International law, Sixth edition
party concerned to the state in which he might be tortured would con-
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International Law MALCOLM N. SHAW
party concerned to the state in which he might be tortured would con- stitute a violation of article 3 of the Convention. 353 The Committee has also emphasised that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present. While the Commit- tee does give considerable weight to findings of fact made by the or- gans of the state party concerned, it is not bound by these and has the power of free assessment of the facts arising in the circumstances of each case. It has been particularly underlined that the prohibition enshrined in article 3 of the Convention was an absolute one. 354 It has also been noted that where complaints of torture are made during court 349 Ibid., pp. 82–3. See also A/57/44, p. 219. 350 OR, MM and MS v. Argentina, communications nos. 1–3/1988. Decisions of 23 November 1989. See 5 Interights Bulletin, 1990, p. 12. 351 The Committee has, however, held that where the effect of the violations continues after the date that the Convention comes into force for the state concerned and where those effects constitute a breach of the Convention, then the matter can be considered: see e.g. AA v. Azerbaijan, A/61/44, pp. 255, 259 (2006). 352 See e.g. A/61/44, p. 86 (2006). 353 Khan v. Canada, CAT/C/13/D/15/1994. 354 See Dadar v. Canada, A/61/44, pp. 233 ff. (2006). 330 i n t e r nat i o na l l aw proceedings, it is desirable that they be elucidated by means of inde- pendent proceedings. 355 A complaint must be submitted by the alleged victim, or by a close relative or a duly authorised representative, and must first be declared admissible. Requirements include that the mat- ter must not be before another tribunal, that domestic remedies have been exhausted and that the complaint must reach a ‘basic level of substantiation’. 356 An Optional Protocol to the Convention to enable the Committee through a new Subcommittee on Prevention to conduct regular visits to places of detention and make recommendations to states parties was adopted by the General Assembly in December 2002 and came into force in 2006. Under the Protocol, states parties must establish a ‘national pre- ventive mechanism’ for the prevention of torture at the domestic level. Visits by the Subcommittee and the national preventive mechanism to any place under the state party’s jurisdiction and control where persons are, or may be, deprived of their liberty must be permitted by the state concerned. 357 In 1985, the United Nations Commission on Human Rights appointed a Special Rapporteur on Torture to examine questions relevant to torture and to seek and receive credible and reliable information on such ques- tions and to respond to that information without delay. 358 The work of the rapporteur includes the sending of urgent appeals and an increasing number of country visits. He is directed to co-operate closely with the Committee against Torture. 359 The rapporteur also works with other UN officials. In 1994, for example, the rapporteur accompanied the Special Rapporteur on Rwanda on a visit to that country, while later that year the rapporteur accompanied the Special Rapporteur on Extrajudicial, Sum- mary or Arbitrary Executions on a visit to Colombia. 360 The rapporteur produces an annual report. 361 355 Parot v. Spain, CAT/C/14/D/6/1990. 356 RT v. Switzerland, A/61/44, pp. 249, 253 (2006). See also article 22 of the Convention and Rule 107(b) of the Rules of Procedure. 357 See General Assembly resolution 57/199. 358 Resolution 1985/33. 359 See e.g. E. Zoller, ‘46th Session of the United Nations Commission on Human Rights’, 8(2) NQHR, 1990, pp. 140, 166. 360 See E/CN.4/1995/34, pp. 6–7. See also the European Convention on the Pre- vention of Torture, below, p. 362, and the African guidelines on torture adopted in 2002, www.achpr.org/english/communiques/communique32 en.html and www.apt.ch/africa/rig/Robben20Island%20Guidelines.pdf. 361 See e.g. A/62/221 (2007). t h e p r o t e c t i o n o f h u m a n r i g h t s 331 The Committee on the Rights of the Child 362 The Convention on the Rights of the Child was adopted by the General Assembly on 20 November 1989. 363 It provides that in all actions concern- ing children, the best interests of the child shall be a primary consider- ation. A variety of rights are stipulated, including the inherent right to life (article 6); the right to a name and to acquire a nationality (article 7); the right to freedom of expression (article 13); the right to freedom of thought, conscience and religion (article 14); the right not to be sub- jected to arbitrary or unlawful interference with privacy, family, home or correspondence and the right to the enjoyment of the highest attainable standard of health (article 24). States parties agree to take all appropriate measures to protect the child from all forms of physical and mental violence (article 19) and from economic exploitation (article 32) and the illicit use of drugs (article 33), and there are specific provisions relating to refugees and disabled children. In addition, states parties agree to respect the rules of interna- tional humanitarian law applicable to armed conflicts relevant to children (article 38). This provision was one response to the use of children in the Iran–Iraq war. Article 43 of the Convention on the Rights of the Child provides for the establishment of a Committee. This Committee, which was elected in 1991, was originally composed of ten independent experts 364 and has the competence to hear states’ reports (article 44). The Committee it- self submits reports every two years to the General Assembly through ECOSOC. The Committee can recommend to the General Assembly that the Secretary-General be requested to undertake on its behalf studies on 362 See e.g. T. Buck, International Child Law, London, 2005; G. Lansdown, ‘The Reporting Procedures under the Convention on the Rights of the Child’ in Alston and Crawford, Download 7.77 Mb. Do'stlaringiz bilan baham: |
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