On 18th December 2002, the United Nations General Assembly (UNGA) adopted what could be one of the most forward-looking human rights instruments ever drafted and accepted by the international community - the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Convention).1 While human rights treaties usually put a stress on protection and prosecution of human rights violations, the Optional Protocol on Torture emphasizes the prevention of torture - one of the most despicable acts of humankind - and sets up international and national structures for this purpose. Under the Optional Protocol,2 States Parties shall establish independent and impartial national organs that will visit, at any time, its prisons, police stations and other detention centers. Moreover, an international committee of experts shall have the same powers to visit the States Parties and enter places of detention.3
The draft of this treaty had been in discussion for not less that ten years in the United Nations. The idea was conceived twenty-five years ago by a Swiss banker, adopted in at least one region of the world4 and has undergone much adaptation over two decades based on developments in law and practice. The present and definitive text provides for a two-pillar approach of direct national responsibility and international monitoring. Based on one of the fundamental articles of its mother Convention,5 the Optional Protocol aims to strengthen and make the States Parties more accountable on the actual prevention of torture. Only States Parties to the Convention could ratify the Optional Protocol.
In this process, where have Asian governments positioned themselves? Torture, indeed, continues to persist in many Asian countries, and victims of torture and inhuman treatment remain aggrieved, their lives and those of their families damaged and shattered forever. Discussions on the draft Optional Protocol reveal, however, that many of the Asian States either refuse to acknowledge the gravity of the problem or deny their responsibilities to tackle the problem.
In the final votes in the UNGA, the Optional Protocol was adopted with 127 votes in favor, 4 against (the USA, Marshall Islands, Nigeria and Palau) and 42 abstentions. Twenty-one countries from the Asia-Pacific region voted in favor of the Optional Protocol: West Asia - Bahrain, Israel, Jordan, Lebanon and Yemen; South Asia - Sri Lanka; Southeast Asia - Cambodia, Indonesia and Timor Leste; Northeast Asia - Mongolia and South Korea; and the Pacific - Fiji, Kiribati, Micronesia, Nauru, New Zealand, Papua New Guinea, Samoa, Solomon Islands, Tuvalu and Vanuatu. The rest of the Asian States abstained, including the following States Parties to the Convention: Kuwait, Qatar, Saudi Arabia; Afghanistan, Bangladesh and Nepal; the Philippines; China and Japan; and Australia. Compared to other regions of the world, the Asia-Pacific region has the lowest record in supporting the Optional Protocol.6
Indeed, while the twenty-one States from the region are to be highly commended for their support and commitment, the rest, most specially those who are already States Parties to the Convention, should be held accountable. In light of their continuing rhetoric deploring torture and reaffirming their commitment to eradicate the practice, these Asian governments missed out on an opportune moment to demonstrate their intention to combat torture in a concrete way. Instead, they have made clear their blatant insincerity.
This dismal Asia-Pacific record goes back to the 2002 session of the UN Commission on Human Rights, when a resolution was proposed to consider the adoption of the Optional Protocol. Not one Asian State was among the fifty-three co-sponsors of the resolution. Cuba responded with a no-action motion (which could set back the adoption of the Optional Protocol) and got the support of all eleven Asian members7 of the Commission voting as a bloc. Fortunately, the majority of the Commission members rejected it.8 The Commission then proceeded to adopt the Optional Protocol with 29 votes in favor, 10 against and 14 abstentions. Only one Asian state voted in favor - Bahrain; five Asian states voted against - China, Japan, Malaysia, Republic of Korea and Saudi Arabia; while the rest - India, Indonesia, Pakistan, Thailand and Vietnam abstained.
At the UN Economic and Social Council (ECOSOC), the next stage, attempts were again made to derail the adoption of the Optional Protocol. A motion by the United States that would have re-opened the negotiations got the support of Australia, China, Cuba, India, Iran, Japan and Pakistan. It was defeated, again, by the majority members, of which only Fiji came from the region. Bahrain, Bhutan, Nepal, Qatar and the Republic of Korea abstained from this motion.9 There was a slight improvement in the Asian record when the ECOSOC finally adopted the substance of the Optional Protocol: ECOSOC members Bahrain, Fiji and the Republic of Korea voted for its adoption; Australia, China and Japan stood firmly in opposition; Bhutan, India, Nepal and Pakistan abstained and Iran was absent.
As the penultimate stage, the Third Committee of the UN General Assembly witnessed even more attempts. Japan proposed to defer action on the draft Optional Protocol for 24 hours on the claim that it needed more time to look at the budgetary implications. This motion, supported by China, India, Israel, Kuwait, Malaysia and Singapore, was defeated.10 The United States made a second attempt by proposing an amendment that would have taken the Optional Protocol's expenses shifted from the UN regular budget to the sole responsibility of the States Parties. Australia, India, Israel, Japan, the Marshall Islands and Pakistan were among the 11 supporters of the motion, who were then defeated by the majority of the Third Committee members.11 The final vote on the Optional Protocol in the Third Committee that adopted the text had 104 in favor, 8 against and 37 abstentions. Twelve Asia-Pacific States voted in favor: Afghanistan, Fiji, Indonesia, Jordan, Mongolia, Nauru, New Zealand, Papua New Guinea, Republic of Korea, Samoa, Sri Lanka and Vanuatu. On the other hand, China, Israel, Japan, Syria and Vietnam voted against along with Cuba, Nigeria and the United States.
Among the Asia-Pacific States, Japan and Australia were the most vociferous opponents to the adoption of the Optional Protocol. As States Parties to the Convention, Japan12 and Australia13 had actively participated in most of the ten years of negotiations in the UN. In the final years, they have taken up issue with the substance and budgetary concerns surrounding the operation of the Optional Protocol. With China,14 they also protested the procedure in adopting the draft at the working group level, claiming that more time is needed to develop consensus, a position shared by most of the other Asian States including, among others, India, Malaysia, Singapore and Vietnam.15 Thus, in the ECOSOC and in the Third Committee of the General Assembly, they have become part of the US-led alliance in attempts to derail the Optional Protocol. In the end, during the final vote in the General Assembly, China, Japan and Australia abstained, as did most of the others. These States, along with the others that opposed, should be ashamed of their positions and their continuing perseverance to make a mockery of the situation of victims of torture.
The most positive surprise in the whole process of adopting the Optional Protocol was the position of Bahrain. Although it supported or abstained from the procedural motions that would have derailed the Optional Protocol's adoption, Bahrain had the courage to be the only Asian State in the Commission to support adoption at the final vote. It remained consistently supportive of the Optional Protocol from the ECOSOC to the UNGA. Bahrain explained its positive vote as part of its efforts at building democratic process and establishing institutions to advance the cause of its people.
In addition, the Republic of Korea experienced a commendable change of mind. Voting against the Optional Protocol in the Commission, it then gave its support to the adoption of the text in all subsequent stages from the ECOSOC up to the UNGA. Explaining its position, South Korea said that it had reservations concerning the process but gave the Optional Protocol its support in light of the country's commitment to the prevention of torture.
Furthermore, two countries from the Pacific should be highlighted: Fiji and New Zealand. Although Fiji is not a State Party to the Convention and could not participate in the Geneva negotiations, its support in the UNGA (New York) was crucial and admirable. New Zealand,16 on the other hand, had been active in the Geneva negotiations through its Geneva mission and had fully supported the Optional Protocol in both Geneva and New York. Moreover, New Zealand publicly welcomed the adoption of the new treaty and declared that it will begin the process towards signing and ratifying the new Optional Protocol.
Last but not the least are, of course, the Asian States who, although not active supporters, had nevertheless given their precious and commendable support for the Optional Protocol, including the positive votes in the UNGA.
To all of these Asian states, we say BRAVO! These Asian States showed that despite the persisting problems, they could look into the possibility of actual prevention of torture and not shirk their responsibilities. Indeed, let prevention of torture be a reality in the Asia-Pacific region!
Ms. Cecilia Jimenez is a Philippine lawyer and human rights consultant based in Geneva. As a member of an international NGO, she had worked from 1998 to 2002 as an NGO representative to the inter-governmental negotiations on the Optional Protocol at the UN in Geneva and in New York.
For further information, please contact her at this e-mail address: email@example.com
1. UN GA Resolution 39/46 of 10 December 1984, entered into force on 26 June 1987.
2. UN GA Resolution 57/199 of 18 December 2002, opened for signature on 4 February 2003.
3. Article 1 of the Optional Protocol provides: "The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
4. At the regional level, the European Convention for the Prevention of Torture establishes the European Committee for the Prevention of Torture.
5. Article 2.1 of the UN Convention against Torture provides: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
6. Positive votes are as follows: 25 states from the Americas and the Caribbean; 32 from Africa; 24 from Eastern Europe and Central Asia; and 25 from Western Europe.
7. Bahrain, China, India, Indonesia, Japan, Malaysia, Pakistan, Republic of Korea, Saudi Arabia, Thailand and Vietnam.
8. The vote was 28 against, 21 in favor and 4 abstentions.
9. The vote was 29 against, 15 in favor and 8 abstentions.
10. The vote was 85 against, 12 in favor and 43 abstentions.
11. The vote was 98 against, 11 in favor and 37 abstentions.
12. Japan acceded to the Torture Convention on 29 June 1999.
13. Australia ratified the Torture Convention in 8 Aug 1989.
14. China ratified the Torture Convention on 4 Oct 1988.
15. All of these States are not States Parties to the Torture Convention, although India had signed the Convention in 1997.
16. New Zealand ratified the Torture Convention on 10 Dec 1989.