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The United States maintains several core legal reservations to the draft forced disappearances treaty text and, for example, proposed the following textual amendments to draft treaty provisions during the course of the five formal negotiating sessions of the Working Group to elaborate a binding normative instrument to prohibit and punish forced disappearances. The following list of textual amendments proposed by the United States during negotiations is illustrative and not exhaustive. Please consult our written statement on the draft convention distributed at the Human Rights Council during its first session (and posted on our website) as well as our Closing Statement at the conclusion of negotiations in October 2005 (reproduced at pages 48-49 of the Report of the Fifth Session of the Working Group) for additional information on the views of the United States. An illustrative sampling of proposed textual amendments proffered by the United States delegation during negotiations: DEFINITION - Article 2 "For the purposes of this instrument, enforced disappearance is considered to be the arrest, detention, or abduction of a person by or with the authorization, support or acquiescence of the state, followed by a refusal to acknowledge that deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, with the intention of removing that person from the protection of the law for a prolonged period of time." CRIMINALIZATION - Article 4 "Each State Party shall take the necessary measures to ensure that an enforced disappearance is fully covered under its criminal or penal law." CRIME AGAINST HUMANITY - Article 5 - The United States supporting reframing Article 5 as a preambular provision. DEFENSE OF SUPERIOR ORDERS - Article 6(2) "No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offence of enforced disappearance if the accused knew that the order was unlawful or a person of ordinary sense and understanding would have known the order to be unlawful." STATUTE OF LIMITATIONS - Article 8 "A State Party which applies a statute of limitation in respect of an enforced disappearance shall take the necessary measures to ensure that the term of limitation is proportionate to the extreme seriousness of the offence." JURISDICTION - Article 9 "Each State party shall take the necessary measures to establish its competence to exercise jurisdiction over an enforced disappearance:
CONSULTATION WITH CONSULAR AUTHORITIES - Article 10(3) "Any foreign national held in custody pursuant to paragraph one may communicate with an appropriate representative of the state of which he or she is a national in accordance with applicable international legal obligations." NON-REFOULEMENT - Article 16 "1. No State party shall expel, return ("refouler"), or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subject to an enforced disappearance. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights" 3. The benefit of the present provision may not, however, be claimed by a person whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. " RIGHT TO THE TRUTH/FREEDOM OF INFORMATION - Article 24(2) TREATY MONITORING BODY - The United States firmly supported use of an existing treaty body, the Human Rights Committee.
In view of the specific proposal of the High Commissioner on Human Rights to create a single, unified, standing treaty body, and the widespread acknowledgement of the need for treaty body reform, the creation of a new body at this juncture is not warranted.
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