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U.S. Opening Statement to the Open-ended Working
Group on the Question of a Draft Optional Protocol to the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment
Steve Solomon January 14, 2002 Madame Chair, the United States appreciates and agrees with your statement made at the final substantive meeting of the working group on February 22nd, 2001 that, in view of the fact that the working group has for the previous nine years been unable to reach consensus on the proposal to establish a mandatory, unrestricted, international visiting mechanism, the time has come to study new proposals. In that light we were prompted to give further consideration to a number of ideas - ideas which share the common aim of upholding and promoting standards of humane treatment and respect for each individual's dignity. A number of these ideas have attracted interest over the course of the last several working group sessions, indeed are referred to explicitly in paragraph 37 of the March 2001 Report of the Working Group. We have arranged them together in the form of a modified proposal for working group consideration. We received a number of encouraging expressions of interest and support. We will soon be in a position to offer specific treaty language for this proposal. Permit me again to review briefly the 3 key elements of this alternative approach. We propose that the optional protocol reinforce the already existing Committee Against Torture, the CAT, and its related mechanisms by, one, creating a subcommittee that would be authorized by the Committee to assist it, particularly with respect to its inquiry function under Article 20. The Subcommittee would be a true subcommittee, operating under
the direction of the Committee. And three, it would authorize the subcommittee to provide technical suggestions and advice to national mechanisms to assist them in their work. Allow me to review the rationale for this approach. First, the aproach is based on the longstanding mandate of this group. By reinforcing the CAT, it aims, first and foremost, at the prevention of torture. By encouraging national mechanisms, it aims at encouraging the establishment of a practical visiting system to places of detention. It has been suggested that the approach to reinforce the CAT is not preventative in nature. We believe it is, in the same way the other proposals currently on the table are. The current proposals, even the European Convention's mechanism, are preventative in this sense: they prevent acts of torture, that is they inhibit impulses to violate the Convention, through the creation of a risk - a risk of exposure as a result of a visit or inquiry. Convention Against Torture Article 20 dealing with inquiries, for example, creates a risk of exposure and, accordingly, works to inhibit, that is prevent, acts of torture. It follows that reinforcing such mechanisms established in the Convention works to further the goal of prevention. Second, our approach seeks to reinforce the existing convention, including, in particular, the Committee Against Torture. The Committee Against Torture is an important and valuable asset but it faces challenges that would be compounded, rather than relieved, by the proposals for a mandatory visiting mechanism on the table. We were told last year that CAT's full time staff is counted as 1 and half persons. One and half persons for a Committee that must deal with a treaty with over 120 member states strikes us as challenge of considerable proportion. Certainly, the committee needs adequate resources to do its job as currently envisioned by the Convention. For example, Article 20, when it has been invoked, has proven useful. But creating a mandatory visiting mechanism, essentially a new treaty body, which will be possibly twice the size of the CAT and will have predictably greater resource requirements, would overshadow the CAT and seriously risks eroding its own resource base. We do not think that is a good idea. We would rather give CAT the capacity it needs and deserves. Our proposal aims at doing so. So quite apart from our concerns about the specifics of the proposals for a mandatory visiting mechanism, we are concerned that such a mechanism under the Convention could impinge on the resources and consequently the effectiveness of the Committee Against Torture. Three, we believe it important to empower states' own capacities with a subcommittee that can facilitate national mechanisms that parties may choose to establish. Hence our approach would encourage, rather than require, national mechanisms and authorize the subcommittee to provide any such mechanisms with technical advice and suggestions. Permit me to touch on some other concerns. Budgetary implications This is not an issue of putting a price tag on human rights. There can be no price tag put on the right, as such, to be free from torture. Our concern about this issue focuses on understanding the budgetary implications of the various proposals so we can make informed choices about budgetary priorities in a context where needs, unfortunately, exceed resources. We must ask if we spend millions of dollars a year on a new mandatory visiting mechanism, what will be the consequence for other human rights priorities? As noted in the last report of this group (E/CN.4/2001/67), a number of delegations, including ours, asked to receive information concerning the projected costs of the proposed mandatory visiting mechanisms. There still has been no reply to that request. Indeed, we routinely require budget assessments with respect to many resolutions of the Commission on Human Rights; why would we not do so with respect to proposals to establish what could be one of the most costly human rights treaty body mechanisms yet? These budgetary issues are particularly important in light of the development that the European Convention Against Torture and its CPT will, as of March 1st, be open to all states everywhere, in accordance with its first protocol. We have already been asked, for example if it makes sense to essentially duplicate the CPT now that it is open to any interested state. True, the Council of Europe must extend an invitation to states not part of the Council, but the Council's press release announcing the opening stresses that "no geographical limits to this power of invitation are foreseen in the Protocol" and "a new stage in the expansion of the field of operations of the CPT . . . can now begin." It does appear that interested states anywhere now have the possibility of availing themselves of a mandatory visiting process such as the proposals on the table seek to establish. This is a significant development and necessarily has implications for our work. Our publics, our parliaments, interested observers will ask whether we need to establish an essentially duplicative mechanism. How, indeed, would we justify doing so? One response has already been suggested by those still favoring creating another mandatory visiting mechanism, that is that the European "framework" of the CPT might discourage interest from other regions. Yet as we understand the arrangements, new parties would stand on equal footing with the original parties. While the origins of the CPT would be regional, its growth potential is multi-regional and international. Other questions present themselves. If costs of a new mandatory visiting mechanism are to be borne by states parties, will parties to the European Convention be willing to bear such costs as well as the costs of their CPT? Or will they only be willing to ratify a new mechanism if the costs are paid for out of the UN regular budget as has been proposed? Indeed, who should bear the costs for any new visiting mechanism created here? Is it appropriate that costs come out of the regular UN budget? If they do so, that means every UN member state contributes whether they are party to the protocol or not. The GA resolution adopted some years ago which provided for treaty body costs coming out of the UN regular budget addressed existing treaty bodies, not future bodies. It shifted the costs from the states parties subscribing to the instruments establishing these mechanisms, such as the Torture Convention, to the UN regular budget, but only after consideration by all UN member states. It did not deal with possible future mechanisms, particularly ones that would establish the kind of new structure, bureaucracy and expense envisioned by the current proposals. And certainly the states parties to a particular instrument cannot legitimately, standing alone, decide to impose costs of their instrument on all UN member states, on the UN body as a whole. Unrestricted Authority Those who most forcefully advocate for a new mandatory visiting mechanism stress the importance of it having "unrestricted authorities". The word "unrestricted" appears five times in the relevant Article (Article 6) of the Mexican/Grulac draft. The concept of "unrestricted" authority of any mechanism, national or international, has long been a concern for us. Our profound reservations about this aspect of the proposed mechanism is premised on our conviction that not only is there always a potential for abuse of any authority; but the more unrestricted the scope of that authority is, the greater the potential for abuse of the authority itself. We believe that a system of limited authority -- for all such institutions and entities, national and international -- provides checks and balances that are essential and that help ensure vital accountability. In short, experience compels us to say that we do not believe it prudent or wise to give unrestricted authority to any such mechanism or institution. Complexity The proposals for a mandatory visiting mechanism emphasize frequently the optional nature of the idea. Indeed, states will have a choice of whether to be subject to the mechanism. But already there are many choices state parties to the Convention must make. All these choices, we fear, fractionate us as parties, rather than keep us moving forward together to achieve our mutual aim of eradicating torture. This concerns us. Already, states may choose to (1) opt out of the Article 20 inquiry mechanism; (2) opt into the Article 21 state complaint mechanism; (3) opt into the Article 22 individual complaint mechanism; (4) opt out of the Article 30 arbitration mechanism. Outside the Convention, states may choose to (5) opt into a "standing" invitation for the SR on torture; and now states may choose to (6) opt into the mandatory visiting mechanism of the CPT. Is a 7th option, yet another mandatory visiting mechanism, justifiable? We question whether the duplication and complexity involved would serve the interests of promoting the Convention and its goals. Already, we are, as states parties, too fractionated by the almost bewildering array of options. We see value in trying to forge a more common path for states parties, in working to join the patchwork of obligations that has resulted from the spread of options. Madame Chair, our concerns are substantive. We have presented them in this manner today as a function of our commitment overall to the goals of this process and the Convention itself. We do believe it is time to consider new ideas and new approaches. We welcome innovative concepts and suggestions. We have serious concerns about the tenability of the mandatory visiting mechanism idea as a basis for further work. We remain committed to seeking a result that will further the goals of the Convention. In that spirit, we look forward to working with you and all delegations to find a common, constructive approach forward - one that could command consensus and advance our collective purpose to promote humane treatment and, in the words of the preamble to the Convention, to make more effective the struggle against torture throughout the world. Thank you. * * * |