64 United Nations Convention Against Torture and its Optional Protocol 3.3 Lawful  Sanctions 136  The last sentence of Article 1(1) specifies that the definition of torture ‘does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’. This clause was already the most controversial element of the definition during the drafting of Article 1244 and remains highly controversial today.245 It derives from the 1975 UN Declaration which, however, allows lawful sanctions as an exception to torture only ‘to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners’. In the Declaration, the lawful sanctions clause accordingly was meant to apply to certain disciplinary measures against prisoners below the threshold of corporal punishment, placing a detainee in a dark cell, and similar measures prohibited by the Standard Minimum Rules. One example which was sometimes cited was to put a prisoner for some time into solitary confinement.246 137  The reference to the Standard Minimum Rules was deleted from Article 1 CAT only on the ground that certain Governments, notably from Western Europe, did not wish to include in a binding treaty a reference to a non-​binding soft law instrument. As soon as these Governments realized that the deletion of the reference to the Standard Minimum Rules would in fact open the door to a far-​reaching escape clause which would even exempt serious types of corporal punishment provided for in the criminal law of Islamic States from the prohibition of torture, they tried to replace it by another limitation referring to binding international standards. The United States, for instance, proposed that lawful sanctions ‘imposed in flagrant disregard of accepted international standards’ would not be permitted. As the drafters could not reach agreement on defining these ‘accepted international standards’, many Governments, including the United Kingdom, Uruguay, Norway, Canada and Belgium, unsuccessfully tried to delete the clause altogether. Others insisted in their written comments that the term ‘lawful sanctions’ must be interpreted to refer both to domestic and international law.247 At the time of ratification, the Governments of Luxembourg and the Netherlands reiterated this legal opinion in specific declarations of interpretation. The respective ‘understanding’ of the US Government is more ambiguous. On the one hand, the United States understands that the term ‘sanctions’ includes ‘judicially-​imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law’; on the other hand, the United States understands ‘that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture’.248 138  The Committee has originally been cautious in the reporting procedure to avoid any confrontation with Governments on the interpretation of the lawful sanctions clause, but has made it clear in recent years that it does not accept corporal punishments as covered by the lawful sanctions clause.249 When the Swiss representative in 1990 stressed   See above 2.2.   The lawful sanctions clause is usually criticized in the literature without, however, giving a clear answer as to how it should be interpreted. See eg Burgers and Danelius (n 32) 121 et seq; Boulesbaa (n 30) 31 et seq; Nigel Rodley, ‘The Treatment of Prisoners’ (n 98) 322 et seq; Ingelse (n 90) 211 et seq; Wendland (n 178) 29ff. 246   During the discussion of the initial report of Sweden in 1989, the representative of Sweden replied to a question concerning the practice of placing prisoners in isolation cells by invoking the lawful sanctions clause. See CAT/​C/​5/​Add.1 and CAT/​C/​SR.11, para 35. See also Ingelse (n 90) 231. 247   See the written references of the Netherlands, UK, Italy, and the US, above 3.2. 248   For the interpretative declarations of the Governments of Luxembourg and the Netherlands and the ‘understanding’ of the US Government with regard to art 1, see Appendix A4. 249   Ingelse (n 90) 231ff. 244 245 Zach