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OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention


Against Torture

A Commentary

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The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of


Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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922 Optional Protocol
standards of prevention against torture. The delegations of China, Cuba,
Egypt and the Syrian Arab Republic also spoke in favour of the two-pillar
system and emphasized the establishment of strong national mechanisms with
visiting functions and an international mechanism which would mainly pro-
vide technical assistance. The delegation of the United States of America sup-
ported a three-pillar system, taking into account also the regional level, where
States should be encouraged to consider adopting mechanisms that would
provide for mandatory visits to places of detention such as those contained in
the ECPT and its Protocol I.⁸
8 It was especially the mandatory nature of the proposed national prevent-
ive mechanisms that was first questioned by certain delegates, among them
Switzerland, Denmark, Germany and Canada, but also the United States of
America, Cuba and Japan. Others, however, like Guatemala, Argentina and
Mexico, were of the opposite view and supported the mandatory concept.⁹
The Working Group finally adopted the text proposed by the Chairperson-
Rapporteur. At its 50th meeting on 22 April 2002, the Commission on Human
Rights finally adopted the text of the OP submitted by the Chairperson-
Rapporteur at the tenth session of the Working Group by 29 votes to 10.¹⁰

3. Issues of Interpretation
9 The proposal to establish national preventive mechanisms was intro-
duced for the first time by Mexico in February 2001.¹¹ Mexico belonged to
the group of States which strongly opposed the Costa Rica Draft because of
its alleged interference with State sovereignty and which, therefore, favoured
the idea of prior consent for every visit by the Subcommittee.¹² Its alterna-
tive draft was aimed at protecting the principle of State sovereignty and non-
interference with internal affairs by replacing the Subcommittee, as far as
possible, with a domestic body. In the Mexican Draft, the function of the
Subcommittee was reduced to being ‘responsible for supporting and super-
vising the work carried out by national mechanisms’.¹³ It is, therefore, not
surprising that many States and NGOs were originally very sceptical about

⁸ Ibid, §17.
⁹ Ibid, §§ 38, 40, 80.
¹⁰ CHR Res. 2002/33. See above, Art. 1 OP, 2.2.
¹¹ E/CN.4/2001/WG.11/CRP.1. See above, 2.
¹² Cf. above, Art. 1 OP, 2.2.
¹³ Art. 2 of the Mexican Draft, E/CN.4/2001/WG.11/CRP.1.

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Article 3. Establishment of the National Preventive Mechanism 923
the intentions behind the Mexican Draft. They called for a proper balance
between the national and international components of the two-pillar system,
which ultimately emerged by way of compromise. It should, however, not be
forgotten that some of the States, which were originally in the same group
as Mexico, such as Cuba, China and Japan, maintained their opposition to
the OP and voted both in the Human Rights Commission and in ECOSOC
against the adoption of the OP.¹⁴
10 Irrespective of the intentions behind the Mexican Draft and the con-
troversies during the drafting process, the final outcome seems to have sig-
nificantly strengthened the OP. After all, even the most efficient system of
preventive visits to all places of detention in an increasing number of States
parties by one international body would soon have reached its financial and
capacity limits. Even in Europe with a membership of the Council of Europe of
fewer than 50 States, the CPT, with a number of members equal to the number
of States parties, can only carry out regular visits of one to three weeks every
four to five years, in which it visits only a fairly limited amount of detention
facilities. This is the main reason why the CPT has regularly recommended to
European States to establish domestic visiting bodies.¹⁵ Assuming that the OP
will be ratified by more than 150 States from all regions, the Subcommittee, as
a part-time body with no more than 25 members, could only carry out regular
visits at intervals of more than ten years. The preventive effect of such visits
would be more than limited.
11 In addition, the OP is based on the general principle of international
law that States have the primary responsibility for an efficient protection of
human rights and that international monitoring bodies can only play a sup-
plementary role in ensuring States’ compliance with their international obli-
gations. If truly independent, national visiting bodies are in a better position
than a UN body to visit detention facilities regularly all over the country, to
conduct ad hoc visits to particular places of detention, to identify the major
problems and shortcomings and to address these problems in an appropriate
manner. The two-pillar system can work in a complementary manner as the
UN Subcommittee, in addition to conducting visits on its own, can provide
adequate resources to assist national preventive mechanisms in carrying out
their tasks effectively.¹⁶

¹⁴ See above, Art. 1 OP, 2.2.


¹⁵ See CPT/Inf (91)10, Ö-PM 1, § 87; CPT/Inf (92) 5, M-PM 1, § 93; CPT/Inf (95) 14, Ir-PM
1, § 57; CPT/Inf (96) 25, M-PM 2, § 43; CPT/Inf (96) 28, Ö-PM 2, § 94; Kriebaum, 273 et seq.;
Evans/Morgan, 334.
¹⁶ Cf. below, Art. 11(b) OP.

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924 Optional Protocol
12 According to Article 3 OP, each State party shall ‘set up, designate or
maintain at the domestic level one or several visiting bodies’. The OP thus
adopts a flexible approach as it leaves it up to the States parties either to set up
entirely new national preventive mechanisms (if no appropriate body exists), or
to designate or maintain existing bodies, provided they meet the requirements
of independence, impartiality and efficiency, as stipulated in Articles 18 and 19
OP. In larger, highly decentralized or federal States, it is advisable to establish
or designate more than one national preventive mechanism.¹⁷
13 The essential features and functions of national preventive mechanisms are
further defined in Part IV of the OP.¹⁸ Above all, the expert members and staff
shall enjoy full functional independence and have the required capabilities and
professional knowledge. The composition shall be representative of the popu-
lation, similar to national human rights institutions established in accordance
with the Paris Principles.¹⁹ In addition to carrying out regular visits to all
places of detention, examining the treatment of detainees and making recom-
mendations to the relevant authorities with the aim of preventing torture and
improving conditions of detention, national preventive mechanisms shall also
submit proposals and observations concerning existing or draft legislation and
publish annual reports on their activities. States are under an obligation to
provide national preventive mechanisms with access to all places of detention,
their installations, facilities and documents and to grant them the opportunity
to have private interviews with detainees.

¹⁷ Cf. below, Art. 17 OP. See also IIHR/APT Manual, 69.


¹⁸ See below, Arts. 17 to 23 OP.
¹⁹ GA Res. 48/143 of 20 December 1993, Annex.

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