UN Subcommittee

The Perils of Overthinking Prevention

This past week the Chair of the UN Subcommittee on Prevention of Torture warned us of the danger of overthinking. While such advice might seem somewhat unconventional coming from an internationally respected law academic such as Sir Professor Malcolm Evans, he might just have a point.

Speaking before the UN Third Committee on 15 October 2020 during the 75th session of the UN General Assembly, the UN Subcommittee on Prevention of Torture Chairperson ventured the following in relation to states overthinking the task of putting in place a National Preventive Mechanism:

“What are the real hurdles? … it can be a complex matter, particularly in federal countries … but perhaps surprisingly what I find has been the most difficult barrier is that some states try to overthink what is necessary, making it seem more complicated to establish the mechanism than is in fact the case.”

‘Do not overthink it’, Sir Professor Malcolm Evans informs the UN Third Committee.

“I am not ignorant of the legislative and organizational complexities of doing it, but it is actually not as difficult to put something in place as some seem to think. And so, I think, again drawing on our experience and willingness to engage, not overthinking the complexities, and just seeing it as something that is, if 68 countries around the world have achieved it, the others can.”

Readers can find the link to the full presentation to the UN Third Committee below.

Canada’s commonly cited default-position is that its federal structure makes the implementation of international human rights instrument significantly more difficult, a point not without some resonance. Meanwhile, and somewhat paradoxically, UN treaty bodies frequently haul Canada over the coals for failing to put in place an effective coordination mechanism, or other arrangement, at the domestic level to ensure the compliance of ratified instruments in practice.

Just cast a glance at the recent Concluding Observations of the UNCERD from 2017 (§7-8), UNCEDAW from 2016 (§10-11) and UNCESC from 2016 (§5-8) to see a selection of such comments. UN special procedures have similarly advanced recommendations in this same direction. In short, a standard refrain of the UN system is that Canada has no effective domestic structure to ensure follow-up to key UN treaty body recommendations.

For a resource-blessed country like Canada, there is no plausible defence against this entirely reasonable charge. The country cannot have it both ways, one might argue, namely claiming federalism as a reason for hindering the adherence to international human rights instruments, but then failing to ensure their effective implementation, once ratified, in practice.

Overthinking = indecision 🙂 – Rori D (2014).

Returning to the OPCAT, of the current 90 OPCAT States Parties, 68 States Parties have instituted NPMs. Of the 90 states, 12 are either federal states or are characterized by devolved political power, such as Spain and the United Kingdom for example.

The latter is an exceptional case in point. With four country jurisdictions, the UK’s 21-body hydra NPM structure has recently celebrated 10 years of operation. Equally, Australia, which ratified the OPCAT in 2017, is in the process of putting in place its NPM. Switzerland, a 26-canton structured federal state, succeeded in instituting in practice its Commission nationale de prévention de la torture in 2010, while Austria’s OPCAT mechanism, which sits within the country’s Volksanwaltschaft or Ombudsman, was forged through close civil society engagement and has been operational since 2012.

As a federal state, is OPCAT ratification too great a challenge for Canada? Is Canada in fact overthinking the task ahead? Might the same ring true for Canada’s other federal bedfellows which have not yet ratified the instrument?

Not all federal states have made the OPCAT leap, of course, including Canada, Ethiopia, India, Malaysia, Pakistan, Russia, United Arab Emirates, USA and Venezuela, few of which have stellar human rights track-records.

Indeed, if Canada is overthinking the imagined perils of OPCAT ratification, it is doing so behind tightly shut doors. More likely, Canada has probably not ‘overthought’ the OPCAT for quite some time, so far and quickly this human rights commitment seems to have fallen down the federal government’s list of human rights priorities.

Yet imagine if it had? Just imagine. The possibilities are endless. The Canada OPCAT Project has advanced its vision of a potential NPM, but there are certainly other views.

With a re-energized approach to OPCAT ratification domestically, no doubt the UN Subcommittee Chairperson, Malcolm Evans, and his 24 colleagues would be eagerly waiting in the wings ready to help Canada not to overthink this challenge, at least no more than absolutely necessary.

After all, while there may be dangers associated with overthinking things, there are arguably even greater human rights perils in doing absolutely nothing at all.

Watch the presentation of Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, to the UN Third Committee on 15 October 2020. The above quoted excerpt can be followed at the 46.35 – 47.55 minute marks.

Read other UN Subcommittee-related articles, including If the UN Subcommittee Ever Came to visit Canada, Does This Sound Vaguely Familiar, and SPT Healthcare Checklist for NPMs.

Learn more about the recent presentation to the UN Third Committee by UN Independent Expert on the Rights of Older Persons.

Posted by mp in Canada, OPCAT, SPT, UN Subcommittee

Canada & OPCAT Ratification – Does This Sound Vaguely Familiar?

“The OPCAT has now been ratified by 90 countries from all regions of the world, with Iceland and South Africa joining the OPCAT system so far this year. This is an impressive number but there are still a considerable number of states parties to the Convention against Torture which have not yet done so. All States Parties to the Convention against Torture are already bound to take preventive measures by virtue of article 2 of that Convention, and it has been the longstanding position of the SPT that that obligation is best fulfilled through ratification of the OPCAT, which is entirely focussed on effective prevention. Numerous states have undertaken to do so during the course of their Universal Periodic Reviews by the Human Rights Council: but these commitments sometimes seem to be swiftly made, but slowly fulfilled. The SPT hopes that the rate of growth in participation will quicken in the coming months as more states seek to honour their commitments to ratify.”

Statement by Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, to the 74th session of the General Assembly Third Committee in New York on 14 October 2019.

Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, presents to the Third Committee of the UN General Assembly, 14 October 2019, in New York. Image copyright of UN Web TV.

If one reflects that over the years – many years – there have been repeated past high-profile statements (like the above) by Canada purporting to commit to the country’s potential ratification of OPCAT, then the overall lack of progress of the North American state to make good on such pledges (both to the UN Human Rights Council as well as other key UN bodies) is unquestionably disappointing.

Astonishingly, Canada first used the pledge of OPCAT ratification during its candidacy for membership of the UN Human Rights Council as far back as 2006, a pledge unfulfilled to the present day.

During its first Universal Periodic Review (UPR) by the Human Rights Council in February 2009 Canada accepted the recommendation to possibly ratify the OPCAT. During its second UPR cycle in April 2013 Canada once again accepted in principle the recommendation to do so, even though it stated that at the time it had no plan to ratify the instrument. Nonetheless, Canada did not reject the recommendation outright at that time.

As recently as May 2018, during Canada’s third-cycle UPR by the UN Human Rights Council, some 27 countries urged Canada to either ratify the OPCAT or consider the ratification of the instrument. During this review Canada repeated its position that it was “… considering becoming a party to the Optional Protocol to the UN Convention against Torture, as well as options to implement that instrument.”

Immigration detention
Palais des Nations, Geneva by UN Photo/Jean-Marc Ferre.

Canada reported back to the Human Rights Council during its 39th Session on 21 September 2018, stating that it had indeed accepted the recommendation to consider ratification of the OPCAT. Again.

Since 2018, no shortage of UN experts have urged Canada to advance and expedite the OPCAT ratification process, as highlighted on this website. Yet, disappointingly, little tangible progress has seemingly been made in practice to do so. The complete lack of transparency and publicly available information about any domestic process has further obfuscated the issue. Simply put, Canadian civil society remains well and truly in the dark about what is and what is not being done by Canada to make good on its UPR pledges.

In view of Canada’s (to put it kindly) patchy OPCAT track-record one cannot escape the distinct feeling that – to paraphrase Sir Professor Malcolm Evans above – OPCAT commitments have been swiftly made, but slowly fulfilled. Very, very slowly…

Sir Professor Malcolm Evans was joined by the UN Special Rapporteur on torture, Nils Melzer, and the Chairperson of the UN Committee against Torture, Jens Modvig, during the UN Third Committee session.

You can read Professor Evans’ full written statement to the UN Third Committee here or watch it on demand at around the 38-minute mark.

Watch the three torture prevention experts present their respective reports to the Third Committee of the UN General Assembly on 14 October 2019.

In addition, readers might wish to watch the ‘Prevention of Torture Press Conference’ from 15 October 2019.

Posted by mp in OPCAT, Ratification, SPT, UN Subcommittee

COPCAT Shorts – UN Prevention of Torture Press Conference

“Of course, none of this is possible [torture prevention efforts at the national level] if it is not properly supported, and so it is a matter of great concern to us that the current financial problems that are affecting the UN system that … our final visits of this year have had to be called off for financial reasons. This has never happened to us before and we hope that it never happens again, because we, like my colleagues, are working to secure the interests of some of the most vulnerable in our societies and it is absolutely imperative that that work should continue.”

Screenshot from the Prevention of Torture Press Conference – copyright UN Web TV.

Sir Professor Malcolm Evans, Chairperson of the UN Subcommittee on Prevention of Torture, speaking at the UN Prevention of Torture Press Conference, New York, 15 October 2019.

Watch the full Prevention of Torture Press Conference here.

The above quotation excerpt begins at around the 15-minute mark.

Sir Professor Malcolm Evans was joined by the UN Special Rapporteur on torture, Nils Melzer, and the Chairperson of the UN Committee against Torture, Jens Modvig, at the UN Prevention of Torture Press Conference.

Watch the three torture prevention experts present their respective reports to the Third Committee of the UN General Assembly on 14 October 2019.

Listen to an audio interview with Sir Professor Malcolm Evans on what routinely happens during a UN Subcommittee on Prevention of Torture visit to a country.

Watch a short video about the UN Subcommittee on Prevention of Torture.

The Canada OPCAT Project signs up to a CSO petition against UN cuts to the treaty bodies.

Posted by mp in SPT, UN Special Rapporteur on Torture, UN Subcommittee, UNCAT

If the UN Subcommittee on Prevention of Torture ever came to visit Canada…

This past week or so the UN Subcommittee on Prevention of Torture publicly stated that it would visit Australia, as one of six countries which the UN Subcommittee will visit in the coming months.

In a statement released on 1 July 2019 the UN SPT announced that Australia, Croatia, Lebanon, Madagascar, Nauru and Paraguay would comprise its future country visits.

challenge ahead
Prisons by -JvL- 2012

Like all current 90 States Parties to the OPCAT, Australia agreed to permit visits by this international body of 25 torture-prevention experts, after it ratified the instrument in December 2017.

Australia is also presently in the process of instituting a National Preventive Mechanism.

But what if Canada had also ratified the instrument? What might happen during a UN Subcommittee country visit? Where would it visit and with whom would it engage?

On 9 July the UN Subcommittee Chairperson, Professor Sir Malcolm Evans, was interviewed on Australia’s Radio National (RN) to explain the scope and form of such a country visit.

Listen to RN radio host Hamish Macdonald’s interview the UN SPT Chairperson, Professor Malcolm Evans, on the ins-and-outs of such a visit.

Read more about Australia’s path to OPCAT ratification.

Learn more about the role of civil society in the ratification process.

Read other recent academic articles on the implementation of the instrument in Australia.

Many thanks to Josef Szwarc for the above information.

Posted by mp in Australia, UN Subcommittee

Academic News & Views: Civil Society & the OPCAT

It has for several years been recognized that civil society has an invaluable role to play in relation to the OPCAT, including its promotion and implementation. At the highest international level, for example, the UN Subcommittee on Prevention of Torture stated as long ago as 2010 that a country’s NPM “… should be identified by an open, transparent and inclusive process which involves a wide range of stakeholders, including civil society.” It has since elaborated on this position.

In a bang-up-to-date May 2019 article titled Involving civil society in preventing ill-treatment in detention: maximising OPCAT’s opportunity for Australia, Rebecca Minty explores the role of the third section both in relation to promoting the ratification of instrument as well as to its implementation in practice. The lessons for Canada are unquestionably several, more so regarding the potential role of civil society in promoting the OPCAT as an instrument at the domestic level.

OPCAT campaign images
‘Ratify OPCAT’ campaign image by the Australian Lawyers for Human Rights.

Rebecca Minty’s excellent new paper appears among the current series of articles which comprise the Australian Journal of Human Rights’ Special Issue on the OPCAT, previously highlighted on this website.

In the article the author skilfully draws on the existing academic literature as well as international practice vis-à-vis civil society’s role and the OPCAT, hinging her discussion on Australia’s on-going attempts to institute an NPM (resulting from its December 2017 ratification of the OPCAT). In doing so, she advances at the outset of the paper a very informative account of the role of Australian civil society with respect to the promotion of the OPCAT in the country, noting:

“Prior to ratification, Australian civil society and the Australian Human Rights Commission (AHRC) had been calling for OPCAT ratification for a decade, in a range of advocacy settings. Internationally, CSOs made statements to the UN Human Rights Council as part of the Universal Periodic Review and recommended OPCAT ratification in alternative reports to the UN treaty bodies, including the Committee Against Torture.” (3)

Canadian civil society organizations have placed similar recommendations before the UN human rights machinery, spanning a period of many years. The November 2018 examination of Canada by the UN Committee against Torture and the presentation of a dozen or so shadow-reports is an illustrative, more recent case in point. Previously, different Canadian actors had also done so with regard to the UN Human Rights Committee and UN Human Rights Council.

Campaign Images
‘Ratify OPCAT’ campaign image.

Where the Australian advocacy context has been different to the Canadian landscape lies in Rebecca Minty’s next point, namely the establishment in 2015 of the Australian OPCAT Network (AON), an informal grouping of academics, non-government organizations and interested individuals. According to the author, the AON:

“… was formed to raise awareness about the benefits of OPCAT and advocate for its ratification. The AON wrote joint advocacy letters and submissions, conducted national teleconferences to share information, and organised symposiums and seminars on OPCAT. Various CSOs provided submissions to national inquiries and consultations, including the National Children’s Commissioner’s 2016 Children’s Rights Report and the Federal Human Rights Commissioner’s 2017 OPCAT consultation.”(3)  

The progressive, open and inclusive nature of Australia’s OPCAT consultation process has previously been commented on and commended in these pages, despite its limitations in the eyes of some commentators. Nonetheless, Australian civil society clearly made its own luck in this matter by proactively collectively organizing to embrace the task of promoting the instrument.

Could Canadian civil society actors follow the tack of their Australian human rights colleagues? There exists absolutely no compelling reason why not – providing sufficient interest and will exists to do so.

Domestic drivers

Interestingly, however, in the view of Rebecca Minty domestic circumstances also played in civil society’s favour when promoting the merits of the instrument. More specifically, two noteworthy events preceded the ratification of the OPCAT which provided an opportunity for Australian civil society to engage in more targeted and strategic advocacy.

These events included Australia’s candidacy for a seat on the UN Human Rights Council in 2018-2020 which resulted in an OPCAT ratification pledge, as well as the appalling Don Dale Detention Centre scandal which made for damaging international news headlines. It was therefore not by accident that the images of abuse at the Don Dale detention facility in the Northern Territory were utilized as part of national-level OPCAT campaign. In this latter regard Rebecca Minty commented:

“The release of shocking footage in 2016 of ill-treatment of young people in Don Dale Detention Centre in the Northern Territory, including the use of tear gas and spits hoods, was cited as an example of the need for more comprehensive oversight of closed environments, specifically OPCAT-style monitoring. Australia was elected to the Human Rights Council in October 2017, and OPCAT ratification followed two months later, with Australia making a declaration under Art 24 to delay the obligation to establish or designate its NPM for three years.” (3)

OPCAT Campaign Images
‘Ratify OPCAT’ campaign image.

From the above, various relevant lessons can be drawn for the Canadian context, not least the utmost importance of strong civil society cooperation. Moreover, while one would never wish for a national prison scandal to be the central driver for OPCAT ratification in Canada, domestic penal controversies have sadly been the forces to engender long-overdue change in decades gone by.

Wider OPCAT lessons for civil society involvement

While the OPCAT promotional dimension of Rebecca Minty’s article may be highly relevant for the Canadian context, readers should not lose sight of its wider lessons. More generally, the overall thrust of the piece is very valuable in that it sets out in detail how Australian civil society actors are engaging with the fundamental question of how to put in place an NPM.

Furthermore, the writer also casts her gaze more widely, illustrating through various international examples how civil society in different national contexts is engaging with the OPCAT. Such engagement involves both formal and informal participation in NPM-related activities from undertaking actual monitoring to playing a vital NPM watchdog role.

A very useful selection of country examples are highlighted under these different categories from national contexts as diverse as Austria, Denmark, New Zealand, Norway, Slovenia, Spain, and the United Kingdom. In a nutshell, the article gives us a great deal to reflect on regarding the potential involvement of civil society in the wider OPCAT framework.

Campaign images
‘Ratify OPCAT’ campaign image.

In the final part of her article Rebecca Minty looks ahead, mapping the challenges and opportunities for effective civil society engagement with OPCAT in Australia. Such challenges and opportunities include the raising of awareness amongst civil society groups about OPCAT and its preventive approach, their role in the designation process of the future NPM, and the all-important process of building an OPCAT system from the ground up in the country. The author concludes on a positive note, namely:

“There is a range of potential roles that civil society can play in relation to OPCAT implementation in Australia, including formal or informal partnerships with NPMs, or a watchdog role. Case studies from other OPCAT State Parties provide a sound basis for Australia to draw from and develop its own innovative approaches to preventing ill treatment. However, to fully realise this potential, further work is needed across all Australian jurisdictions to raise awareness amongst detaining authorities, potential NPMs and within civil society itself about civil society’s value add. As part of an expanding global framework, there is cause for optimism that the gathering momentum for prevention in Australia will continue to grow.” (18)

It can only be hoped that Canadian civil society actors can succeed in emulating some of these same OPCAT practices at the national level.

Thanks for reading.

Many thanks to Steven Caruana for his generosity in relation to this post.

The above article was published in the current issue of the Australian Journal of Human Rights in May 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights, including on immigration detention and the OPCAT and on the New Zealand NPM.

Posted by mp in Australia, Civil society, NPMs, OPCAT, UN Subcommittee

COPCAT Shorts – A Dialogical Dead-End & Abandonment of Torture Prevention?

“Distressingly, and as foreseen, 2018 saw a decline in the number of visits undertaken by the Subcommittee. This diminution in productivity is not for the want of dedication, but for the lack of human resources provided to the Subcommittee by the United Nations to allow it to undertake its work as mandated by the Optional Protocol to the Convention against Torture.”

“The Subcommittee believes that in many parts of the world there appears to be backward movement concerning commitments to the prevention of torture and ill-treatment. This is not only reflected in the reports of various organizations and groups; it is reflected also in the lived reality of the Subcommittee: too many States parties appear to have resiled from their enthusiasm and commitment to torture prevention, by challenging the mandate of the Subcommittee and not establishing and supporting national preventive mechanisms as the Optional Protocol envisages.”

Subcommittee concern
Winter scenes in the Ariana Park (2012) – UN Photo/Jean-Marc Ferre

“In its work, the Subcommittee hears much rhetoric that does not reflect reality. The Subcommittee understands this, and why this is so often the case. The Subcommittee is committed to working with States parties to change those realities and close that “reality gap” – in confidence and with understanding and sensitivity. At the same time, the Subcommittee’s overriding priority must be the victims of torture and ill-treatment. The Subcommittee was not created, or the Optional Protocol adopted, to provide a “dialogical dead end” down which the interests of the most vulnerable and most imperilled of those in detention can be forgotten.”

Twelfth annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UN Doc. CAT/C/66/2, 13 March 2019) § 49, 52-53.

Read the UN SPT’s 12th Annual Report in English.

See the Statement of SPT Chair, Professor Malcolm Evans, to the UN General Assembly Third Committee in October 2018.

Explore key UN SPT documents and other reports on the OPCAT and NPMs.

Posted by mp in NPMs, SPT, UN Subcommittee

Yet Another Canadian Free UN Expert Body

A leading United Nations human rights expert body will regrettably remain Canadian free for at least another two years after Thursday’s elections in Geneva, Switzerland.

The vote on more than half the membership of the 25-person UN Subcommittee on Prevention of Torture was once again notable through the absence of any Canadian candidates for this esteemed multi-national UN body.

Canadian free

Nations Unies by MPDO1605 (2008)

The outcome of the tightly contested ballot was announced on 25 October, resulting in the election and re-election of some excellent human rights experts.

Due to Canada not being a State Party to the OPCAT, the country had neither the possibility of putting forward a Canadian candidate, nor the right to cast a vote to determine the composition of the UN’s largest human rights treaty body.

With a vitally important human rights role to play in the global fight against torture, the UN Subcommittee might have benefited significantly from Canadian human rights expertise, which unquestionably exists in abundance in the country. Moreover, in the light of the fact that Canadian experts occupy just one out of 162 seats which comprise the 10 existing UN treaty bodies, Canada’s potentially sizeable human rights role on the international stage remains surprisingly diminished.

Even so, if Canada acted on its OPCAT pledge and swiftly moved forward with the ratification of the instrument, Canada would be strategically placed to advance a Canadian candidate for the next SPT elections due in 2020.

By doing so, the very positive influence of Canada’s accession to the instrument might equally be felt inside the country as well as out.

For readers who are unsure how the UN treaty bodies operate in practice, please watch the short animation below.


Posted by mp in OPCAT, SPT, UN Subcommittee