1.3.2 Lawful sanctions The exception for “lawful sanctions” is explicit in UNCAT, where the definition of torture specifically excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions.”126 Unlike the earlier Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly in 1975, the 1984 UNCAT did not elaborate the concept of lawful sanctions. The text in the Declaration, on which the UNCAT language was based, specifically referred to “pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners,” which prohibit, among other things, corporal punishment of detainees.127 The change in language may well have been based solely on technical considerations, as during negotiations for the Convention text States were reluctant to refer to a non-treaty text, such as the Standard Minimum Rules, in a binding treaty.128 1 UN TREATY BODIES While Article 7 ICCPR does not describe any exceptions to the prohibition on torture and ill-treatment, the HRC has made it clear that some types of lawful sanctions are permissible.124 The lawfulness of any sanction will be determined by reference to national and international law, with international law taking precedence in cases of conflict; as the HRC noted in Osbourne v Jamaica, “The permissibility of the sentence under domestic law cannot be invoked as justification under the Covenant.”125 While the issue is not yet definitively resolved, it has become clear over time that the CAT will determine the lawfulness of a sanction with reference to both national and international law and standards, including the Standard Minimum Rules for the Treatment of Prisoners.129 This is a logical approach given the absolute nature of the prohibition of torture and the need for consistency of application. It also reflects the general principle of international law, expressed in the Vienna Convention on the Law of Treaties, that a State See, for example, Vuolanne v Finland (1989), op. cit. Osbourne v Jamaica, HRC Communication No. 759/1997, 15 March 2000, §9.1. Article 1 UNCAT. 127 Article 1, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 128 See Burgers and Danelius, op. cit., at p. 121. 129 See, for example: Concluding Observations on the Democratic Republic of the Congo, UN Doc. A/61/44, 2006, §26(11); Concluding Observations on Togo, UN Doc. A/61/44, 2006, §36(19), 124 125 126 31