Article 1. Definition of Torture 37 rules constitute a “recommendation” to the Government and, for technical legal reasons, it is inadmissible to bring them into a convention which, as an international treaty, gives rise to legal obligations among States Parties’. In addition the Swiss delegation noted that the Standard Minimum Rules were not rules of positive law and that it would therefore be appropriate to limit further the number of possible exceptions.63 There was a Danish proposal to amend the reference to ‘. . . to the extent consistent with international rules for the treatment of persons deprived of their liberty’. 44  This question provoked serious concern in the Working Group’s thirty-​fifth session. Some felt the reference to the Standard Minimum Rules should be reintroduced. Others suggested the inclusion of a reference to ‘existing international standards’ or using some other formulation in order to ensure that certain existing or future ‘lawful sanctions’ did not frustrate the spirit of the Convention. It was argued that the rules were limited in scope in that they dealt only with punishment relating to matters of prison discipline and that they lacked legally enforceable status in international law. One representative pointed out that the Standard Minimum Rules did not cover treatment during the period preceding actual trial and sentencing after which the detained person was designated a ‘prisoner’.64 45  Certain States argued that while the Convention was intended to strengthen the already existing prohibition of torture in international law, it was not intended to lead to reform of the system of penal sanctions in different States and that, if that had been the intention, the Convention would have been unacceptable to a number of countries. Certain Islamic States for example did not want to be party to an instrument which deemed the imposition of certain corporal punishments under Shari’a to be a breach of the Convention.65 It was also in the interest of these States that ‘lawful’ refer to national and not international law. 46 On the other hand there were those States who thought that this was too far reaching an exception since it might be interpreted so as to allow States to practise methods which would normally be regarded as torture, by making them lawful sanctions under its own legal system.66 This ambiguity could mean for instance that the amputation of a hand for theft in certain Arab States following traditions of Islamic law would be lawful in one country but not in others. Many States argued for clarification whilst feeling it important to retain the clause in order to stop encroachment into national criminal law. They argued that there must be a limit beyond which sanctions provided for by national law are so cruel as to constitute torture. 47  The clause had already appeared in the 1975 Declaration. During the Declaration’s drafting process a number of participants proposed that it be made clear in the Declaration that the article would not apply to ‘a penalty or punishment imposed by a judicial tribunal in accordance with law or to a disciplinary administrative action taken under the provisions of the law and in accordance with the Standards Minimum Rules’.67 The reference to the Standard Minimum Rules was inserted in order to make clear that certain limits should be set and that particular sanctions could not be imposed. Article 31 of the Standard Minimum Rules for instance states that ‘corporal punishment, punishment by 64   E/​CN.4/​1314  (n  8).  ibid.   See Burgers and Danelius (n 32) 103: ‘several Islamic states sought assurances that the death penalty and certain forms of punishment prescribed by Islamic law were compatible with the convention.’ 66 67   ibid 121.   A/​CONF.56/​10 (n 19) 38, para 293. 63 65 Zach