the SRT, when on fact-finding missions, see above Art 12 OP, 3. On the practice of the CPT, see Ursula Kriebaum, Folterprävention in Europa: Die Europäische Konvention zur Verhütung von Folter und unmenschlicher oder erniedrigender Behandlung oder Bestrafung (Verlag Österreich 2000) 173ff; Malcolm D Evans and Rod Morgan, Preventing Torture: A Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Clarendon Press/Oxford University Press 1998) 193ff.

19  See ibid, para 13; see also UNSRT (Nowak) ‘Report of the Special Rapporteur on the Question of Torture’ (2005) UN Doc E/CN.4/2006/6, paras 20ff regarding the country visit methodology of the SRT.