20
United Nations Convention Against Torture and its Optional Protocol
are often preceded by a non-binding declaration on the same subject. As the UDHR of
1948 formed the basis for the two Covenants of 1966, the same three steps (declaration,
convention, and implementation) are often found in relation to specialized human rights
topics as well.25 Most of the ideas of strengthening the prohibition and prevention of
torture and CIDT, which are elaborated in the Convention against Torture, were already
contained in the 1975 Declaration. The original Swedish Draft of 1980, which formed
the principal basis for the drafting of the Convention in the Working Group, is to a great
extent modelled on the 1975 Declaration. This was explicitly mentioned in the sixth preambular paragraph of the Swedish Draft which expressed the desire ‘to convert the principles of the Declaration into binding treaty obligations and to adopt a system for their
effective implementation’.26 During the discussions in the Working Group, the observer
for Amnesty International and others regarded this formulation as undermining the authority and effectiveness of the 1975 Declaration and, consequently, replaced it with a
stronger wording.27
The final wording of the sixth paragraph is based on an Argentine amendment in
the Working Group of 1983.28 This formulation expresses the overall objective of the
Convention against Torture: the desire ‘to make more effective the struggle against torture
and other cruel, inhuman or degrading treatment or punishment throughout the world’.
It reflects the experience that the mere prohibition of torture and other ill forms of ill
treatment under international human rights law is not enough to eradicate this ‘plague
of the twentieth century’. Innovative ideas were brought forward to make the struggle
against torture more effective: the IAPL Draft proposed to make torture a crime under
international law, similar to genocide and apartheid, and to require States to bring the
perpetrators of torture to justice before domestic courts; the original Swedish Draft introduced the principle of universal criminal jurisdiction, based on various treaties combating
the crimes of terrorism and hijacking, and contained a number of specific State obligations
to prevent torture; and the Costa Rica Draft suggested a system of preventive visits to all
places of detention, based on the experience of the ICRC. It is surprising that, despite
strong opposition by a large number of States from all regions of the world, the Working
Group, under the efficient chair of Jan Herman Burgers from the Netherlands, succeeded
to include most of these ideas in the final text of the Convention.29 In addition to a broad
variety of provisions aimed at preventing torture, providing support to torture victims, and
at bringing perpetrators of torture to justice before domestic courts, the Convention also
contains a new procedure of international monitoring, ie an ex officio inquiry procedure in
case of systematic practice of torture.30 The following article by article analysis of all provisions of the Convention will show the extent to which these innovative provisions of combating torture and other ill-treatment were actually implemented by States parties during
the thirty years since the entry into force of the Convention on 26 June 1987.
25
cf eg the Declaration and Convention on the Elimination of Racial Discrimination of 1963 and 1965;
the Declaration and Convention on the Elimination of Discrimination against Women of 1967 and 1979;
the Declaration and Convention on the Rights of the Child 1924, 1959 and 1989; and the Declaration and
Convention on Enforced Disappearance 1992 and 2006.
26
27
28
See above 2.1.
See above 2.2.
E/CN.4/1983/WG.2/WP.16 (n 6) para 10.
29
The system of preventive visits to places of detention, proposed by Costa Rica, was only realized by the
adoption of the OPCAT in 2002: see below Preamble OP.
30
See Manfred Nowak in Fortschritt im Bewußtsein der Grund-und Menschenrechte: Progress in the Spirit of
Human Rights: Festschrift für Felix Ermacora (Engel 1988) 189 and see below Art 20.
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