January 22, 2002

U.S. Statement at the Working Group on an Optional Protocol to the Convention Against Torture

Steve Solomon
Head of Delegation

Madame Chair, let me begin by extending appreciation to you for your efforts to tackle a very difficult task. We are aware of and appreciate the work and energy involved in producing the Chairperson's proposal presented to the working group on Thursday.

Madame Chair, the great French philosopher and essayist Montaigne once said there is no conversation more boring than the one where everybody agrees.

Madame Chair, if Montaigne was right, today's conversation on the proposal will not, we think, be a boring one.

The Chair's proposal presented January 17th, is in our view, unfortunately, not a basis for consensus for many reasons.

The proposal presented on Thursday would create an international "subcommittee" on torture that would have virtually unrestricted authority to visit, i.e. inspect, any place where persons are or might be detained in any state party to the protocol. Such unrestricted authority is incompatible with principles of accountability and the need for reasonable checks and balances on any grant of power.

The global reach of such a "sub-committee" is impractical and should be handled, we believe, at a regional level, as it is, for example, by a European convention which provides for just such a mechanism. A regional framework provides important political context and local credibility to such a mechanism.

The "Sub-committee" of the Chair's proposal would not operate under the existing Committee Against Torture (the CAT) created by the Convention Against Torture. It would be essentially independent of the CAT and would erode its authority, while competing with it for resources.

The Chairman's proposal that the international mechanism should be funded out of the UN general budget rather than by the states which would avail themselves of the mechanism is objectionable. Such a funding provision is unfair to states which may choose not to join the regime, and is particularly inappropriate in a mechanism that is optional. Further, we wish to renew our request for the budgetary implications of the proposal. This is not, let me restate, an issue of putting a price tag on human rights, as some have said. 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?

We also have objections of a legal nature to the proposal provided Thursday. Among them, we feel strongly that constitutional considerations, such as appropriate restrictions on grants of authority for access to persons and places, have not been accommodated.

Also, reference to federated states in the proposal is particularly inappropriate in an instrument that concerns itself with national measures and their encouragement. We should avoid singling out particular constitutional and legal systems of national governance in this manner. We should avoid, as well, resurrecting the treaty law debate on prohibiting reservations. The course established by the Vienna Convention on the Law of Treaties and followed in the case of recent negotiations in the human rights area fulfills well the requirements of predictability in treaty relationships and integrity of the agreements themselves. These two proposed elements of the Chair's proposal represent unnecessary and unwise departures from the optional protocols recently adopted by HRC Working Groups .

We have many specific questions and concerns with the legal and practical implications of numerous other provisions of the proposal, including especially, in addition to those already referred to, Articles 3, 4, 26, and 31, as well as the provisions of Parts III and IV.

Most importantly, the proposal, in our view, neither commands nor provides a basis for consensus, yet we are told that the intention is to present it to the Commission on Human Rights. We ask how this can be? After so much time has been invested in this process, surely there is still time to work to try to reach consensus.

It is better to continue the work of the Working Group than to have a draft protocol that does not command consensus on the substance considered by the Commission on Human Rights.

We understand that there is a sense of frustration after so many years of discussion and we share it. In 1999, the United States supported, along with other states, the development of draft language to ensure a balanced approach to the question of visiting authority. Progress was made on this approach and it was included in the report of the eighth working group in the text of the articles which constitute the basis for future work. I refer here to draft article 12 in Annex II of the 1999 report. This approach was, regrettably, not accommodated in the Chairperson's proposal. In 2000, the United States and others suggested steps to improve the operation of the Committee Against Torture in ways which would reinforce its prevention work and encourage partnership with national mechanisms to prevent torture. This year, the United States proposed, in an effort to further elaborate these ideas, a draft optional protocol to this effect. We have made these efforts because we have been and remain firmly committed to the goals of this effort we are engaged in. In furtherance of this commitment, we wish to see our proposal included in the report of the Working Group for this session

The alternative protocol we have proposed would strengthen international efforts to prevent torture. It recognizes the valuable role visiting mechanisms, such as the European Committee for the Prevention of Torture, can play on the regional level, but its focus is on reinforcing the existing Committee against Torture and encouraging national regimes aimed at the prevention of torture. Some say it does not go far enough, but we believe its moderation is strength at this point. Our proposal concentrates on elements which unite us as state parties to the Convention and seeks to steer clear of those which so clearly divide us, suggesting instead that divisive issues such as mandatory visits be addressed, for the time being, at the regional level.

If we were to summarize our concerns with the proposal of Thursday, January 17th, we would offer the following:

1. It is unrestricted, in terms of the authorities proposed for both the so-called subcommittee and the national mechanisms. Such unrestricted authority is incompatible with principles of accountability and the need for reasonable checks and balances on any grant of power.

2. It is unsupported by many, many states. It is unlikely to be widely accepted.

3. It is undermining of the existing international anti-torture body, the CAT.

If we were to summarize the U.S. proposal, I would offer, by way of contrast, the following:

1. It is designed to strengthen the existing structure, giving the CAT capacities and resources it clearly needs and a wider role. It specifically contemplates the possibility of voluntary visits by the CAT outside an Article 20 context. Its aim is to reinforce the credibility of the preeminent international institution in the fight against torture.

2. The U.S. proposal may be more broadly supportable. Its focus on improving the existing structure which all states are familiar with means it could move forward faster with broader support than the Chairperson's proposal.

3. It is a balanced proposal. It recognizes the role regional mandatory visiting mechanisms can play. It reinforces the existing Committee Against Torture. It encourages strong national mechanisms. It is designed to foster a partnership between the strengthened CAT and national mechanisms.

Madame Chair, in closing, we would like, once more, to extend our thanks to you and also to those on your team whom we know have worked long and hard with you on the draft proposal presented Thursday, in particular, Mr. Guillermet, whose commitment, good will and dedication we acknowledge and continue to welcome.

Our remarks on the Chair's proposal today are offered with full recognition that it is much more difficult to construct than it is to criticize. As architects ourselves of a proposal, we speak from direct, personal experience on this score.

Madame Chair, we appreciate greatly the thought, energy and ideals poured into the effort you have made. Thank you.