PORTUGAL

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 the Portuguese Republic has examined the reservations made by the Islamic Republic of Pakistan upon ratification of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984.

The Government of the Portuguese Republic considers that the reservations made by the Islamic Republic of Pakistan to Articles 3, 4, 6, 12, 13 and 16 are reservations that seek to subject the application of the Convention to its Constitution, its domestic law or/and Sharia Law, limiting the scope of the Convention on an unilateral basis and contributing to undermining the basis of International Law.

The Government of the Portuguese Republic considers that reservations by which a State limits its responsibilities under the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, by invoking its Constitution, the domestic law or/and the Sharia Law raise serious doubts as to the commitment of the reserving State to the object and purpose of the Convention, as the reservations are likely to deprive the provisions of the Convention of their effect and are contrary to the object and purpose thereof.

It is in the common interest of all the States that Treaties to which they have chosen to become parties 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.

The Government of the Portuguese Republic 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 the Convention shall not be permitted.

The Government of the Portuguese Republic therefore objects to the aforesaid reservations made by the Government of the Islamic Republic of Pakistan to Articles 3, 4, 6, 12, 13 and 16 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984.

However, these objections shall not preclude the entry into force of the Convention between the Portuguese Republic and the Islamic Republic of Pakistan.”

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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:

...

Portugal (9 February 1989):

“...The Government of Portugal considers that this declaration is incompatible with the object and purpose of the present Convention. This objection does not constitute an obstacle to the entry into force of the Convention between Portugal and G.D.R.”

...

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)

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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:

...

Portugal (6 October 1989):

"...The Government of Portugal considers such reservations to be incompatible with the object and purpose of this Convention and therefore invalid.

"This objection does not constitute an obstacle to the entry into force of the Convention between Portugal and Chile."

...

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)

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Note

The Secretary-General received communications relating to the reservation made by Qatar upon accession from the following States on the dates indicated hereinafter:

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Portugal (20 July 2001):

"The Government of the Portuguese Republic has examined the reservation made by the Government of Qatar to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984), whereby it excludes any interpretation of the said Convention which would be incompatible with the precepts of Islamic Law and the Islamic Religion.

The Government of the Portuguese Republic is of the view that this reservation goes against the general principle of treaty interpretation according to which a State party to a treaty may not invoke the provisions of its internal law as justification for failure to perform according to the obligations set out by the said treaty, creating legitimate doubts on its commitment to the Convention and, moreover, contribute to undermine the basis of International Law.

Furthermore, the said reservation is incompatible with the object and purpose of the Convention. The Government of the Portuguese Republic wishes, therefore, to express its disagreement with the reservation made by the Government of Qatar."

...

(Note 22, Chapter IV.9, Multilateral Treaties Deposited with the Secretary-General)

DECLARATIONS RE: ARTICLES 21 AND 22

(Unless otherwise indicated, the declarations were made upon ratification, accession or succession)

"Article 21

Portugal hereby declares, in accordance with article 21, paragraph 1, of the Convention, that it recognizes the competence of the Committee Against Torture to receive and consider communications to the effect that the State Party claims that another State Party is not fulfilling its obligations under this Convention.

Article 22

Portugal hereby declares, in accordance with article 22, paragraph 1 of the Convention, that it recognizes the competence of the Committee Against Torture to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of violation by State Party of the provisions of the Convention."

TERRITORIAL APPLICATION

Note

On 15 June 1999, the Government of Portugal notified the Secretary-General that the Convention would apply to Macau.

Subsequently, the Secretary-General received communications concerning the status of Macao from China and Portugal (see note 3 under "China" and note 1 under "Portugal" regarding Macao in the "Historical Information" section in the front matter of [the electronic version on the website of the Multilateral Treaties Deposited with the Secretary-General; http://untreaty.un.org/ENGLISH/ bible/ englishinternetbible/historicalinfo.asp]).

[Ed. note: Note 3 under China is as follows:

China

Note 3

By a notification dated 13 December 1999, the Government of the People's Republic of China informed the Secretary-General of the status of Macao in relation to treaties deposited with the Secretary-General. The notification, in pertinent part, reads as follows:

"In accordance with the Joint Declaration of the Government of the People's Republic of China and the Government of the Republic of Portugal on the Question of Macao signed on 13 April 1987 (hereinafter referred to as the Joint Declaration), the Government of the People's Republic of China will resume the exercise of sovereignty over Macao with effect from 20 December 1999. Macao will from that date, become a Special Administrative Region of the People's Republic of China. [For the full text of the Joint Declaration of the Government of the Portuguese Republic and the Government of the People's Republic of China on the Question of Macao, 13 April 1987, see United Nation Treaty Series volume No. 1498, p. 229 (registration number I-25805)].

It is provided in Section 1 of Elaboration by the Government of the People's Republic of China of its Basic Policies Regarding Macao, which is Annex 1 to the Joint Declaration, and in Article 12, 13 and 14 of the Basic Law of the Macao Special Administrative Region of the People's Republic of China (hereinafter referred to as the Basic Law), which was adopted by the National People's Congress of the People's Republic of China on 31 March 1993, that the Macao Special Administrative Region will enjoy a high degree of autonomy, except in foreign and defence affairs which are the responsibilities of the Central People's Government of the People's Republic of China. Furthermore, it is provided both in Section VIII of Annex 1 of the Joint Declaration and Article 138 of the Basic Law that international agreements to which the People's Republic of China is not yet a party but which are implemented in Macao may continue to be implemented in the Macao Special Administrative Region.

In this connection, on behalf of the Government of the People's Republic of China, I have the honour to inform your Excellency that:

I. The treaties listed in Annex I to this Note [herein below], to which the People's Republic of China is a Party, will be applied to the Macao Special Administrative Region with effect from 20 December 1999 so long as they are one of the following categories:

(i) Treaties that apply to Macao before 20 December 1999;

(ii) Treaties that must apply to the entire territory of a state as they concern foreign affairs or defence or their nature or provision so require.

II. The Treaties listed in Annex II to this Note, to which the People's Republic of China is not yet a Party and which apply to Macao before 20 December 1999, will continue to apply to the Macao Special Administrative Region with the effect from 20 December 1999.

III. The Government of the People's Republic of China has notified the treaty depositaries concerned of the application of the treaties including their amendments and protocols listed in the aforesaid Annexes as well as reservations and declarations made thereto by the Chinese Government to the Macao Special Administrative Region with effect from 20 December 1999.

IV. With respect to other treaties that are not listed in the Annexes to this Note, to which the People's Republic of China is or will become a Party, the Government of the People's Republic of China will go through separately the necessary formalities for their application to the Macao Special Administrative Region if it so decided."

The treaties listed in Annexes I and II, referred to in the notification, are reproduced below.

Information regarding reservations and/or declarations made by China with respect to the application of treaties to the Macao Special Administrative Region can be found in the footnotes to the treaties concerned as published herein. Footnote indicators are placed against China's entry in the status list of those treaties.

Moreover, with regard to treaty actions undertaken by China after 1 July 1997, the Chinese Government confirmed that the territorial scope of each treaty action would be specified. As such, declarations concerning the territorial scope of the relevant treaties with regard to the Macao Special Administrative Region can be found in the footnotes to the treaties concerned as published herein. Footnote indicators are placed against China's entry in the status list of those treaties.

Annex I

(The treaties appear in the order as they are provided in these volumes.)

...

Human Rights:

- International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966;

- Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979;

- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984;

- Convention on the Rights of the Child, 20 November 1989.

...]

[Ed. note: Note 1 under Portugal is as follows:

Portugal

Note 1

On 18 November 1999, the Secretary-General received from the Government of Portugal, the following communication:

"In accordance with the Joint Declaration of the Government of the Portuguese Republic and the Government of the People's Republic of China on the Question of Macau signed on 13 April 1987, the Portuguese Republic will continue to have international respsnsibility for Macau until 19 December 1999 and from that date onwards the People's Republic of China will resume the exercise of sovereignty over Macau with effect from 20 December 1999.

From 20 December 1999 onwards the Portuguese Republic will cease to be responsible for the international rights and obligations arising from the application of [Conventions] to Macau."

See also note 3 under "China". [Ed. note: reproduced immediately above]]

Upon resuming the exercise of sovereignty over Macao, China notified the Secretary-General that the Convention with the reservation made by China will also apply to the Macao Special Administrative Region.

(Note 5, Chapter IV.9, Multilateral Treaties Deposited with the Secretary-General)