AUSTRALIA

CAT

OBJECTIONS MADE TO OTHER STATES PARTIES RESERVATIONS AND DECLARATIONS

(Ed. note: for the text targeted by the following objections, see the Reservations and Declarations of the State which is the subject of the objection)

28 June 2011

With regard to the reservations made by Pakistan upon ratification:

"The Government of Australia has examined the reservation made by The Islamic Republic of Pakistan to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and now hereby objects to the same for and on behalf of Australia:

The Government of Australia considers that the reservations by the Islamic Republic of Pakistan are incompatible with the object and purpose of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention).

The Government of Australia recalls that, according to customary international law as codified in the Vienna Convention on the Law of Treaties, a reservation incompatible with the object and purpose of a treaty is not permitted.

It is in the common interest of States that treaties to which they have chosen to become party are respected, as to their object and purpose, by all parties and that States are prepared to undertake any legislative changes necessary to comply with their obligations under the treaties.

Furthermore, the Government of Australia considers that The Islamic Republic of Pakistan, through its reservations, is purporting to make the application of the Convention subject to the provisions of general domestic law in force in The Islamic Republic of Pakistan. As a result, it is unclear to what extent The Islamic Republic of Pakistan considers itself bound by the obligations of the Convention and therefore raises concerns as to the commitment of The Islamic Republic of Pakistan to the object and purpose of the Convention.

The Government of Australia considers that the reservations to the Convention are subject to the general principle of treaty interpretation, pursuant to Article 27 of the Vienna Convention of the Law of Treaties, according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

For the above reasons, the Government of Australia objects to the aforesaid reservations made by The Islamic Republic of Pakistan to the Convention and expresses the hope that the Islamic Republic of Pakistan will withdraw its reservations.

This objection shall not preclude the entry into force of the Convention between Australia and The Islamic Republic of Pakistan."

*****

Note

The German Democratic Republic had signed and ratified the Convention on 7 April 1986 and 9 September 1987, respectively, with the following reservations and declaration:

Reservations:

The German Democratic Republic declares in accordance with article 28, paragraph 1 of the Convention that it does not recognize the competence of the Committee provided for in article 20.

The German Democratic Republic declares in accordance with article 30, paragraph 2 of the Convention that it does not consider itself bound by paragraph 1 of this article.

Declaration:

The German Democratic Republic declares that it will bear its share only of those expenses in accordance with article 17, paragraph 7, and article 18, paragraph 5, of the Convention arising from activities under the competence of the Committee as recognized by the German Democratic Republic.

...

...[T]he Secretary-General has received from the following States, objections to the declaration made by the German Democratic Republic, on the dates indicated hereinafter:

...

Australia (8 August 1989):

"The Government of Australia considers that this declaration is incompatible with the object and purpose of the Convention and, accordingly, hereby conveys Australia's objection to the declaration."

...

Subsequently, in a communication received on 13 September 1990, the Government of the German Democratic Republic notified the Secretary-General that it had decided to withdraw the reservations, made upon ratification, to articles 17 (7), 18 (5), 20 and 30 (1) of the Convention.

...

(Note 3, Chapter IV.9, Multilateral Treaties Deposited with the Secretary-General)

*****

Note

In a communication received on 7 September 1990, the Government of Chile notified the Secretary-General that it had decided to withdraw the declaration made by virtue of article 28 (1) upon signature and confirmed upon ratification by which the Government did not recognize the competence of the Committee against torture as defined by article 20 of the Convention. The Government of Chile further decided to withdraw the following reservations, made upon ratification, to article 2 (3) and article 3, of the Convention:

(a) [To] Article 2, paragraph 3, in so far as it modifies the principle of "obedience upon reiteration" contained in Chilean domestic law. The Government of Chile will apply the provisions of that international norm to subordinate personnel governed by the Code of Military Justice, provided that the order patently intended to lead to perpetration of the acts referred to in article 1 is not insisted on by the superior officer after being challenged by his subordinate.

(b) Article 3, by reason of the discretionary and subjective nature of the terms in which it is drafted.

It will be recalled that the Secretary-General had received various objections to the said declarations from the following States on the dates indicated hereinafter:

...

Australia (7 November 1989):

"[The Government of Australia] has come to the conclusion that these reservations are incompatible with the object and purpose of the Convention and therefore are impermissible according to article 19 of the Vienna Convention on the Law of Treaties. The Government of Australia therefore objects to these reservations. This objection does not have the effect of preventing the Convention from entering into force between Australia and Chile, and the afore-mentioned reservations cannot alter or modify, in any respect, the obligations arising from the Convention."

...

Further, in a communication received on 3 September 1999, the Government of Chile withdrew the following reservation made upon ratification:

The Government of Chile will not consider itself bound by the provisions of article 30, paragraph 1 of the Convention.

(Note 17, Chapter IV.9, Multilateral Treaties Deposited with the Secretary-General)

DECLARATIONS RE: ARTICLES 21 AND 22

28 January 1993

"The Government of Australia hereby declares that it recognises, for and on behalf of Australia, the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the aforesaid Convention; and

The Government of Australia hereby declares that it recognises, for and on behalf of Australia, the competence of the Committee to receive and consider communications from or on behalf of individuals subject to Australia's jurisdiction who claim to be victims of a violation by a State Party of the provisions of the aforesaid Convention."