March 27, 2002
Areas of U.S. Concerns with the Chairperson's Torture Protocol Proposal

· The Chairperson's proposal would create an international subcommittee on torture that would have virtually unrestricted power to visit any place where persons are or may be detained in any state party to the protocol and would require state parties to have entities with such powers at the domestic level as well.

· There are several areas of concern with the Chairperson's proposal. As a matter of principle, the virtually unrestricted grant of inspection power proposed in the Chairperson's text is difficult to reconcile with the need for appropriate checks and balances on any grant of authority, whether at the domestic or international level. As a legal instrument, the text has substantial flaws. As a prudential matter, the proposed subcommittee, which would operate independently from the existing Committee Against Torture (the CAT), has potentially serious implications for the CAT's effectiveness.

· Articles 12, 14 and 20, provide expansive, essentially unrestricted powers of access to places, information and persons. Yet fundamental constitutional and due process considerations, such as appropriate restrictions on grants of authority for such access - restrictions that work to safeguard individual liberties - would be disregarded.

· Article 4 appears internally inconsistent. Its paragraphs 1 and 2 appear to define detention differently: the first would cover detention through passive acts or omissions, the second only detentions pursuant to actual official orders. The inconsistency is left unresolved.

· Article 13 provides that the subcommittee shall establish "at first by lot" a programme of regular visits. There is, however, no provision for how the subcommittee would set up visits after the first random programme of visits. Would it see its own authority as limited?

· Articles 15 and 21, have potentially serious implications for accepted principles of libel and slander law. False and malicious statements intended to defame are generally sanctionable. Articles 15 and 21, however, preclude "any sanction" against provision of information to the subcommittee "whether true or false". These articles, therefore, would usurp courts judicial authority. The proposal's ban on reservations would mean this problem could not be remedied by states with such defamation concerns.

· Article 25 of the Chairperson's proposal provides that the international mechanism will be funded out of the UN general budget rather than by the states which would avail themselves of the mechanism. Such a funding provision appears unfair to states which may choose not to join the regime, and seems particularly inappropriate in a mechanism that is described as "optional". Also, the budget implications of the Chair's proposal have neither been provided nor examined. This is not an issue of putting a price tag on human rights. Concern focuses on understanding the budgetary implications so informed choices can be made.

· Article 29 refers to federated states and inappropriately and unnecessarily singles them out.

· Article 30 of the Chairperson's proposal would prohibit all reservations (the Vienna Convention on the Law of Treaties permits those which do not go to the object and purpose). This proposed element of the Chair's proposal is an unnecessary and unwise departure from settled treaty law and from the optional protocols recently adopted by HRC Working Groups .

· Article 31 deals with cooperation between the subcommittee and bodies established under regional mechanisms and is intended "to avoid duplication". While duplication may be undesirable, this provision appears to favor states that are part of a regional system at the expense of states that are not by creating the possibility of disproportionate numbers of visits to the latter.

· As a prudential matter, the global reach of such a "sub-committee" appears impractical compared to how such a mechanism could operate at a regional level (and indeed does, as is the case under a European convention which provides for such a body at a regional level). A regional framework provides political context and local credibility for such mechanisms.

· The "subcommittee" of the Chair's proposal would not operate under the existing Committee Against Torture and is not in this sense a "sub-committee". It would be independent of the CAT and risks eroding its authority, while competing with it for resources.

Additional information on the U.S. position may be found at www.usmission.ch or by calling the U.S. Mission at 749-4460.