CONTENTS
PREFACE = xiii
ACKNOWLEDGEMENTS = xv
ABBREVIATIONS = xvii
CHAPTER ONE : The Scope of the Torture Convention = 1
Introduction = 1
Ⅰ. The Scope of the Prohibited Conduct = 4
A. Article Ⅰ : Definition of Torture = 4
B. The Origins and Evolution of Article Ⅰ = 4
Ⅱ. Comment : General Description = 9
A. The Nature of the Conduct = 9
B. The Intention and Purpose of the Conduct = 20
C. The Identity of the Offender = 23
D. The Exclusion of Conduct Inherent in or Incidental to Lawful Sanctions From the Definition of the Article = 28
Ⅲ. The Overbreadth of the Definition of Torture = 36
Ⅳ. The Saving Clause Against the Weakening of Other Conventions and National Laws of States = 37
Ⅴ. Conclusion = 39
CHAPTER TWO : The Nature of the Obligations Incurred by States Under Article 2 of the Torture Convention = 41
Introduction = 41
Ⅰ. The Scope of Article 2 = 43
Ⅱ. General Comments = 43
A. Problems Associated with Obligations of States = 43
B. The Need for the Identification of the Nature of the Obligations of States Under this Convention = 45
Ⅲ. The Nature of the Obligations of the States Parties = 46
A. The Question of Timing = 46
1. The Practice of States = 47
2. The General Rules of International Law = 49
B. The Question of the Precise Duty of the Parties = 50
C. The Question of the Appraisal of the Effectiveness of the Measures to Prevent the Prohibited Conduct = 58
1. Third Party = 60
2. Supervisory Bodies = 62
3. Collective Judgement = 63
D. The Question of the Implementation of the Measures taken by States = 65
Ⅳ. The Territorial Application of the Convention = 74
Ⅴ. The Prohibition of Torture in All Circumstances = 76
A. General Comment = 76
1. The Question of Whether the Inclusion of These Words in This Convention Was Necessary = 78
2. The Question of Whether the Exceptional Circumstances Enumerated Herein Are Exhaustive or Merely an Example = 79
Ⅵ. Due Obedience to Orders in Mitigation of Punishment = 83
A. The Travaux Pr e' paratoires of the Convention and the Work of the International Law Commission = 83
B. The General Principles of International Law = 85
Ⅶ. Conclusions = 87
CHAPTER THREE : The Problems of Enforcement of Human Rights = 89
Introduction = 89
Ⅰ. The Core of the Problem of Enforcement of Human Rights = 91
A. U.N. Enforcement of Human Rights under the Charter = 100
1. The Lengthy Review Procedures = 104
2. The Ambiguity of the Review Test = 104
3. The Requirement of Consent = 106
B. Enforcement of Human Rights Under the Covenant on Civil and Political Rights = 107
1. The Reporting System = 110
2. Inter-State Communications on the Non-Fulfilment of Obligations Incurred under the Covenant on Civil and Political Rights = 113
3. Communications of Individuals = 116
C. Enforcement of Human Rights under the European Convention on Human Rights and Fundamental Freedoms = 118
1. The European Commission of Human Rights = 119
2. The European Court of Human Rights = 122
3. The Committee of Ministers = 124
D. State Enforcement : State A Intervenes in the Territory of State B Justifying Action as Necessary = 127
1. International Case Law = 129
2. The Practice of States = 132
Ⅱ. U.N. Action by Way of Enforcement = 138
A. Article 2 (7) of the U.N. Charter = 138
B. Meaning of Intervention = 139
1. The U.N. Practice = 141
2. The Legislative History of the U.N. Charter = 142
C. The Impact of a Finding of a Threat to, or Breach of International Peace = 143
D. The Relativity of the Concept of Domestic Jurisdiction = 148
1. Can It Be Defined = 152
2. Who Has the Power to Define = 158
3. By What Criteria = 161
E. The Spectrum of Intervention = 163
1. Sanctions = 163
2. Decisions = 168
3. The Establishment of the Protection Zones for the Kurds in Northern Iraq = 168
Ⅲ. The Effect of Article 2 (7) of the U.N. Charter and the Declaration of Competence in the Conventions on Human Rights on the Ability of International Law to Protect Human Rights World-Wide = 170
Ⅳ. Conclusions = 173
CHAPTER FOUR : A Commentary on the Enforcement Mechanisms by the States Parties of the Torture Convention = 175
Introduction = 175
Ⅰ. The Multi-State Jurisdiction Under Article 5 of the Torture Convention = 177
A. General Description = 177
B. General Comment = 177
Ⅱ. The Scope and Nature of the Jurisdiction Provided for in Article 5 of the Torture Convention = 181
A. The Question of Whether the Jurisdiction of the State of Registration of the Aircraft or of the Ship Under Article 5(1) (a) of the Torture Convention is Exclusive = 181
1. The Conventions From Which the Provisions of Article 5 (1) (a) of the Torture Convention Were Borrowed = 182
2. The General Principles of International Law Regarding the Jurisdiction of the Flag State Over the Crimes of Torture Committed on Board Ship Under Article 5 (1) (a) of the Torture Convention = 186
B. The Question of the Priority of the Jurisdiction of the State Where the Alleged Offender is Present in Any Territory Under its Jurisdiction According to Article 5 (2) as Against Other States Under Paragraph 1 (a) (b) and (c) of the Same Article of the Torture Convention = 189
1. The Travaux Pr e' paratoires of Articles of the Torture Convention = 189
2. The General Principles of International Law Concerning the Priority of the Jurisdiction of the State Where the Alleged Offender of Torture is Present Under Article 5 (2) of the Torture Convention = 199
C. The Question of Whether the Multi-State Jurisdiction Provided for in Article 5 of the Torture Convention is Similar to that of Universal Jurisdiction Over Piracy = 204
Ⅲ. The Aut Dedere Aut Judicare Formula Under Article 7 of the Torture Convention = 206
A. General Description = 206
B. General Comment = 206
1. The Question of the Nature of the Obligation of the State Where the Alleged Offender of Torture is Found Under Article 7 (1) of the Torture Convention = 208
2. The Question of Conflicting Requests for the Extradition of the Alleged Offender of Torture = 229
3. The Question of Whether Paragraph 2 of Article 7 of the Torture Convention is Capable of Preventing the Intrusion of Political Considerations in the Decision-Making Process to Prosecute or Not to Prosecute the Alleged Offender of Torture = 230
Ⅳ. The Question of the Effectiveness of the Provisions of Articles 5 and 7of the Torture Convention in the Enforcement of the Right to be Free From Torture and Their Potential For Solving the Problem of Non-Intervention in the Domestic Affairs of States = 232
Ⅴ. Conclusions = 234
CHAPTER FIVE : Commentary on the International Machinery for the Supervision of the Implementation of the Torture Convention = 237
Introduction = 237
Ⅰ. The Nature and Composition of the International Machinery for the Supervision of the Implementation of the Torture Convention = 238
A. General Description = 238
B. General Comment = 240
Ⅱ. The Establishment of the Committee Against Torture Under Article 17 of the Convention = 240
A. The Question of the Acceptability of the Committee Against Torture to States and its Independence from their Influence = 241
B. The Susceptibility of the Committee Against Torture to the Political Influence of States Parties to the Convention = 251
Ⅲ. The Functions of the Committee Against Torture = 252
A. The Reporting System = 252
1. General Description = 252
2. General Comment = 253
3. The Precise Powers of the Committee Against Torture When Considering the Reports of States = 254
B. The Investigatory Procedure = 264
1. General Description = 264
2. General Comment = 265
3. The Extent to Which the Investigatory Procedure May Produce Its Intended Results = 265
C. Inter-State Communications = 277
1. General Description = 277
2. General Comment = 279
3. The Nature of the System of Inter-State Communications and the Powers Given to the Committee Against Torture in its Administration = 280
D. Individual Petitions = 286
1. General Description = 286
2. General Comment = 287
3. The Ability of the System of Individual Petitions to Provide Effective Remedies to the Victims of Torture = 288
Ⅳ. The Potential of the Committee Against Torture = 293
Ⅴ. Conclusions = 294
CHAPTER SIX : General Conclusions = 295
BIBLIOGRAPHY = 305
Articles = 305
Books = 310
Awards, Decisions and Judgements of International and National Courts = 313
Sources = 315
Official Publications = 325
International Treaties, Conventions and Other Instruments = 338
APPENDIX Ⅰ = 341
INDEX = 357
