Convention against Torture Only as Strong as States’ Commitments, Support, Experts Tell Third Committee in Interactive Dialogues on Human Rights
States had the obligation to respect and ensure the right of all persons to be free from torture and ill treatment, and mechanisms to detect and prevent those scourges must have readily available funding to ensure the fulfilment of their mandates, the Third Committee (Social, Humanitarian and Cultural) heard today as it began discussions on human rights with a series of interactive dialogues with special rapporteurs and other top officials.
Actions such as cross-border military operations, the occupation of foreign territories, anti-migration operations, peacekeeping and extraditions could involve the risk of torture or other ill treatment as defined by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international law, said Juan Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Extraterritorial state acts often had a significant impact on the fundamental rights of individuals outside their borders, thereby implicating States’ responsibilities under international human rights law, he continued.
Echoing similar concerns, Fabian Salvioli, Chair of the Human Rights Committee, drew attention to the migrant crisis and States’ responsibility to protect the human rights of their people. He also welcomed the treaty body strengthening process, which allowed the Committee to address the backlog of periodic reports, while underlining the need for additional staffing.
Indeed, Claudio Grossman, Chair of the Committee against Torture, said the Convention stated that non-refoulement applied to all, including those who may not qualify as refugees or asylum seekers. States, to that end, had to refrain from deporting people to a place where they would be a risk of torture. Individuals made vulnerable had to be protected, not victimized or revictimized.
For its part, the Committee against Torture had been a pioneer in creating a simplified reporting procedure, he said. However, due to the backlog of individual complaints, priority would be given to communications at the upcoming fifty-sixth session of the Committee, to be held in November. To that end, it was vitally important for the Secretariat to be provided with additional staff resources. Implementation of the Convention would only be as strong as the network of stakeholders who were prepared to work to improve human rights performance on the ground.
Malcolm Evans, Chair of the Subcommittee on Prevention of Torture, expressed support for the universal ratification of the Convention, underlining its complementarity with torture prevention. Describing national mechanisms as the “front line” of torture prevention, he welcomed the rising number of them established and functioning under the Optional Protocol. He also stressed the need for the Subcommittee to be staffed, supported and resourced in a way that reflected its unique mandate.
Funding was a concern for Ivan Šimonović, Assistant Secretary-General for Human Rights, who introduced several reports of the Secretary-General related to the implementation of human rights instruments. He emphasized the insufficient level of contributions received by the United Nations voluntary funds to meaningfully fulfil its mandate and reach the victims of torture.
Mikel Mancisidor de la Fuente, Vice-Chair of the Committee on Economic, Social and Cultural Rights, also made a presentation during the interactive segment.
The Committee also concluded its discussion on the rights of indigenous peoples.
Speaking in exercise of the right of reply were representatives of the Russian Federation and Ukraine.
The Third Committee will reconvene at 10 a.m. on Wednesday, 21 October, to continue its discussion on human rights.
The Third Committee (Social, Humanitarian and Cultural) met this morning to conclude its agenda item on the rights of indigenous peoples. For background, see Press Release GA/SHC/4138. It also began consideration of its agenda item on the promotion and protection of human rights.
For its discussion on human rights instruments, the Committee had before it reports of the following: Committee against Torture (document A/70/44); Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (document A/70/48); and Committee on the Rights of Persons with Disabilities (document A/70/55).
The Committee considered reports of the Secretary-General on: United Nations Voluntary Fund for Victims of Torture (document A/70/223); Special Fund established by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (document A/70/273); and United Nations Voluntary Trust Fund on Contemporary Forms of Slavery (document A/70/299).
Also before members were notes by the Secretary-General transmitting the report of the Chairs of the human rights treaty bodies (document A/70/302) and the eighth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (document A/70/425).
The report of the United Nations High Commissioner for Human Rights (document A/70/36) was also before the Committee.
IVAN ŠIMONOVIĆ, Assistant Secretary-General for Human Rights, introduced several reports of the Secretary-General on the implementation of human rights instruments, providing an overview of recent activities. On the report of the Secretary-General on the United Nations Voluntary Fund on Contemporary Forms of Slavery, he said it presented the outcome of the forty-first session of its Board of Trustees of the Fund, held in Geneva from 13 to 17 April 2015. It also complemented the report on the activities of the Fund that had been submitted to the Human Rights Council at its twenty-eighth session. Due to funding constraints, the Board of Trustees had been able to recommend only 44 grants for 2015, for a total of $588,900. The Board continued to be concerned about the insufficient level of contributions received and reiterated that the Fund needed at least $2 million each year to meaningfully fulfil its mandate to support victims.
Turning to another report of the Secretary-General, he said the Special Fund established by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was supporting projects in countries the Subcommittee had visited, and was publishing visit reports. It had supported 21 projects since it became operational since 2012, he noted.
On the Secretary-General’s note transmitting the report of the Chairs of the human rights treaty bodies, he said that its twenty-seventh meeting had been held from 22 to 26 June 2015 in San José. The meeting had aimed at bringing the treaty body system closer to the level at which international human rights treaties and treaty body recommendations were implemented. It had also targeted the enhancement of cooperation between international and regional human rights protection systems and the engagement with States, national human rights institutions and civil society in the Americas.
When the floor opened, delegates from the Czech Republic, Iran and the Russian Federation made comments and asked questions regarding the drafting of the San Jose guidelines concerning intimidation and reprisals and on exterritorialy and extraordinary rendition.
Responding, the Assistant Secretary-General recalled that resolution 68/268 on treaty body strengthening had strongly condemned all acts of intimidation and reprisals. In light of increasing intimidation practices, it had been decided at a June 2015 meeting in San Jose of treaty body chairs to adopt guidelines. Such guidelines had already been put into place by the Committees on enforced disappearances and on the rights of persons with disabilities; other treaty bodies would be considering similar guidelines in the future. Regarding renditions, that would be addressed by Special Rapporteurs.
CLAUDIO GROSSMAN, Chair of the Committee against Torture, spoke of the relevance of the Convention against Torture amid the surge in mass migrations around the world. It was clearly stated in the Convention that the principle of non-refoulement was absolute. It applied to all, including those who may not qualify as refugees or asylum seekers, and States had to refrain from deporting people to a place where they would be a risk of torture. Individuals made vulnerable had to be protected, not victimized or revictimized.
To date, the Convention had been ratified by 158 States, and 384 reports had been submitted to the Committee, Mr. Grossman said. A total of 28 States had never submitted a report, thus violating their obligations and preventing the Committee from fulfilling its monitoring mandate. Eight States had not reported for more than a decade, despite having to do so every four years. A backlog of 160 individual complaints was currently pending. States that had not ratified the Convention were called upon to do so, and those who were party to it were urged to accept all of its procedures.
The Committee against Torture had been a pioneer in creating a simplified reporting procedure, he said. However, due to the backlog of individual complaints, priority would be given to communications at the upcoming fifty-sixth session of the Committee, to be held 9 November to 9 December. To that end, it was vitally important for the Secretariat to be provided with additional staff resources. Implementation of the Convention would only be as strong as the network of stakeholders who were prepared to work to improve human rights performance on the ground, and the Committee was constantly looking to expand its working methods in order to achieve the full implementation of the Convention.
In the ensuing interactive dialogue, representatives of Colombia, United Kingdom, Liechtenstein, Iraq, Denmark and Azerbaijan as well as the European Union asked about the implementation of recommendations, prisons and detention centres, universal ratification of the Convention, police brutality, measures to address terrorism and the guidelines against intimidation or reprisals.
Mr. GROSSMAN said he looked forward to receiving Colombia’s report. In November, he would share his recommendations and comments. On the initiatives undertaken, he said that the newly adopted guidelines against intimidation or reprisals were in response to cases of intimidation and reprisals that had continued to arise. On the role of States, he underlined the need to improve a “focused dialogue” between parties. To enable the Committee to carry out its duties, it was essential to have disaggregated data, he stressed.
Turning to other questions, he said capacity-building was one of the challenges to achieving universal ratification of the Convention. On police brutality, he continued, independent investigation mechanisms and institutions needed to be available to monitor and report such acts. It was also essential to provide serious training to police officers and to provide cameras to ensure that there were no false accusations. On the question raised by the Iraqi delegation, he noted that recording violations was essential in order to investigate and punish the perpetrators. He assured the delegation that the United Nations would provide assistance to countries needing its help.
MALCOLM EVANS, Chairperson of the Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, presenting its eighth annual report, said that as of today, more than half the States that were party to the Convention against Torture had ratified its Optional Protocol and were therefore in the Subcommittee’s system. He expressed support for the universal ratification of the Convention and underlined its complementarity with torture prevention. The Subcommittee had responded to the increasing number of States parties by seeking to undertake more field visits, with nine country visits planned for 2015. It would, however, be unable to significantly increase the number of its visits, thereby not properly fulfilling its mandate as outlined by the drafters of the Optional Protocol.
In fact, the Subcommittee had not yet felt the benefits of General Assembly resolution 68/268 on strengthening and enhancing the effective functioning of the human rights treaty body system. Currently, it could undertake visits on a 10‑year cycle, which compared very badly with other treaty bodies. Additionally, as a compromise, the length of country visits had to be reduced, leading to pressing issues being underexplored. He stressed the need for the Subcommittee to be staffed, supported and resourced in a way that reflected its unique mandate. Moving, on, he welcomed the rising number of national preventive mechanisms established and functioning under the Optional Protocol alongside the quantity and quality of their work. National mechanisms were the “front line” of torture prevention and must be assisted in their work, he said, regretting that those were also lacking resources and staff.
Another area in which the Subcommittee needed enhancement was how it engaged in dialogues with States following visits regarding the consideration and implementation of recommendations, which currently did not reflect the urgency of torture prevention. It was indeed inconceivable that preventive dialogue should be “on hold” until the next formal visit, many years hence. One consequence was that an increasing amount of time during the plenary session was devoted to meetings with States representatives, placing a huge burden on the Subcommittee. The Subcommittee should be able to spend more time in plenary sessions, he concluded.
Delegates then raised questions and made comments on such topics as the United Nations Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”), cooperation with new States parties, national preventive mechanisms, assisting States with regard to overcoming ratification and implementation, intimidation and reprisals. The detention of Armenian nationals by the authorities in Azerbaijan was also questioned.
Responding, Mr. EVANS said it was good to see more new and more appropriate approaches built into the “Mandela rules” and older, outdated ones set aside. The Subcommittee was more than happy to share its knowledge with regard to the inspection of places of detention to both States and non-State parties. With regard to national preventive measures, States that were contemplating ratification had approached the Subcommittee in advance to discuss the establishment of such measures. The growing number of States parties was both a joy and a challenge, and “just sitting around a table and sharing experiences” was a valuable way towards the effective establishment and functioning of national preventive measures.
With regard to the San Jose guidelines, the Optional Protocol to the Convention against Torture already had strong language vis-à-vis sanctions against persons communicating with the Subcommittee. During the course of a country visit, a return visit might be paid to a place of detention to ensure there had been no negative response. Reprisals could be carried out not only by the authorities, but also by powerful prisoners, among others.
Participating in the dialogue were representatives of Switzerland, Czech Republic, United Kingdom, Azerbaijan, Denmark, Chile and Armenia as well as the European Union.
JUAN MÉNDEZ, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, said his report addressed the extraterritorial application of the prohibition of torture and other ill treatment and attendant obligations under international law. The report elaborated on States’ obligations to respect and ensure the right of all persons to be free from torture and ill treatment.
Extraterritorial state acts, whether lawful or unlawful, often had a significant impact on the fundamental rights of individuals outside their borders, thereby implicating States’ responsibilities under international human rights law. Such actions could include cross-border military operations or use of force, the occupation of foreign territories, anti-migration operations, peacekeeping, the practice of detaining persons abroad, extraditions and the exercise of de facto control or influence over non-State actors operating in foreign territories. All such actions could involve the risk of torture or other ill treatment as defined by the Convention, international humanitarian law, international criminal law or customary international law, he stressed.
In 2015, he had carried out three visits to Brazil, Georgia and Ghana, Mr. MÉNDEZ continued. It was promising to see the measures that had been undertaken by Governments at national and local levels. However, they still needed to develop mechanisms to fully prevent torture and other cruel, inhuman or degrading treatment and to improve the detention conditions.
In 2016, he would be visiting Mauritania, Mexico and Morocco. The rapporteur had also received the invitations from Albania, Argentina, Cuba, Egypt, Ethiopia, Indonesia, Kenya, Pakistan, Sri Lanka, United Arab Emirates and Zimbabwe.
Delegates made remarks and posed questions on such matters as intimidation and reprisals, the situation of lesbians, gays, bisexual, transgender (LGBT) and intersex persons, the detention of children, refugees and asylum seekers, extraterritoriality and attempts by the Special Rapporteur to visit Bahrain and occupied areas of Georgia.
Responding, Mr. MÉNDEZ said he was glad that the Third Committee’s forthcoming resolution would include a reference on extraterritoriality. The capacity to follow through on reports of intimidation and reprisals was not exceptional, and there may be an under-reporting of such incidents. Gender and torture was the subject of the next thematic report and it was hoped that it would explore specific ways to address the issue of LGBT and intersex persons.
Turning to other concerns, he said some countries imposed life imprisonment and even the death penalty on children under the age of 18; the Convention of the Rights of the Child had changed the legal landscape with regard to that issue. States that had retained the death penalty had an obligation to ensure that methods of execution were not cruel or inhumane.
On visits, he said an effort had been made to travel to the two areas of Georgia under occupation; one had denied the request of the Special Rapporteur and the other had not responded. Planned visits to Bahrain had twice been cancelled, and attempts had been made “many times” to establish a new date, but to no avail. With regard to the refugee crisis, non-refoulement was addressed in both the refugee and torture conventions. Even persons who were not refugees were entitled to protection against being sent back to places where they could be subjected to torture.
Taking part in the dialogue were delegates from Denmark, United States, Liechtenstein, Fiji, Georgia, Switzerland, Norway, United Kingdom, Czech Republic, Brazil, Russian Federation, Azerbaijan and Armenia, as well as the European Union.
FABIAN SALVIOLI, Chair of the Human Rights Committee, said that amid the migrant crisis, the death of people fleeing conflict situations and growing xenophobia and intolerance in receiving countries, States had the responsibility to protect the human rights of their people. He welcomed that many States had successfully implemented recommendations made by the Committee and encouraged all to establish a dedicated national mechanism charged with following up on the implementation of recommendations contained in international human rights instruments.
With regard to the work of the Committee, he welcomed that the treaty body strengthening process had led to increased meeting time, allowing the Committee to address the backlog of periodic reports and individual communications before it. He regretted, however, that more allotted time had not been accompanied by additional staffing, which remained a challenge. The simplified procedure adopted for late reports was a good initiative and had had positive results. With regard to reprisals, intimidations and attacks against those who had cooperated with the Committee were unacceptable and needed to be addressed.
In its next session, the Human Rights Committee would start the process of drafting a general comment on the right to life, for which States parties would be invited to contribute. Referring to the forthcoming anniversary of the International Covenant on Civil and Political Rights, he called for the universal ratification of that instrument as well as its additional protocols.
In the ensuing interactive discussion, questions were raised about a lack of resources for the Human Rights Committee, situation of migrants, reporting process, death penalty, treaty body reform, State compliance and the San Jose guidelines.
Mr. SALVIOLI said it was most welcome that States that had not signed the Covenant had put questions to him. A lack of resources for translation could have a very considerable impact on the work of the Committee, as it meant that meetings could only be held in one language, and it was vital that all experts be aware of what was being discussed. Concerns about migrants and human rights had been reflected at the Committee’s most recent session.
The Committee, with the Office of the High Commissioner for Human Rights, had been assisting States that had asked for more time to come forward with reports. While some reports had been delayed, headway was gradually being made. More than 100 contributions from civil society and others indicated how much interest there was in the right to life. Due process very much had to be strengthened in death penalty cases, he said. With regard to the San Jose guidelines, the Committee had no interest in broadening any obligations that were not part of the Covenant. It was premature to say how the two-chamber method adopted by the Committee as a working method would function; a decision would be taken on whether to continue that practice.
Taking part in the dialogue were speakers from Argentina, Switzerland, Belarus, United Kingdom, Cuba, Sierra Leone (on behalf of the African Group), Iceland, Nigeria and Egypt, as well as the European Union.
MIKEL MANCISIDOR DE LA FUENTE, Vice-Chair of the Committee on Economic, Social and Cultural Rights, said the work of the Committee in 2015 had been marked by the impact of the economic and financial crisis, internal and international conflicts, the Sustainable Development Goals, the adoption of General Assembly resolution 68/268 on strengthening the treaty body system and the entry into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which presently had 21 States parties.
The effective protection of economic, social and cultural rights was a fundamental aspect of the international community as a whole, he said, inviting all States parties to the Covenant to ratify the Optional Protocol as swiftly as possible. He pointed out that the Committee had recently adopted its first decision. Noting that the activities under the Optional Protocol increasingly required extra time and effort from the Committee, he urged the General Assembly to allocate appropriate and sufficient resources to the Secretariat in order for it to be able to comply efficiently with its mandate.
Continuing, he underlined that the treaty body strengthening process had had a positive impact and had allowed the Committee to begin addressing the backlog of reports. He underlined, however, that the Committee’s work also included other tasks, such as the consideration of communication and the elaboration of guidance on the applicability of the Covenant. Moving on, he recalled that the fiftieth anniversary of the adoption of both international covenants would take place in December 2015, and called for the adoption of specific programmes to make the work for human rights more effective.
In the ensuing interactive dialogue, speakers raised questions on strategic litigation at national level to strengthen the jurisprudence on economic, social and cultural rights; the impact of austerity measures on the enjoyment of those rights; future general comments to be adopted by the Committee; tools to deal with budgetary cuts impacting vulnerable groups; corruption; challenges facing individuals in formulating individual communication; the impact of outcome of the treaty body strengthening process, particularly with regard to the introduction of the simplified reporting procedure.
Responding, Mr. MANCISIDOR DE LA FUENTE said, in response to question posed by Portugal’s delegate, that litigation had been a key concept to the evolution of the Committee. Strategic litigation was important when it came to taking advantage of all opportunities allowed by the Protocol. The Committee was willing to work with all stakeholders involved in litigations. On austerity measures, he underlined the importance of protecting the rights of the most vulnerable populations and reminded delegates that international law could not in itself set limits to austerity measures decided by Governments. Such measures had to comply with international human rights law, he said, underlining the importance of paying close attention to the principle of non-discrimination.
Moving to individual communications, he explained that, while aware of the Committee’s mandate, the new procedure had provided vast opportunities for ambitious jurisprudence, which would lead to a more effective enjoyment of economic, social and cultural rights.
Taking part in the dialogue were representatives of Portugal (on behalf of the Group of Friends of the Optional Protocol), Poland, Spain, Nigeria and South Africa, as well as the European Union.
Indigenous Peoples’ Rights
The Committee then resumed consideration of the rights of indigenous peoples with the Special Rapporteur of the Human Rights Council on that subject, Victoria Tauli-Corpuz, whose presentation had been postponed by one day due to travel delays.
Ms. TAULI-CORPUZ explained how the impact of international investment and free trade agreements on indigenous peoples was the focus of her report, which targeted a number of areas of concern, including direct violations of human rights. Future studies would consider how such agreements could be beneficial, she noted.
Such agreements were designed to protect foreign investments and the host States, she said. Mechanisms to resolve disputes between investors and States were a feature of such agreements. Investors had direct access to such mechanisms and were not obligated to exhaust domestic remedies beforehand. Cancellations and alleged violations of contracts had been the most challenged State practices, she said. Conflicts involving indigenous peoples’ lands were likely to become more common, with them peoples bearing a disproportionate burden of such conflicts.
The right of indigenous peoples to self-determination and self-governance were threatened by international investment and free trade agreements, contributing to a perpetuation of colonial and post-colonial structures. Indigenous peoples made up 5 per cent of the world’s population, but 15 per cent of people living in property, which was alarming given the wealth of natural resources on the land that they occupied.
Representatives asked questions on topics that included international investment and free trade agreements, reinforced cooperation between her mandate and the United Nations working group on business and human rights, the upcoming conference of the Parties to the United Nations Framework Convention on Climate Change in Paris and consultation protocols in multi-ethnic and multicultural States.
Responding, Ms. TAULI-CORPUZ said the issue of duplication of mandates was an important one. Discussions on the matter would necessarily take place during negotiations on the mandate of the Independent Expert. With regard to impact assessments, she regretted that United Nations Guiding Principles on Business and Human Rights lacked references to indigenous peoples.
As for climate change, she underlined the importance of taking indigenous issues into consideration during the Climate Conference, particularly with regard to disaster responses. She then underlined the importance of paying due attention to the needs of indigenous women and girls. After welcoming initiatives by States to ensure that prior and informed consent of indigenous peoples were being taken into account, she reiterated the importance of inviting and involving indigenous peoples to decision-making processes affecting them.
Taking part in the dialogue were speakers from Australia, European Union, Norway, Mexico, United States, Panama, Cameroon, Congo and Nigeria.
Right of Reply
The delegate from the Russian Federation, exercising the right of reply, regretted that her Ukrainian counterpart had used the important issue of indigenous peoples to raise politically motivated considerations. She recalled that all allegations of human rights violations involving the Russian authorities were systematically verified, investigated and prosecuted, including with regards to Tatars in Crimea.
Speaking in exercise of the right of reply, Ukraine’s representative said the Russian Federation had illegally annexed parts of the Ukrainian territory and transferred the citizenship of more than two million inhabitants in Crimea without even asking them or providing opportunities for them to protest.
The Russian Federation’s speaker, taking the floor a second time, underlined the importance that all delegations used their right of reply to address issues currently being discussed by the Third Committee.
Also taking the floor again, Ukraine’s delegate said the situation of Crimean Tatars was under the mandate of the Third Committee and the issues currently being discussed.
The representative of Bahrain responded to the question posed by the Czech Republic during the interactive dialogue with the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. She said that on the side lines of the twenty-fifth session of the Human Rights Council, Bahrain’s Foreign Minister had expressed concern to the Special Rapporteur that a visit would undermine efforts to address the events of February and March 2011 and create “an alternative narrative” at a time when reconciliation was needed. The Government was committed to cooperation with special procedures, but it reserved the right as to when they would be invited, she said.
GERARD VAN BOHEMEN (New Zealand), on behalf of Australia, Iceland, Liechtenstein, Norway and Switzerland, focused on persons with disabilities. Next year would be the tenth anniversary of the adoption of the Convention on the Rights of Persons with Disabilities. States must move away from traditional welfare approaches to persons with disabilities and turn towards rights-based ones. Targeted benefits had to be designed in a way that promoted the independence and social inclusion of persons with disabilities. Indicators that were disaggregated on the basis of disability and gender were required in order to assess the impact of social protection programmes. Eligibility criteria and targeting mechanisms could not discriminate against persons with disabilities.
It was up to Member States to support the inclusion of persons with disabilities in the implementation of the 2030 Agenda, he said. It was encouraging to see their increasingly active participation in such international fora as the Third United Nations World Conference on Disaster Risk Reduction in Sendai, and the emergence of issues concerning persons with disabilities during the World Conference on Indigenous Peoples. New Zealand strongly supported the creation of the Committee on the Rights of Persons with Disabilities; Robert Martin, New Zealand’s candidate for a 2017-2020 term, would, if elected, be the first person with a learning disability to serve on the Committee.