Advisory letter 02: The UN Committee against TortureFebruary 22, 2006 - nr.2
Government response Advisory letter 2
Professor Ruud F.M. Lubbers
Advisory Council for International Affairs
2500 EB The Hague
The Hague, 19 August 1999 Your ref. AIV-066/99
Dear Professor Lubbers,
Thank you for your letter of 13 July 1999. The occasion for your letter was the government's decision not to comply with a request from the UN Committee against Torture (CAT), based on the Committee's Rules of Procedure, to refrain from expelling a failed asylum seeker while the Committee was handling his complaint. I understand from your letter that you see the government's action as symptomatic of a broader trend of decreasing respect in the international community for decisions and judgments of international treaty bodies and legal institutions. As cases in point, you refer to the denunciation of human rights agreements or protocols by North Korea, Trinidad and Tobago, Jamaica and Guyana, and the refusal by the United States to abide by judgments of the International Court of Justice.
I do not agree with your view that the government's action in this CAT case is symptomatic of decreasing respect for judgments by international bodies, assuming that such a trend exists. In my view, the CAT case is not comparable to the examples you cite. This is not only because conventions and final judgments by the International Court of Justice are binding under international law, while opinions of the Committee against Torture are not. More important for the present case, the CAT's authority to ask State parties to suspend expulsion of complainants pending its proceedings is not based on the international Convention against torture and other cruel, inhuman or degrading treatment or punishment, but on the Committee's Rules of Procedure, which are not binding to the parties. States are of course free to make declarations that they consider themselves bound to do more than is obligatory under the Convention. But in fact, the Netherlands made no such declaration when it ratified the Convention against torture.
My opinion is therefore that the government's action was not in any sense an infringement of international law. While the government, in principle and in practice, prefers to comply with requests based on the CAT's Rules of Procedure, this cannot be viewed as obligatory or automatic.
On the other hand, it is conceivable that State parties could, if they refuse as a matter of principle to comply with CAT requests for interim measures, interfere with the operation of this Convention - and this Convention in particular - to such a degree that they would in fact be acting contrary to its spirit. But the Dutch government values the Convention and the individual right of petition far too highly ever to deal with them in such a rash way. As to the merits of this particular case, I refer to the government's replies to two series of questions raised in parliament by MP Femke Halsema (Green Left) on 29 January and 16 March 1999 (parliamentary papers, House of Representatives, 897 and 1207). I note in particular that the complainant's application for admission as a refugee was found to be manifestly ill-founded, even following judicial review on the basis of article 3 of the European Convention on Human Rights, which is comparable to article 3 of the Convention against torture. He was not admitted to the Netherlands, and was placed in the holding centre at Schiphol under section 7a of the Aliens Act.
These circumstances in particular led the government to make an exception to the principle of complying with CAT requests for interim measures. In my view, this action was entirely compatible with respect for international law in general and the Committee against Torture in particular.
Jozias van Aartsen
Minister of Foreign Affairs