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United Nations Convention Against Torture and its Optional Protocol
4. Rules of Interpretation
According to Article 31 VCLT, an international treaty ‘shall be interpreted . . . in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in light of its object and purpose’. Thus, of primary significance is the
textual, contextual, systematic and teleological interpretation, whereby, in addition to
the treaty wording, consideration is also given to the Preamble.48 The object and purpose
of the Convention and Protocol can be derived from the desire of the drafters, as laid
down in the respective Preambles: on the one side to make the struggle against torture
and cruel, inhuman or degrading treatment or punishment ‘more effective’ and, on
the other side, to strengthen the protection of persons deprived of their liberty against
torture and other forms of ill-treatment by establishing a system of preventive visits to
all places of detention. Any interpretation which would lead to the weakening of already existing norms for the prohibition and prevention of torture and cruel, inhuman
or degrading treatment or punishment has thus been avoided. Systematic interpretation may be facilitated by a comparative analysis of similar international or regional
human rights treaties, such as the CCPR, the Inter-American Convention to Prevent
and Punish Torture 1985, or the ECPT. The subsequent practice of States parties, to be
considered pursuant to Article 31(3) VCLT, can in part be derived from relevant reservations and declarations of interpretation, as well as from State reports and observations submitted by States parties.
Human rights texts are often characterized by a high degree of abstraction and vagueness. If the textual, contextual, systematic, and teleological interpretation ‘leaves the
meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable’, Article 32 VCLT permits additional tools to be drawn upon, in particular,
the preparatory work of the treaty (‘travaux préparatoires’). The historical background of
the CAT and the OP, above all the detailed discussions in the respective inter-sessional
Working Groups of the UN Commission on Human Rights, has been outlined in relation to every Article and was used in the present Commentary as a source of interpretation whenever the meaning of a certain provision remained ambiguous.
The most important sources of information used in this Commentary as a tool for
interpreting the provisions of the Convention is the practice of the Committee against
Torture, be it in the State reporting, individual complaints and inquiry procedures. The
same is valid for the practice of the SPT with regard to the Optional Protocol. In particular, decisions and statements of the Committee based on consensus rank highly in the
interpretation of the Convention, even though these are not internationally binding. For
the purpose of the present Commentary, the entire case law on individual complaints, the
‘General Comments’, country-specific comments, and observations in the State reporting
procedure, as well as the reports in the inquiry procedure have been treated as an ‘authoritative interpretation’ of the relevant provisions of the Convention. The case law and
practice of other treaty monitoring bodies, such as the UN Human Rights Committee,
Special Procedures of the Human Rights Council, above the Special Rapporteur on
Torture, as well as regional bodies, such as the European, African, and Inter-American
48
See eg Ian Brownlie, Principles of Public International Law (5th edn, Clarendon Press 1998) 605; Manfred
Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) (CCPR
Commentary) XXVI.
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