The International Convention for the Protection of All Persons from Enforced Disappearance, which had been co-sponsored by 103 Member States, would recognize the right of persons not to be subjected to enforced disappearance, regardless of circumstances, and the right of victims to justice and reparation. It would commit States party to criminalize enforced disappearance, to bring those responsible to justice and to take preventive measures.

The representative of France, the main sponsor of the draft on the Convention, said that the instrument was an extremely important one that had been adopted by the Human Rights Council by consensus at its first session in Geneva in June. The eyes of thousands of families who had experienced the loss and forced disappearance of loved ones were now on the United Nations and the Third Committee. He noted that the Convention would be opened for signature at a ceremony in Paris in February and called upon Member States to send representatives of the highest level.

While the draft was adopted by consensus, several delegations took the floor to clarify their understandings of its provisions. The representative of the United Kingdom said that he considered that the definition of an “enforced disappearance” included several specific elements. He also understood that relevant provisions of international humanitarian law took precedence over any other provisions contained in the Convention.

The representative of the Philippines said, while the declaration was premised on the assumption that the definition of enforced disappearances extended only to States, States could still criminalize such acts in accordance with national legislation. They could also assign responsibility to their agents and to non-State actors outside of their effective control. She added that she would have preferred the Convention to reflect the reality that a significant portion of such disappearances were committed by non-State groups.

India’s representative said he was not convinced of the need for a separate Convention or the creation of a new monitoring body. An optional protocol to the International Convention on Civil and Political Rights would have been preferable. He had joined the consensus on understanding that the Convention would allow national jurisdictions to criminalize enforced disappearance in accordance with their legal systems and constitutional procedures.

The Committee today also heard the introduction of 17 draft resolutions, including texts on the elimination of racism and racial discrimination; the implementation of the Durban Programme of Action; the right of people to self-determination; the protection of migrants, and combating defamation of religions.

The representatives of Russian Federation, Belgium, South Africa, Pakistan, Cuba, Azerbaijan, Peru, Rwanda and Mexico made statements introducing the various draft resolutions.

Following the approval of the draft on the International Convention for the Protection of All Persons from Enforced Disappearance, the representatives of Canada, United States, New Zealand, Denmark, Venezuela, and Japan made statements in explanation of position.

Background

The Third Committee (Social, Humanitarian and Cultural) met today to take action on a draft resolution and to hear the introduction of 17 others.

The Committee was to take action on a draft resolution on the International Convention for the Protection of All Persons from Enforced Disappearance (document A/C.3/61/L.17), which would have the Assembly adopt the treaty and open it for signature, ratification and accession. The Assembly would recommend that the Convention be opened for signature at a signing ceremony in Paris.

The Convention recognizes the right of persons not to be subjected to enforced disappearance and the right of victims to justice and reparation. It states that no exceptional circumstances, whether a state of war, internal political instability or any public emergency, may be invoked as a justification for enforced disappearance. It would commit States, party to the Convention, to criminalize enforced disappearance; to bring those responsible to justice and to take preventive measures. The Convention also would establish a Committee on Enforced Disappearances, which would monitor the compliance of States party with their obligations under the Convention, consider individual complaints and have the power to undertake field inquiries. The Committee would have the ability to bring to the attention of the General Assembly situations of widespread and systematic practice of enforced disappearance, which the Convention notes is defined as a crime against humanity in applicable international law.

Draft resolutions to be introduced today included the following texts on: inadmissibility of certain practices that contribute to funding contemporary forms of racism, racial discrimination, xenophobia and related intolerance (document A/C.3/61/L.48), the International Convention on the Elimination of All Forms of Racial Discrimination (A/C.3/61.L.49), global efforts for the total elimination of racism, racial discrimination, xenophobia and related intolerance and the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action (document A/C.3/61/L.53), the universal realization of the right of peoples to self-determination (document A/C.3/61/L.46), and the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination (document A/C.3/61/L.50).

The Committee was also to hear the introduction of draft resolutions on missing persons (document A/C.3/61/L.19), human rights and extreme poverty (document A/C.3/61/L.21), the Subregional Centre for Human Rights and Democracy in Central Africa (document A/C.3/61/L.22), the composition of the staff of the Office of the UN High Commissioner for Human Rights (document A/C.3/61/L.23), the promotion of a democratic and equitable international order (document A/C.3/61/L.24), respect for the right to universal freedom of travel and the vital importance of family reunification (document A/C.3/61/L.26), the right to food (document A/C.3/61/L.27), combating defamation of religions (document A/C.3/61/L.28), protection of migrants (A/C.3/61/L.29), enhancement of international cooperation in the field of human rights (A/C.3/61/L.33), the right to development (A/C.3/61/L.34) and human rights and unilateral coercive measures (A/C.3/61/L.35).

Action on Resolution

The Secretary of the Committee read an oral statement regarding the draft resolution on the International Convention for the Protection of All Persons from Forced Disappearance (document A/C.3/61/L.17) concerning its financial implications. Subject to the priority that Member States gave to the speedy entry into force of the Convention, it was possible to envisage its entry into force during the biennium 2008-2009, with a total net estimated biennial requirement of $1,880,000.

The representative of France recalled that the Convention, an extremely important international instrument, had been adopted by the Human Rights Council by consensus. The eyes of thousands of families, who had experienced the loss and forced disappearance of loved ones, were now on the United Nations and the Third Committee. It was hoped that, subject to the resolution’s adoption by the General Assembly, the convention would be opened for signing at a ceremony in Paris on 6 February 2007.

The representative of China drew attention to technical errors in the Chinese translation of the draft; Chinese numbering, for instance, had not been used. If not corrected in a timely fashion, the errors would affect the Convention’s ratification and implementation in China. The Chinese delegation had presented the Secretariat with a revised version, in the form of a note-verbal, and it was on that basis that it would join consensus.

The Secretary took note of the Chinese statement and confirmed that the note-verbal would be transmitted to the appropriate competent services.

The Committee then adopted the draft by consensus. A number of delegations applauded.

Statements After Approval of Draft

Speaking after adoption, the representative of Canada said his country had long been committed to combating enforced disappearances and had actively participated in negotiating the Convention. It would have preferred for monitoring to have been allocated to the Human Rights Council, but it would join consensus. He went on to set out a number of statements of understanding that he asked to be placed on the official record. It was hoped that the Convention would contribute to preventing enforced disappearances and to ending impunity for such a grave human rights violation.

The representative of the United States said that his country, as an active participant of the Working Group on the Convention, had already provided its understanding on a number of core issues. Those had been set out in its statement presented to the Human Rights Council in June (document A/HRC/1/G/1), which it asked to be made part of the official record of the General Assembly.

The representative of India said his country was not convinced about the need for a separate Convention or the creation of a new monitoring body; an optional protocol to the International Convention on Civil and Political Rights would have been preferable. Certain drawbacks remained in the text; for instance, it would have been preferable if “intent” had been more clearly incorporated in the definition of “enforced disappearance.” Nevertheless, India would join consensus on the understanding that the Convention would allow national jurisdictions to criminalize enforced disappearance in accordance with their legal systems and constitutional procedures and on the understanding that the Indian judiciary and the National Human Rights Commission of India regularly granted remedy and compensation to victims of human rights abuses.

The representative of the United Kingdom said that he wished to place on record several understandings on certain provisions of the draft instrument. He considered that the definition of an enforced disappearance, in article 2, comprised the following elements; an arrest, detention, abduction or any other form of deprivation of liberty; that such acts were committed by agents of the State or by persons or groups acting with the authorization, support or acquiescence of the State; that the act was followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person; and that the disappeared person was placed outside the protection of the law, i.e., that the person’s deprivation of liberty or detention was not within the scope of relevant domestic legal rules, or that those rules were not compatible with applicable international law.

He said that he understood that article 20 applied to all situations where a person was not “outside the law” but within the State’s domestic legal rules governing deprivation of liberty or detention. It was understood that article 43 operated as a “savings clause” in order to ensure that the relevant provisions of international humanitarian law took precedence over any other provisions contained in the Convention. In relation to article 25(4), it was understood that the article did not entail an obligation to provide a legal procedure, which would lead to an automatic review of the adoption, nor did it require the automatic annulment of an adoption, which stemmed from an enforced disappearance. He interpreted the article to require States parties to have a procedure or procedures providing a possibility to apply for a review of an adoption covered by the article. Whether a review or annulment was ordered would be an issue to be determined, according to the applicable legal procedures in the State concerned.

The representative of the Philippines said the Convention represented a significant development in humanitarian law, responding to substantial gap. While the declaration was premised on the assumption that the definition of enforced disappearances extended only to States, States could still criminalize such acts in accordance with national legislation. They could also assign responsibility to their agents and to non-State actors outside of their effective control. Her interpretation did not derogate the responsibility to protect from the State. She would have liked to see the Convention reflect the reality that a significant portion of such disappearances were committed by non-State groups. Her support assumed that for liability under command responsibility to exist, all elements in section 1(d) of article 6 must concur.

The representative of New Zealand said that she had supported the draft instrument on the basis of several understandings. New Zealand interpreted the relevant principles of international law contained in the Convention consistently with established international law, both customary law and law contained in major international instruments to which it was party, including the Rome Statute of the International Criminal Court. It was her country’s understanding that nothing in the Convention should be seen to undercut or reinterpret already existing international law. In article 5, the definition of enforced disappearance as a crime against humanity differed from established international law. New Zealand would interpret the article consistently with its understanding of already existing international law.

Despite language, which again differed from established international law on command responsibility of civilian superiors and military commanders, article 6 could be read consistently with that law. It was regrettable that there were no specific provisions setting out standards of responsibility relating to military commanders. New Zealand understood the clause in article 6(2) as acknowledging the higher standard of responsibility applicable to military commanders under existing international law and as applying those standards to military commanders also in respect to acts of enforced disappearance.

The representative of Denmark said he was not sure if his country could ratify the Convention. It must first analyse the connection between the Convention and article 3 of the European Convention On Human Rights.

The representative of Venezuela said he welcomed the adoption of the draft. Venezuela was party to the Inter-American Convention on Enforced Disappearances. Family members of the victims remembered the enforced disappearances of their loved ones and wanted to do everything possible to do away with the abominable crime. It was a shameful violation of human rights, so Venezuela was committed to eliminating the abominable crime, as well as other crimes that accompanied it. In 2005 it had set up a special commission to investigate the murder, torture, and disappearance of Venezuelans in the 1960s, 1970s and 1980s during the rule of a regime that was democratic in name only. He called for universal respect for all human rights on the historic occasion of the adoption of the Convention.

Japan’s representative said she associated herself with the United Kingdom’s interpretation of “enforced disappearance” as consisting of four elements. No one should be subjected to enforced disappearances, and adopting the convention should not be an end but a beginning. She hoped that all people subjected to such disappearances would be released and returned to their families.

The representative of France thanked Member States for adopting the Convention by consensus. He had deep feelings for the mothers of the victims of enforced disappearances in Argentina. He thanked non-governmental organizations for their help, and offered special thanks to the International Committee of the Red Cross. He requested that Member States be represented at the highest level for the Convention signing on 6 February 2007.