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A New Approach to Human Rights: The European Convention for the Prevention of Torture

Published online by Cambridge University Press:  27 February 2017

Antonio Cassese
Antonio Cassese*
Affiliation:
European University Institute, Florence
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Extract

A review of the current state of legal regulation in the field of human rights is likely to give the disappointing impression that international legislation is unequal to the task of checking widespread disregard for human dignity. Despite the vast proliferation of instruments setting standards on human rights, imposing obligations as regards the observance of those standards and establishing procedures to deal with breaches of those obligations, violations of human rights continue, their perpetrators apparently undeterred.

Type
Current Developments
Information
American Journal of International Law , Volume 83 , Issue 1 , January 1989 , pp. 128 - 153
Copyright
Copyright © American Society of International Law 1989

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References

1 See, e.g., Convention on the Political Rights of Women, Mar. 31, 1953, 27 UST 1909, TIAS No. 8289, 193 UNTS 135; and Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 UNTS 195.

2 See, e.g., Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 137; and Declaration of the Rights of the Child, GA Res. 1386, 14 UN GAOR Supp. (No. 16) at 19, UN Doc. A/4354 (1959).

3 For instruments providing a right of individual complaint, see, e.g., Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 59, UN Doc. A/6316 (1966); European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 221, Art. 25 [hereinafter ECHR]; American Convention on Human Rights, Nov. 22, 1969, reprinted in Organization of American States, Handbook of Existing Rules Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.65, doc. 6, at 103 (1985), Art. 44.

4 Opened for signature Nov. 26, 1987, Council of Europe Doc. H (87) 4, reprinted in 27 ILM 1152 (1988). See generally The European Draft Convention against Torture, 31 REV. Int’l Comm’n Jurists 50 (1983); Wickremasinghe, A radical step in the crusade against torture: the European Convention, 2 Interights Bull. 30 (1987); and Decaux, La Convention européenne pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (to appear in 34 Annuaire Francais de Droit International (1988)); Vigny, La Convention européenne de 1987 pour la prévention de la torture et des peines ou traitements inhumains ou dégradants, 43 Annuaire SUISSE DE Droit International 62 (1987). See also, concerning the Convention’s approach to the problem of torture, Swiss Committee Against Torture, How to Combat Torture: Report of the International Colloquium, Geneva, 1983 (1984).

5 Convention, Art. 1.

6 Id., Art. 2.

7 Id., Art. 7, para. 1.

8 See also Explanatory Report, id., App. II, paras. 1–11.

9 See common Art. 10/10/10/11, Geneva Conventions for the Protection of Victims of War, Aug. 12, 1949, 75 UNTS 31, 85, 135 and 287, respectively. Where both parties to the conflict are also parties to the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (opened for signature Dec. 12, 1977, ICRC, Protocols Additional to the Geneva Conventions of 12 August 1949, at 3 (1977)) [hereinafter Protocol I], the ICRC’s powers will apply in the context of a war of national liberation regarding which a declaration under Article 96, paragraph 3 of that Protocol has been made. Note also in this connection Article 81 of Protocol 1.

10 This applies in particular to visits made by the ICRC to political detainees (in peacetime). See, e.g., Sandoz, La Notion de protection dans le droit international humanitaire et au sein du Mouvement de la Croix-Rouge, in Studies and Essays in Honour of J. Pictet 985 (1984).

11 See common Art. 3, Geneva Conventions, supra note 9. The minimum standards of protection in noninternational armed conflicts set forth in common Article 3 are amplified in Article 4 of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (opened for signature Dec. 12, 1977, ICRC, supra note 9, at 89) [hereinafter Protocol II], at least with respect to the restricted category of internal conflicts to which Protocol II applies (see Art. 1). However, a proposal to reiterate in Article 4 of Protocol II that an impartial humanitarian body such as the ICRC “may offer its services to the Parties to the conflict” (the so-called right of initiative provided for in common Article 3 of the Geneva Conventions) was defeated at the 1977 Diplomatic Conference that adopted the Protocol.

12 GA Res. 39/46 (Dec. 10, 1984), draft reprinted in 23 ILM 1027 (1984), substantive changes noted in 24 ILM 535(1985).

13 For the text of the draft Optional Protocol, see UN Doc. E/CN.4/1409 (1980). See also International Commission of Jurists & Swiss Committee against Torture, torture: How to Make the International Convention effective (2d ed. 1980). The draft was submitted “for use as a basis for consideration by the Commission on Human Rights when once [sic] the Convention has been adopted.” This was done to avoid any further delay in submitting the already long-debated UN Convention to the Economic and Social Council. Given its novel approach, the draft Optional Protocol was thought likely to prove controversial.

14 In the event, the UN Convention was adopted by the General Assembly on Dec. 10, 1984; it entered into force on June 26, 1987; and the first members of the Committee against Torture were elected at a meeting of the parties to the UN Convention held in Geneva on Nov. 26, 1987. Costa Rica’s draft Optional Protocol has yet to be considered by the Commission on Human Rights. On Mar. 13, 1986, that Commission deferred consideration of the draft to its 45th session in 1989. At the same time, it recommended that states consider adopting regional conventions along the same lines as Costa Rica’s draft. See H.R. Comm’n Res. 1986/56, UN Doc. E/CN.4/1986/L.11/Add.lO, at 5.

15 The Consultative Assembly is a consultative organ comprising members of the nationallegislatures of each of the 22 member states of the Council of Europe. Its function is to provide recommendations to the Committee of Ministers, the Council’s decision-making organ. The Committee of Ministers is composed of the Foreign Ministers (or their deputies) of each of the member states.

16 See Eur. Consult. Ass., 32d Sess., Recommendation No. 909, especially paras. 7 and 8 (1981).

17 See Eur. Consult. Ass., 35th Sess., Doc. No. 5099 (1983). An opinion on the Legal Affairs Committee’s report was also sought from the Assembly’s Political Affairs Committee, whose rapporteur, Claude Dejardin, concluded by endorsing the Legal Affairs Committee’s proposals. See id., Doc. No. 5123 (1983).

18 Sec id., Recommendation No. 971 (1983).

19 On Assembly recommendations, see note 15 supra.

20 The Steering Committee for Human Rights is a body of government experts on human rights from member states of the Council of Europe, responsible directly to the Committee of Ministers. The relevant terms of reference were conferred on it at the 366th meeting of the Ministers’ Deputies, in January 1984.

21 The Committee of Experts is a body of government experts from member states of the Council of Europe, specifically concerned with measures to achieve the fullest possible implementation of the ECHR. The committee is responsible to the Steering Committee. The relevant terms of reference were conferred on it by the latter committee at its 15th meeting, in March 1984.

The subject was seen as falling within the expertise of the Committee of Experts because the Convention was perceived as an elaboration or specification of the provisions of Article 3 of the ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” However, as will be indicated later, the precise relation between the Convention and Article 3 proved in the end to be one of the major points of controversy.

22 The Convention was debated at its 19th to 25th meetings (May 1984-June 1986), under the chairmanship initially of the Swiss expert Krafft, and later of the Norwegian expert Mase. As these meetings are confidential, no minutes exist.

23 These are two other subordinate bodies responsible to the Committee of Ministers.

24 In one of its reports, the Steering Committee for Human Rights drew the attention of the Committee of Ministers to the “great importance which should be attached to the explanatory report in relation to the interpretation of the Convention by the Parties and the new Committee.”

25 See Eur. Consult. Ass., 39th Sess., Opinion No. 133 (1987) (on draft European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment).

26 It was signed by all member states except Turkey and Ireland on Nov. 26, 1987. Turkey signed it on Jan. 11, 1988, and Ireland on Mar. 14, 1988.

27 Turkey, Ireland, Malta, Sweden, the United Kingdom, Luxembourg and Switzerland. The Convention has subsequently been ratified by the Netherlands.

28 The Federal Republic of Germany, Italy, Spain, the United Kingdom and Turkey were the main targets of NGO criticism. See, e.g., Amnesty International, Report on Torture (1973); Amnesty International, Torture in the Eighties (1984). See also C. Humana, The Economist World Human Rights Guide (1986).

29 Efforts to supplement the Inter-American Convention to Prevent and Punish Torture (Dec. 9, 1985, reprinted in 25 ILM 519 (1986)) with a mechanism for preventive visits are currently in progress. Similar work may also be expected in relation to the African Charter on Human and Peoples’ Rights of June 1981 (OAU Doc. CAB/LEG/67/3/Rev.5 (1981), reprinted in 21 ILM 59 (1982) (entered into force Oct. 21, 1986)).

30 The UN rules were adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders, Aug. 30, 1955, and then approved by ESC Res. 663C (XXIV) (July 31, 1957). They were later amended by ESC Res. 2076 (LXII) (May 13, 1977). The Council of Europe’s European penal rules were recommended by the Committee of Ministers on Feb. 12, 1987, Recommendation No. R (87) 3. See also Draft Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, Sub-Comm’n on Prevention of Discrimination and Protection of Minorities Res. 5C (Sept. 13, 1973); Declaration on the Police, Appendix, Eur. Consult. Ass., 31st Sess., Res. 690 (May 8, 1979); Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec. 17, 1979); Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 37/194 (Dec. 18, 1982). See further, in relation to the treatment of involuntary psychiatric patients in European institutions, Recommendation No. R (85) 3 of the Council of Europe’s Committee of Ministers, on the legal duties of doctors.

31 See note 14 supra.

32 The Special Rapporteur on Torture was established pursuant to Comm’n on Human Rights Res. 1985/33 of Mar. 13, 1985, UN Doc. E/CN.4/1985/SR.55, paras. 50, 62. This resolution was ratified on May 30, 1985, by the ECOSOC by Decision 1985/144, 1985 UN ESCOR Supp. (No. 1) at 44, UN Doc. E/1985/85. For an account of the background to this resolution and a description of the rapporteur’s functions, see N. Rodley, The Treatment of Prisoners Under International Law 120–25 (1987).

35 On the work of the ICRC, see generally the Annual Reports of the ICRC. As to its practice in relation to noninternational conflicts, see J. Moreillon, Le Comité International de la Croix-Rouge et la protection des détenus politiques (1973); Veuthey, Implementation and Enforcement of Humanitarian Law and Human Rights Law in Non-International Armed Conflicts: The Role of the International Committee of the Red Cross, 33 Am. U. L. Rev. 83 (1983); T. Meron, Human Rights in Internal Strife: Their International Protection 105–17(1987).

34 See Convention, Art. 17, para. 3; and Explanatory Report, supra note 8, para. 93.

35 See note 21 supra.

36 See note 3 supra.

37 ECHR Art. 27, para. 1 provides: “The Commission shall not deal with any petition submitted under Article 25 which … (b) is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.”

38 European Comm’n of Human Rights, Rules of Procedure (rev. text brought up-to-date on May 15, 1983), 1983 Y.B. Eur. Conv. on Hum. Rts., ch. II, at 7. Concerning on-the-spot fact-finding visits, see id., Rule 14, para. 2, and Rule 28, para. 2. See also ECHR Art. 28(a). Concerning preventive measures, see Rules of Procedure, supra, Rule 28, para. 1, and Rule 36.

39 Convention, Art. 17, para. 2.

40 Explanatory Report, supra note 8, paras. 17, 27 and 91. Although the Committee will not intervene in proceedings brought under the ECHR, there have been suggestions that it may assist individual petitioners of whose circumstances it has become aware, particularly in relation to the exhaustion of local remedies.

41 Id., para. 92.

42 For an account of the fact-finding powers of the Commission and of the very few occasions on which they have been used, see Ramcharan, Introduction, in International Law and Fact-finding in the Field of Human Rights 1, 19–20 (B. Ramcharan ed. 1982); and Krüger, The Experience of the European Commission of Human Rights, in id. at 151, 151–59.

43 Several Council of Europe member states are parties to the UN Convention and hence are potentially subject to the competence of the Committee against Torture. As of Oct. 31, 1987, Sweden, France, Norway, Switzerland, Denmark, Austria, Luxembourg and Spain had ratified the Convention, each at the same time making a declaration under Articles 21 and 22 that it accepted the competence of the Committee to receive and consider “communications” from states and individuals concerning violations of the Convention. In addition, none of them made the reservation envisaged by Article 28 whereby a state can exclude the competence of the Committee to undertake, propria motu, investigations, including fact-finding visits, under Article 20. See Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1987, UN Doc. ST/LEG/SER.E/6, at 174–77 (1988); and UN Doc. A/43/519 (1988).

44 UN Convention, supra note 12, Art. 19.

45 A specific declaration recognizing the UN Committee’s competence in this regard is required. See id., Arts. 21 and 22; and note 43 supra.

46 UN Convention, supra note 12, Art. 20. A specific right of reservation is conferred in respect of this provision, id., Art. 28; see also note 43 supra.

47 As the special rapporteur is appointed by resolution of the UN Commission on Human Rights (see note 32 supra) rather than by agreement, his competence extends to all UN member states, and hence to all member states of the Council of Europe with the exception of Switzerland.

48 See Comm’n on Human Rights Res. 1985/33, supra note 32, paras. 1 and 7.

49 The special rapporteur’s first report makes no mention of any visits having been under taken. See UN Doc. E/CN.4/1986/15.

50 Convention, Art. 17, para. 1. Correlative provisions are made in the ECHR (Art. 60) and the UN Convention, supra note 12 (Art. 1, para. 2, Art. 14, para. 2, and Art. 16, para. 2).

51 See note 21 supra. See also Universal Declaration of Human Rights, GA Res. 217A, UN Doc. A/810, at 71 (1948), Art. 5; International Covenant on Civil and Political Rights, GA Res. 2200, supra note 3, Supp. (No. 16) at 52, Art. 7; American Convention on Human Rights, supra note 3, Art. 5, para. 2; African Charter on Human and Peoples’ Rights, supra note 29, Art. 5; as well as the specific instruments concerning torture mentioned in notes 14 and 29 supra.

52 The draft appended to Recommendation 971, supra note 18, will be referred to as the “original draft.”

53 Explanatory Report, supra note 8, paras. 22, 26 and 27.

54 For a summary of the voluminous case law on Article 3, together with references to the relevant cases, see 1 Council of Europe, Digest of Strasbourg Case-law relating to the European Convention of Human Rights 89–235 (1984) [hereinafter Strasbourg Case-law]. For academic commentary on the subject, see Doswald-Beck, What does the Prohibition of “Torture or Inhuman or Degrading Treatment or Punishment” mean? The interpretation of the European Commission and Court of Human Rights, 25 Neth. Int’l L.R. 24 (1978); Duffy, Article 3 of the European Convention on Human Rights, 32 Int’l & Comp. L.Q. 316 (1983); Sudre, La Notion de “peines et traitements inhumains ou dégradants” dans la jurisprudence de la Commission et de la Cour européennes des droits de I’homme, 88 Revue Générale de Droit International Public 825 (1984).

55 The Convention facilitates reference to the jurisprudence on Article 3 by exactly reproducing the formula used in Article 3 (“torture and inhuman or degrading treatment or punishment”). By contrast, the original draft employed the formula used in the UN Convention and elsewhere, which incorporates “cruel” treatment or punishment as well, though it is doubtful that this actually reflects any substantive difference.

56 See note 51 supra.

57 See note 12 supra.

58 See note 3 supra.

59 See Convention, Art. 7, para. 1; and Explanatory Report, supra note 8, para. 49.

60 See Convention, Art. 8, para. 2(b); and Explanatory Report, supra note 8, para. 62.

61 See Explanatory Report, supra note 8, para. 48.

62 Id., paras. 28–32.

63 Id., para. 32.

64 See Convention, Art. 9 (and text at note 70 infra).

65 See Explanatory Report, supra note 8, para. 24. For a summary of the case law on this aspect of Article 5, together with references to the relevant cases, see 1 Strasbourg Case-law, supra note 54, at 271–306; and M.-A. Eissen, Case-law on Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1986).

66 See Explanatory Report, supra note 8, para. 24.

67 See also id., paras. 55–59.

68 See Convention, Art. 8, para. 2; and Explanatory Report, supra note 8, paras. 60–65. To meet concerns regarding the data protection implications of this provision, it is specifically stated that parties are to have regard to relevant national laws and professional (particularly medical) ethics. Convention, Art. 8, para. 2(d).

69 Convention, Art. 21.

70 See also Explanatory Report, supra note 8, paras. 71–72.

71 These arrangements might include, in the case of military installations, confining the Committee’s visit solely to the place where persons deprived of their liberty are being detained. In addition, the Committee might be accompanied on its visit by an official of the state concerned (who, however, should not be allowed to be present at the interview of detainees). In the case of high-security prisons, to keep from revealing the whereabouts of detainees presenting a high-security risk, the state concerned might be required to supply the Committee with two different lists, one of places of detention and one of persons deprived of their liberty. Should the Committee wish to interview a particular person, the interview might be held in a place other than the place of detention (however, this procedure should be exceptional, for it is generally important for the Committee to visit the place where a detainee is actually held, to get an idea of how he is being treated).

72 See Convention, Art. 10, para. 2.

73 See id., Art. 8; and Explanatory Report, supra note 8, paras. 66–69.

74 See Explanatory Report, supra note 8, para. 67.

75 See Convention, Art. 8; and Explanatory Report, supra note 8, para. 58.

76 Convention, Art. 4, para. 1. The corresponding provision of the ECHR is Article 20.

77 Convention, Art. 4, para. 3. The corresponding provision of the ECHR is Article 20.

78 Convention, Art. 4, para. 4. The corresponding provision of the ECHR is Article 23.

79 Convention, Art. 4, para. 2. See also Explanatory Report, supra note 8, para. 2.

80 Convention, Art. 5, para. 1. The corresponding provision of the ECHR is Article 21, paragraph 1.

81 It should be emphasized, however, that other considerations were adduced to support the system eventually adopted. At one stage of the drafting process, it was envisaged that states should be allowed to refuse entry to a member of the Committee. It was then argued that states parties to the Convention would be less likely to reject a particular member of the new Committee if it was elected by the Committee of Ministers rather than by the Consultative Assembly (the idea being that states would be estopped from objecting to a particular Committee member after his election by such an authoritative political body, on which all member states of the Council of Europe sit). Accordingly, election by the Committee of Ministers was to be preferred to election by the Consultative Assembly.

Another reason supporting the system at issue was the fact that the Committee of Ministers would be in a better position than the Consultative Assembly to ensure both that there was a geographical balance within the Committee and that all members had the requisite qualifications.

82 Convention, Art. 5, para. 3; cf. ECHR, supra note 3, Art. 22. The original draft (see note 52 supra) followed the model of ECHR Article 22, providing for a 6-year term, indefinitely renewable (Art. 5, para. 2).

85 Original draft, supra note 52, Art. 4.

84 Convention, Art. 6, para. 1. By contrast, ECHR Article 34 provides that the Commission is to take its decisions by a majority of the members present and voting. The original draft of the Convention, supra note 52, followed this model (Art. 6).

85 Convention, Art. 6, para. 2.

86 Original draft, supra note 52, Art. 8, para. 1.

87 Convention, Art. 7, para. 2. See also Explanatory Report, supra note 8, paras. 50, 52 and 53. One reason that only two Committee members are required to take part in visits is that the drafting bodies were aware of the great number of places that could potentially be visited. Figures provided to the drafting bodies indicated that the number of penal establishments alone was extremely high in the various European states: 130 in France, 166 in the Federal Republic of Germany, 240 in Italy, 83 in Spain, 150 in Switzerland, 125 in the United Kingdom and 639 in Turkey.

As regards the nationality of the two Committee members who would take part in a visit, the notion emerged during the drafting process that, if possible, one of them should have the nationality of the state to be visited. A number of drafters, as well as the NGOs consulted by the Committee of Experts, disagreed on this point, on the ground that members might prove biased or feel psychologically constrained from making a dispassionate assessment in their own country. The majority, however, took the view that the national member, in addition to knowing the language, would have firsthand knowledge of the national setting and would therefore be able to contribute to a balanced appraisal of the conditions of the place visited. The ECHR opts for this system in regard to the formation of Chambers of the Court. Article 43 of the ECHR, supra note 3, provides:

For the consideration of each case brought before it the Court shall consist of a Chamber composed of seven judges. There shall sit as an ex officio member of the Chamber the judge who is a national of any State party concerned, or, if there is none, a person of its choice who shall sit in the capacity of judge ….

88 Convention, Art. 7, para. 2; see also Explanatory Report, supra note 8, para. 51.

89 At the initial stage of the drafting process, it was suggested that the Committee should have available a “panel” of experts to draw upon on each particular occasion. However, other drafters expressed the fear that in this way a new structure would be institutionalized alongside the Committee and that the experts would be given undue weight. In their view, recourse to outside experts should be exceptional. In the end, no provision was made covering this admittedly very important issue. It is for the Committee, once established, to decide how and on what basis to draw upon experts.

90 See, however, note 87 supra.

91 Convention, Art. 14, para. 2.

92 Id., Art. 14, para. 3; and Explanatory Report, supra note 8, paras. 83–86.

93 Convention, Art. 16 and Annex.

94 Id., Art. 10, para. 1.

95 Id., Art. 11, para. 1; and Explanatory Report, supra note 8, para. 76. See also Convention, Art. 13; and Explanatory Report, para. 80.

96 Convention, Art. 12. The annual report is to be submitted to the Committee of Ministers and then transmitted to the Consultative Assembly and made public.

97 See id., Art. 8, para. 3.

98 See id., Art. 11, para. 3.

99 Id., Art. 11, para. 2; and Explanatory Report, supra note 8, para. 77.

100 Convention, Art. 10, para. 2; and Explanatory Report, supra note 8, paras. 74–75.

101 For a discussion of the rationale for, and the various methods of, international supervision, see A. Cassese, International Law in a Divided World 208–11, 304–06 and 310–11 (1986).

102 See, e.g., Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, Sept. 7, 1956, 18 UST 3201, TIAS No. 6418, 266 UNTS 3, Art. 8; Convention on the Elimination of All Forms of Racial Discrimination, supra note 1, Art. 9; the International Covenant on Civil and Political Rights, supra note 51, Art. 16; and the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200, supra note 3, Supp. (No. 16) at 49, Art. 40.

103 See, e.g., the instruments referred to in note 3 supra.

104 See, e.g., Statute of the International Atomic Energy Agency, Oct. 26, 1956, 8 UST 1093, TIAS No. 3873, 276 UNTS 3, Art. XII(A)(6); and Convention on the Establishment of a Security Control in the Field of Nuclear Energy, Dec. 20, 1957, 351 UNTS 235, Art. 5(a). Regarding inspection for the purpose of avoiding the release of excessive levels of radioactivity, see, e.g., Treaty Establishing the European Atomic Energy Community (EURATOM), Mar. 25, 1957, 298 UNTS 167, Art. 35.

105 See notes 9, 10 and 11 supra. A similar method of supervision, where the “supervisor” is not an international body but the other party or parties to the relevant treaty, is even more widely used. See, e.g., Antarctic Treaty, Dec. 1, 1959, 12 UST 794, TIAS No. 4780, 402 UNTS 71, Art. 7; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies, Jan. 27, 1967, 18 UST 2410, TIAS No. 6347, 610 UNTS 205, Art. 12; and Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles, Dec. 8, 1987, USSR-U.S., S. Treaty Doc. 11, 100th Cong., 2d Sess. (1988), reprinted in 27 ILM 90(1988), Art. 11.

106 However, as noted above (see the section “Utility Questioned” and note 34 supra), the Convention, although primarily concerned with peacetime situations, can also apply in time of war or during civil strife, to the extent that the ICRC does not “effectively” visit “on a regular basis” places where people are deprived of their liberty (see Art. 17, para. 3).

107 See Declaration on Human Rights, adopted by the Foreign Ministers of the Council of Europe on July 21, 1986, in Council of Europe, Information Sheet, No. 20, May-October 1986, at 118.

108 To highlight the importance of the Convention, one should also recall that in the course of its drafting, a number of proposals were made with a view to qualifying or seriously limiting the action of the Committee, or, more generally, to lessening the smoothness of application of the Convention in comparison to the system eventually agreed upon. Even before the actual drafting started, it was suggested that instead of working out a Convention, a simple recommendation should be adopted. The following are some of the proposals made at different stages: that the entering of reservations to the Convention be allowed; that the Committee be under the control of the Council of Europe’s Committee of Ministers; that the outside experts to be used by the Committee be proposed by the contracting states; that certain classes of national institutions be excluded from the application of the Convention; and that under certain circumstances, the contracting parties be relieved of their obligations under the Convention.