Report No. 273

Chapter - II

International Scenario

A. Human Rights Instruments

2.1 The right to freedom from torture is enshrined in number of human rights instruments which provide for protection of all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, such as to obtain information. The prohibition of torture and other cruel, inhuman or degrading treatment is enshrined in the following regional and universal human rights instruments:15

(i) Universal Declaration of Human Rights, 1948 (Art. 5)

(ii) American Declaration of the Rights and Duties of Man, 1948 (Art. 27)

(iii) European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (Art. 3)

(iv) United Nations Convention Relating to the Status of Refugees, 1951

(v) United Nations Standard Minimum Rules for the Treatment of Prisoners, 1955 (Art. 31)

(vi) Draft Principles on Freedom from Arbitrary Arrest, Detention and Exile (1963).

(vii) International Convention on the Elimination of All forms of Racial Discrimination, 1965 (ICERD)

(viii) International Covenant on Civil and Political Rights, 1966 (Arts. 4, 7 and 10)

(ix) American Convention on Human Rights, 1969 (Art. 5)

(x) Declaration on the Protection of All Persons from being subjected to Torture and other Cruel Inhuman or Degrading Treatment or Punishment (1975).

(xi) Optional Protocol to the International Covenant on Civil and Political Rights (1976)

(xii) Code of Conduct for Law Enforcement Officials (1979) articles 2-3 & 5-6.

(xiii) Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW)

(xiv) African Charter on Human and Peoples' Rights, 1981 (Art. 5)

(xv) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),1984

(xvi) UN Declaration on Basic Principles of Justice for Victims of Crime and abuse of Power 1985

(xvii) Inter-American Convention To Prevent and Punish Torture, 1985

(xviii) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment, 1987

(xix) Convention on the Rights of the Child, 1989 (Art. 37)

(xx) European Convention for the Prevention of Torture and other Cruel, Inhuman or degrading treatment or punishment, 1989

(xxi) Cairo Declaration on Human Rights in Islam, 1990 (Arts. 19-20)

(xxii) Charter of Paris for a New Europe, 1990

(xxiii) Convention on the Protection of the Rights of Migrant Workers and Members of their Families, 1990 (Art. 10)

(xxiv) International Convention on the protection of the Rights of All persons against Enforced Disappearance 1992 (CPAED).

(xxv) Arab Charter on Human Rights, 1994 (Arts 8)

2.2 Article 3 of the European Convention on Human Rights states that: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. There are no exceptions or limitations on this right. This provision usually applies not only to torture but also cases of severe violence in police custody and poor conditions in detention. It is an absolute right and in no circumstances to torture someone will ever be justifiable.

2.3 The International Covenant on Civil and Political Rights, 1966 (ICCPR) - a multilateral treaty - is a key international human rights treaty, providing a range of protections for civil and political rights. The ICCPR, together with the Universal Declaration of Human Rights, 1948 and the International Covenant on Economic Social and Cultural Rights, are considered as the International Bill of Human Rights. By way of Geneva Conventions there is a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat, or incapable of fighting and to protect wounded and sick soldiers during wartime.16

2.4 One of the most universally recognised human rights, the prohibition on torture has attained the status of jus cogens or peremptory norm of general international law, also giving rise to the obligation erga omnes (owed to and by all States) to take action against those who torture. As such, the prohibition may be enforced against a State even if it has not ratified any of the relevant treaties, and the prohibition is not subject to derogation, even in times of war or emergency. Jus cogens are international norms considered so fundamental that no deviation from them is permitted. The jus cogens (peremptory norms), flow from Article 53 of the Vienna Convention on the Law of Treaties, which has deep impact on national and customary law17.