Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of State, Minister for Foreign and European Affairs,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2008-704 of 17 July 2008 authorizing the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France,
Decrete:
The International Convention for the Protection of All Persons from Enforced Disappearance (a French declaration), opened for signature in Paris on 6 February 2007, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister of State, Minister of Foreign and European Affairs, are responsible, each with regard to him, for the execution of this decree, which will be published in the Official Journal of the French Republic.
C O N V E N T I O N I N T E R N A T I O N A L
FOR THE PROTECTION OF ALL PERSONS AGAINST FORCE DISPARATIONS (ENSEMBLE FOR FRENCH DECLARATION)
Preamble
States parties to this Convention,
Considering that the Charter of the United Nations imposes on States the obligation to promote universal and effective respect for human rights and fundamental freedoms,
Building on the Universal Declaration of Human Rights,
Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and other relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
Recalling also the Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the United Nations General Assembly in its resolution 47/133 of 18 December 1992,
Aware of the extreme gravity of enforced disappearance, which constitutes a crime and, in certain circumstances defined by international law, a crime against humanity,
Determined to prevent enforced disappearances and to combat impunity for the crime of enforced disappearance,
Having in mind the right of every person not to be subjected to enforced disappearance and the right of victims to justice and reparation,
Affirming the right of any victim to know the truth about the circumstances of an enforced disappearance and to know the fate of the disappeared person, as well as the right to freedom to collect, receive and disseminate information to that end,
The following articles were agreed:
PART I
Article 1
1. No one will be subjected to enforced disappearance.
2. No exceptional circumstance, regardless of whether it is a state of war or a threat of war, internal political instability or any other state of emergency, may be invoked to justify enforced disappearance.
Article 2
For the purposes of this Convention, "forced disappearance" means the arrest, detention, kidnapping or any other form of deprivation of liberty by State officials or by persons or groups of persons who act with the authorization, support or acquittal of the State, followed by the denial of the recognition of the deprivation of liberty or the concealment of the fate reserved for the disappeared person or the place where
Article 3
Any State Party shall take appropriate measures to investigate the actions defined in Article 2, which are the work of persons or groups of persons acting without the authorization, support or acquittal of the State, and to bring those responsible to justice.
Article 4
Any State Party shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law.
Article 5
The widespread or systematic practice of enforced disappearance constitutes a crime against humanity, as defined in applicable international law, and results in the consequences provided for by this right.
Article 6
1. Any State Party shall take the necessary measures to hold criminally responsible at least:
(a) Any person who commits an enforced disappearance, orders or commands, tries to commit, is complicit or participates in it;
(b) The superior who:
(i) knew that subordinates under his authority and effective control included or were going to commit a crime of enforced disappearance, or deliberately neglected to take into account information that clearly indicated it;
(ii) exercised its effective responsibility and control over activities related to the crime of enforced disappearance; and
(iii) did not take all necessary and reasonable measures in its power to prevent or punish the commission of an enforced disappearance or to refer it to the competent authorities for investigation and prosecution;
(c) Paragraph (b) above shall be without prejudice to the higher relevant standards of liability applicable in international law to a military chief or to a person acting as military chief.
2. No order or instruction from a public, civil, military or other authority may be invoked to justify a crime of enforced disappearance.
Article 7
1. Any State Party shall make the crime of enforced disappearance punishable by appropriate penalties that take into account its extreme gravity.
2. Any State Party may provide:
(a) mitigating circumstances, particularly in favour of those who, involved in the commission of an enforced disappearance, have effectively contributed to the life recovery of the disappeared person or have made it possible to clarify cases of enforced disappearance or to identify the perpetrators of an enforced disappearance;
(b) Without prejudice to other criminal proceedings, aggravating circumstances, particularly in the event of the death of the disappeared person, or for those who have committed the enforced disappearance of pregnant women, minors, persons with disabilities or other particularly vulnerable persons.
Article 8
Without prejudice to Article 5:
1. Any State Party which applies a statute of limitation to enforced disappearance shall take the necessary measures to ensure that the limitation period of criminal action:
(a) Be long-term and proportionate to the extreme gravity of this crime;
(b) Starts running when the crime of enforced disappearance ceases, given its continuing character.
2. Any State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the limitation period.
Article 9
1. Any State Party shall take the necessary measures to establish its jurisdiction for the purpose of knowing of a crime of enforced disappearance:
(a) When the offence was committed in any territory under its jurisdiction or on board aircraft or vessels registered in that State;
(b) When the alleged perpetrator of the offence is one of his nationals;
(c) When the missing person is one of its nationals and the State party considers it appropriate.
2. Any State Party shall also take the necessary measures to establish its jurisdiction for the purpose of knowing of a crime of enforced disappearance when the alleged perpetrator of the offence is in any territory under its jurisdiction, unless the said State extradites it, or remits it to another State in accordance with its international obligations or to an international criminal jurisdiction of which it has recognized the jurisdiction.
3. This Convention does not deviate any additional criminal jurisdiction exercised in accordance with national laws.
Article 10
1. If the State party considers that the circumstances warrant it, after having examined the information available to it, any State Party in the territory of which a person suspected of having committed a crime of enforced disappearance shall ensure the detention of that person or take any other legal measures necessary to ensure his or her presence. Such detention and measures shall be in conformity with the law of that State party; they may be held only during the time necessary to ensure their presence in criminal proceedings, surrender or extradition.
2. The State party that has taken the measures referred to in paragraph 1 of this article shall immediately conduct a preliminary investigation or investigations with a view to establishing the facts. It shall inform the States parties referred to in paragraph 1 of Article 9 of the measures it has taken pursuant to paragraph 1 of this article, including the detention and circumstances that warrant it, and the conclusions of its preliminary inquiry or investigations, indicating whether it intends to exercise its jurisdiction.
3. Any person detained under paragraph 1 of this article may communicate immediately with the closest qualified representative of the State of which he or she is a national or, if he or she is a stateless person, with the representative of the State where he or she usually resides.
Article 11
1. The State party in the territory under whose jurisdiction the alleged perpetrator of a crime of enforced disappearance is discovered, if he does not extradite the latter, or does not surrender it to another State in accordance with its international obligations or to an international criminal jurisdiction of which he has recognized jurisdiction, submits the case to its competent authorities for the exercise of criminal action.
2. Such authorities shall take their decisions in the same conditions as for any offence of common law of a serious nature under the law of that State party. In the cases referred to in paragraph 2 of section 9, the rules of evidence applicable to prosecution and conviction are in no way less stringent than those applicable in the cases referred to in paragraph 1 of that section.
3. Any person prosecuted in connection with a crime of enforced disappearance shall be guaranteed fair treatment at all stages of the proceedings. A person tried for a crime of enforced disappearance shall be given a fair trial before a competent, independent and impartial court established by law.
Article 12
1. Any State Party shall ensure that any person alleged to have been the victim of an enforced disappearance has the right to denounce the facts before the competent authorities, which shall promptly and impartially examine the allegation and, where appropriate, conduct an in-depth and impartial investigation without delay. Appropriate measures are taken, where appropriate, to ensure the protection of the complainant, witnesses, relatives of the disappeared person and their defenders, as well as those who participate in the investigation against any ill-treatment or intimidation as a result of the complaint or any statement made.
2. Where there are reasonable grounds to believe that a person has been a victim of enforced disappearance, the authorities referred to in paragraph 1 of this section shall initiate an investigation, even if no complaint has been formally filed.
3. Every State Party shall ensure that the authorities referred to in paragraph 1 of this article:
(a) Have the necessary powers and resources to carry out the investigation, including access to documentation and other relevant information for their investigation;
(b) Such access, if necessary with the prior authorization of a court which shall decide as soon as possible, at any place of detention and at any other place where there are reasonable grounds to believe that the disappeared person is present.
4. Any State Party shall take the necessary measures to prevent and punish acts that impede the conduct of the investigation. In particular, it ensures that persons suspected of committing a crime of enforced disappearance are not in a position to influence the course of the investigation by pressure or intimidation or reprisals on the complainant, witnesses, relatives of the disappeared person and their defenders as well as those involved in the investigation.
Article 13
1. For the purposes of extradition between States parties, the crime of enforced disappearance is not considered a political offence, a political offence or an offence inspired by political motives. Accordingly, an extradition request based on such an offence may not be refused on that sole ground.
2. The crime of enforced disappearance is fully understood to include the number of offences giving rise to extradition in any extradition treaty between States parties before the entry into force of this Convention.
3. States parties undertake to include the crime of enforced disappearance in the number of offences that justify extradition in any extradition treaty to be concluded subsequently between them.
4. Any State Party which subjects extradition to the existence of a treaty may, if it receives an extradition request from another State Party to which it is not bound by a treaty, consider this Convention as the legal basis for extradition with respect to the offence of enforced disappearance.
5. States parties that do not subject extradition to the existence of a treaty recognize the crime of enforced disappearance as subject to extradition between them.
6. Extradition shall, in all cases, be subject to the conditions provided for in the law of the requested State Party or the applicable extradition treaties, including, inter alia, the conditions for the minimum penalty required for extradition and the grounds for which the requested State Party may refuse extradition or subject it to certain conditions.
7. Nothing in this Convention shall be construed as requiring the requested State Party to extradite if there are substantial grounds for believing that the application has been made for the purpose of prosecuting or punishing a person because of his or her sex, race, religion, nationality, ethnic origin, political opinion or affiliation with a certain social group, or that pursuant to that request would cause any prejudice to that person.
Article 14
1. States parties shall accord the widest possible mutual legal assistance in any criminal proceedings relating to a crime of enforced disappearance, including with regard to the communication of all the evidence available to them and which are necessary for the purposes of the proceedings.
2. Such mutual legal assistance shall be subject to the conditions laid down in the domestic law of the requested State Party or the applicable mutual legal assistance treaties, including, inter alia, on the grounds for which the requested State Party may refuse to grant mutual legal assistance or subject it to conditions.
Article 15
The States Parties shall cooperate with each other and accord the widest possible assistance to assist victims of enforced disappearance and in the search, location and release of missing persons and, in the event of death, in the exhumation, identification of missing persons and the return of their remains.
Article 16
1. No State Party shall expel, repress, remit or extradite a person to another State if there are substantial grounds for believing that he or she may be a victim of enforced disappearance.
2. To determine whether there are such grounds, the competent authorities take into account all relevant considerations, including, where appropriate, the existence, in the State concerned, of a series of gross, flagrant or mass systematic violations of human rights or serious violations of international humanitarian law.
Article 17
1. No one will be held incommunicado.
2. Without prejudice to the other international obligations of the State party in the matter of deprivation of liberty, any State Party, in its legislation:
(a) Determines the conditions under which orders of deprivation of liberty may be given;
(b) Describes the authorities authorized to order deprivation of liberty;
(c) Ensure that any person deprived of liberty will be placed only in places of officially recognized and controlled deprivation of liberty;
(d) Guarantees that any person deprived of liberty will be allowed to communicate with his or her family, counsel or any other person of his or her choice, and to receive their visit, subject only to the conditions established by law, and, if it is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law;
(e) Guarantees access to places of deprivation of liberty of any competent authority and institution authorized by law, if necessary with the prior authorization of a judicial authority;
(f) Guarantees to any person deprived of liberty and, in the event of suspicion of enforced disappearance, the person deprived of liberty who is unable to exercise him or her, to any person with a legitimate interest, such as those close to the person deprived of his or her liberty, their representatives or their lawyers, in all circumstances, the right to bring an appeal before a court so that the person may decide promptly on the legality of the deprivation of liberty.
3. Any State Party shall ensure the establishment and maintenance of one or more official records and/or official records of persons deprived of their liberty, which are, upon request, promptly made available to any judicial authority or other competent authority or institution authorized by the law of the State Party concerned or by any relevant international legal instrument to which the State concerned is a party. At least information is available:
(a) The identity of the person deprived of liberty;
(b) The date, time and place where the person was deprived of liberty and the authority that made the deprivation of liberty;
(c) The authority having decided the deprivation of liberty and the grounds for deprivation of liberty;
(d) The authority controlling the deprivation of liberty;
(e) The place of deprivation of liberty, the date and time of admission to the place of deprivation of liberty and the authority responsible for the place of deprivation of liberty;
(f) The elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during deprivation of liberty, the circumstances and causes of death and the destination of the remains of the deceased person;
(h) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.
Article 18
1. Subject to articles 19 and 20, any State Party shall guarantee to any person with a legitimate interest in such information, such as those close to the person deprived of liberty, their representatives or their lawyers, at least access to the following information:
(a) The authority having decided the deprivation of liberty;
(b) The date, time and place of deprivation of liberty and admission to the place of deprivation of liberty;
(c) The authority controlling the deprivation of liberty;
(d) The place where the person deprived of liberty is located, including, in case of transfer to another place of deprivation of liberty, the destination and authority responsible for the transfer;
(e) The date, time and place of release;
(f) The elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during deprivation of liberty, the circumstances and causes of death and the destination of the remains of the deceased person.
2. Appropriate measures shall be taken, if any, to ensure the protection of persons referred to in paragraph 1 of this article, as well as those involved in the investigation, against any ill-treatment, intimidation or punishment as a result of the search for information concerning a person deprived of liberty.
Article 19
1. Personal information, including medical or genetic data, which is collected and/or transmitted as part of the search for a missing person, cannot be used or made available for any purpose other than the search for the missing person. This is without prejudice to the use of this information in criminal proceedings concerning a crime of enforced disappearance and the exercise of the right to obtain redress.
2. The collection, processing, use and preservation of personal information, including medical or genetic data, must not transgress or have the effect of transgressing human rights, fundamental freedoms and the dignity of the human person.
Rule 20
1. Only where a person is under the protection of the law and where the deprivation of liberty is under judicial control, the right to the information provided for in Article 18 may be limited exceptionally, to the strict extent that the situation requires it and where the law provides it, and if the transmission of the information impairs the privacy or security of the person or hinders the proper conduct of a criminal investigation or for other equivalent reasons provided for by law In no case shall these restrictions on the right to information provided for in Article 18 be allowed if they constitute a conduct defined in Article 2 or a violation of Article 17, paragraph 1.
2. Without prejudice to the examination of the legality of the deprivation of liberty of a person, the State party shall guarantee to persons referred to in article 18, paragraph 1, the right to a prompt and effective judicial remedy to obtain at short notice the information referred to in that paragraph. This right to an appeal cannot be suspended or limited under any circumstances.
Article 21
Any State Party shall take the necessary measures to ensure that the release of a person is carried out in a manner that allows for certainty to verify that the person has been effectively released. Any State Party shall also take the necessary measures to ensure the physical integrity and full enjoyment of its rights to any person at the time of release, without prejudice to the obligations to which it may be subject under national law.
Article 22
Without prejudice to Article 6, any State Party shall take the necessary measures to prevent and punish the following actions:
(a) The infringement or obstruction of the remedies referred to in paragraph 2 (f) of Article 17 and paragraph 2 of Article 20;
(b) The failure to register any deprivation of liberty, as well as the recording of any information that the official responsible for the official register knew or should have known the inaccuracy;
(c) The refusal to provide information on deprivation of liberty or the provision of inaccurate information, even though the legal conditions to provide such information are met.
Article 23
1. Any State Party shall ensure that the training of military or civilian personnel responsible for the application of laws, medical personnel, public officials and other persons who may intervene in the custody or treatment of any person deprived of liberty may include the necessary education and information regarding the relevant provisions of this Convention, with a view to:
(a) Preventing the involvement of these agents in enforced disappearances;
(b) Underline the importance of prevention and investigation of enforced disappearance;
(c) Ensure that the urgency of resolving cases of enforced disappearance is recognized.
2. Any State Party shall ensure that orders or instructions prescribing, authorizing or encouraging enforced disappearance are prohibited. Any State Party shall ensure that a person refusing to comply with such an order shall not be punished.
3. Any State Party shall take the necessary measures to ensure that persons referred to in paragraph 1 of this article who have reason to believe that an enforced disappearance has occurred or is projected to report the case to their superiors and, if necessary, to the competent authorities or bodies of control or appeal.
Article 24
1. For the purposes of this Convention, "victim" means the disappeared person and any natural person who has suffered direct harm as a result of enforced disappearance.
2. Any victim has the right to know the truth about the circumstances of enforced disappearance, the conduct and results of the investigation and the fate of the disappeared person. Any State Party shall take appropriate measures in this regard.
3. Any State Party shall take all appropriate measures for the search, location and release of missing persons and, in the event of death, for the location, respect and restitution of their remains.
4. Any State Party shall guarantee, in its legal system, the victim of enforced disappearance the right to obtain redress and compensation promptly, fairly and adequately.
5. The right to obtain compensation referred to in paragraph 4 of this section shall cover property and moral damage and, where applicable, other forms of reparation such as:
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction, including the restoration of dignity and reputation;
(d) Non-repetition guarantees.
6. Without prejudice to the obligation to continue the investigation to the elucidation of the fate of the disappeared person, any State Party shall make appropriate provisions concerning the legal situation of missing persons whose fate is not elucidated and their relatives, in particular in areas such as social protection, financial matters, family law and property rights.
7. Any State Party shall guarantee the right to form organizations and associations whose purpose is to contribute to the establishment of circumstances of enforced disappearances and the fate of missing persons and to the assistance to victims of enforced disappearance, and to participate freely in such organizations or associations.
Rule 25
1. Every State Party shall take the necessary measures to prevent and punish criminally:
(a) The subtraction of children subject to enforced disappearance or whose father, mother or legal representative are subjected to enforced disappearance, or children born during the captivity of their mother subject to enforced disappearance;
(b) The falsification, concealment or destruction of documents attesting to the true identity of the children referred to in paragraph (a) above.
2. Any State Party shall take the necessary measures to seek and identify the children referred to in paragraph 1 (a) of this article and to return them to their families of origin, in accordance with the applicable legal procedures and international agreements.
3. States Parties shall provide mutual assistance in the search and identification of children referred to in paragraph 1 (a) of this article and the determination of where they are located.
4. In view of the need to preserve the best interests of the children referred to in paragraph 1 (a) of this article and their right to preserve and restore their identity, including their nationality, name and family ties recognized by law, in States parties that recognize the system of adoption or other forms of placement of children, legal procedures must exist, which aim to revise the procedure for adoption or placement of children and to cancel the adoption or placement of children,
5. In all circumstances, and in particular in all matters relating to this article, the best interests of the child are a primary consideration, and the child who is capable of discernment has the right to freely express his or her opinion, which is duly taken into account in respect of his or her age and maturity.
PART II
Rule 26
1. For the implementation of the provisions of this Convention, a Committee on Enforced Disappearances (hereinafter referred to as the "Committee") is established, composed of ten experts of high morality, with recognized competence in the field of human rights, independent, personal and impartial. The members of the Committee will be elected by States parties on a equitable geographical basis. It will be taken into account the interest of participation in the work of the Committee of Persons with Relevant Legal Experience and a Balanced Distribution of Men and Women in the Committee.
2. The election shall be by secret ballot on a list of candidates nominated by the States parties from among their nationals, during biennial meetings of the States parties convened by the Secretary-General of the United Nations. At these meetings, where the quorum is constituted by two thirds of the States parties, are elected as members of the Committee the candidates who obtain the largest number of votes and the absolute majority of the votes of the representatives of the States parties present and voting.
3. The first election shall be held no later than six months after the date of entry into force of this Convention. Four months before the date of each election, the Secretary-General of the United Nations sends a letter to the States parties to invite them to apply within three months. The Secretary-General shall draw up the alphabetical list of candidates so designated, indicating, for each candidate, the State party presenting it. It communicates this list to all States parties.
4. The members of the Committee shall be elected for four years. They are eligible for re-election once. However, the term of five of the members elected at the first election ends after two years; immediately after the first election, the names of the five persons shall be drawn by lot by the chair of the meeting referred to in paragraph 2 of this article.
5. If a member of the Committee dies, dismisses his or her duties or is no longer in a position for any other reason to discharge his or her powers to the Committee, the State Party which designated him or her shall appoint, in accordance with the criteria set out in paragraph 1 of this article, another candidate from among its nationals to sit on the Committee for the remaining part of the term, subject to the approval of the majority of the States parties. This approval shall be deemed to have been granted unless half of the States Parties or more give an unfavourable opinion within six weeks of the time when they have been informed by the Secretary-General of the United Nations of the proposed appointment.
6. The Committee shall establish its rules of procedure.
7. The Secretary-General of the United Nations provides the Committee with the necessary personnel and material resources to carry out its functions effectively. The Secretary-General shall convene the members of the Committee for the first meeting.
8. Members of the Committee are entitled to facilities, privileges and immunities recognized to experts on mission for the United Nations, as set out in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.
9. Any State Party undertakes to cooperate with the Committee and to assist its members in the exercise of their mandate, within the limits of the functions of the Committee that it has accepted.
Rule 27
A conference of the States parties shall meet no later than four years and no later than six years after the entry into force of this Convention to assess the functioning of the Committee and decide, in accordance with the terms set out in article 44, paragraph 2, whether to entrust to another body — without excluding any possibility — the follow-up to this Convention with the responsibilities defined in articles 28 to 36.
Rule 28
1. As part of its competence under this Convention, the Committee cooperates with all relevant United Nations bodies, offices, specialized agencies and funds, treaty bodies established by international instruments, United Nations special procedures, relevant regional organizations or institutions, as well as with all relevant national institutions, agencies and offices working to protect all persons from enforced disappearances.
2. As part of its functions, the Committee consults other treaty committees established by the relevant human rights instruments, in particular the Human Rights Committee established by the International Covenant on Civil and Political Rights, with a view to ensuring the coherence of their respective observations and recommendations.
Rule 29
1. Any State Party shall submit to the Committee, through the Secretary-General of the United Nations, a report on the measures it has taken to give effect to its obligations under this Convention, within two years of the entry into force of the Convention for the State Party concerned.
2. The Secretary-General of the United Nations shall make the report available to all States parties.
3. Each report is considered by the Committee, which may make the comments, observations or recommendations it considers appropriate. The State Party concerned receives comments, comments or recommendations, to which it may respond, on its own initiative or at the request of the Committee.
4. The Committee may also request additional information from States parties on the implementation of this Convention.
Rule 30
1. The Committee may, as a matter of urgency, be seized by relatives of a missing person, their legal representatives, their lawyers or any person mandated by them, as well as any other person with a legitimate interest, of an application to seek and find a missing person.
2. If the Committee considers that the request for urgent action under paragraph 1 of this article:
(a) It is not manifestly lacking a foundation;
(b) Does not constitute an abuse of the right to submit such requests;
(c) Has been previously and duly presented to the competent bodies of the State party concerned, such as the authorities authorized to conduct investigations, when such possibility exists;
(d) is not incompatible with the provisions of this Convention, and
(e) Not already under consideration before another procedure of international investigation or settlement of the same nature;
the Committee requests the State party concerned to provide, within a time limit, information on the situation of the person sought.
3. In the light of the information provided by the State party concerned in accordance with paragraph 2 of this article, the Committee may transmit recommendations to the State party including a request to take all necessary measures, including precautionary measures, to locate and protect the person sought in accordance with this Convention and to inform the Committee, within a specified period, of the measures it takes, taking into account the urgency of the situation. The Committee shall inform the person who has submitted the urgent request for action of its recommendations and of the information transmitted to it by the State party when they are available.
4. The Committee continues its efforts to work with the State party concerned until the fate of the wanted person is elected. He kept the complainant informed.
Rule 31
1. Any State Party may declare, at the time of ratification of this Convention or at a later date, that it recognizes the competence of the Committee to receive and consider communications submitted by persons or on behalf of persons under its jurisdiction who complain of a violation by that State party of the provisions of this Convention. The Committee does not receive any communication involving a State Party that has not made such a declaration.
2. The Committee declares inadmissible any communication if:
(a) She is anonymous;
(b) It constitutes an abuse of the right to submit such communications or is incompatible with the provisions of this Convention;
(c) It is being examined under another procedure of international investigation or settlement of the same nature; or if
(d) All effective domestic remedies available have not been exhausted. This rule does not apply if appeal proceedings exceed reasonable time limits.
3. If the Committee considers that the communication meets the requirements of paragraph 2 of this article, it shall transmit the communication to the State party concerned, requesting that it provide, within the time limit set, its observations or comments.
4. Upon receipt of a communication, and before making a decision on the merits, the Committee may at any time submit to the concerned State party's attention a request that it take the necessary precautionary measures to avoid irreparable damage to the victims of the alleged violation. The exercise by the Committee of this faculty does not prejudge the admissibility or examination on the merits of the communication.
5. The Committee shall hold its closed sessions when examining the communications provided for in this article. He informs the author of the communication of the replies provided by the State party concerned. When the Committee decides to finalize the procedure, it submits its findings to the State party and to the author of the communication.
Rule 32
Any State Party to this Convention may declare at any time that it recognizes the competence of the Committee to receive and consider communications by which a State Party claims that another State Party shall not fulfil its obligations under this Convention. The Committee shall not receive any communication concerning a State Party that has not made such a declaration or any communication from a State Party that has not made such a declaration.
Rule 33
1. If the Committee is informed, by credible information, that a State party seriously violates the provisions of this Convention, it may, after consultation with the State party concerned, request one or more of its members to visit and inform it without delay.
2. The Committee shall in writing inform the State party concerned of its intention to conduct a visit, indicating the composition of the delegation and the purpose of the visit. The State party shall give its answer within a reasonable time.
3. On the basis of the State party's request, the Committee may decide to postpone or cancel its visit.
4. If the State party agrees to the visit, the Committee and the State party concerned shall cooperate to define the modalities of the visit, and the State party shall provide the Committee with all the facilities necessary to carry out this visit.
5. Following the visit, the Committee shall communicate to the State party concerned its observations and recommendations.
Rule 34
If the Committee receives information that appears to it to contain evidence that enforced disappearance is widespread or systematic in the territory under the jurisdiction of a State party, and after having sought from the State party concerned any relevant information on this situation, it may bring the matter to the attention of the General Assembly of the United Nations, through the Secretary-General of the United Nations.
Rule 35
1. The Committee is competent only with respect to enforced disappearances that began after the entry into force of this Convention.
2. If a State becomes a party to this Convention after the entry into force of this Convention, its obligations to the Committee shall apply only to enforced disappearances that began after the entry into force of this Convention in respect of it.
Rule 36
1. The Committee shall submit to the States parties and to the United Nations General Assembly an annual report on its activities under this Convention.
2. The publication, in the annual report, of an observation concerning a State party must be previously announced to the State party, which has a reasonable period of reply and may request the publication of its own comments or observations in the report.
PART III
Rule 37
None of the provisions of this Convention shall affect the provisions more favourable to the protection of all persons from enforced disappearances which may include:
(a) In the legislation of a State Party; or
(b) In international law in force for that State.
Rule 38
1. This Convention shall be open for signature by any Member State of the United Nations.
2. This Convention shall be subject to ratification by any Member State of the United Nations. Instruments of ratification will be deposited with the Secretary-General of the Organization.
3. This Convention is open to the accession of any Member State of the United Nations. Membership shall be effected by the deposit of an instrument of accession to the Secretary-General of the Organization.
Rule 39
1. This Convention shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.
2. For any State ratifying or acceding to this Convention after the deposit of the twentieth instrument of ratification or accession, this Convention shall enter into force on the thirtieth day after the date of the deposit by that State of its instrument of ratification or accession.
Rule 40
The Secretary-General of the United Nations shall notify all States members of the Organization and all States that have signed or acceded to this Convention:
(a) Signatures, ratifications and accessions received under Article 38;
(b) The effective date of this Convention pursuant to Article 39.
Rule 41
The provisions of this Convention shall apply, without limitation or exception, to all constituent units of the federal states.
Rule 42
1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention that is not settled by negotiation or by means of the procedures expressly provided for in this Convention shall be submitted to arbitration at the request of one of them. If, within six months after the date of the application for arbitration, the parties fail to agree on the organization of the arbitration, any of them may submit the dispute to the International Court of Justice, by filing a request in accordance with the Statute of the Court.
2. Any State Party may, at the time of signing this Convention, ratify or accede to it, declare that it does not consider itself bound by the provisions of paragraph 1 of this article. The other States parties shall not be bound by the said provisions to a State Party which has formulated such a declaration.
3. Any State Party that has made a declaration in accordance with the provisions of paragraph 2 of this article may at any time withdraw this declaration by a notification addressed to the Secretary-General of the United Nations.
Rule 43
This Convention shall be without prejudice to the provisions of international humanitarian law, including the obligations of the High Contracting Parties to the four Geneva Conventions of 12 August 1949 and to the two Additional Protocols of 8 June 1977 relating thereto, or to the possibility that any State may authorize the International Committee of the Red Cross to visit places of detention in cases not provided for in international humanitarian law.
Rule 44
1. Any State Party to this Convention may propose an amendment and deposit its proposal with the Secretary-General of the United Nations. The Secretary-General shall communicate the amendment proposal to the States parties to this Convention by asking them whether they are in favour of the organization of a conference of States parties for the consideration of the proposal and its vote. If, within four months after the date of such a communication, at least one third of the States parties shall vote in favour of the holding of the conference, the Secretary-General shall organize the conference under the auspices of the United Nations.
2. Any amendment adopted by a two-thirds majority of the States parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to the acceptance of all States parties.
3. An amendment adopted in accordance with the provisions of paragraph 1 of this article shall enter into force when two thirds of the States parties to this Convention have accepted it, in accordance with the procedure provided for in their respective constitutions.
4. When the amendments come into force, they are binding on the States parties that have accepted them, the other States parties remain bound by the provisions of this Convention and any earlier amendments they have accepted.
Rule 45
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, will be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall maintain a certified copy of this Convention to all States referred to in Article 38.
DECLARATION
OF THE FRENCH REPUBLIC
France declares:
1/ In accordance with the provisions of article 31, paragraph 1, that it recognizes the competence of the Committee on Enforced Disappearances to receive and consider communications submitted by persons or on behalf of persons under its jurisdiction who complain of a violation by France of the provisions of the Convention.
2/ In accordance with the provisions of article 32, it recognizes the competence of the Committee on Enforced Disappearances to receive and consider communications by which a State Party claims that another State Party shall not fulfil its obligations under this Convention.
Done on 3 February 2011.
Nicolas Sarkozy
By the President of the Republic:
The Prime Minister,
François Fillon
The Minister of State,
Minister for Foreign Affairs
and European,
Michèle Alliot-Marie
