Letter to the Registrar dated 15 April 2009 from
the Agent of the Republic of Senegal
[Translation]
Subject: Caseconcerning Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal)
I have the honour to transmit to you the response of the Republic of Senegal to the question
put by Judge Cançado Trindade on 8 April 2009. It reads as follows:
“Senegal has the honour to respond to the question put to it by
Judge Cançado Trindade shortly before the end of the public hearing held at the Peace
Palace on 8 April 2009 in the case concerning Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal).
The question put was the following: ‘For the purposes of a proper
understanding of the rights to be preserved (under Article41 of the Statute of the
Court), are there rights corresponding to the obligations set forth in Article7,
paragraph 1, in combination with Article 5, paragraph 2, of the 1984 United Nations
Convention against Torture and, if so, what are their legal nature, content and
effects? Who are the subjects of those rights, States having nationals affected, or all
States Parties to the aforementioned Convention? Whom are such rights opposable
to, only the States concerned in a concrete case, or any State Party to the
aforementioned Convention?’
Senegal respectfully recalls that it is the Respondent in the present case and in
these incidental proceedings relating to the request for the indication of provisional
measures, in which the merits of the case should not be entered into beyond what is
strictly necessary for the purpose of that request. Subject to the Court appreciating
that the statements which follow are of a purely informative nature and therefore
cannot affect Senegal’s freedom to argue its positions in due course on the merits of
the case, the Senegalese Government, in de ference to and with respect for the
Members of the Court, wishes to furnish the following replies:
1. Articles5, paragraph2, and 7, para graph1, of the United Nations Convention
against Torture set forth more obligations than they attribute rights to a State
Party. For the State Party there is, on the one hand, the obligation to take the
necessary measures to establish its jurisdiction to try persons who are accused of
acts of torture and, on the other hand, the obligation to extradite the perpetrators of
such acts who are found in its territory, if it does not try them.
2. The nature of the international obligation to prohibit torture has undergone a
major change. From being a conventional obligation of relative effect, it has had
an erga omnes effect attributed to it.
3. The ICJ has on several occasions reiterat ed that ‘an essential distinction should be
drawn between the obligations of a State towards the international community as a
whole, and those arising vis-à-vis another State... the former are the concern of
all States. In view of the importance of the rights involved, all States can be held
to have a legal interest in their protection; they are obligations erga omnes’ (see Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Judgment of 5 February 1970, I.C.J. Reports 1970, p. 32, para. 33).
4. The existence of indivisible obligations erga omnes has subsequently been restated
by the ICJ on a number of occasions from 1971 onwards (see Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding SecurityCouncil Resolution 276 (1970), Advisory
Opinion of 21June1971, I.C.J. Reports1971 , pp.56 et seq., paras.126 et seq.;
Nuclear Tests (Australia v. France), Judgment of 20December1974,I.C.J.
Reports 1974, p. 269, para. 50; Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion of 8July1996, I.C.J. Reports 1996 , p.258; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17December1997,
I.C.J. Reports 1997, p. 258, para. 35).
5. If there is a right which a State Party could claim to exercise by virtue of the
1984 Convention against Torture, it would be the right to secure compliance with
the obligation, for another State, to try the perpetrator of an act of torture who is
present in its territory or, failing that, to request his extradition.
6. Consequently, if we consider that the Convention against Torture, in its Articles 5,
paragraph 2, and 7, paragraph 1, creates a right for a State Party, it can only be the
right to demand extradition. However, the State Party must defer in that right
before a State which fulfils its obligation to hold a trial.”
You will receive the original of this letter through the appropriate channels as soon as
possible.
___________
Response of Senegal to the question put by Judge Cançado Trindade at the end of the public sitting of 8 April 2009 (translation)