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Back to: Seventh
Session of the Ad Hoc Committee
Documents of the Seventh Session
The Chairperson of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Amb. Mc Kay, has requested the Office of the High Commissioner for Human Rights (OHCHR) to prepare draft final provisions for the consideration of the Ad Hoc Committee.
The draft final provisions draw primarily on the final clauses of some the most recent human rights treaties, namely:
• the 1989 Convention on the Rights of the Child (CRC);
• the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW);
• the 1999 Optional Protocol to the Convention on the Elimination of Discrimination against Women (OP-CEDAW);
• the 2002 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT); and
• the Draft International Convention for the Protection of All Persons from Enforced Disappearances (CED), adopted by the Working Group on a draft legally binding normative instrument for the protection of all persons from enforced disappearances in September 2005.
Due to its almost universal ratification, the CRC has been used – whenever possible – as a primary reference text.The draft prepared by the OHCHR has been reviewed by the United Nations Office of Legal Affairs (OLA). The comments and suggestions provided by the OLA are included in the text.
Methodology:
The proposed text tries – to the extent possible – to harmonise the corresponding provisions of the human rights treaties mentioned above. The provisions used as main references are indicated in brackets at the bottom of each paragraph.
In cases where different stylistic options exist (e.g. “The present Convention” as opposed to “This Convention”), the proposed text uses the formula which seems the most often used in universal human rights treaties. Alternative stylistic solutions are indicated in square brackets. The text is in italics.
When the harmonisation of the language used in the previous human rights conventions is not possible (e.g. the Convention is open for signature “by all States” as opposed to “by all Member States of the United Nations”), the proposed text uses the formula which is used more frequently in (recent) universal human rights treaties. Alternative options are indicated in square brackets. The text is underlined.
NB: For ease of reference, a title outlining the scope of the draft provisions will be used in lieu of the Article numbers.
Depositary of the Convention
The Secretary-General of the United Nations is designated as the depositary of the present Convention.
(Article 53 CRC; Article 85 CMW – no corresponding provision in OP-CEDAW, OP-CAT and CED)
OLA’s comments and suggestions:
A treaty should clearly designate the depositary in a separate provision. The wording used in the draft provision entitled “Depositary of the Convention” is correct. However, the draft provision entitled “Notification to States Members” (see infra) listing some of the functions to be performed by the depositary is superfluous as depositary functions are well established and codified in article 77 of the Vienna Convention on the Law of Treaties, 1969. Unless, of course, additional duties are added, it is adequate simply to designate a depositary, in this case the Secretary-General. It is understood that the depositary functions will be performed in accordance with treaty law and established practice.
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Signature
The present Convention [This Convention – Article 38(1) CED] shall be [is – Article 38(1) CED] open for signature by all States [by all Member States of the United Nations Organisation – Article 38(1) CED].
(Article 46 CRC; Article 86(1), first sentence, CMW)
OLA’s comments and suggestions:
It is assumed that this Convention will be open for signature indefinitely and by all states as it is the case with most multilateral treaties on human rights for which universal participation is an overriding consideration. Accordingly, the following wording is suggested:
Signature
1. The present Convention shall be open for signature by all States on…
We strongly suggest that the Convention should not be opened for signature immediately following its adoption, as the preparation of the authentic text and the certified true copies, and the distribution of the certified true copies may take up to six weeks. These are functions required to be performed by the depositary. Our experience suggests too many difficulties and the waste of resources where a different approach is adopted. In this connection, it is also noted that you will need to provide the Treaty Section with camera-ready copies of the Convention, as adopted (hard copy and electronic format – Microsoft Word 2000) at the earliest possible opportunity.
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Ratification
1. The present Convention [This Convention – Article 38(2) CED] is subject to ratification [by all Member States of the United Nations Organisation – Article 38(2) CED].
2. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
(Article 47 CRC; see also Article 86(1), second sentence, and (3) CMW)
OLA’s comments and suggestions:
Many treaties in the human rights field provide for signature subject to ratification and for accession at any time. This also facilitates the widest possible participation in human rights treaties (see paragraph 1 above). Ratification can be undertaken only by signatories. Accordingly, it is suggested that the relevant articles read:
Ratification
The present Convention is subject to ratification by signatory States. Instruments of ratification shall be deposited with the Depositary.
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Accession
1. The present Convention [This Convention – Article 38(3) CED] shall remain [be – Article 86(2) CMW] [is – Article 38(3) CED] open to accession by any State [by all Member States of the United Nations Organisation – Article 38(3) CED].
2. The instruments of accession shall be deposited with the Secretary-General of the United Nations [Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations – Article 15(4) OP-CEDAW; Article 38(3) CED].
(Article 48 CRC; see also Article 86(2) and (3) CMW)
OLA’s comments and suggestions:
Accession
The present Convention shall be open for accession by any State which has not signed the Convention. Instruments of accession shall be deposited with the Depositary.
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Entry into force
1. The present Convention [This Convention – Article 41 CED] shall enter into force on the thirtieth day [three months – Article 16(1) OP-CEDAW; on the first day of the month following a period of three months – Article 87(1) CMW] after [following – Article 49(1) CRC] the date of deposit [with the Secretary-General of the United Nations – Article 49(1) CRC; Article 16(1) OP-CEDAW; Article 28(1) OP-CAT] of the twentieth [tenth – Article 16(1) OP-CEDAW] instrument of ratification or accession.
2. For each State ratifying or acceding to the Convention after the deposit [with the Secretary-General of the United Nations – Article 28(2) OP-CAT] of the twentieth instrument of ratification or accession [after its entry into force – Article 16(2) OP-CEDAW; Article 87(2) CMW], the Convention shall enter into force on the thirtieth day [three months – Article 16(2) OP-CEDAW; on the first day of the month following a period of three months – Article 87(2) CMW] after the date of the deposit of its [own – Article 16(2) OP-CEDAW; Article 28(2) OP-CAT] instrument of ratification or accession [after the deposit by such State of its instrument of ratification or accession – Article 49(2) CRC].
(Article 49 CRC; Article 39 CED)
OLA’s comments and suggestions:
Treaties normally stipulate that a certain period of time must elapse between the date on which the required number of instruments is deposited and the date of entry into force. This period may vary, usually from thirty days to twelve months. The time so provided may give contracting states time to enact domestic legislation or to bring into effect implementing legislation previously enacted. It also gives the depositary time to notify contracting states of the forthcoming entry into force. The draft article on entry into force is correctly formulated.
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Notification to States Members
The Secretary-General of the United Nations shall inform all States of [States Members of the United Nations and all States which have signed this Convention or acceded to it of the following – Article 40 CED]:
(a) Signatures, ratifications and accessions under Article […];
(b) The date of entry into force of the present Convention and of any amendment under Article […].(Article 20 OP-CEDAW; Article 40 CED)
NB: no corresponding provisions in CRC and CMW; similar provisions included in Article 30 ICESCR and Article 52 ICCPR.
OLA’s comments and suggestions:
This draft provision is not needed (see OLA’s comments under “Depositary of the Convention”).
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Reservations
1. The Secretary-General of the United Nations shall receive and circulate to all States the text of reservations made by States at the time of [signature, – Article 91(1) CMW] ratification or accession.
2. A reservation incompatible with the object and purpose of the present Convention shall not be permitted.
3. Reservations may be withdrawn at any time by notification to that [this – Article 91(3) CMW] effect addressed to the Secretary-General of the United Nations, who shall then inform all States [thereof – Article 91(3) CMW]. Such notification shall take effect on the date on which it is received [by the Secretary-General – Article 51(3) CRC].
(Article 51 CRC; Article 91 CMW – no corresponding provision in CED)
NB: no reservation is permitted under Article 17 OP-CEDAW and Article 30 OP-CAT
OLA’s comments and suggestions:
Reservations restrict or modify the effects of treaties. When contemporary treaties are negotiated, often, concessions are made and compromises are reached to accommodate the differing interests of negotiating states. The use of reservations could contribute to further reducing the scope of those treaties. However, the ability to formulate reservations may help to promote the development of multilateral norms by enabling states to participate in treaties that they would not participate in without reservations. When drafting a new treaty, negotiating states should decide whether or not reservations are to be permitted.
Treaties in the environmental field often prohibit reservations. In the human rights field, the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, 1999, and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2002, expressively prohibit reservations. Other treaties permit the formulation of only certain reservations. Among the treaties on human rights deposited with the Secretary-General, the Second Optional Protocol to the International Covenant on Civil and Political Rights, 1989, stipulates that no reservation is admissible to the Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.
Most human rights treaties deposited with the Secretary-General are silent on reservations. It is, however, noted that, when a treaty is silent on reservations the general requirement of the compatibility of reservations with the object and purpose of the treaty applies. Some human rights treaties expressly permit the formulation of reservations with the exception of those reservations incompatible with the object and purpose of the treaty concerned.On this particular case, reservations incompatible with the object and purpose of the Convention are not permitted. Although this provision is similar to the one found in the Convention on the Elimination of All Forms of Discrimination against Women, 1979 or the Convention on the Rights of the Child, 1989, it is suggested that this provision is superfluous in view of article 19 of the Vienna Convention on the Law of Treaties, 1969. A provision of this nature may give rise to the contentious issue of whether the Secretary-General, guided by such a provision, (i) must determine whether a reservation lodged is incompatible with the object and purpose of the Convention or (ii) must circulate instruments accompanied such a reservation and let state parties draw their own conclusions on whether the reservation lodged is compatible with the object and purpose of the Convention. The Secretary-General in his role as depositary follows the second approach (ii) in the case of treaties silent on reservations. A provision of this nature would give rise to unmanageable questions. Accordingly, should the intention of the negotiating states be to permit reservations with the exception of those incompatible with the object and purpose of the Convention, we suggest that the draft article on reservations be deleted.
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Amendments
1. Any State Party may propose an amendment and file it with the Secretary-General of the United Nations. [After five years from the entry into force of the Convention a request for the revision of the Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General of the United Nations – Article 90(1) CMW]. The Secretary-General shall thereupon communicate the proposed amendment [any proposed amendments – Article 18(1) OP-CEDAW] to States Parties, with a request that they indicate [notify him or her – Article 18(1) OP-CEDAW; notify him – Article 90(1) CMW; Article 34(1) OP-CAT] whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. 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.
2. Any amendment adopted by a majority [a majority of two thirds – Article 34(1) OP-CAT; Article 44(2) CED] of States Parties present and voting [at the conference – Article 50(1) CRC; Article 34(1) OP-CAT] shall be submitted to the General Assembly for approval [by the Secretary-General to all the States Parties for acceptance – Article 34(1) OP-CAT; Article 44(2) CED].
3. An amendment adopted in accordance with paragraph 1 of the present article [Amendments – Article 18(2) OP-CEDAW; Article 90(2) CMW] shall enter [come – Article 18(2) OP-CEDAW] into force when it has [they have – Article 18(2) OP-CEDAW; Article 90(2) CMW] been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of States Parties [in accordance with their respective constitutional processes – Article 18(2) OP-CEDAW; Article 90(2) CMW] [when two thirds of the States Parties to this [Convention] have accepted it in accordance with their respective constitutional processes – Article 34(2) OP-CAT; Article 44(3) CED].
4. When amendments [an amendment – Article 50(3) CRC] enter[s] [come – Article 18(3) OP-CEDAW] into force, they [it –Article 50(3) CRC] shall be binding on those States Parties which have accepted them [it – Article 50(3) CRC], other States Parties still being bound by the provisions of the present [this – Article 44(4) CED] Convention and any earlier amendments which they have accepted.
(Article 50 CRC; Article 18 OP-CEDAW; Article 34 OP-CAT; Article 90(3) CMW)
OLA’s comments and suggestions:
The draft article entitled “Amendments” provides in its paragraph 1 that the Secretary-General shall communicate proposed amendments to states parties. Normally, the Secretary-General in his role as depositary does not circulate proposal of amendments. Usually proposal of amendments are circulated by the relevant secretariat. Draft paragraph 1 also provides that the Secretary-General, in the even that certain conditions are met, shall convene a conference to consider and vote upon the proposals. It is assumed that this reference to the Secretary-General is a reference to the Secretary-General in his administrative capacity and not in his role as depositary. Accordingly, it is understood that the relevant office of the Secretariat will provide such services.
The draft article entitled “Amendments” includes a reference to a revision procedure for the Convention. Revision of a treaty basically means amendment of a comprehensive nature that may take place before1 or after the entry into force of the treaty.2 It is best to be treated as a concept different from amendment. Some treaties provide for revision or review separate from amendment. In such cases, the term revision is often used to mean a general change to adapt the treaty to new changed circumstances, as opposed to an amendment that constitutes a change to specific provisions of a treaty. If the intention of the negotiating states is to provide for a revision procedure, for the sake of clarity, it is suggested that such a procedure be included in a separate provision.
In addition, the draft provides for an amendment to enter into force once a specified proportion of the states parties, “two-thirds of the States Parties”, have accepted it. We have recently dealt with problems in this area where the question has arisen as to whether the number of acceptances is calculated on the basis of the number of states parties at the time of adoption of the amendment or at the time of acceptance by a State. It is suggested clarifying this issue at the outset in order to avoid future confusion. However, please note that when a treaty is silent on this matter, the practice of the Secretary-General as depositary is to calculate the required number of acceptances on the basis of the number of states parties to the agreement at the time of acceptance of the amendment. Accordingly, the total for the purpose of calculating the two-thirds will continue to shift. Furthermore, if the Convention enters into force “on the thirtieth day after the deposit…” amendments should also enter into force after the same period of time has elapsed.
The draft also provides for the approval of adopted amendments by the General Assembly of the United Nations. This is unnecessary and cumbersome. It is suggested that adopted amendments be submitted to states parties for acceptance.
Accordingly, one of the two following wording is suggested:
Amendments
1…
2…
3. An amendment adopted in accordance with paragraph(s)… of this article shall enter into force the thirtieth day following the deposit of instruments of acceptance by two-thirds of the number of States Parties. The two-thirds shall be calculated at the time of the deposit [emphasis added] of any instrument of acceptance. Thereafter, the amendment shall enter into force for any State party on the thirtieth day following the deposit of the instrument of acceptance by that State.Amendments
1…
2…
3. An amendment adopted in accordance with paragraph(s)… of this article shall enter into force the thirtieth day following the deposit of instruments of acceptance by two-thirds of the number of States Parties at the date of adoption [emphasis added] of the amendment. Thereafter, the amendment shall enter into force for any State party on the thirtieth day following the deposit of the instrument of acceptance by that State.Another solution, strongly recommended, is to refer to a specified number of states parties depositing their instruments of acceptance as the entry into force requirement. For example:
Amendments
1…
2…
3. An amendment adopted in accordance with paragraph(s)…of this article shall enter into force the thirtieth day following the deposit of instruments of acceptance by [number] States Parties. [Emphasis added] Thereafter, the amendment shall enter into force for any State party on the thirtieth day following the deposit of the instrument of acceptance by that State.Many multilateral treaties, including this draft agreement, provide for the entry into force of an amendment only for those states parties that have accepted it. This is the most common approach. However, it is our experience that this approach creates significant problems of interpretation and implementation since it establishes a situation whereby states can be parties to two different regimes under a single convention. For example, in the case of the Amendment to Article 43 (2) of the 1989 Convention on the Rights of the Child, 1995, increasing the membership of the Committee on the Rights of the Child from ten to eighteen experts, entered into force when it was accepted by a two-thirds majority of states parties, on 18 November 2002 in accordance with article 50(2) of the Convention. Pursuant to article 50 (3) the amendments only bind those states parties that have notified their acceptance. This would have created an impossible situation where the Committee would have consisted of ten members for some states parties and eighteen members for others. A practical approach was taken by states parties to the Convention on the Right of the Child, 1989 in this case and the amendment was deemed to bind all parties. Where amendment provisions are negotiated, it is important to anticipate this type of problem and draft the provisions accordingly.
* * * * *
Transfer of monitoring functions
A Conference of States Parties will take place at the earliest four years and at the latest six years following the entry into force of this Convention to evaluate the functioning of the [monitoring] Committee and to decide, in accordance with the procedure described in article […], whether it is appropriate to transfer to another body – without excluding any possibility – the monitoring of this Convention, in accordance with the functions defined in articles […].
(Article 27 CED)
NB: the aim of this provision is to facilitate the transfer of monitoring functions to a unified standing treaty body, in accordance with the suggestion formulated by the United Nations High Commissioner for Human Rights in her Plan of Action.
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Denunciation
1. A State Party [Any State Party – Article 19(1) OP-CEDAW; Article 33(1) OP-CAT; Article 89(1) CMW] may denounce the present Convention [at any time – Article 19(1) OP-CEDAW; ; Article 33(1) OP-CAT; not earlier than five years after the Convention has entered into force for the State concerned – Article 89(1) CMW] by written notification [by means of a notification in writing – Article 89(1) CMW] [addressed – 19(1) OP-CEDAW; ; Article 33(1) OP-CAT; Article 89(1) CMW] to the Secretary-General of the United Nations [who shall thereafter inform the other States Parties to the present Protocol and the Convention – Article 33(1) OP-CAT].
(Article 52 CRC; Article 19(1) OP-CEDAW; Article 33(1) OP-CAT)
2. Denunciation [Such denunciation – Article 89(2) CMW] becomes [shall become – Article 89(2) CMW] effective [shall take effect – Article 33(1) OP-CAT] one year [six months – 19(1) OP-CEDAW; on the first day of the month following the expiration of a period of twelve months – Article 89(2) CMW] after the date of receipt of the notification by the Secretary-General [of the United Nations – Article 89(2) CMW].
(Article 52 CRC; Article 19 (1) OP-CEDAW; Article 33(1) OP-CAT)
3. Such a denunciation shall not have the effect of releasing the State Party from its obligations under the present Convention in regard to any act or omission [situation – Article 33(2) OP-CAT] which occurs [that may occur – Article 33(2) OP-CAT] prior to the date at which the denunciation becomes effective, nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective. [Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 or any inquiry initiated under article 8 before the effective date of denunciation – 19(1) OP-CEDAW]
(Article 89(3) CMW; Article 33(2) OP-CAT)
4. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.
(Article 89(4) CMW; Article 33(3) OP-CAT)
NB: no corresponding provision in CED; no provisions on reservations in the ICESCR and the ICCPR.
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Disputes between States Parties
1. Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which [that – Article 92(1) CMW] cannot [is – Article 92(1) CMW] not settled by negotiation [or by the procedures expressly provided for in this Convention – Article 42(1) CED] shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organisation of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State [Party – Article 92(2) CMW] may, at the time of signature or ratification of the present [this – Article 42(2) CED] Convention or accession thereto, declare that it does not consider itself bound by paragraph 1 of the present [this – Article 42(2) CED] article. The other States Parties shall not be bound by paragraph 1 of this Article [that paragraph – Article 92(2) CMW] with respect to any State Party having made [that has made – Article 92(2) CMW] such a declaration.
3. Any State Party having made [that has made – Article 92(3) CMW] a declaration in accordance with paragraph 2 of the present [this – Article 42(3) CED] article may at any time withdraw this [that – Article 92(3) CMW] declaration by notification to the Secretary-General of the United Nations.
(Article 92 CMW; Article 42 CED – no corresponding provisions in CRC, OP-CEDAW and OP-CAT)
* * * * *
Federal States
The provisions of the present Convention shall extend to all parts of federal States without any limitations or exceptions.
(Article 29 OP-CAT; Article 41 CED)
NB: no corresponding provisions in CRC, OP-CEDAW and CMW; provisions identical to Article 41 CED in Article 28 ICESCR and Article 50 ICCPR.
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Authentic texts
1. The [original of the – Article 54 CRC] present [Convention, 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 [in the archives of the United Nations – Article 21(1) OP-CEDAW].
2. The Secretary-General of the United Nations shall transmit certified copies of the present [Convention to all States.
(Article 54 CRC; Article 93 CMW; Article 21 OP-CEDAW; Article 37 OP-CAT; Article 45 CED)
Footnotes:
1. Such was the case of the Agreement relating to the implementation of Part XI of the 1982 United Nations Convention on the Law of the Sea, 1994.
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2. The Charter of the United
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