10.1 Introduction
Agreeing with Emmanuel Decaux, the first chair of the Committee on Enforced Disappearances (CED), that the International Convention for the Protection of All Persons from Enforced Disappearance (the ICPPED, the Convention) is characterized as ‘a very sophisticated and modern instrument’,Footnote 1 one must also emphasize that it is true only if it has sufficient States parties. While the issue of increasing the number of States parties is not necessarily a point of contention in many other treaties, it is a very important issue. This is because the obligations of States can only be discussed once they have become parties to a treaty.
The ICPPED currently has seventy-one States Parties and ninety-eight signatories. This is second only to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families among the core UN human rights treaty bodies with ten monitoring bodies.Footnote 2 A campaign ‘to double the number of States Parties’ was launched in August 2017 during the period of Zeid Ra’ad Al Hussein, former High Commissioner for Human Rights, in response to the sluggish growth in the number of States Parties. At the start of the campaign, there were 57 countries, so the aim was to reach 114. There does not appear to have been sufficient strategy or foresight behind this simple quantitative target. There exists a significant disparity between the current reality and the aspirational goal, warranting critique for its overly optimistic indulgence.Footnote 3
Apart from increasing the number of States participating in the ICPPED, there are other ways of exerting a norm against enforced disappearances on States. A typical one is to argue for the formation of customary international law and claim that it has become general law. The ICRC’s attempt at customary international humanitarian law is a prime example. However, this is difficult in the absence of adequate State implementation, and customary law, by its nature, has no precise norms to begin with. No country would actively oppose it being a moral obligation, but the problem of the lack of State parties can only be solved by increasing the number of the States parties to the Convention.
This chapter examines the factors contributing to the small number of States Parties to the ICPPED. In doing so, it focuses both on the States that choose and on the conventions that are chosen. Next, it considers how the number of States Parties can be increased. Bearing in mind that ratification in practice has been gradual, this chapter also considers how the issue of enforced disappearances should be addressed even if the number of State parties remains relatively low.
In this chapter, particular attention will be paid to the Asia-Pacific region.Footnote 4 This is because the number of countries in the region that have ratified the ICPPED is extremely low. Of the 194 Member States of the UN, 55 are from Asia and the Pacific region, but only 10 States, or less than 20%, are parties to the ICPPED, while the African region has about 35% and the other three regions have around 50%. Even if the general objective of increasing the number of parties to the ICPPED is upheld, the growth potential in other regions is not significant. In other words, geographically speaking, this issue is also a human rights issue for a specific region, the Asia-Pacific region. Conversely, the major problem of enforced disappearances in Asia, among the various issues, is first of all the problem of increasing the number of States Parties to the ICPPED, the flagship convention of this issue. This situation serves as a reminder of the ‘Asian theory of human rights’, which posits that Asia holds a unique perspective on human rights. This relativistic notion is not confined to Asia alone but is rather prevalent across various regions globally. Consequently, it prompts us to reevaluate the fundamental concept of the universality of human rights.
10.2 Analyzing the Status Quo
Factors leading to participation or non-participation in human rights treaties are complex. From an easy point of view, countries having not experienced enforced disappearances yet do not join because they are not interested, and countries facing enforced disappearances do not join because they do not want to be criticized. This seems to be particularly true in the case of the ICPPED. However, if this were entirely true, there would be no States ratifying human rights treaties in the first place. In reality, many States have ratified various human rights treaties. Also relevant is the question of the extent to which the articles of the ICPPED and the CED’s management and interpretation of each issue are attractive to individual States.
Despite the complexity of the situation, cost-benefit calculation by countries is a necessary perspective when considering the increase in the number of ratifying countries. The term ‘benefit’Footnote 5 is broad and ambiguous, but for a more precise understanding, it is better to divide them into two categories: ‘practical benefit’ and ‘honour’. Here, ‘practical benefit’ refers to the protection and promotion of human rights made possible by human rights treaties, which can be further divided into external and internal benefits. Honour refers to the normatively high reputation of others for State behaviour, which does not include practical benefits. Honour has been pointed to as a national interest since the traditional era of State sovereignty. This type of benefit is transitive to the external real benefit through the concept of ‘international contribution’.
More specifically, it is necessary to be able to have a subjective perception on the part of the State that the treaty will be ‘beneficial’ in a broad sense. It is not directly whether the treaty is intrinsically good, value-wise or morally, per se, but how the State decides on that and other aspects of it. It is also important who recognizes and judges this, which generally speaking means policymakers. However, this does not mean that the perceptions of different various legal actors within each State are not relevant, and indeed, in practice, especially in democracies, the perceptions of many legal actors are actually affected, especially through the electoral process.
10.2.1 Perspectives from the State Side
10.2.1.1 The Status Quo
States can be broadly divided into three categories: (1) parties, (2) non-parties but signatories and (3) non-parties. There are ten State parties in the first category, in order of earliest ratification or accession: Kazakhstan (2009), Japan (2009), Iraq (2010), Samoa (2012), Cambodia (2013), Mongolia (2015), Sri Lanka (2016), Fiji (2019), Oman (2020) and Republic of Korea (2023). The States in the second category are, in order of earliest to latest, the following nine: Cyprus (2007), India (2007), Vanuatu (2007), Lebanon (2007), Maldives (2007), Lao People’s Democratic Republic (2008), Indonesia (2010), Palau (2011) and Thailand (2012). All States having signed in 2007 were those that signed on 6 February, when signatures were opened in Paris. The third category includes thirty-six States other than those mentioned above, for example, Bangladesh, China, Myanmar, Pakistan, Philippines, Qatar, Saudi Arabia and Singapore.
The following discussion hypothetically takes up various factors, namely the States’ political system, the real need to tackle enforced disappearances and the existence of alternative forums, which while not comprehensive, are highly relevant, as this section will discuss.
10.2.1.2 Political System
It is difficult to draw certain conclusions from the above ratification situations, but first of all, the characteristics of the States, in particular its political system, may have an impact. Broadly speaking, the hypothesis is that States with mature democracies may tend to ratify the ICCPED. Indeed, the Asia-Pacific region, with its weak treaty participation, is generally considered to have a low degree of democracy and generally overlaps. For convenience, a distinction is made here between liberal democratic and authoritarian regimes. Of the countries concerned, Japan and South Korea are the leading liberal democracies in the region. Among the signatories, only Cyprus, India, Indonesia and Thailand can be considered relatively democratic. However, States that are considered to have a relatively low degree of democracy, such as Cambodia, Iraq and Laos, are also parties. It seems fair to say that a rather clear feature is that the more authoritarian regimes such as China and DPRK are not in the ICPPED.
It is common to argue about such liberal-democratic/authoritarian dichotomies, for example, Eric Posner’s much-discussed sceptical view of the usefulness of human rights treaties.Footnote 6 Arguments of this kind may seem too broad. ‘Liberalism’, ‘democracy’ and ‘authoritarianism’ are difficult to define strictly. It may look tautological, if one considers the conclusion of human rights treaties a consequence of liberal democracy. One would also find it of little usefulness to look at the fifty-five countries in Asia in terms of these two types. However, liberal democracy/authoritarianism is an excellent description of Sate behaviour and, as a first point of departure for qualitative classification, it is useful to organize the relationship between the complexity of reality. In this sense, this chapter uses these terms as ideal types in the sense of Max Weber, at the same time with reference to the quantitative analysis of democracy.Footnote 7 Additionally, it is not necessarily linked to treaty ratification. For a liberal democratic State, having ratified a human rights treaty is one important but not decisive indicator. The situation is not simple, as can be seen from the fact, for example, that the DPRK is a State party of the ICCPR.
Liberal democracies share liberal democratic values nationally and internationally, which are generally favourable conditions for treaty ratification. Referring to E. Posner’s argument,Footnote 8 liberal democracies participate in human rights treaties primarily to exert pressure on authoritarian States or to help transitional States defend human rights. An explanation from democratic peace theory is introduced as to why they dare to get involved in the human rights of other States, which is that altruism and countries that do not protect human rights will start wars.Footnote 9 Although this does not immediately lead to the ratification of treaties of their own, additional reasons could be added, such as to increase the option of pressure through international organizations and to answer the criticism of double standards for not taking on international standards themselves.
Another type of ‘benefit’ to consider is honour. Even if a human rights treaty does not improve or make much difference to the human rights situation in their country, liberal democracies still value being a party to the treaty itself and seek to ratify it. Honour is more likely to work by ensuring freedom of speech. In some cases, as in Japan, it is incorporated into the Constitution (Preamble).Footnote 10
Authoritarian States are not really intended to comply, either to avoid external pressure or for propaganda purposes. In terms of practical interests, the issue of enforced disappearances, as well as human rights in general, is not of paramount concern to authoritarian regimes. In the face of a wide variety of diverse and enormous political, security, economic and other challenges, the conclusion of human rights treaties that are not perceived to be of great practical interest is not a political priority. Even if a specific ruler felt a real benefit, it is difficult to say that it would be easily realized. As for the honour factor, it can be said that authoritarian regimes do not care much about the honour factor in the first place. If this is the case, the incentive to enter into treaties will be scarce.
However, the argument is not simple. Costs also need to be taken into account. Paradoxically, even in liberal democracies, the costs are perceived to be greater when external interests are the main factor or when compliance with the treaty is taken more seriously, which can be a factor that discourages ratification. They cannot join a treaty when the breach of the treaty is too clear-cut, and the extent of the breach has to be moderate. On the other hand, for authoritarian regimes, no costs may arise, especially if there is no intention to comply with the treaty. This is particularly the case when treaty norms are ambiguous and difficult to comply with in the first place or when the supervisory body does not have sufficient enforcement powers.
10.2.1.3 The Real Need to Tackle the Issue of Enforced Disappearances
Second, the question arises whether the problem of enforced disappearances exists in the State concerned. In the first place, if enforced disappearances appear to be unknown, there is little incentive to address them by law. Enforced disappearances are generally not found in liberal democratic regimes: the Western European Group of twenty-nine States has a high ratification rate of the ICPPED, but, interestingly, a closer look reveals no Anglo-American States in it. This includes Canada and Australia, which are parties to other human rights treaties. Australia and New Zealand, States not classified as Asian in this chapter but sometimes so classified, are not parties either. From the perspective of these practical countries, there seem little need to address a problem whose existence is not known in the country in the first place.Footnote 11 While the issue of enforced disappearances is a universal challenge, its existence is omnipresent. This is distinct from the reality that every country grapples with human rights challenges.
The ‘existence’ of the problem of enforced disappearances is not limited to typical circumstances. An interesting case is Japan. It is fair to say that in Japan there are no enforced disappearances by the government as is the case in other countries. However, Japan does have the issue of abductions by DPRK, which remains a top priority, as evidenced by the then Prime Minister’s first visit to North Korea in 2002, which coincided with the start of the drafting of the ICPPED. Liberal democracies generally emphasize foreign interests, and Japan has traditionally done so only moderately. However, this is not the case. Paradoxically, right-wing domestic forces, which normally have little interest in human rights, are enthusiastic. The same applies to South Korea, which is a major victim of abductions by DPRK. It is further complicated by the issue of reunification, however.
Authoritarian regimes also have different aspects. Not all authoritarian regimes resort to enforced disappearances. There are also implementation problems, such as in countries where enforced disappearances have become a problem at the local level, while the central government shows the will to improve. In any case, extreme problems may be a factor in a State’s hesitation to ratify the ICPPED. The specific purpose of the Convention reinforces this tendency.
10.2.1.4 The Existence of Alternative Forums for the Issue of Enforced Disappearances
Third, even if the need to legally address the issue of enforced disappearances is recognized, it is also relevant whether there are other alternatives. One alternative is the Working Group on Enforced or Involuntary Disappearances (WGEID), which developed from a thematic procedure established in 1980 during the time of the Human Rights Commission. While it does not have the usual procedure of human rights treaty bodies, such as the State reporting system, its most important strength is that, under the Human Rights Council, the WGEID reaches to States not party to the ICPPED. In this respect, for example, Japan has more benefit in approaching the WGEID for practical purposes, as the WGEID (and not the CED) can reach out to the DPRK.
Another alternative is the Human Rights Committee (CCPR), which is a UN treaty body, just as the CED. To begin with, the ICPPED could have been under the jurisdiction of other bodies, including the HRCt (Article 27).Footnote 12 Its functions are also common and, indeed, it has issued ‘views’ through the individual communication.Footnote 13 Of the ten countries that have ratified the ICPPED, all others have ratified the ICCPR, with the exception of the Sultanate of Oman. Upon examination of non-State parties to the ICPPED, it becomes evident that Palau has signed the ICCPR, albeit it remains unratified. Among the thirty-six States that have neither ratified nor signed the ICPPED, twenty-three are parties to the ICCPR. Consequently, for twenty-four out of a total of fifty-five States, the ICCPR could serve as an alternative instrument.
The existence of alternative forums is an element that makes liberal democracies reconsider the need for ratification. If alternative measures appear to be working to a certain extent, there may be less incentive to ratify the ICPPED, a specific subject matter treaty created later. For example, it looks strange that the Philippines, having ratified up to the First Optional Protocol to the ICCPR, has not ratified the ICPPED, although the fact of enforced disappearance is known.Footnote 14
When there is an alternative forum, the honour factor, which would normally function in liberal democracies, is less likely to do so. This is what might be termed ‘the diminishing marginal utility’ of honour, as liberal democracies are already parties to general conventions such as the ICCPR, and even if they do not ratify this later convention, their reputation will not be significantly damaged especially if the number of countries remains small at the time. From a practical point of view, the fact that the ICPPED deals with the specific issue of enforced disappearances could also be an obstacle to an increase in the number of States parties. For example, in a general human rights treaty, any liberal democracies would have more or less human rights problems, which would benefit from the protection and promotion of a more comprehensive framework such as the ICCPR. New human rights issues can also be addressed to a certain extent within existing interpretations of rights. Subject-specific treaties do not have these kinds of features and have the advantage of being subject-specific, but the significance of ratification may seem less significant if the issue does not exist in the first place.
On the other hand, of course, there is also the possibility of a positive attitude towards ratification, irrespective of the existence of alternatives. Specificity can also be a strength, involving the willingness to encourage other countries to ratify, with ‘ratification’ as one of the causes for momentum. Ratification has a symbolic function of displaying a commitment to value itself. The ICPPED may have a pragmatic function if it has an institutional appeal that differs from the existing system. Furthermore, if the size of the country is large, as in Japan and South Korea, the additional cost burden may not be perceived as relatively heavy.
Authoritarian States may decide that it is beneficial to pretend to respect international law even if more treaties are not observed. Regardless of the extent to which they do so intentionally, this is a position of disrespect for the treaties themselves. Such a suspicion may be raised in the case of ratifications by States that are parties to various other human rights treaties but do not submit reports or do not come to the review stage. However, for such States, the ICCPR alone is considered sufficient for a nominal commitment to a human rights treaty.
10.2.2 Perspectives from the ICPPED Side: The Correlation between the Number of State Parties and the Issues Interpreted by the CED
The discussion so far has discussed the motivations from the perspective of the States Parties, but it is necessary to look more closely at the Convention on the part of the chosen party. The above discussion of the inherent appeal of the ICPPED concerns, in more detail, the provisions of the Convention and, furthermore, its interpretation.
A well-known technique to increase the number of States at the time was to recognize reservations, but for the ICPPED this should be as limited as possible. The HRCt is substantiated in asserting, as delineated in General Comment 24, that reservations to jus cogens and non-derogable rights are impermissible (paras. 8, 10).Footnote 15 It is imperative that positions align accordingly, particularly considering that the prohibition of enforced disappearances falls within these categories.
However, this view could be seen as depriving the ICPPED, and in practice, the interpretation of each of its provisions becomes more important. The drafting process is not always decisive in treaty interpretation, as not all issues are settled, and some are postponed due to ‘constructive ambiguity’. It is particularly important how the committees of the supervisory bodies make their decisions. It is worth noting the fact that their decisions will be an important determinant for States considering accession/ratification at a later stage, while the treaty bodies should make decisions independently of whatever the number of States Parties may be.
10.2.2.1 Definition of ‘Enforced Disappearances’ (Article 2)
The ICPPED provides a definition of enforced disappearance in Article 2, which States that (i) the actors are ‘agents of the State’ or ‘persons or groups of persons acting with the authorization, support or acquiescence of the State’; (ii) the act is ‘the arrest, detention, abduction’ or ‘any other form of deprivation of liberty’ and; (iii) in terms of the manner of the act, it is followed by ‘a refusal to acknowledge the deprivation of liberty’ or ‘concealment of the fate or whereabouts of the disappeared person’. Furthermore, (iv) it includes the provision to ‘place such a person outside the protection of the law’.
Although there was a great deal of controversy at the time of drafting as to whether the fourth element was a requirement or a consequence of enforced disappearance, to the extent that ‘constructive ambiguity’ was mentioned in the drafting,Footnote 16 it is now established that the CED’s position is to take the three-requirement theory. The scope of enforced disappearance is more widely considered than in the case when the fourth element is required. At the final stage of the drafting process, the position of considering the fourth requirement, or intention, as a requirement, was expressed by Asian countries such as China, Egypt and India, as well as by the UK, the US and Canada.Footnote 17 In other words, all these States prefer a narrower scope of enforced disappearance. It is noticeable that they all are not the State parties of the ICPPED.
10.2.2.2 Definition (Non-State Actors) (Article 2)
A possible further extension of the scope of ‘enforced disappearance’ is whether to allow it to be committed by non-State actors in relation to the first element. This was also a time of great controversy at the time of drafting.Footnote 18 Although, according to the ICPPED definition above, acts by non-State actors do not constitute enforced disappearances, on the other hand, the gravity of the act is not dependent on the actor, and the nature of the crime of enforced disappearance often makes it difficult to determine whether it is committed by a State or a non-State actor, so there is a strong awareness of the need to regulate this.
Interestingly, at the time of drafting, India, which took the position of establishing enforced disappearance only more narrowly, which requires all four elements, argued, on the other hand, that the exclusion of non-State actors was impractical.Footnote 19 The ICPPED provides for ‘investigation’ and ‘appropriate measures to bring the case to trial’ in Article 3, but how to go further is not well-established policy within the Committee and should be seen as an issue for the future.Footnote 20 Judging from a position such as India’s, States are not necessarily averse to a broad mandate for the CED, and if the content is reasonable, a broader mandate may, on the contrary, facilitate ratification of the Convention.
10.2.2.3 Criminalization as an Autonomous Crime (Article 4)
The State has an obligation to make enforced disappearance a crime under its domestic law (Article 4). The question is the manner in which this obligation is to be fulfilled, and specifically whether States are required to provide for it as an autonomous crime. Although there were disputes when drafting, the CED has established the position that it requires States to have an autonomous crime. Regulations that go as far as obligation of means reflect the recent trend in international law for stronger State involvement. For States, the cost for fulfilment goes up.
The question remains whether the pursuit for the obligation means a favourable control. Not many States actually discipline enforced disappearances as an autonomous crime in practice. This may be related to the fact that, at the time of drafting, there was an understanding that the ‘duty of results’ should be fulfilled, as well as the fact that the ICPPED is relatively new and there is not much time to develop national legislation. Above all, it can be said that countries where enforced disappearances are not known lack the incentive to legislate. China and Iran, as well as the United States, have shown opposition to making it an independent crime.Footnote 21 Generally speaking, it would be preferable to have an independent offence. One of the demands of the rule of law is clarity of rules, and a legal form that requires a combination of a large number of laws and regulations to be certain that obligations are being fulfilled is still inferior.
On the other hand, it is also worth considering the balance with other issues. Although the CED may ask about the direct applicability of the ICPPED in domestic court, the CED does not go so far as to say that the ICPPED should be so. On the other hand, the way in which the CED examines the conformity of national law with the ICPPED for each of the three requirements and asks whether the Convention has been applied before the Court, in search of an independent crime, seems to be tantamount to asking for the same effect as if the State concerned were, in practice, self-executing, whether by the general acceptance method or by a variant method. There is no balance to be struck.
States have little incentive to make it an autonomous crime in cases where there is no actual enforced disappearance, but the honour factor makes it a State party concern. Also, there are in fact cases where a number of domestic laws and regulations could be considered to cover all the obligations required by the ICPPED. Above all, it is not legitimate to end constructive dialogue by saying that the Convention is violated because the State does not make it an autonomous crime. Many States try to argue that they are fulfilling their obligations as a result of the combination and coverage of various domestic laws. Even if not as an independent crime, such an approach is at least the next best move. The CED would also examine whether the obligation of consequence is really fulfilled if it is not, even if it first seeks an independent crime.
It is important to acknowledge that this obligation operates on a spectrum. A clear distinction exists between the absence of an autonomous crime and the inability to address its consequences. If this particular aspect stands as the sole impediment to ratification, it casts doubt on the entire endeavour. Consequently, the formalistic dichotomy employed by the CED lacks the nuanced approach necessary to align with reality.
10.2.2.4 Extraterritorial Application / Migration (Article 9)
There is little argument as to the extraterritorial application of the ICPPED. Jurisdiction is provided for in Article 9, but at the moment there is no situation in which it is actively discussed as ‘extraterritorial application’, as is prominent in the European Convention on Human Rights. In addition, the issue of interpretation of Article 2 of the ICCPR may be helpful, but it cannot be analogized or extended because it is about the relationship with the specific wording of the Covenant.Footnote 22
However, the practical impact of making the ICPPED more effective in terms of widening its scope is not small. This is because it involves the violation of rights by other States. For example, the main reason why Japan recognizes a strong interest in the ICPPED is the issue of abductions by DPRK, which would bring such transnational acts of enforced disappearance within the scope of the Convention.
Interestingly, cross-border issues are now attracting significant attention in the context of enforced disappearances of migrants, although they do not fully overlap with issues of extraterritoriality. There has been ongoing interestFootnote 23 and the CED has adopted in 2023 its first General Comment on this subject.
10.2.2.5 Military Courts (Article 11)
According to the Statement on the Jurisdiction of Military Courts adopted by the Commission at its eighth session, military jurisdiction should be excluded from enforced disappearances,Footnote 24 which is generally considered harsh for countries with existing legal systems and practices. This point could be an obstacle to participation in the ICPPED.
From a normative point of view, this interpretation appears to be supportable. Even if military commissions may make appropriate substantive judgments, procedural rights are themselves worth protecting. This can be balanced with the idea that the right not to be subjected to enforced disappearance is a non-derogable right (Article 1(2)) and that procedural rights are included in this.Footnote 25 Therefore, even if this is an obstacle to ratification, there is a strong demand that this interpretation should be maintained.
10.2.2.6 Retroactive Effect (Article 35)
Enforced disappearances, by their inherent nature, constitute an ongoing offence, obligating a State Party to diligently search for and investigate all cases where the fate and whereabouts of individuals remain unknown. However, it’s crucial to note that Article 35 regarding temporal jurisdiction stipulates that the competence of the CED pertains only to enforced disappearances that have occurred after its entry into force. This could be seen as an embodiment of the general content of Article 28 (non-retroactivity of treaties) of the VCLT, but it should be noted that the ICCPR and other instruments do not have such an explicit provision. Although the ICPPED could have been dealt with vaguely without provisions, the fact that it was adopted with an explicit prohibition of retroactive effect is significant. The application of this provision involves difficult practical problems in relation to the characteristics of the offence of enforced disappearance. Since enforced disappearances are carried out in secret, the starting point of the offence is not clear. The crime of enforced disappearance is also difficult to apply strictly due to its nature, which makes it difficult to determine the point of commencement and emphasizes its character as a continuing offence. In particular, it is undesirable to unduly bind the Committee’s range, as is problematic in urgent action.
The CED issued a substantive statement on temporal jurisdiction at its fifth session. It confirms that the Commission is bound by Article 35, but that it should look to historical information when it is useful to fully understand current State reporting.Footnote 26 However, it must include delicate situations in relation to its actual application and this is another area where the Commission’s practice is in flux. Wherever the balance is sought, it should not seem to extend to cases that have been expressly terminated or where the time of commencement or termination is historically clear. However, the practice of the CED seems adventurous in discussing it, as in the examination of Japan, as well as Spain.Footnote 27
Broadening the scope of application in a manner that undermines the explicit wording of the article is not advisable. Even with changes in regime, the current administration may still face scrutiny regarding past events. Furthermore, regulations pertaining to enforced disappearances also apply to States that currently uphold the status of liberal democracies. More broadly, such actions could convey a perception that the CED treats the text of the article, and potentially other provisions, with a degree of levity, potentially discouraging ratification and membership. The burden of addressing historical legacies frequently serves as a deterrent to ratification, even among democratic States.
10.2.2.7 Caveat
The CED’s interpretation should essentially be a normative judgment that is decoupled from any increase or decrease in the number of ratifying States. It should not lower the human rights standards in order to increase the number of the State parties. It is also important to note that, contrary to the apologetic thinking, the setting of strict standards and the proactive work of the CED can also be a factor that makes States think positively about ratifying the ICPPED, rather than hesitating to do so. This is the case where practical benefits are found in the regulation of acts by private individuals or cross-border acts.
10.3 Strategies to Increase Ratification
10.3.1 Basic Strategies
The right way to increase the number of States Parties is to emphasize the importance of the norm and to repeat the outreach in international fora such as the General Assembly, the Third Committee and the Human Rights Council. It is also important that there is greater recognition that the treaty system is in fact working effectively to combat crime. As the youngest UN human rights treaty with a monitoring body, the ICPPED should be publicized more widely, and the norms need to be known and understood as a precondition for States not just to implement their obligation under Article 23 but also to use honour as leverage to join the ICPPED.
Awareness raising seems a long way off but is the most reliable method. This is because, ultimately, adherence to any law hinges on the individual’s own mindset. It can be assumed that if the activities of the CED are focused on through awareness-raising activities, the number of States parties to the ICPPED will increase, and as the number of States Parties increases, awareness-raising activities will also expand, creating a virtuous circle.
It is also important that the CED gains and promotes trust in the broadest sense. The conclusion of the ICPPED by State parties implies that they trust CED as the monitoring body and agree to submit to its supervision. There is probably no general distrust of the CED, but it could be just a reflection of the fact that only a small number of supporting States are parties.
In order to promote reliance, the CED has to provide sufficient information to States including non-State parties. The information provided should be clear and consistent, provide legal stability and predictability, as well as fairness and impartiality. It is also important to have the human and financial resources to do so. The same is true of the Commission’s call for States to strengthen capacity building.
Efforts to lower the costs that the present and future State parties expect to incur in implementing the ICPPED will also be important. Administrative costs, such as submitting national reports after becoming a State party, are not small. This issue is notably problematic in under-resourced States, a concern that is particularly relevant in the Asia-Pacific region. Resources are an important issue regardless of the political regime. In particular, authoritarian States with fewer resources will not dare to join the Convention. This is a reform issue that is continually being discussed and should be debated by the UN and by the human rights treaty bodies as a whole.
10.3.2 More Specified Strategy
Having mentioned the basic strategies described above, this chapter points out some possible focus points to streamline the increase in the number of parties.
10.3.2.1 Political Systems and Devising Methods of Persuasion
From the first possible factors of only a small number of ratifications examined in the previous section, the following more specific strategies may be derived. It is not immediately possible to turn a particular country into a democratic State. This is a long-term effect of treaty-making. However, it is important to vary the methods and strategies of persuasion for each target country’s attitude.
In terms of regimes, appeals to honour and foreign interests remain useful in liberal democratic States. The crime of enforced disappearance can be a violation of several human rights, including the right to life and the prohibition of torture, which have jus cogens status. Large-scale violations also amount to ‘crimes against humanity’ (Article 5) and are in common with crimes covered by the ICC. It is easy to appeal to the honour factor to show that they are more important than other human rights in general. The method of enforced disappearances is connected to the politics of fear and to the international community’s general drive against terrorism. In other words, it would be useful to emphasize commonality with other robustly supported objects.
Appeals to honour can be made in a variety of ways. The most straightforward is ‘praise’, for example, the reference to positive aspects at the beginning of the summary findings of the human rights treaty bodies. This reference cannot be achieved unless a State joins the treaty, but there can be a concerted effort among human rights treaty bodies to encourage States to ratify sister treaties. Non-participation can also be a disgrace. This is because participation in the ICPPED is the clearest proof of support for the values it stands for. Name and shame, a well-known method of compliance with human rights treaties, can be a way of appealing to honour in a negative way, provided that inadvertent repercussions are avoided.
Even in liberal democracies, which may often have no problems with enforced disappearances, it is worthwhile to appeal to internal interests. In particular, the preventive effect can be emphasized, as retaliatory measures can be taken to extremes in the face of heightened domestic political conflict, and political conflict can switch sides between those in power and those not in power. The significance of political conflicts having a safety valve that does not lead to enforced disappearances can be more significant, depending on the maturity of the society concerned.
The approach to authoritarian States may be somewhat different: the main motivation for authoritarian States to join human rights treaties, as described by Posner, is in return for aid or in response to external pressure, which is also an external real benefit. External benefits also facilitate trade-offs with other external benefits, such as military and economic, and this is even more the case in authoritarian regimes. Even in authoritarian regimes, appeals to honour can have a certain effect. Indeed, not a few authoritarian regimes are simultaneously ratifiers of human rights treaties and assess other States on the basis of human rights, as seen in the Human Rights Council’s Universal Periodic Review.
It might be said that authoritarian States, by their very nature, are not sincere in their inward interests, but this is a matter of degree. Indeed, authoritarian regimes can vary, and the benefits and costs vary according to the subject, as discussed above. There may be cases where other human rights are restricted on the grounds of stability of the political regime, but enforced disappearances are considered too extreme. The preventive effect in the above-mentioned liberal democracies can be emphasized here as well. The conclusion of ICPPED can be useful as part of capacity-building to prevent enforced disappearances. It is also important to demonstrate that the State reporting system of the ICPPED, in the first instance, is an ‘examination’ of the country’s current system and status quo, but it is also a proposal for improvement in this way and, by extension, an external aid to forces wishing to reduce or eliminate enforced disappearances in the country.
10.3.2.2 Defining Targets and Devising Methods of Persuasion: Targeting ICCPR Signatory Countries
The applicability of other relevant frameworks to non-State parties can significantly impact their decision-making process regarding the ratification of the ICPPED. Of the relevant other frameworks, WGEID covers all non-parties, so it is the relationship with the ICCPR that should be the focus here as the one that will show differences in persuasion.
One category is the case where non-parties to the ICCPED are parties to the ICCPR. In general, States Parties to the ICCPR are considered to have strong liberal democratic tendencies, which could be combined with the persuasion described in the section above. It should be noted then that the fact that a State is a non-party to the ICCPED not only raises the possibility that the State regards the ICCPED as an unnecessary alternative to superimposing it, but at the same time that it is a State that is good or willing to submit to international norms. This is the case for thirty-one out of fifty-five countries in the Asia-Pacific region. The Philippines, for example, is an exception in Asia, having also ratified the First Optional Protocol, which indicates the high probability of ratification despite, or because of, the known facts of enforced disappearances. Depending on how the States perceive their experience with other human rights bodies, it should be easier for the States to negotiate, not least in that it is not entirely new.
More specific targets within that group are the eight countries that have signed the ICPPED: India, Indonesia, Lao People’s Democratic Republic, Lebanon, Maldives, Thailand and Vanuatu. Interest in the ICPPED has already been shown in these countries and they are also obliged as signatories (Article 18 VCLT). These countries have a relatively high degree of democracy, particularly India and Indonesia, which have large populations, and therefore have a high degree of influence in ratifying the ICPPED.
It should be noted, however, that all of these countries have been signatories for more than ten years and the momentum for ratification has been lost.
The other category is where a country is a non-signatory to the ICCPED and a non-signatory to the ICCPR: there are thirteen Asian countries, of which only one is a signatory to the ICCPR and the other is a signatory to the ICCPED. In addition to large States such as China, there are many Arab and Pacific States. The methods of persuasion for authoritarian States referred to in the section above are generally appropriate, but in addition, the specificity of the ICCPED may work in its favour. This means that fewer norms are targeted, which can be emphasized by the fact that the costs are less.
10.3.2.3 ‘Rediscovering’ Enforced Disappearances
The second hypothetical factor was the uneven distribution of the fact of enforced disappearances. What seems useful for countries that do not have enforced disappearances in their countries, or whose governments themselves do not see the need for such a method, is not only to highlight the seriousness of this violation but also the importance of this as a cross-border issue. Enforced disappearances associated with the movement of persons across borders are particularly important, and countries that do not have enforced disappearances within their own borders have no choice but to become involved. This is the case, for example, with enforced disappearances in migration. Even if the home government is not involved, there is an increased likelihood that its citizens will become victims of enforced disappearances by other countries, such as neighbouring States, or that problems will arise under its jurisdiction. An important issue that could be relevant here is the possible extraterritorial application of the ICPPED, which has not been discussed in earnest. In addition, there are a number of other transboundary issues, such as extradition (Article 13) and the operation of the non-refoulement principle (Article 16).
The subject of the General Comment ‘enforced disappearances in the context of migration’ is not only important in its own right but also very attractive in terms of encouraging non-parties to ratify it. It is particularly important for the South-East Asia region. This sub-region has a particularly low level of ratification but has a strong stake in the issue of trafficking in persons, because they ‘export’ more victims than other regions. Of the two protocols to the UN Convention against Transnational Organized Crime, all States in South-East Asia are party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and many are party to the Protocol against the Smuggling of Migrants by Land, Sea and Air. As a regional flamework, the 2004 ASEAN Declaration Against Trafficking in Persons Particularly Women and Children is one of the key instruments for this issue, which advocates for the protection of victims common to the same spirit to the ICPPED. There is sufficient footing for joint action in this sub-region.
General Comment 1 can demonstrate the organic linkage between the ICPPED and these criminal instruments and others, which will lead to encouraging the States to ratify the ICPPED.
10.3.2.4 Additional Strategies
Some specific actors can play a more effective role, even if all stakeholders should be involved in the call for ratification. The UN, in particular OHCHR, must be the focal point, but there could be several intermediaries. The active involvement of individual States Parties with influence on the actors is important, such as France, Morocco, Argentina and Japan. In the case of Japan and South Korea, which are already parties, the problem of cultural ‘imposition’ will be diminished. At the regional level, fields such as OHCHR’s Bangkok will be important, but outreach through regional international organizations is also important and could facilitate ratification through such regional frameworks. The framework of Association of Southeast Asian Nations (ASEAN)Footnote 28 and the Organization of Islamic Cooperation (OIC)Footnote 29 will be particularly important in sub-regions with fewer parties. The expansion of ‘judicial dialogues’ in the region, even if they do not take the form of international organizations, should also be noted.Footnote 30
The momentum is also important. Momentum itself is difficult to create from outside the target State, but it is possible not to miss such momentum. Momentum can manifest itself in various ways, but the most important trigger is regime change, where human rights treaties can be integrated into national regimes in the midst of new regime building.Footnote 31 In relation to the issue of enforced disappearances, international interest and norm-setting is centred on Latin American States, which adopted a regional convention on enforced disappearances, and the Inter-American Convention on Enforced Disappearances, in 1994, after a period of dictatorship in the 1960s and 1970s and a transition to democratic regimes in the late 1980s. If there is no crime in the first place, it is difficult to create incentives to deter it, and without regime change, normative engagement is difficult to achieve. East Timor ratified a number of human rights treaties when it gained independence as a new State in 2002, but this was at a time when the drafting of the ICPPED had just begun, and it is likely that it would have ratified the Convention had it been available. It is instructive that Benin ratified the Convention at the same time as the Genocide Convention in 2017, although this is an African example. The need for ratification would be felt to be higher if it were in conjunction with other important similar conventions, and the cost of the ratification process in the country concerned would be lower.
10.3.2.5 Caveat
The international environment for the promotion of human rights should be kept in mind. Even if ratification does not progress due to the international environment, it is not necessary to regard this as a problem for human rights as a whole. It is essential not to give up continuous efforts even if things do not go well. In particular, international peace in the region is a prerequisite, but this region faces many security issues such as the North Korean missile problem, China’s maritime expansion, ongoing tensions between the nuclear-armed States of India and Pakistan and the Palestinian Issue. Russia, in the midst of its invasion of Ukraine, is part of Asia. If we recall that, in contrast to Asia, there is no conflict on this scale in Europe or Latin America, it is not surprising that the human rights framework in the region has taken a long time to mature.
10.3.3 Some Symptomatic Treatments
10.3.3.1 Cooperation with Other International Organizations
WGEID and the HRCt (CCPR) are alternative forums, as already mentioned. For countries such as DPRK and Turkmenistan, where human rights violations are widely suspected, it is important to address the issue of enforced disappearances through the ICCPR. It is also worth confirming that, whatever the human rights violations, remaining a State party to the human rights treaties is highly commendable. In cases where a State is not a party to the ICPPED, such as China, or where the scale of the damage is serious, the issue will be taken to a higher forum, such as the Human Rights Council or the General Assembly. Article 34 of ICCPED is based on the same idea in that it places certain more difficult or large-scale issues outside the treaty bodies. As institutions outside the UN framework, the ICRC and the ICC are particularly important as relevant bodies. While enforced disappearances are more likely to occur in areas of political instability, the ICRC has made particular achievements in the implementation of international humanitarian law. Article 7(1)(i) of the ILC lists enforced disappearances as a type of conduct that constitutes a crime against humanity.
The role of international organizations not specializing in human rights is also important. The ILC is in the process of codifying the recent ‘Immunity of State officials from foreign criminal jurisdiction’, which, although hotly contested, currently includes six target crimes that are not exempt from the prohibition of enforced disappearances.Footnote 32 Although it did not identify enforced disappearance as an established example of jus cogens, it is cited as jus cogens and presented as having widespread support. Although not directly related to the ILC, the Asian African Legal Consultative Organization (AALCO)Footnote 33 is notable for its Asian and African version. It is a framework of diplomats in the Asia-Africa region. The ICJ, the most authoritative court in international law, has made frequent references to human rights treaties in recent years, and developments in this area are expected.Footnote 34
Norm-setting, an activity of the ILC and the ICJ, is also a central activity for the CED, which is characterized by works with deliberation. A major development in the CED’s recent work was the Guiding Principles for the Search for Disappeared Persons (the Guiding Principles),Footnote 35 which provide more specific guidance on the various provisions around the duty to investigate (Article 12 of the ICPPED). Another important example is General Comment 1, which was adopted in September 2023. This is not only excellent in terms of choice of subject matter but is in itself a very good move to set about creating a GC. It should be said that the General Comment is an important means of ensuring consistency in the CED as an institution, whereas in the past the consistency of the Commission has relied on the experience of the Secretariat and the veteran members of the CED.
The two documents mentioned above can extend to non-parties in different ways. The Guiding Principles mentioned above are themselves technical in nature and are made available to any State, whether a State party or not, that wishes to make them available according to its needs and interests. The latter ‘may give rise to, or refer to, a subsequent agreement or subsequent practice by parties under article 31, paragraph 3, or subsequent practice under article 32’,Footnote 36 and could influence over identifying customary international law,Footnote 37 increasing the likelihood that customary international law will be binding on a State party as general international law.
10.3.3.2 Mindset
It is important to note that when other international organizations are involved, the mindset is that while the CED has a specific mandate, it is part of the treaty bodies as a whole, the UN as a whole and the international community as a whole.Footnote 38 Hence, it can be seen that the previous arguments are part of the debate known as the 2020 Review on the strengthening of human rights treaty bodies in recent times.Footnote 39
When it comes to norm creation in particular, first, care needs to be taken to clarify the legal status of the legal instruments to be created. In this regard, it is important to note that it was confirmed many times during the discussions that the Guiding Principles are not a general comment, and the Guiding Principles themselves state that they ‘seek to consolidate good practices’ (para. 2). This is an appropriate move that prioritizes practical usefulness, as it was particularly difficult for the CED, which had little experience in implementing them, to argue the degree of establishment of individual legal norms. Second, care should be taken to avoid fragmentation of international law as multiple agencies become involved in the issue of enforced disappearances. The impression that they are doing things piecemeal is an element of disregard from States that are not part of the framework. The HRCt is specifically identified (Article 28(2)) as a consultative body to ensure consistency of the views and recommendations of the ICPPED, which could be positioned as a pioneering provision to address the issue of fragmentation. Attention should be paid not only to the HRCt but also to the wider community: it was very appropriate that the CED sent its views on consistency of jurisprudence to the ILC when the ILC’s work on ‘crimes against humanity’ was underway.Footnote 40
10.3.3.3 Concluding Remarks
The preceding discussion has concentrated on potential factors and approaches for addressing the increase in the number of States Parties to the ICPPED, with a specific emphasis on Asia pacific countries. Two observations are warranted.
First, while the discourse has centred on the escalation of States parties, the considerations here are also important after the actual increase. This is because the motivation of States to ratify the ICPPED is closely linked to the extent to which they subsequently comply with it. The endeavour to augment the number of ratifying States is inherently intertwined with the imperative of ensuring effective implementation. Even upon resolution of the initial issue, the considerations elucidated herein retain significance in facilitating more streamlined implementation processes. In essence, the endeavour to boost the number of ratifying States serves as a gateway to the theory of observance, which grapples with delineating the fundamental issue, and the theory of implementation, which reframes the issue from a pragmatic standpoint. This, in turn, forms a component of the broader theory of international governance through treaties.
The current situation regarding treaties in general is, on the one hand, that they are difficult to amend, and their interpretation has become increasingly important and contentious.Footnote 41 In parallel with these responses on the part of international organizations and (quasi-)tribunals, on the other hand, States are contesting how they behave while remaining parties and how current potential future signatories can engage from the outside, as withdrawal becomes a politically untenable option.Footnote 42 In turn, this dynamic feeds into normative theory. Just as marriage is a daily act of courtship and democracy is a daily act of voting, so compliance with treaties as a party to a treaty is an incessant act of treaty-making.
Second, regarding the perspective presented in this chapter, the framing of the ‘Asian theory of human rights’ is subject to scrutiny. As a matter of fact, there is no region or country that is not special. The illustrative examples of Asian nations provided in this chapter are broadly applicable across various regions. Therefore, singling out Asia as distinctive in this context is unwarranted. Such categorization should not serve as a basis for reluctance to ratify or adhere to international human rights standards, nor should it be utilized as rhetorical fodder by authoritative regimes. It is imperative to acknowledge that Asian countries are active participants in international bodies such as the UN, which espouses principles of human rights, and many have ratified treaties like the ICCPR. These actions demonstrate a level of commitment to upholding human rights standards. However, there remains a collective obligation for these countries to enhance their efforts significantly in this regard.
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