Alternative Draft Optional Protocol to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by the Delegation of the United States of America

Preamble

The States parties to the present Optional Protocol,

Recalling the purposes and principles of the Charter of the United Nations, and the obligations of States under the Charter,

Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the Convention) requires a combination of legislative, administrative, judicial and other measures,

Recognizing that strengthening the protection of and full respect for human rights is a common responsibility shared by all and that international mechanisms are complementary to national measures,

Recognizing the important contribution that regional mechanisms may make to the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment, particularly by non-judicial means of a preventive character based on visits,

Desiring to undertake an international commitment to make the prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Convention more effective,

Bearing in mind the principles of cooperation and confidentiality as basic principles of the present protocol,

Have agreed as follows,

PART I

Article 1

1. There shall be established, under the Committee Against Torture (hereinafter referred to as the Committee), a Subcommittee on the Prevention of Torture (hereinafter referred to as the Subcommittee on Prevention) which shall carry out the functions hereinafter provided. The Subcommittee shall consist of [5] experts of recognized competence in the field of human rights, who shall serve in their personal capacity and shall, under its direction, carry out the functions herein provided.

2. Each State Party may, in furtherance of Article 2 and 16 of the Convention, establish, maintain or provide for national mechanisms to strengthen, if necessary, the protection of persons deprived of their liberty pursuant to an order of a public authority from torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as national mechanisms).

Article 2

The Subcommittee on Prevention, under the direction of the Committee, shall:

(a) Assist members of the Committee with respect to the Committee's functions under the Convention, including, in particular, the making of confidential inquiries in accordance with paragraphs 1-5 of Article 20, as well as with voluntary visits the Committee may propose to State Parties that may be made in agreement with them;

(b) Assist, upon request, States Parties in setting up national mechanisms;

(c) Respond to requests for technical advice designed to assist State Parties with the operation of national mechanisms, as well as with the effective implementation of their obligations under Articles 2 and 16 of the Convention;

(d) Serve as a resource for technical information and advice to promote safe, humane, cost-efficient and appropriately secure facilities for detention or imprisonment.

Article 3

National mechanisms may, inter alia:

(a) Examine the situation of persons deprived of their liberty pursuant to an order of a public authority with a view to strengthening, if necessary, their protection from torture and other cruel, inhuman or degrading treatment or punishment;

(b) Make recommendations to the competent authorities with a view to improving the treatment and conditions of such persons and preventing torture and other cruel, inhuman or degrading treatment or punishment;

(c) Propose or comment on draft or existing legislation on matters relating to the treatment of such persons;

(d) Request, where necessary, technical advice from the Subcommittee on Prevention designed to assist State Parties with the effective implementation of their obligations under the Convention with a view to strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

Article 4

1. The Subcommittee on Prevention shall submit an annual report of its activities to the Committee which shall be made available to States Parties. National mechanisms which may be established, maintained or provided for in accordance with the Protocol shall be provided such reports.

2. State Parties shall permit direct contact between such national mechanisms and the Subcommittee on Prevention.

PART III

Article 5

The members of the Subcommittee on Prevention shall be elected in the same manner as members of the Committee referred to in paragraphs 2 to 6 of Article 17, consideration being given to equitable geographical distribution and to the usefulness of the participation of person having professional experience in the field of the administration of justice, criminal law, prison or police administration or in the various medical fields relevant to the treatment of persons deprived of their liberty.

Article 6

The Committee shall establish rules of procedure for the Subcommittee on Prevention, but these rules shall provide, inter alia, that:

a. [Four] members shall constitute a quorum, and;

b. Decisions of the Subcommittee shall be made by a majority vote of the members present.

Article 7

The Committee shall convene the initial meeting of the Subcommittee. After its initial meeting, the Subcommittee shall meet at such times as shall be provided in its rules of procedure.

Article 8

Members of the Subcommittee on Prevention shall be entitled to the facilities, privileges and immunities provided to members of the Committee under Article 23 of the Convention.

PART IV

Article 9

1. The Secretary General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee under this Article.

2. The States Parties which shall have accepted this protocol shall be responsible for expenses incurred in connection with the operation of the Subcommittee on Prevention, in a manner based upon the United Nations scale of assessment pro-rated to take into account the number of States Parties to the Protocol.

Article 10

1. The provisions of the present Protocol shall not affect the obligations of States parties under any regional convention based on a system of visits to places of detention. The Subcommittee on Prevention and the bodies established on the basis of such regional mechanisms shall consult and cooperate in order to promote effectively the objectives of the present Protocol and avoid any duplication of work.

2. The provisions of the present Protocol shall not affect the obligations of States parties to the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1997, or the opportunity available to any State party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

Article 11

1. The present Protocol shall be open for signature by any State that has signed the Convention.

2. The present Protocol shall be subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 12

1. The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or instrument of accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or instrument of accession, the present Protocol shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.

Article 13

A State party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States parities to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

Article 14

1. Any State party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States parties to the present Protocol with a request that they notify him whether they favour a conference of States parties for the purpose of considering and voting on the proposal. In the event that within four months from the date of such communication at least one third of the States parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States parties for acceptance.

2. An amendment adopted in accordance with paragraph 1 of this article shall enter into force when it has been accepted by a two-thirds majority of the States parties to the present Protocol in accordance with their respective constitutional processes.

3. When amendments enter into force, they shall be binding on those States parties that have accepted them, other States parties still being bound by the provisions of the present Protocol and any earlier amendments that they have accepted.

Article 15

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States