Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

76. Telegram From the Mission to the United Nations to the Department of State¹

New York, December 20, 1984, 2211Z

3763. Department please pass to all other diplomatic posts. Subject: 39th UNGA: Adoption of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Agenda Item 99). Ref: (A) USUN 3408, (B) USUN 3546, (C) State 248102.²

1. (C) Summary and action requested: On December 10, 1984 (Human Rights Day), the UN General Assembly decided by consensus to adopt and open for signature a convention against torture and other cruel, inhuman or degrading treatment or punishment. The final text of the convention is identical to the draft convention submitted by the UN Commission on Human Rights (UNHRC) following seven years of negotiations, except for revisions to Articles 19 and 20 (concerning implementation) and a new Article 28 which expressly provides that states can make reservations about Article 20 at the time of ratification.³

2. (C) While USUN regrets the concessions which were considered necessary by the main proponents of the convention, which weaken its implementation mechanism, we regard the consensus adoption of the convention (following informal consultations under Dutch Chairmanship) as a major achievement of the 39th UNGA. Proponents of the convention achieved a key objective by avoiding the creation of a formal UNGA working group, sought by convention opponents such as the USSR, which would have been likely to bury the draft convention for several years and finally to produce a significantly inferior text. As adopted, the convention provides for a system of universal criminal jurisdiction in cases of torture and it establishes an expert committee against torture to monitor implementation of the convention by states parties. In Article 20, it includes the most far-reaching mandatory implementation mechanism which is an integral part of any international human rights instrument; this represents a small but significant step forward in the development of international human rights law. USUN expresses appreciation to all posts which contributed to greater international awareness of and support for the convention through pre-UNGA démarches and other approaches to host governments. The Department is requested to explore the possibility of signing the convention and submitting it to the Senate for advice and consent to ratification at an early date (action request in para 9). Text of U.S. explanation of vote appears in para 10. End summary.

3. (U) UNGA plenary approved a draft resolution by consensus on December 10, 1984 to adopt and open for signature a convention against torture and other cruel, inhuman or degrading treatment or punishment (Agenda Item 99). Adoption of the convention capped seven years of negotiations in the UNHRC, as well as informal consultations at the 39th UNGA under the chairmanship of the Netherlands delegation (Alphons Hamer), and it reflected a final compromise worked out between proponents of the convention and the Soviet Union in the Third Committee on December 5.⁴

4. (U) Essentially, the compromise involves two matters of substance. A revision to Article 19 of the convention will limit the mandate of the newly created Committee Against Torture to making “general comments on the report” submitted to it by each state party, instead of making “comments or suggestions” as stipulated in the UNHRC draft. A new Article 28 will allow states to make a reservation at the time of ratification to the effect that they do not recognize the competence of the Committee Against Torture to initiate its own inquiries whenever it receives “reliable information which appears to it to contain

[Omitted here are excerpts from and analysis of the Convention Against Torture.]

9. (C) Action requested: The new convention will enter into force when it has been ratified by 20 states. USUN believes that there would be significant advantages to ratifying the convention before it enters into force, so that the U.S. will have a voice in development of the machinery and a vote in the first election to the Committee Against Torture. We fully appreciate that the Department and other relevant executive departments will need to review the final text of the convention before deciding whether to sign it and seek ratification. However, we note that both Houses of Congress unanimously expressed general support for the draft convention in a joint resolution which was signed by the President on October 4, 1984 (Public Law 98–447). The Department is requested to consider the possibility of signing the Convention Against Torture and submitting it to the Senate for advice and consent to ratification at an early date. End comment and action request.

[Omitted here is a public statement from Schifter.]

Kirkpatrick

1. Source: Department of State, Central Foreign Policy File, D840815–0661. Confidential. Sent for information to Bangkok, Buenos Aires, Cairo, Dakar, Freetown, Geneva, Jakarta, Monrovia, Nairobi, Nassau, Stockholm, The Hague, and Yaounde.
2. In telegram 3408 from New York, November 27, USUN summarized the draft convention as well as Soviet strategy regarding the draft convention. (Department of State, Central Foreign Policy File, D840757–0727) In telegram 3546 from New York, December 4, USUN reported on the upcoming vote on the draft convention. (Department of State, Central Foreign Policy File, D840775–0668) Telegram 248102 to multiple recipients, August 2, was not found.
3. In telegram 199267 to multiple recipients, July 6, the Department asked the Embassies to lobby their host governments in favor of the convention. (Department of State, Central Foreign Policy File, D840433–1009)
4. In telegram 3725 from New York, December 19, USUN reported that the convention was approved without a vote as part of a compromise with the Soviets. (Department of State, Central Foreign Policy File, D840809–0719)