A Controversial Declaration on the U.N. Convention Against Torture

L> A Controversial Declaration on the U.N. Convention Against Torture

A Controversial Declaration on the U.N. Convention Against Torture

Massimo Coccia ^*1

I. Introduction

On 10 December 1984, after a seven-year drafting endeavour by an ad hoc working group, the General Assembly of the United Nations, by consensus, adopted Resolution no. 39/46 embodying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention"), thus opening it for signature or ratification.² In accordance with Article 27(1), the Convention entered into force on 26 June 1987, one month after the twentieth ratification. By 31 May 1989, forty-two states had become parties to the Convention.³

On 9 September 1987, the German Democratic Republic deposited with the U.N. Secretary-General an instrument of ratification containing two reservations and a statement formally defined as a "declaration."⁴ With the first reservation, made in accordance with Article 28(1) of the Convention, the German Democratic Republic refuses to recognize the competence of the Committee against Torture (the "Committee") provided for in Article 20 of the Convention.⁵ The second reservation, made in accordance with Article 30(2) of the Convention, exempts the German Democratic Republic from being bound by the dispute settlement procedure provided for in Article 30(1) and involving a possible resort to arbitration or to the International Court of Justice by unilateral application.⁶ The third statement contained in the instrument of ratification is not made under any specific reservation clause of the Convention and reads as follows:

The German Democratic Republic declares that it will bear its share only of those expenses in accordance with Article 17, Paragraph 7, and Article 18, Paragraph 5, of the Convention arising from activities under the competence of the Committee as recognized by the German Democratic Republic.⁷

Several parties to the Convention (thirteen states as of 31 May 1989) subsequently deposited with the U.N. Secretary-General their objections to this statement, using various formulations. The first group of objecting states⁸ considers the German Democratic Republic statement inadmissible since it is implicitly prohibited by the Convention, due to Article 19(b) of the Vienna Convention on the Law of Treaties (the "Vienna Convention"). Another group of states⁹ considers it to be inadmissible as it is incompatible with the object and purpose of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment in terms of Article 19(c) of the Vienna Convention. Still other states¹⁰ have objected to the German Democratic Republic statement without making explicit reference to either of the aforementioned rationales. None of the objections was formulated in such a way as to preclude, in terms of Article 20(4)(b) of the Vienna Convention, the entry into force of the Convention between the German Democratic Republic and the objecting states.

1 ^* Libera Università Internazionale degli Studi Sociali (LUISS), Rome.

2 United Nations, Official Records of the General Assembly, Thirty-ninth session, Supplement No. 51 (A/39/51) at 197.

3 This and other factual information courtesy of the Legal and Treaty Service of the Italian Ministry of Foreign Affairs.

4 United Nations, Multilateral Treaties Deposited with the Secretary-General, Status as of 31 December 1987, at 174-275 [hereinafter Multilateral Treaties]. The question of the true nature of the German Democratic Republic statement (i.e., whether it should be seen as a reservation or a declaration) will be dealt with infra; given the inherent uncertainty of either characterization, in this paper a neutral term such as "statement" will be generally preferred.

5 Article 28 reads as follows:
1. Each state may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in Article 20.
2. Any State Party having made a reservation in accordance with Paragraph 1 of this Article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

6 Article 30 reads as follows:
1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each state may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound under Paragraph 1 of this Article. The other States Parties shall not be bound by Paragraph 1 of this Article with respect to any State Party having made such a reservation.
3. Any State Party having made a reservation in accordance with Paragraph 2 of this Article may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

7 Multilateral Treaties, supra note 3, at 175. The French text is perhaps slightly clearer, reading as follows: "La République démocratique allemande déclare qu'elle ne participera à la prise en charge des dépenses visées au paragraphe 7 de l'article 17 et au paragraphe 5 de l'article 18 de la Convention que dans la mesure où elles résultent d'activités correspondants à la compétence que la République démocratique allemande reconnaît au Comité"; Nations Unies, Traités multilatéraux déposés auprès du Secrétaire Général, état au 31 décembre 1988, at 189 [hereinafter Traités multilatéraux].

8 Greece and Spain (see id. at 192-293) and Italy (see infra note 25).

9 France, Luxembourg, Sweden, Canada and Switzerland; see Traités multilatéraux, supra note 6, at 192-93.

10 Austria, Denmark, Netherlands, Norway and United Kingdom; in fact, the United Kingdom has not made a formal objection but rather a declaration of rejection of any legal effect possibly arising from the German Democratic Republic statement. See id. at 192-294.

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